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Old November 19, 2006, 03:26 AM   #1
gvf
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Attacker about to grab you; no eveidence of weapon; what do you do and what's legal

The various states all seem to accept a BG with a weapon about to attack a person as cause to shoot if they have CCW - with some states demanding an attempt to leave as an additional requirement - but if that is impossible, seems they too would consider this justifiable SD. BUT, what if a BG - and a young, muscular BIG BG - is running at you from 10 feet away, it's after dark and no one is around, and is obviously about to grab you and start hitting. Especially if - like me - you are small, close to 60 yrs old and also have medical conditions that could be set off in such a "fist" attack, e.g., heart condition etc. You can't run say, becasue he'll tackle you from behind, and while you have no sight of a weapon, you believe his fists alone could seriously injure you. Well, you can shoot, but is that justifiable when the authorities find one dead BG and no weapon of any kind. Or in that situation to you try to merely wound, attempting to hit him in the leg, something like that?
Seems dicey to me and confusing as to what is legally jusitifiable. Any experience in this, or thoughts? I live in NY State by the way.
Thanks

Last edited by gvf; November 19, 2006 at 03:31 AM. Reason: spelling
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Old November 19, 2006, 03:48 AM   #2
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someone once told me, concerning self defence, "don't do anything with a gun unless the alternative is worse than spending the rest of your life in jail." not much help from a legal stand point, but definatly food for thought.
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Old November 19, 2006, 07:09 AM   #3
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remember Bernard Geotz from N.Y. He killed 2 and critically injured the 4th, One was not arrested and went on to a life of crime resulting in the murder of someone else.
Bernard got jailed for a dozen years and was released. He should have whacked the other looser and there would have not been a murder later on.
He had no police record and the freaks that went after him were all juvinile felons.
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Old November 19, 2006, 08:06 AM   #4
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gvf,
I believe your scenario falls into the catagory "Disparity of Force", which basically allows you to use deadly force to defend yourself if your attacker is much larger/stronger than you are.
It also applies if there are multiple assailants.
That, at least, is what I've been led to believe.
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Old November 19, 2006, 09:31 AM   #5
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GVF,
Das Boot has it right. In Tennessee CCW class they make comments to the situation you describe. If your an older man with medical conditions then it is assumed that 1, especially 2 or 3, younger, larger males could probably seriously hurt you. That being said, what is the statute for self-defense in most states? The threat of serious bodily harm or death.

Check into your state laws and maybe some old cases if you can find them, but I know in Tennessee the law tends to be in your favor if you are facing multiple assailants (armed or not) or even one assailant that is larger,quicker,seriously trying to hurt you,etc. The only thing with that is that obviously you can't start the fight by walking up to Bruno the bouncer and saying "Hey tell your mom I said hey!" and then proceeding to make kissy faces at him. That is cause to be squashed outta the old gene pool.
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Old November 19, 2006, 09:36 AM   #6
Petre
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Attacker about to grab you; no eveidence of weapon; what do you do and what's legal ?

I'd punch him in the throat.

Unless the attacker is approaching with a potentially deadly weapon , you don't pull a gun.
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Old November 19, 2006, 11:03 AM   #7
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So far, a couple of absurd, fallacious analogies to the question posed. The correct answer, in most states, is that lethal force is appropriate when a reasonable person would feel that his or her life was in danger. Given the parameters of the question, OF COURSE lethal force would be appropriate!
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Old November 19, 2006, 01:57 PM   #8
BerettaCougar
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Every answer in this thread, except for the one where someone told you to check your local laws is worthless text.

Check your local laws.
Use your better judgment, you honestly feel your life is at risk of being taken, or severe bodily injury can occur, you do what you think is needed.

If that be draw, punch, run, scream, whatever it is you think in the split second will keep you alive.
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Old November 19, 2006, 05:49 PM   #9
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If you have to check your local laws prior to making the decision to defend yourself or your loved ones, then you've already lost the battle. One can't possibly anticipate every scenario. All one can hope to do is make the best decision, in media res as possible do one's best to survive, if that scenario is a potentially deadly scenario.
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Old November 19, 2006, 07:46 PM   #10
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Two Other Thoughts

Thanks very much for the info., After posting the thread, I thought of 2 other initial responses that might be good if there was time: YELL, as I just read in another posting, and something clear and ummistakable in case there are people, later witnesses, who might hear-(and also as an attempt to keep the guy off of you): "Stay Back!" "Don't Attack Me!" , something like that.

The other is too carry a non-lethal deterent, pepper-spray, a surefire light, and if possible use it first. Aside from the fact it might work, evidence you tried an alternative to a CCW first (especially in the pepper spray which would be still on or near the BG), might help with later legal issues.

Thanks Again!
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Old November 19, 2006, 08:40 PM   #11
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If the BG is 10 ft. away and closing, it's too late to do anything except brace yourself for the blow if you haven't already drawn and aimed your weapon.

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Old November 19, 2006, 09:16 PM   #12
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gvf:
Quote:
I thought of 2 other initial responses that might be good if there was time: YELL, as I just read in another posting, and something clear and ummistakable in case there are people, later witnesses, who might hear-(and also as an attempt to keep the guy off of you): "Stay Back!" "Don't Attack Me!" , something like that.
gvf, If you have time to yell, I would say "STOP or I WILL SHOOT!!!"
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Old November 20, 2006, 10:21 AM   #13
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First off, Bernard Goetz didn't kill any of his attackers. He shot four guys, crippled one, fled the scene, disposed of the weapon, was indicted, had his indictment upheld in the Court of Appeals (NY's highest court) and then aquited in a jury trial of all except a weapons charge that sent him away for almost a year. But lets not fool ourselves, that guy is a little off. His aquital had a lot to do with the times he lived in. In 1984, average New Yorkers were terrified of crime, and the subways were the stomping grounds for "wolf packs" or maurading teens looking to commit crimes ranging from vandalism to murder. People were afraid, and they thought they understood Goetz. BTW, Goetz tried to shoot one of his wounded attackers a second time, while the guy was on the ground, because he, "didn't look so bad". Lest not try to learn too much from this case

Second, since you are in NY, here's Section 35.15 of the NYS Penal Law.

35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use
physical force upon another person when and to the extent he or she
reasonably believes such to be necessary to defend himself, herself or a
third person from what he or she reasonably believes to be the use or
imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to
cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the
use of physical force is nevertheless justifiable if the actor has
withdrawn from the encounter and effectively communicated such
withdrawal to such other person but the latter persists in continuing
the incident by the use or threatened imminent use of unlawful physical
force; or
(c) The physical force involved is the product of a combat by
agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or
about to use deadly physical force. Even in such case, however, the
actor may not use deadly physical force if he or she knows that with
complete personal safety, to oneself and others he or she may avoid the
necessity of so doing by retreating; except that the actor is under no
duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police
officer or a peace officer at the latter's direction, acting pursuant to
section 35.30; or
(b) He or she reasonably believes that such other person is committing
or attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing
or attempting to commit a burglary, and the circumstances are such that
the use of deadly physical force is authorized by subdivision three of
section 35.20.
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Old November 20, 2006, 11:15 AM   #14
Syntax360
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Quote:
Originally Posted by GVF
The other is too carry a non-lethal deterent, pepper-spray, a surefire light, and if possible use it first. Aside from the fact it might work, evidence you tried an alternative to a CCW first (especially in the pepper spray which would be still on or near the BG), might help with later legal issues.
Just my humble opinion, but if I'm afraid someone is about to attack me and I believe they are capable and willing to kill me, I'm not reaching for pepper spray.

If you honestly believe you life is in danger and [almost] any idiot would recognize that fact, lethal force should be justified.

And what if you do end up reaching for the pistol instead of the spray? Seems like prosecution would have the nifty "Why didn't you go for the less lethal option instead of dumping a magazine into his COM? After all, his actions were only the unfortunate byproduct of the bad circumstances of his upbringing. :barf:" arguement.
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Old November 20, 2006, 01:38 PM   #15
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Been there, done that, bought a t-shirt.

Walking home a few years back, evening, maybe 8-ish, dark out. A man gets out of the passenger side of a truck parked up on my left, and walks around the front of a building (presumably to go inside, it was a gas station). As I am passing the building I notice that same person has walked all the way around and is on an intercept course towards me. He is about ten yards off, and he looks behind me, I hadn't noticed the truck he got out of had crept up behind me. The person starts yelling at the driver, and I walk faster.
The person then catches up to me, and I turn to face him, with my hand on my holstered weapon. He asks me if I have the time. I tell him 'No'. He then asks my name, and some other distracting questions. I am continuing to move, and don't want him any closer.
There is no where for me to retreat to, as the streets are icy, sidewalks nonexistant due to being covered with snow, and I can only cross half the street. The person follows. He now wants to 'shake my hand'. I tell him I don't know him and I don't want to know him. I am still palming my weapon. He has presented no weapon yet, but he is making my spidey sense go berserk.
Long story short, I am convinced he was about to mug me when his driver approached too soon.

In retrospect, I was ill prepared, had a flashlight on me, but it was in a pocket on the right hand side, and I'd have had to choose between using the light or having to use the gun to defend myself. Now, i carry my flashlight accessible to my weak side.
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Old November 20, 2006, 01:41 PM   #16
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Old November 20, 2006, 01:44 PM   #17
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If someone is attacking you and you have a reasonable belief that your life is in danger then you are justified in using the means necessasry to stop the attack. Don't ever go on the assumption that because the attacker may be smaller than you or there may be only one attacker that you will not be justified. I know plenty of small men and women that could kill or main a big guy in seconds----don't go on the looks of the assailiant.

I have a close family member that is one such person, she looks like she teaches kindergarten or sunday school and is so sweet. I have seen her overwhelm much larger men in competitions in seconds.
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Old November 20, 2006, 02:45 PM   #18
Big Don
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BTDT too, kind of...

I live in a nicely rural area, which invites creeps to dump their trash on my nicely rural road. On my work to work one morning, I spotted a guy dumping trash. I yelled at him from my vehicle, from a distance, to pick it up and get on the road. His response: "F you, I'm going to shoot your ass!" Grabbed fanny pack and cell phone, called the sheriff's office, still did not see a weapon, figured he was a blow hard. He started to drive off, turned and came back towards me. Cell phone in weak hand, pistol in strong hand and out of sight. SO dispatch is hearing the whole conversation as he ran his mouth. I was sitting up much higher than he in my SUV and could not see a weapon as he approached but was fully prepared to put several into him if I did, while I yelled in the phone "Drop your gun" or some such wording, as I knew it was on tape. He drove past me at close range, made the old pistol finger and said "bang." He never saw my real pistol. Don't know if the cops ever got him but they sure wanted to for the assault. Spoke with a lawyer friend/gun owner and a cop friend and both said it went down as it should have since I never saw a firearm and was in a position to have known whether he had one. They also said it would have been a righteous shoot had I seen a firearm and fired first and foremost because of his threat/assault.

I've played that whole scenario out in my mind, thinking what I'd have done differently. I could have driven off as soon as he made the first statement. I could have exited the SUV and gone to the far side and continued to report to the SO until he left. I could have shown him the S&W 9 as he drove by and watched him crap his pants (Oh, do I wish I'd have done that! ) but could have then faced a "brandishing" accusation. Would I have done the same thing if I hadn't had the pistol with me? I'm not sure. However, I'm glad I had the piece.

Lastly, remember the stats: the mere presentation of a weapon has been shown to make the majority of the bad guys back off and back off right now. Those that don't may not live to regret it.
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Old November 20, 2006, 05:23 PM   #19
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Be aware of this...

"The actor reasonably believes that such other person is using or about to use deadly physical force."

Also be aware that ...

11. "Deadly physical force" means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.

and..

10. "Serious physical injury" means physical injury which creates a substantial risk of death[pretty serious!], or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.


You do NOT have to be someone's punching bag, especially someone who could easily cause you serious physical injury.
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Old November 20, 2006, 06:45 PM   #20
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gvf, . . . I too pondered this question, . . . and made up my mind that I only have one option (62, bad knee, bad ticker, ++++), . . . and that is to pull my firearm with the full intention of shooting, . . . if in fact the presentation of the firearm does not dissuade the bg.

My reasoning is simple, . . . I am armed generally when I leave my house, . . . and even if I am able to survive the beating, . . . if the bg gets my weapon, . . . there is a whole new set of problems beginning to emerge, . . . and my shortened life expectancy is the first one on that list.

Just food for thought, . . .

May God bless,
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Old November 20, 2006, 08:54 PM   #21
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What if attacker has a knife !?!?

Everyone discounts the effectiveness of a knife but...

Check this out
http://video.google.com/videoplay?do...52511793821456
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Old November 20, 2006, 09:29 PM   #22
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wow, that's an eye-opening video!
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Old November 21, 2006, 01:01 AM   #23
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Lethal Force when Grabbed

LEO's are taught the Lethal Force Continuum for the use of force. It has escalating levels of force starting with no resistance to lethal force and the approprite measures that can be employed in between, non-lethal, less-lethal, etc. Obviously, most CCW's dont carry O.C. spray, batons, so there is a little bit of a difference, but it is still a good reference tool to answer this question.

But if a person, as mentioned before, can articulate facts supporting a fear of severe bodily harm or death, lethal force can be justified. For example, disparity in age, body size , fitness level, etc in an altercation which you have tried to avoid or did not bring on, where an assailant is overpowering you. If you have fought to exhaustion and an assailant is still coming at you, even if he is smaller than you and you and if have reason to believe he is intent on killing you... These are all split second decisions.
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Old November 21, 2006, 04:44 AM   #24
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There really is no easy answer for this question. Can you be absolutely sure the person is going to attack you or is it possible he is just going to run past you. Do you risk over-reacting to a non-threat or not acting quickly enough and risk getting seriously injured or maybe even killed. Both gvf and Dwight are a little further along in years and they cannot fend off a younger stronger attacker. Forget about the strikes to the throat or the kicks to the shins. Maybe if it was really the last resort, go down fighting. A young strong attacker will probably be able to block these blows or take them without minimal reaction.

Since this is a gun forum, the typical response is to pull your gun out and shoot the attacker. The thing is, there is little time to do that, especially is you are older and do not have the speed and reflexes you one had. Besides, I bet even most the quicker and younger guys of this forum could not draw and get a shot off if someone was running at them from 10 feet away. I would have to say go with the less than lethal weapons such as pepper spray or a tazer. Tazers have become very popular with police and seem to work immediately. Even big guys drop like rocks after getting tazed. Even most gun shot wounds take longer to stop an attack (other than head shots).

If you make a mistake with mace (or pepper spray) or a tazer, you have a much lower chance of killing someone by accident. If you can convince the police you had a credible fear for your safety, I doubt you would get charged. Pepper spray may not be effective enough for some, but you can walk around with it in your hand in bad areas without anyone noticing it.
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Old November 21, 2006, 07:20 AM   #25
frog21
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10 Feet Away and Running?

If your BG is 10 feet away and already running at you, you will NOT clear the holster and get off a shot. If the BG is 20 feet away, you MIGHT get off 1 shot if you paractice a lot, especially from concealment.

If you yell at the guy just yell, STOP!
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