Yes, it WAS assault and battery, but would YOU have drawn?

[Owen Sparks]

The danger of a bare handed attack depends almost entirely on when (or if) your attacker decides to stop once he gets the better of you.
If you are stunned or hurt to the point that you can no longer effectivly defend yourself your life is literaly in his hands. Will he quit when he decides that you have had enough?

This brings up another point, your responsibility to prevent a violent criminal assailant from finding and snatching your weapon. If you end up wrestling around on the ground while carrying anything larger than a pocket pistol there is a likelyhood that the attacker will realize what that hard lump on your belt is and try to gain control of it. What happens then?

The problem with handguns is that there is really no intermediate steps between blandishment and deadly force. It is not like a stick where you have the non-lethal option to whack the bad guy on the arm or knee and put him out of commission at least long enough to get away. A pistol is sort of an all or nothing proposition. A pistol also puts bystanders in harms way and is not a real good choice in a crowded situation like Black Friday shopping.

 

[Vern Humphrey]

The danger of a bare handed attack depends almost entirely on when (or if) your attacker decides to stop once he gets the better of you.
If you are stunned or hurt to the point that you can no longer effectivly defend yourself your life is literaly in his hands. Will he quit when he decides that you have had enough?

That's correct. A decison not to draw under these circumstances is a decision to give someone else the absolute power of life and death over you -- and that person has already attacked you!

 

[Kleanbore]

Posted by Vern Humphrey: Does a man have to wait to be stabbed or have his skull fractured before he wises up to the fact someone wants to hurt him?

Of course not. One can determine whether one is in jeopardy before that. But to respond with force or with a threat of force, there are other conditions that must be met.

[In response to "the danger of a bare handed attack depends almost entirely on when (or if) your attacker decides to stop once he gets the better of you"]: That's correct. A decision not to draw under these circumstances is a decision to give someone else the absolute power of life and death over you -- and that person has already attacked you!

We can imagine all kinds of outcomes in which a bare handed attack can result in death or crippling injury, but the subject has been decided: the use of deadly force against an unarmed attacker is not justified unless there is a disparity of force. That is rooted in long-standing common law.

Drawing or pointing a firearm is not considered to constitute the use of deadly force in most jurisdictions, but absent lawful justification it is a crime, and it is a very serious one in some jurisdictions.

The threshold for justifcation varies from place to place. Bartholomew Roberts pointed out the relevant law in Texas in Post #45. The law in Minnesota is similar, IIRC. In Washington State, one would be justified in presenting a weapon to defend against "presently threatened unlawful physical force". In Arizona, one may lawfully effect the "defensive display" of a weapon under some circumstances, but that does not include pointing the muzzle at anyone unless deadly force is justified.

In the majority of jurisdictions, however, the presentation of a firearm during a confrontation is justified only if deadly force is justified. That means either that the defender has reason to believe that the attacker is armed, or that he or she has reason to believe that a disparity of force exists. That's from the standpoint of ability. There are still the matters of opportunity, jeopardy, and preclusion to be considered.

The fact that a hand-to-hand attack by one person against a generally evenly-matched fit individual can result in serious injury or death will generally not support lawful justification for the use of deadly force, and therefore, in many jurisdictions, for drawing a firearm.

 

[Kleanbore]

Posted by Owen Sparks: This brings up another point, your responsibility to prevent a violent criminal assailant from finding and snatching your weapon. If you end up wrestling around on the ground while carrying anything larger than a pocket pistol there is a likelyhood that the attacker will realize what that hard lump on your belt is and try to gain control of it. What happens then?

That's an important point, and it figured heavily in the Larry Hickey case in Arizona.

Hickey was set upon by three unarmed assailants and was being beaten into submission. He finally drew and fired when he realized that his assailants would otherwise gain control of his pistol. He wounded one of them.

While the fact that he was attacked first and outnumbered would seem to make it an open and shut case, he was arrested, jailed, charged, and tried twice before finally being released. We have discussed that one here before.

A pistol also puts bystanders in harms way and is not a real good choice in a crowded situation like Black Friday shopping.

And that may be the real answer here.

 

[Vern Humphrey]

A lot of people who have never been in a hand-to-hand fight have some very strong opinions.

I can recall when using a firearm against an opponent armed with only a knife was considered "unjustified." Then Sergeant Dennis Tueller came along with the Tueller Drill and proved how dangerous a knife is at close range.

I can recall when firing more than one shot was considered "unjustified" -- until data was gathered on shootings to show that what people imagined to be the case was simply wrong.

 

[Kleanbore]

^^^

That does not alter the well-established body of established legal opinion.

 

[Vern Humphrey]

All the more reason to practice good citizenship and have your lawyer spayed or neutered.

 

[Averageman]

Quote:
The danger of a bare handed attack depends almost entirely on when (or if) your attacker decides to stop once he gets the better of you.
If you are stunned or hurt to the point that you can no longer effectivly defend yourself your life is literaly in his hands. Will he quit when he decides that you have had enough?

Quote:
That's correct. A decison not to draw under these circumstances is a decision to give someone else the absolute power of life and death over you -- and that person has already attacked you!
30 years ago a half a dozen ladies would have been holding their Husbands Stetson's while they "escorted" the line cutter out of the store with a head that looks like a Golf Ball.
He did the right thing, on both accounts, calling him on his bad manners and drawing his pistol.

 

[GEM]

This isn't 30 years. Which lady would like to see Mr. Stetson bleed out from a few knife wounds or bullet holes? Gol, dilly, dang, dang for the good ol' days.

Can we not posture? I was impressed in Insights knife class on how fast you can repeatedly puncture someone. I was also impressed by a case I worked on as an expert where an old guy stuck a paring knife (little thing) into the chest of a young stud who dropped stone cold dead. Magic hit on a major vessel. You never know the nut in front of you.

The whole point is reasonable avoidance and hang your ego with your Stetson - on the door hook.

It's a road rage like situation - you give someone the finger for cutting you off and next thing - you are fighting for your life. Worth it?

I'm pretty secure in my self-image. I know that I could use lethal force. The other guy doesn't know that he undertook such a risk. I know that I saved myself a total pain of trouble by not starting a potential lethal encounter. My self image is strenghtened by knowing I used common sense and not being a fool over nothing. Am I annoyed - yes, but my rational mind won the day over my emotional sense for a better outcome. The trouble with some is that they cannot overcome emotions and think everyone will think little of them if they don't start a stupid fight. That comes from hanging with immature groups or not having emotionally grown up.

You enter into a potentially lethal situation to prevent grievous bodily harm - not a discount on a crappy TV or a giant pack of underpants.

 

[zxcvbob]

You enter into a potentially lethal situation to prevent grievous bodily harm - not a discount on a crappy TV or a giant pack of underpants.

Every situation is potentially lethal. Even sitting on your couch in the living room. So what do you propose?
There's nothing in the original story that the guy with the gun did *anything* to provoke the attacker.

 

[GEM]

I assume you didn't read the OP:

A man is standing in line for a "Black Friday" sale. Someone cuts in front of him. The first man tells the line-cutter to get out. The line-cutter punches him in the face. The first man draws his concealed gun. The line-cutter stops his attack and withdraws. No shots were fired.

1. As I stated, you never know what kind of nut would do with something like this. If you have nuts around your living room couch, I suggest you move out.

The punch - which I'm sure all Internet denizens can gung-fu away, could have been a knife. Then, you could die.

2. The punchee decided to draw a lethal at a distance weapon in a crowded venue. Maybe you wouldn't be disarmed or wouldn't miss a shot but rational folks would think about shooting in such. Forget one of Cooper's rules, now did you?

It's very simple. So your ego was hurt. Pull a gun if I tell you to get off the couch?

 

[Skribs]

While I agree we need to be non-confrontational when carrying, I do not agree with the idea that we should let people walk all over us just because we don't want to have to use lethal force. The man's response at both points was, in my opinion, appropriate (this is from the description, didn't watch the video). If someone cuts you in line, you have every right to call them on it and have them go to the back of the line. If someone punches you in the face with seemingly little provocation, then you have every right to draw and make him back off.

Personally, I'm not very big or physically coordinated, so the disparity of force applies to me in more situations than probably a lot of folk. With all that said, I don't believe in holidays, so I avoid the Black Friday shopping frenzy anyway.

 

[Kleanbore]

Posted by skribs: If someone punches you in the face with seemingly little provocation, then you have every right to draw and make him back off.

It is likely that you have the right to draw a firearm when immediately threatened with unlawful physical force where you live and where the incident at hand happened and in at least one other jurisdiction, but let's not offer that advice to others who may end up spending the holidays in custody because of it.

Personally, I'm not very big or physically coordinated, so the disparity of force applies to me in more situations than probably a lot of folk.

That's something to consider, but that's often a difficult defense.

But do you really think it prudent to draw a gun in a crowd? Do you know that the person behind you will not engage you and take the gun, for any of several possible reasons?

 

[nickn10]

It seems that we have lawyers, judges, appeasers, and don't F with me types on this forum. Everyone can give a convincing argument of their position. The law found the man not guilty and I'm good with that. Let's hope that self defense doesn't become a crime in this country.

 

[Kleanbore]

Posted by nickn10: The law found the man not guilty and I'm good with that.

No, not at all, and I say that not to appear argumentative but because it is important for everyone to understand this. It appears that he will not be charged, but he can be, until the day he is pardoned, tried and acquitted, deceased, or the statute of limits has run out.

Let's hope that self defense doesn't become a crime in this country.

Amen.

But using deadly force in self defense without having reasonably believed the attacker to have been armed can present problems except in certain circumstances (ie, disparity of force).

But that is not the legal issue here. That's whether it is permissible to draw a firearm when force, but not deadly force, is justified to protect oneself, Where it happened, the answer is yes, under some circumstances. But that isn't true in most places.

And there is more than the legal issue. Is it really wise to draw a gun in a crowd?

 

[Fred Fuller]

We always want to consider all aspects of any use of force we might have to resort to- at least in part, we should be asking, among other things:

Is it moral?

Is it legal?

Is it wise under the circumstances?

 

[mdauben]

I'm being pedantic of course, but no, it wasn't.

Could you explain why you think it wasn't? Admittedly it may vary from one juristiction to another, but the event described by the OP seems to meet the common definition of assault (apprehension of unlawful physical contact) and battery (actual harmful or offensive contact).

 

[Bartholomew Roberts]

The law found the man not guilty and I'm good with that.

He hasn't even been no-billed yet. Not being charged is but one short step in the legal process.

 

[Busyhands94]

I have been in a hand-to-hand fight, and it tends to get your adrenaline flowing like a river of molten steel. But ANY weapon I carry, whether it be a knife, gun, kuboton, etc. is meant for if I will not live unless I use said weapon. I'd feel pretty irresponsible to draw a knife, or worse a gun, or someone who doesn't have a gun, knife, or other weapon. Punch them in the nose really hard and get the heck away from them until you are safe.
Going into a situation where there is a possibility of violence while armed wouldn't be something I'd want to do for several reasons. I don't want to have to defend myself and get in another situation that involves hand-to-hand combat, and I don't want to be in a situation that would increase the possibility of me drawing my weapon when I don't NEED to go shopping.

I did not go shopping on Black Friday. Yeah, I bought some gasoline and some Bali Shag at the local stop-and-go that day, but I'm staying the heck away from Wallmarts, or K-Marts, or any of these other big stores. These people are ridiculous, I don't want to be in the middle of a riot, unarmed or otherwise. Period.


Although I haven't been carrying a weapon that long in comparison to other members here, I have soaked up plenty of info on how to responsibly carry a weapon. Yeah, I'm 18 and carry a big knife everyday. But the way I see it if you carry a weapon you should avoid going places where there is a more elevated possibility of violent attack if I can.

Just my two cents.

 

[Owen Sparks]

I think that most peoples experience with bare handed fights has been pretty much limited to children and teenagers, simply because this is the demographic most likely to fight. After all, most people outgrow the tendency to hit in anger by the time they get past junior high school. Fights involving children and adolescents usually don’t amount to anything worse than a black eye or split lip. This is because kids generally lack the skill, size or strength to really hurt each other seriously. I can remember playing tackle football without pads in the back yard without anybody getting hurt when I was a young. You do not see grown men doing this. Somebody would go to the hospital.

People whose exposure to fighting has been limited to playground scuffles and fights between brothers don’t fully understand the gravity of an empty handed assault by an adult male. Especially one who chemically altered, crazy or just plain mean and may not have the judgment to stop beating you once you are down. A person does not have to be a black belt or a professional boxer to be dangerous. All it takes is a willingness to hit first and not stop. Some people are total sociopaths and live in the moment with no capacity to rationalize the consequences of their actions, especially when they are drunk or high. These are exactly the type of people who are likely to attack without provocation and they must be treated as a deadly threat.

 

[WALKERs210]

Many years ago a wise Alabama State Trooper explained to me that is better to be tried by 12 jurors as to be carried by 6 Pall Bearers. At my age now a 6yr old kid could put me down with a simple punch. I know first hand what it is to see a man on the ground full of bullets that got into the bad guy by my hands. Honestly it took some time to get over the trauma, but it will pass.

 

[M-Cameron]

given OPs scenario...

even though im young and reasonably fit, im not going to be getting into a fist fight with anyone if i can help it.......and im not about to pull a gun on an unarmed assailant.....

I most likely would have pepper sprayed the guy and called 911....


not every situation calls for the use of a gun, and if you do carry, you should also carry some other means of less-lethal deterrent....just for situations like this.

 

[steveracer]

Disparity of force would play a part here. I'm a fit 210 pounds, and if I get punched by someone similar, we're going to fight, but not (hopefully) kill each other. Someone 6'5, 330? He's got a disparate level of force against me, and my weapon levels the field. Speaking in abstracts, because I can't picture a man punching me for telling him to bugger off.

 

[Vern Humphrey]

Disparity of force would play a part here. I'm a fit 210 pounds, and if I get punched by someone similar, we're going to fight, but not (hopefully) kill each other. Someone 6'5, 330? He's got a disparate level of force against me, and my weapon levels the field. Speaking in abstracts, because I can't picture a man punching me for telling him to bugger off.

As Gordie Sullivan said, "Hope is not a strategy." A single blow can kill a man. Even if not killed, a man can be disabled and disoriented by a single blow to the point where he is completely at the mercy of his attacker -- who just might not have any mercy at all.

 

[Kleanbore]

Posted by Owen Sparks: People whose exposure to fighting has been limited to playground scuffles and fights between brothers don’t fully understand the gravity of an empty handed assault by an adult male. Especially one who chemically altered, crazy or just plain mean and may not have the judgment to stop beating you once you are down. A person does not have to be a black belt or a professional boxer to be dangerous. All it takes is a willingness to hit first and not stop. Some people are total sociopaths and live in the moment with no capacity to rationalize the consequences of their actions, especially when they are drunk or high.

There's a lot of truth in that...

These are exactly the type of people who are likely to attack without provocation and they must be treated as a deadly threat.

...but that conclusion has been carefully considered by those whose decisions count, for many centuries, and while it may be permissible to treat someone who is armed or who has a significant physical advantage that is known to the defender as a "deadly threat", one who reacts in the same way under other circumstances is very likely to end up in prison.

That's where other dangerous sociopaths live.

Again, it's a matter of established law.

There are enough examples of persons who resorted to deadly force against physical attacks by adult males, some of them intoxicated or on drugs, and some of them sociopaths, ending up in confinement with criminal records that it should be abundantly clear by now that repeating the same argument is not productive.

There is a recent example of a person in Michigan who was criminally charged when he merely drew his lawfully carried firearm when he was threatened with a punch to the head. Laws vary, and that example shows why it is so important to know them.