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Old December 24, 2011, 06:13 PM   #26
MTT TL
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I wonder if he'd have been better off using the gun as a gun, and shooting the guy with the knife...
Me too. Another one of those one in a billion cases. This case is more than 50 years old. I don't imagine it happens very often.
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Old December 25, 2011, 02:47 AM   #27
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Perhaps.However no matter what jurisdiction, ones fate is in the hands of the jury.Is it really one in a billion ? I doubt it. The taking of a life is a homicide here in California. The Handgun Guide put out by the Att. Gen. Office here indicates one is expected to take a beat down rather than drawing a weapon.
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Old December 25, 2011, 01:27 PM   #28
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Originally Posted by Hook686
The taking of a life is a homicide here in California.
The taking of a human life is a homicide everywhere ... that's what the word means. But not all homicides are criminal homicides. A self-defense shooting is a "justifiable homicide." As forum member Fiddletown (a California attorney) has explained more than twice, if you are charged in a shooting and you use self-defense as your legal defense, you put yourself in a somewhat unique situation. The prosecution no longer needs to prove that you perpetrated the act. By claiming self defense, you start out by admitting that you shot the guy ... but then you go on to claim that it was a legally justified homicide because the guy was shot (by you) in the act of committing a felony against you.
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Old December 25, 2011, 01:33 PM   #29
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There is another level below "justifiable," which is called "excusable". As I understand it, this is when the situation turns out not to have actually justified the homicide, but a reasonable person, with the same knowledge, in the same situation would have thought justified.

I am not sure what jurisdictions use this distinction, or what a good example for the cutoff would be.
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Old December 26, 2011, 11:16 AM   #30
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The prosecution no longer needs to prove that you perpetrated the act. By claiming self defense, you start out by admitting that you shot the guy ... but then you go on to claim that it was a legally justified homicide because the guy was shot (by you) in the act of committing a felony against you.
Yup the prosector no longer needs to prove you done it. Now you gotta prove it was the other guy committing a justifiable felony ... not just claiming it was a justifiable felony, but proving it. Not always easy to do and always costly.

As MLeak points out it comes down to those jurors deciding what is reasonable, excusable, justifiable .... In San Francisco I suspect the same facts would be decided differently than in Dallas.
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Old December 26, 2011, 03:12 PM   #31
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Yup the prosecytor no longer needs to prove you done it. Now you gotta prove it was the other guy committing a justifiable felony ... not just claiming it was a justifiable felony, but proving it. Not always easy to do and always costly.
I don't think there is any such thing as a "justifiable felony."

A self-defense homicide becomes justifiable because the laws that start out saying it is not legal to kill another person then tack on some specific exceptions, such as "Except if that person is assaulting you" or "Except if you kill the person because you are in fear of immediate death or serious bodily harm."

So a self-defense homicide doesn't become a felony unless the jury doesn't accept your claim that it was justified as an act of self-defense. If I employ lethal force in self-defense against a felonious assault, why would I wish to prove that the assailant was justified in assaulting me ... and on what basis could an unprovoked assault possibly be proven to be a "justifiable felony"?

Under the laws of most states, in claiming self-defense as justification for a homicide you don't necessarily have to prove that the assailant was committing a felony. It helps if you can show that, but the operative language in the laws of those states I have read (which is less than half of them) are fairly consistent in intent (if not in specific language). The justification for a self-defense homicide is that you were in fear of death or serious bodily injury. Legally, the jury is supposed to subject this claim to a "reasonable man test." In other words, you claim you were in fear for your life -- would some hypothetical, reasonable man likely be in fear of losing his hypothetical life if he were in the same situation? So the key factor is not whether the other guy's actions were or were not legally felonious, but simply whether or not you legitimately feared that he was going to kill you.
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Old December 26, 2011, 05:05 PM   #32
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In a California CCW class I attend a case study is used. Essentially a guy carrying a handgun with one in the pipe goes into a bar. Some other guy takes issue with this guy and assaults him. The guy with the gun, in defending himself, draws it and wacks the assauter across the head. The gun dischages and kills a little old lady walking down the opposite side of the street from the bar. The guy with the gun was charged with murder.
Escalating a fist fight to a deadly weapon rarely ends well.

In some states fists are NOT considered deadly in and of themselves absent any other disparity of force.
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Old December 26, 2011, 07:38 PM   #33
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Originally Posted by brickeyee
Quote:
In a California CCW class I attend a case study is used. Essentially a guy carrying a handgun with one in the pipe goes into a bar. Some other guy takes issue with this guy and assaults him. The guy with the gun, in defending himself, draws it and wacks the assauter across the head. The gun dischages and kills a little old lady walking down the opposite side of the street from the bar. The guy with the gun was charged with murder.
Escalating a fist fight to a deadly weapon rarely ends well.

In some states fists are NOT considered deadly in and of themselves absent any other disparity of force.
The assailant had a knife. A knife is a deadly weapon in any jurisdiction.

I agree with MLeake. If assaulted by someone wielding a knife, it's better to use your gun as a firearm than as a club.
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