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Old December 30, 2008, 01:47 PM   #1
jtmoose
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Excessive Defense

I am most concerned with the legal aspect of using deadly force. At what point does the law see your home defense weapon as excesive? Stoping a criminal seems like it can be accomplished with a reasonable caliber handgun and the use of a rifle or shotgun to be more than needed. Does anyone have any legal experience with the issue?
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Old December 30, 2008, 01:55 PM   #2
Brian Pfleuger
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An overzealous prosecutor will use any thing they can against you. See the recent thread concerning the man convicted after a SD situation partly because the 10mm he used was more powerful than his local police agencies weapons.

As a general principle, any legal weapon is legal for self defense. Deadly force isn't measured in severity. It's measured by justification. It can be justified one instant and not the next.

There is no "I only feared for my life a little, so I used my 9mm. If he'd scared me more I would have used a 12 gauge."
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Old December 30, 2008, 02:01 PM   #3
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Stoping a criminal seems like it can be accomplished with a reasonable caliber handgun and the use of a rifle or shotgun to be more than needed.
The reality is quite different. Handguns are far less effective at stopping a threat than rifles or shotguns. The primary advantage of a pistol is that it is more concealable and thus more likely to be immediately at hand. That is precisely the reason why police, when they know they are going to be confronting criminals, tend to go for long guns.

As to excessive use of force, deadly force is the highest level of force possible. If someone argues that the use of a rifle or shotgun was excessive, they are really arguing (in a very poor fashion) that the use of deadly force itself was inappropriate. If that is the case, you have far greater concerns than using a 12 gauge versus a .45.
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Old December 30, 2008, 02:09 PM   #4
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I think deadly force is deadly force. Either you are justified in using it or you are not. One of the most common firearms kept for home defense is a 12 gauge shotgun. At close range there are not many firearms that are more powerful.

The shotgun is a great weapon for use in a safe room, where once the family members are in anyone else trying to enter the room gets shot. It is not a good weapon for navigating through most homes due to the length, even with a short barrel. I have seen it recommended that a handgun really is the best home defense firearm since you can have it on you at all times in your home or you can grab it before answering the door. Then when it's a friend you can pocket it out of sight so you don't look like a nut answering the door with a gun. Harder to do that with a shotgun. It's also much more difficult to disarm someone with a handgun in tight quarters than it is someone with a long gun.

In your home the use of any firearm will be viewed differently than it would if that same firearm was used outside the home. If you are carrying a rifle or shotgun under a trench-coat for self defense it's an easier case for the prosecution to make you out as someone who was just looking for an excuse to shoot somebody. If you use the same gun at home it will be because that's the first one you could get.

If the shooting was justified no charges will be brought. In many states they have a law that shields you from civil lawsuits if the shooting was deemed justified by the DA or in court.

In any case if you keep a firearm for self defense, either carried or just in the home, you should also have the name and number of a good attorney who deals in these types of cases. You want a number you can call immediately after an incident. You want your attorney present as soon as possible. Ideally the should arrive on the scene right behind the police. You don't want to be wasting time searching for someone at that point. Also know Massad Ayoob's things to say after an incident. Best to write them down on the other side of the paper with the attorney's number. Otherwise you might babble yourself into a lot of unnecessary trouble. There is a great video that has been linked to in these forums numerous times about why you should never talk to the police. It's not advice from a crackpot, it's from a law professor and a police officer. They both agree that it can only hurt you and after watching the video I have to agree.

Here are the 5 things Massad Ayoob recommends you say. I keep them on a piece of laminated index card that has my attorney's number on the other side. I keep it in my wallet next to my CCW permit.
1. This person attacked me (gesture to the person)
2. I will sign the complaint (this lets the police arrest the person)
3. Point out the witnesses. You want people to tell what they saw while it's still fresh.
4. Point out evidence. Weapons, shell casings that rolled under a nearby car or were blown down the street by the wind.
5. Officer, you will have my full cooperation in 24 hours after I have spoken with counsel. Repeat this for all other questions you are asked. Having the card in your hand to focus on will make it easier to not give in to the temptation to talk.

Recognize that you will be arrested and taken to jail no matter what you say. Do not plead your case to the police, that is not their job. Their job is to get everyone into custody so the DA's office can sort it out.

Last edited by Wuchak; December 30, 2008 at 02:22 PM.
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Old December 30, 2008, 02:46 PM   #5
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Even pulling your weapon is considered "use of deadly force" in some states.

The key phrase here is "I was in imminent fear of my life."

We shoot to "stop the threat". OK, just what does it take to stop someone from hurting or killing you? Sometimes simply pointing the gun at a BG will make him lose control of his bodily functions and run off. Sometimes you'll have to pull the trigger, possibly more than once.

If the BG is still advancing and/or still capable of harming you, keep shooting.

if a BG says he's (for example) gonna cut or stab you, he has to have:
Opportunity - He must be close enough to do so or advancing to do so.
Ability - He must show a knife or other sharp object.
Intent - He must be advancing menacingly.

Sometimes it's a fine line that will have to be argued out in court. For that answer, read my tag line.

Quote:
There is no "I only feared for my life a little, so I used my 9mm. If he'd scared me more I would have used a 12 gauge."
peetza said a mouthful there. You're either justified in shooting or you're not. There is no degree of threat or defense.
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Old December 30, 2008, 04:52 PM   #6
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Disclaimer: I'm not a lawyer and am not giving legal advice.

What is acceptable force depends not only on the situation but local law. In Ohio, exercising self defense does not limit the amount of force that can be used. I was on a jury for a case of assault. The defendant was claiming self defense for the injuries inflicted on the other person. The judge explained to us that if we found the defendant was acting in self defense, the fact that he beat the guy stupid and sent him to the hospital makes no difference. That is, a single punch or near fatal beating are the same in self defense. That is not true in Florida. I have been told by people I trust that if someone attacks you without a weapon, you better not shoot him unless you can prove that you reasonably and imminently feared for your life or grave bodily damage. I've also been told that you have to account for each shot in a self defense shooting. That is, the 1st shot was self defense but the 10th shot might be murder. Of course the situation is a little different with Florida's castle doctrine. You still have to be in fear of your life (i.e. can't shoot an intruder who is just stealing your TV) but the castle doctrine gives more latitude in determining risk to life and no requirement for retreat. But it doesn't say how many times you can shoot the intruder.

Police shot to kill and they know their pistols aren't 100% effective so they will shoot someone 15 times if they have to shoot once. Local law, the DA and probably a jury will determine if that applies to you. I hope no one ever has to find out.
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Old December 30, 2008, 09:56 PM   #7
quinn2187
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in ohio just because one is acting in self defense does not justify "any" use of force. you can not shoot someone unless you can explain why you feared for your life, and no the "who knows what he had in his pockets" will not fly.
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Old December 30, 2008, 09:58 PM   #8
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and police do not shoot to kill, police shoot to stop the threat. i know its a fine line but its the way it is
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Old December 30, 2008, 11:05 PM   #9
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JT, . . . I do not, . . . and hope never to ever have, . . . any legal experience in your question.

BUT, . . . time, events, and results have proven any number of times, . . . the winner is determined by who got bad enough, quick enough.

That said, . . . I am not going to ponder the possibilities of mind meanderings of jurors number 7 and 11. If the situation became life threatening enough, I will use deadly force, and I will apply it until I can readily assume that the threat has either vanished or become incapacitated.

If that means all seven rounds from my semi-auto 12 gauge, . . . if that means 30 rounds from the AR, . . . if that means 21 rounds from the M1A, . . . if that means 9 rounds, reload, 9 more rounds from the 1911, . . . well all it means to me is that my ammunition bill just went up.

The lawyers can argue the number of rounds, . . . my end result will be when the cops are talking to me, . . . and the other guy is going away, . . . in a bag or on a gurney, . . . but no longer a threat to me or my family.

For you and me, . . . and everyone else on the forum, . . . let's just hope the question remains academic.

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Old December 30, 2008, 11:09 PM   #10
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Old December 31, 2008, 01:15 AM   #11
David Armstrong
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Quote:
At what point does the law see your home defense weapon as excesive?
Pretty much when you step outside of the norm and cannot give a reasonable explanation for it. That is more of a civil issue than a criminal issue, BTW. Fortunately there is such a broad range of accepted "normal" defensive firearms that you can include most of what any of us would tend to have and want to use.

Last edited by David Armstrong; December 31, 2008 at 11:32 AM.
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Old December 31, 2008, 01:41 AM   #12
jfrey123
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This is clearly excessive:

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Old December 31, 2008, 01:58 AM   #13
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If the DA's office has decided to prosecute you, they will make whatever weapon and ammo you used seem excessive. I second the notion to read the articles concerning the man who used the 10mm (Mr. Fisher). To reduce what the jury sees as excessive I'd say stick to the normal rounds for home defense. .380, 9mm, 10mm, .38, .357, .40, .44, .45, etc.

Using rifles for home defense is usually a bad idea because of over penetration. If that's all you have then by all means use it. It's been done sucessfully before. Shotguns on the other hand are great home defense weapons. Yes they're not good for moving around the house, but unless you have a darn good reason to clear the house yourself, just stay in your room, shotgun resting on bed, pointed at door, 911 on the line. Anyone who walks in the door is going to have a very bad day. Anything bigger than 12g will be easier for the jury to view as excessive.

If you can afford a weapon or two strictly for home defence then by all means get them. If all you have is your hunting rifle or something then use it. Another good thing about shotguns is that you can easily swap barrels. Use one for hunting and a good ol' 18 incher for HD.

If you have a good reason for owning a weapon that most people might see as excessive then you should be able to defend yourself in court with that reason. A good friend of mine uses a Desert Eagle .50 for his HD and his CCW. Why does he do it? Because he's 6'9''ish and on the other side of 300lbs. Even my hi-cap 1911 feels too small for his hands.

If you're like many of us and just an average Joe, stick to average weapons and ammo. Don't use the exotic stuff because they'll hammer you in court and most importantly it usually doesn't work. Unless you are LE, stay away from boxes marked "Law Enforcement Ammunition". No it's not illegal to buy or own it, but it'll look bad. Personally I go with Federal Hydra-shoks because the get the job done, and they say "Personal Defense" right on the box.

And if you use claymores, flamethrowers, anything chambered for a .50 BMG for home defense my not legal advise is to watch the movie Shooter and do what Mark Whalberg's character threatens to do at the beginning of the movie.

Jfrey123- that's not excessive if you're defending Kuwait, or any other country as far as that goes.
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Old December 31, 2008, 09:37 AM   #14
Hondo11
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Quote:
Using rifles for home defense is usually a bad idea because of over penetration.
This is quite a generalization and also implies that a pistol, because it's not a rifle, won't over penetrate. Neither is true.

(Not sharpshooting your post. That one is just a rabbit hole without an end.)
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Old December 31, 2008, 10:35 AM   #15
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I've read that for an "ideal" defense caliber, you should research what your local police department issues, not what they're allowed to carry by choice, but the caliber they're actually issued. This links back to the idea that police shoot to stop, not to kill. If you're carrying the same caliber, it's easier for you to make the exact same argument. Here in Reno, police are issued a Glock 17 in 9mm, but have the option of other personal firearms in 9mm, .40 and .45.


It would be hard for a DA to make a man sound like a monster if he's carrying the same thing as the civil servants.
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Old December 31, 2008, 01:58 PM   #16
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Excessive Defense is judged by 12 of your "peers"
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Old January 2, 2009, 09:34 AM   #17
jtmoose
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I recently read an article that stated a jury decided it was manslaughter because the size of the caliber. They thought the guy could have defended himself with less. I've also read about cases that turned out to be manslaughter because the jury thought that the individual had chosen a weapon with the intent to kill, not defend themselves.
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Old January 2, 2009, 11:53 AM   #18
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I would ASSUME..that reasonable force may be used, to STOP or prevent the attact.

The way courts/juries are today, I'd say use only the force necessary to stop the threat.

The recent case of the jury finding a man guilty after taking into consideration of him using a hollow-point in a self-defense situation comes to mind.

It dosent matter whether they should have considered it or not, they did, and the bullet style/type and the caliber (10MM) were factors.

You can use deadly force to stop, but not to kill per se. Death may be a foreseeable result, but not the intended result. Stopping the threat is always the goal.

This is just my opinion, however. Learn your state/jurisdiction laws and comply.
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Old January 2, 2009, 12:52 PM   #19
David Armstrong
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Quote:
I recently read an article that stated a jury decided it was manslaughter because the size of the caliber. They thought the guy could have defended himself with less. I've also read about cases that turned out to be manslaughter because the jury thought that the individual had chosen a weapon with the intent to kill, not defend themselves.
I would say that rarely (in fact, probably never) will a single fact like that determine the jury verdict. But it can be one of many factors they will look at in making their final decision, and it can certainly become a big factor in the case of a civil suit.
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Old January 2, 2009, 02:03 PM   #20
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May I respectfully suggest that people who are concerned about the legal issues concerning armed self-defense check out the following link, and read some of the back issues of our E-Journal. Regardless of whether or not you join the network, each month we post articles involving the legal issues of armed self defense for all the world to see, at no charge.

www.armedcitizensnetwork.org

All my best.
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Old January 2, 2009, 05:32 PM   #21
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David: Excellent point. I think what juries may be considering is "defensive" as opposed to "offensive". Whaddya think?
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Old January 3, 2009, 05:10 PM   #22
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i have not found anywhere that list all the evidence used in the case of the retired teacher in i believe new mexico.

BUT

yes a prosecutor can say in a trial that a certain caliber is excessive for self defense.

AND

that hollow points are to kill and not wound.

BUT

any half way decent deffense attorney can destroy that theory. they can call self defense experts in. they can get into testimony that hollow points are made for the purpose of SELF defense. they can make the argument that any prosecutor that would say that is ignorant in his knowlege of the subject.

my point is that i highly doubt that is why the guy got convicted. there may have been more evidence. and the guys defense attorney sounds like he was far from the greatest.

just my opinion.
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Old January 3, 2009, 05:22 PM   #23
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Juries can go weird and focus on esoteric parts of a case to make their decisions. Seen it happen.

FWIW, I think you might stand less of a chance of a jury going wonky with guns that look more "friendly." A Rem. 870 with standard wood furniture looks like grandpa's duck gun, whereas a tricked-out semi auto Benelli entry gun with extended mag, pistol grip, red dot sight and sidesaddle ammo carrier might freak out a juror or two. Arguments that both function similarly may fall on deaf ears, seeing is believing.
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Old January 3, 2009, 06:12 PM   #24
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I agree with the poster that stated excessive force will be judged by 12 of your peers.
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Old January 3, 2009, 11:16 PM   #25
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Quote:
quinn2187: and police do not shoot to kill, police shoot to stop the threat. i know its a fine line but its the way it is
Maybe where you live, but I was speaking to a LEO friend of mine and his department is teaching triple taps to the central nervous system (inline with the spinal cord) with the final shot to the head. Sems like their thought process is to stop the threat by killing the bad guy.
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