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Old November 22, 2008, 12:52 AM   #1
KUHIO
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How does this measure up....?

Reading a recent post I observed that there are many varying views as to the utilization of concealed weapons. So I thought I'd share some of my training to see how it stands up with yours.

I was taught to observe Opportunity, Intent, Ability, and Preclusion in reguards to the use of deadly force.

Opportunity- Generally I believe everyone you encounter on a daily basis has the 'opportunity' to cause you serious bodily harm or death. I take opportunity to mean presence.

Intent- Does this person intend to cause me SERIOUS bodily harm or DEATH. I reside in Las Vegas, so I'm unaware of other state laws, but in Nevada bare fear (that is simply being afraid) is not enough to justify the brandishment of a weapon.

Ability- Is this BG physically able to cause you SERIOUS bodily harm or DEATH? Perhaps he/she is substantially larger/smaller than you. Perhaps it's a man vs. woman scenario. Perhaps one is confined to a wheelchair. Perhaps one is blind. There is an endless array of scenarios, however, ability is an important aspect to consider.

Preclusion- Have you exhausted all other options before resorting to deadly force? Have you given verbal commands to stop, have you called for help, have you tried to escape the situation? This is important, because in the event you are in fact involved in a shooting, demonstrating that you took the necessary steps to avoid a confrontation further strengthens your case.
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Old November 22, 2008, 02:01 AM   #2
Keltyke
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Quote:
Opportunity- Generally I believe everyone you encounter on a daily basis has the 'opportunity' to cause you serious bodily harm or death. I take opportunity to mean presence.
That's correct. If someone says they're going to beat you to death, and they are across the street and not advancing, there is no opportunity. However, if they state, from across the street, they will shoot you, that's opportunity.

Quote:
Intent- Does this person intend to cause me SERIOUS bodily harm or DEATH. I reside in Las Vegas, so I'm unaware of other state laws, but in Nevada bare fear (that is simply being afraid) is not enough to justify the brandishment of a weapon.
Intent can be shown in different ways. The brandishment of a weapon, body language, verbal threats, etc. The level of "fear" would have to be argued in court after the fact.

Quote:
Ability- Is this BG physically able to cause you SERIOUS bodily harm or DEATH? Perhaps he/she is substantially larger/smaller than you. Perhaps it's a man vs. woman scenario. Perhaps one is confined to a wheelchair. Perhaps one is blind. There is an endless array of scenarios, however, ability is an important aspect to consider.
If the person has a weapon of any sort, including fists and feet, there is ability. My CWP Instructor told us if someone advances on you with his fists, you must assume he is a professional fighter. If he advances with a knife, you must assume he is an expert, including throwing it. If he has a gun you must assume he is a marksman.

Quote:
Preclusion- Have you exhausted all other options before resorting to deadly force? Have you given verbal commands to stop, have you called for help, have you tried to escape the situation?
There is no preclusion in SC. There is no duty to warn and no duty to retreat. However, common sense tells us a gunfight should naturally be avoided at all costs, except if retreating will further endanger you.
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Old November 22, 2008, 07:57 AM   #3
oldandslow
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kuhio, 11/22/08

I've done a number of intermediate and advanced pistol training courses and the usual three conditions justifying use of deadly force are ability, opportunity, and jeopardy. There is no preclusion mentioned and while verbal commands and calling for help are certainly good ideas if there is time, they are by no means a necessity and may delay your response long enough to endanger your life. As usual, each situation is different and the best possible plan is avoidance or de-escalation so you are not forced to defend yourself.

best wishes- oldandslow
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Old November 22, 2008, 07:01 PM   #4
David Armstrong
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Quote:
There is no preclusion mentioned and while verbal commands and calling for help are certainly good ideas if there is time, they are by no means a necessity and may delay your response long enough to endanger your life.
Preclusion simply means was it really necessary for you to do this. Some states include it as a part of the reasonable and/or necessary language, some do away with it entirely (particularly when in a business or home). I teach it to all my students as something to keep in mind whether it is required by law or not.
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Old November 23, 2008, 09:44 AM   #5
Brit
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Quote:
Preclusion- Have you exhausted all other options before resorting to deadly force? Have you given verbal commands to stop, have you called for help, have you tried to escape the situation?
The above advice is fine in a training course, as David has stated, not sure if it is part of the average individuals thought process, if and when a large Gentleman blocks the way to your car, with knife in hand!
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Old November 23, 2008, 10:17 AM   #6
OldMarksman
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From KELTYKE:
Quote:
There is no preclusion in SC. There is no duty to warn and no duty to retreat.
See this from the law:
Quote:
STATE OF SOUTH CAROLINA
STATE LAW ENFORCEMENT DIVISION (SLED)
USE OF FIREARMS OR OTHER WEAPONS

Use of Deadly Force

State v. Fuller, 297 S.C. 440, 377 S.E.2d 328 (1989) sets forth the elements of self-defense in South Carolina. These are:

you must be without fault in bringing on the difficulty;

you must actually believe you are in imminent danger of loss of life or serious bodily injury or actually be in such danger;

if you believe you are in such danger, you must use deadly force only if a reasonable or prudent man of ordinary firmness and courage would have believed himself to be in such danger, or, if you actually were in such danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save yourself from serious bodily harm or losing your own life;

you had no other probable means of avoiding the danger of losing your own life or sustaining serious bodily injury than to act as you did in the particular instance.




Duty to Retreat



As a general matter, before using deadly force, even in self-defense, you have a duty to retreat in the following circumstances:

on a public street or highway, even when in own automobile. State v. McGee, 185 S.C. 184, 190, 193 S.E. 303, 306 (1937).

in a store where the public is invited. State v. Peeples, 126 S.C. 422, 120 S.E. 361 (1923).



As a general matter, before using deadly force, even for self-defense, there are situations in which you have no duty to retreat. These include:
in addition to in your home, there is no duty to retreat within your home’s curtilage. State v. Jackson, supra, or beyond the curtilage. State v. Quick, 138 S.C. 147, 135 S.E. 800 (1926).

in your place of business, even if the aggressor also has a right to be there. State v. Kennedy, 143 S.C. 318, 141 S.E. 559 (1928).

if a guest in home of another unless required to leave by the householder. State v. Osborne, 202 S.C. 463, 25 S.E.2d 492 (1942).

where attacked in your “club room”. [“A man is no more bound to allow himself to be run out of his rest room than his workshop.”]

where both parties own the premises, neither has the duty to retreat where the other is the aggressor. State v. Gibbs, 113 S.C. 256, 102 S.E. 333.

Where both live in the same home, neither has the duty to retreat if the other is the aggressor. State v. Grantham, 224 S.C. 41, 77 S.E.2d 291 (1953).

Where both are guests in the same home, neither has the duty to retreat if the other is the aggressor. State v. Smith, 226 S.C. 418, 85 S.E.2d 409 (1955).

Where both are fellow workers on same job site, neither has the duty to retreat if the other is the aggressor. State v. Gordon, 128 S.C. 422, 122 S.E. 501 (1924).

you need not retreat “if to do so would apparently increase [your] danger.” State v. McGee, 185 S.C. 184, 190, 193 S.E. 303, 306 (1937).

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Old November 23, 2008, 12:28 PM   #7
David Armstrong
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Quote:
The above advice is fine in a training course, as David has stated, not sure if it is part of the average individuals thought process, if and when a large Gentleman blocks the way to your car, with knife in hand!
It needs to be part of the thought process. If a guy blocks your way do you have to get in a fight? Often you don't. Unless someone is actively attempting to kill you right then, one should always thing about what is going on and try to determine the alternatives available to solve the problem.
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