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Old March 5, 2013, 12:53 AM   #1
Koda94
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jeopardy

In one case in my area a person with a CHL was recently arrested for murder for shooting an un-armed attacker. (The outcome of this case is still pending... and not the point of this thread). In this case it was reported that a person cannot meet physical force with deadly force and thus the arrest was made. Talking about this subject I had a hard time explaining to someone who asked if it was legal to use deadly force (firearm) if your not physically able to thwart an un-armed attacker!

I explained "AOJ" (Ability, Opportunity, Jeopardy), but the question remained if a person cannot use deadly force against a physical attack and does not have the physical strength to stop the attack then how do they determine if deadly force is allowed? Say on an attacker who is intent on beating you for something you did not provoke... are you really in jeopardy of life and limb?

I realize the question could be a big grey area in determining or proving the attacker met the jeopardy requirement even while un-armed but is there a way to determine what a reasonable armed person would do in a situation where they cannot physically stop an un-armed attack?

Lastly, if I posted this in the wrong section please have mercy I had the best intentions.
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Old March 5, 2013, 01:03 AM   #2
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Aside from state laws the question of jeopardy falls under disparity of force.

If you are 6'2" and 215# of muscle threatenned by a 150# kid who is unarmed you will have a hard time claiming disparity of force were you had cause to fear for your life. On the other had a 5'4" asthmatic threatenned by a 250# biker is in a differrent situation.

Essentially it comes down to the local DA's opinion, public sentiment and possibly a jury who will decide what is reasonable. There is no magic formula.
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Old March 5, 2013, 01:09 AM   #3
Koda94
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Quote:
If you are 6'2" and 215# of muscle threatenned by a 150# kid who is unarmed you will have a hard time claiming disparity of force were you had cause to fear for your life. On the other had a 5'4" asthmatic threatenned by a 250# biker is in a differrent situation.
true, I am kinda looking for that grey area but your right there is no magic formula. Its a hard one to explain.
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Old March 5, 2013, 01:13 AM   #4
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FWIW, I'm 5'4", over 60, and have Parkinson's and osteoporosis. I've cracked a rib just leaning my chest against a fence. Somebody punching me in the chest could kill me, by breaking my ribs into my heart. I certainly can't fight anybody hand to hand, and I can't run.
For me, any physical force is the same as deadly force.
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Old March 5, 2013, 02:16 AM   #5
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Many states have a "reasonable person" standard, in which the jury is asked to put themselves in the defendant's shoes and ask if they'd done the same.
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Old March 5, 2013, 09:42 AM   #6
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Fights, confrontations...

You have the legal right & ability to move freely in society without being harassed or threatened by harm but you must also use common sense & good judgement.
You can not start a argument or scream at someone then as they move to attack you, draw a firearm & shoot them.
If you have a dispute you should be a mature adult & leave w/o incident(as suggested by sworn LE officer/legal use of force expert; Massad Ayoob) or contact LE/private security or guard(if there is a security guard available).

You can use lethal force if you are attacked & in fear for your life but I can honestly tell you, your location, dress, actions, demeanor, background(criminal history), and other factors may be involved in a use of force incident.
The recent Martin/Zimmerman mess is a good example.

It's not fair or ethical but it's the real world in 2013.
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Old March 5, 2013, 11:10 AM   #7
Brian Pfleuger
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Quote:
Originally Posted by Koda94
I am kinda looking for that grey area but your right there is no magic formula. Its a hard one to explain.
It's all one huge grey area. Even obvious disparity of force isn't obvious justification. Picture yourself as the 5' 2" 150lb guy who managed to irritate the 250lb 6' 4" bodybuilder and now he's giving you the "tough guy" chest bump. You know, we can all picture it, hands held waist high, out from the body, palms up, chest puffed, bouncing off your chest with his, going "W'sup tough guy, eh? You think you tough?"

Obvious disparity of force, but he's not done anything that justifies shooting him.

Laws broken, probably. Bad situation with likelihood of getting worse, probably. You shoot him, you go to jail.
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Old March 5, 2013, 11:23 AM   #8
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Under the circumstances, would a reasonable person believe that his or her life was in danger?

For example, did the attacker reach for his pocket and say, "I'm going to kill you." or words to that effect?

Witnesses?

Just a bit of advice. If your concealed firearms instructor did not discuss what to do after you discharge your firearm, I suggest, IMAO, that you develop a plan in accordance with your local laws and your right not to incriminate yourself.
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Old March 5, 2013, 12:47 PM   #9
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Lie-witness...

I honestly would not trust any "eyewitnesses" in about 80-90% of the areas where a critical incident would take place.
Some people may be honest or help you out but as a armed security officer & someone who worked in LE, I can say that many times bystanders make snap judgements, lie, are on drugs or alcohol or are so spun out they don't even know what happened.

Watch the local news stories of incidents in your area & see how witness statements vary.

CCTVs, smartphone cameras & audio recordings can help a lot.

Stay safe!

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Old March 5, 2013, 01:09 PM   #10
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You won't hear me say this often but it is times like this I am thankful for the use of force laws in Illinois. I don't know the specific case you are referencing, but in Illinois you can defend yourself with force that is likely to cause serious injury or death if the person you are shooting is in the process of committing a "forcible felony", which includes burglary/home invasion. No requirment for them to be armed, disparity of force etc. Shooting a fleeing suspect will get you in trouble but there have been several high profile cases where mainly store workers/owners have actually chased, shot and killed people who robbed their stores and the store workers/owners have not been charged.

Quote:
You have the legal right & ability to move freely in society without being harassed or threatened by harm but you must also use common sense & good judgement.
Very well said. Look at that mess down in Florida that has now turned into a murder 2 charge. So far it doesn't look like anything was done to warrant the murder 2 charge but because of very poor judgment, a perceived disparity in force and other factors the guy now finds himself looking at murder 2.
Common sense could have gone a long way to stopping that whole situation in the first place.

Another example (Cant remember the state) is where an armed CCer went to confront his neighbor, in his neighbors driveway about his loud music, proceeded to instigate a situation then shot the neighbor claiming "self defence" Doesnt work.

Look before you leap applies big time!
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Old March 5, 2013, 06:36 PM   #11
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IMO its about doing everything possible to de-escalate the problem. The hardest part is swallowing the pride pill and let the agressor vent or have their way. Knowing your armed during a confrontation should assume the higher position to walk away. I also look at it as what its worth to me.... is it really worth lawyers and possible freedom and jail to prove you were right to a stranger? ...and over what, a parking space or whatever? I dont think there will ever be a clear answer but at least if it escalates beyond your control, you can say you did everything reasonable to mitigate the situation.
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Old March 5, 2013, 06:43 PM   #12
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One of the complicating factors in all this is that there is a gun present, and the attacker could feasibly take it and use it against the defender.

Does that mean the attacker would? No.

It does mean that if the total evidence supports a reasonable conclusion that the attacker would have done so, then that should be used in the defense.

And, as others have noted, disparity of force can come in many forms, particularly if the defendant suffers from some other medical condition and realistically can't be expected to take any beating without long-term effects.
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Old March 5, 2013, 07:03 PM   #13
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Without knowing what state the incident occurred in, we can't look up the governing state law. Without knowing exactly what the state law says, we are engaging in idle speculation.
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Old March 5, 2013, 08:28 PM   #14
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what if it a 200 pound man with a gun and a 170 pound man without a gun doing the threatening. The guy might be able to win a fight, but if he has a gun and the fight turns to wrestling then who knows if he can control his gun and keep the smaller man from getting his hand on the gun and firing it point blank into the bigger stronger guy with the gun.
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Old March 5, 2013, 08:32 PM   #15
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  1. Let's start with the basic legal reality that our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force against and/or intentionally hurting or killing another human is, prima facie (on its face) a crime of one sort or another.

    1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.

    2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened.

  2. The amount of force an actor my justifiably use in self defense will depend on the level of the threat.

    1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --

      1. Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

      2. Opportunity, i. e., the assailant was capable of immediately deploying such force; and

      3. put an innocent in Jeopardy, i. e., the assailant was
        acting in such a manner that a reasonable and prudent person would
        conclude that he had the intent to kill or cripple.

    2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."

    3. "Opportunity" could be established by showing proximity, lack of barriers or the like.

    4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.

    5. And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.

  3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

  4. Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.

  5. If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.

  6. Of course, if your use of force against another human took place in your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.

    1. Again, it still depends on what happened and how it happened. For example, was the person you shot a strange, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?

    2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.

    3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.
Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.

Quote:
Originally Posted by horatioo
what if it a 200 pound man with a gun and a 170 pound man without a gun doing the threatening. The guy might be able to win a fight, but if he has a gun and the fight turns to wrestling then who knows if he can control his gun and keep the smaller man from getting his hand on the gun and firing it point blank into the bigger stronger guy with the gun.
In that case, the 200 pound man would need to hope that his jury agreed that his shooting the other guy met the legal standard justifying the use of lethal force in self defense. If the jury doesn't buy it, he'll be going to prison.
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Old March 5, 2013, 08:41 PM   #16
horatioo
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Quote:
In that case, the 200 pound man would need to hope that his jury agreed that his shooting the other guy met the legal standard justifying the use of lethal force in self defense. If the jury doesn't buy it, he'll be going to prison.
So this would be an example of someone being better off without a pistol then with one?
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Old March 5, 2013, 10:30 PM   #17
Koda94
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If you have done everything in your power to leave the situation and end up using deadly force does that have any weight if your attacker is of similar size as you?


Quote:
Without knowing what state the incident occurred in, we can't look up the governing state law. Without knowing exactly what the state law says, we are engaging in idle speculation.
The incident that sparked my conversation happened in Vancouver Washington where a home owner confronted a prowler outside his home. The homeowner claims the prowler lunged at him and fired in self defense... the prowler was unarmed and died and the homeowner was arrested and charged with murder. There is not much information in the news articles about this case, however its the situation that led to the conversation and question.... so your physically confronted by an unarmed person and you have to decide how to protect yourself and keep your firearm retained.

A lot of good comments here about disparity of force, it seems that if disparity is not obvious then neither is deadly force justified. Considering the emphasis on this grey area of a minor disparity its my thought to make a physical effort to elude and evade any confrontation that puts you in jeopardy of physical harm but not life or limb. I should consider working that into my training including retention.

http://www.oregonlive.com/portland/i...vancouver.html
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Old March 5, 2013, 10:44 PM   #18
terzmo
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Life threatening situation before deadly force is allowed. A guy could be sitting on your chest and beating the living hell out of you and you have to "convince" the court you were sure you would die if he continued...and that's why you shot him.

You have more responsibility and liability when you have control of a handgun. People watch too many movies where a person "whips" it out and scares the bad guys away. Whipping it out for show could cost you the permit and potential jail time.
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