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Old April 14, 2011, 03:01 PM   #51
Alaska444
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I think the GA law about "public gatherings" has more to do with festivals and political rallies, although I've never tried to bring a weapon to a concert. I was looking at some other states' laws the other day, and some specifically prohibit weapons at concerts.

As far as whether the guy was in the wrong to pull a weapon, I can't say. I wasn't there, and I don't know how the two guys following were behaving. I will say that the violent crime rate in Atlanta is high, which is one reason I spend minimal time in the metro area.

With regard to 20yds being three times the permitted defensive range, where the heck did you come up with that one, Alaska444? I've never seen a codified range, although most instructors would recommend that if you have distance, use it to make an exit.

I suspect people are confusing the meaning of the Tueller drill, when it comes to the magical "7 yards." That distance is the MINIMUM distance at which the normal shooter could draw and get off a shot before a knife/club wielding attacker can close and strike. In other words, if you are really feeling threatened, but wait until 7 yards, you are very likely screwed.
Dear MLeake,

Thank you and all for a good review of the CCW basics with this thread. The 21 foot rule is an application of the self defense justification of deadly force only under the circumstances of IMMEDIATE threat of death or grave bodily harm. Many specify this under the following categories as we all know:

A = Ability. The person deemed to be a threat must possess the ability or power to kill or maim.

O = Opportunity. The person deemed to be a threat must be capable of immediately employing his power to kill or maim.

J = Jeopardy. This means that the person deemed to be a threat must be acting in such a manner that a reasonable and prudent person would conclude beyond doubt that his intent is to kill or cripple.


First, do these two have the ability to inflict deadly force or grave bodily harm, possibly, so we will give them that part without argument.

Second, did they have at 20 yards with no visible weapons the opportunity IMMEDIATELY, at the very moment to inflict death or grave bodily harm? ABSOLUTELY not, and that is why the 21 foot rule is an important aspect of CCW permit classes. With no weapons in sight, they had absolutely NO opportunity at the very moment that the man in the OP pulled his gun. Sorry, but I do take issue that the 21 foot rule is not codified. There are indeed too many cases where people were further than 21 foot at the time they shot someone with a knife approaching them that are now in jail as I learned in my CCW classes.

In addition, since the person was already worried about the two, the first line of defense is evasive actions especially with 20 yards between them. Cross the street abruptly if possible, get on the other side of a car, etc. and evaluate their reactions.

Lastly, if they are rapidly approaching, back up and keep the distance.

Looking at the last criteria, jeopardy, as many have correctly noted, the two punks apparently had ignored these old folks and no directed threats, no shortening of the distance between them occurred. A court would not find jeopardy under the conditions described in the OP.

Thus, I believe that the man in the OP did everything incorrectly and his example is of what not to do. I certainly would not want to go to court with that story as my only defense on why I drew my weapon. It is a very problematic case for several reasons even though it could have, might have turned out different. Sorry, the man in my opinion was not justified by his actions.
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Old April 14, 2011, 03:30 PM   #52
MLeake
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Once again, per the Tueller drill, if you wait until 21 feet to start your draw, odds are not in your favor. You do what you like...

I am willing to bet your CCW instructors could also have found you plenty of examples of people in jail who had engaged at well inside 21ft. A bad shoot is a bad shoot. Distance over 21ft or even over 20 yds does not guarantee that a useful line of escape is present.

IE there are many factors more important than simple distance, when it comes to legal issues. OTOH, controlling distance is one of the most crucial aspects of tactics.

Last edited by MLeake; April 14, 2011 at 03:38 PM.
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Old April 14, 2011, 03:44 PM   #53
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I always look at being armed like I look at everything else in life. I avoid the edges. I don't eat as much as I can, but I don't starve myself. I don't drink until I can't see but I don't abstain either. I don't drive like I'm playing Grand Theft Auto but I don't drive like an old lady either. I have good quality deadbolts and solid doors on my house but I don't put bars on the windows and outfit it like a fortress. I don't worry about squeezing every last fraction of a percentage point out of my financial investments but I do look for solid returns.

In self defense situations I'm going to need to see an actual confirmed threat before the weapon comes out of the holster unless I am on my own home premises (I'm grabbing the 12ga if possible at home and you can't really conceal that). Someone walking behind me at night is not an actual, confirmed threat. Someone walking behind me at night yelling obscenities at me and/or my wife or child is NOT an actual confirmed threat. If I have a way to keep walking my bias is toward keeping the weapon in the holster. Now if I see a guy produce a firearm or knife or run toward me with a 2x4 or if he actually gets close enough to touch (while yelling those obscenities or threats) or does touch me or mine then the weapon comes out.

Everyone always says "you can't take chances with safety" or "you can't put a price on safety". B.S. We all take chances every day with our safety (and put a price on it). We have to in order to exist in the world. You drive a car you take a chance. You fly on a plane you take a chance. You eat food you take a chance. You plug in an appliance you take a chance. You cross the street.....I could go on. We don't all drive customized armored Volvo's because customized, armored anything costs a mint and we have other uses for our money. But you could get in an accident, or get carjacked. You take the chance and drive a Chevy, or a Toyota anyway.

If I drew every time I saw a shifty character my life would be like a dime novel western. So I stay vigilant, but give the benefit of the doubt. So far it's working. It's a chance I've thought about and am willing to take.

I think your friend was over the edge. Edges are where problems happen. Avoid edges.
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Old April 14, 2011, 04:09 PM   #54
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Dear MLeake,

I don't disagree that there are many factors that come to play besides distance, but let's go back to the OP situation where there was NO weapon displayed, no threats, no closing of the distance. In this situation, they have there hands and feet which at 60 feet, 20 yards is not a threat at that time.

Now, you have changed the OP situation to that of a known knife. In this instance, let's say at 20 yards, you see their knife in their hands. That now gives us the ability and jeopardy criteria. Yup, I have my gun out of the holster as well. Now, could I shoot them at 20 yards? That is a very dicey scenario since at that moment they are simply too far away and you are going to have to get some good attorneys and expert witnesses to prove that they had the opportunity at the time that you shoot.

What would I do, I would take evasive action backing up quickly, seeking objects to put between us and warn them I am armed. We haven't spoken of another criteria in many states, that of preclusion, to do all that you can to mitigate the situation before going to deadly force. Some states have stand your ground laws, but many do not. In this situation, understanding where you are and what the laws are under the circumstances will be the difference between justified homicide or criminal prosecution.

So, under your new scenario with the two "punks" with knives, now we have jeopardy and ability and I believe even being 20 yards away, you are going to be able to justify drawing your weapon. But as given in the OP, no, that is a troubling scenario that could end your days of carry.

By the way, when I was 18 years old, I had someone pull a knife on me for no good reason at all other than he was high on something and passed out at my table. He was a friend of my roommates named "Ricky." He didn't like it when my roommate couldn't wake him up and I simply said, "forget it Geno, he is gonzo." He looked up at me and said, no one calls me gonzo and said I am going to get me gun. He went out to his car but couldn't find the gun and brought a six inch hunting knife instead.

After several tense minutes where my roommate stood between us with the knife in the air in his hands ready to strike, he left. My roommate who brought this creep to our apartment after they had been drinking at least stood between us and said, here stab me in my heart Ricky with his arms open to him a couple of feet away to the weirdo until he calmed down. Not having any weapons of my own, I went into another room and locked the door until he left. My roommate was an ex-con that I worked with at a restaurant and had seen worse before.

I learned not to associate with people who have friends like Ricky first of all, and second, I actively avoid any sort of situation where something silly like that could happen. A simple comment turned into a deadly situation. So, I do know what opportunity, jeopardy and ability add up to in a deadly situation. In addition, if I thought he was really going to kill me, we all thought he was just joking, I would have locked the door to the house when he went outside in the first place taking away his opportunity. Scary situation just thinking about the whole thing and how absurd it was. But, if Geno my roommate had not intervened, it may have been a completely different outcome. There but for the grace of God.
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Old April 14, 2011, 04:44 PM   #55
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Alaska444....

... lest this get personal, be assured I'm not trying to get you into a measuring contest. Nor do I disagree with most of what you've written. Please note, though, that in my first post I immediately hit the caveat of "wasn't there, don't know what the OP's friend saw or heard that didn't get translated into this thread, etc, so I can't say."

So, with regard to the OP's question, not enough info.

Please also note, I recommended evasion when possible threats are at longer ranges. We agree there.

As far as my knife-armed punks, or club-wielding punks, whatever you like... I won't wait to see a weapon, if enough other evidence convinces me there is one.

For that matter, if I were with my lady, and perceived two guys as threats, they don't need to have a weapon. There are too many ways things can go south for her, if I get disabled in such a scenario. If they make me think they are a threat for her.... Put it another way, I don't go looking for fist-fights, I don't engage in mutual combat (off the mat), and I don't hang with people who do. Strong-arm robbery is one of the forcible felonies that justify SD where I live; so is attempted rape or sexual assault. Neither requires that the BG have a weapon, let alone display one.

Now, do I get freaked out every time somebody might be following me? No, but do I cross the street? Or enter an open business? Or do other things to see if they are actually following? You betcha. Or, if I don't like the vibe I'm getting from somebody I can't realistically avoid, I'll make neutral eye contact and go into relaxed-ready body language. That often seems to convince folks to yield a bit more space, without anything needing to really be said or done.

But there are some ways in which people could act that would raise my hackles. I tend to trust both my instincts and my judgement, and I could envision a scenario where I might draw, or at least prepare to draw, in a variation of what the OP described.

Again, there's not enough information to judge, based on the fact that the OP is not the person who had the encounter, and probably has not communicated all the signals that person was processing at the time.
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Old April 14, 2011, 04:58 PM   #56
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Dear MLkeake,

Yes, I believe we probably agree on more than we disagree. I had another instance where I chose to stay in local housing at Walter Reed instead of the Holiday Inn when training. Bad mistake, I ended up in the ghetto with a house full of cock roaches. My money was gone, and I was stuck for one month. Thank you Walter Reed housing office for the referral to this place.

In any case, I spent most of my time on call in the hospital and little time in that pit, but I got a little too cavalier about being in an all black neighborhood off of Georgia avenue. My last night on call, the resident told me to go home at 6 pm and take the rest of the night off. I ended up walking the mile back to my wonderful appartment and by the time I was almost home, it was getting dark. I walked past a shady looking nightclub where the bouncer was talking to a very large black male about 7 feet tall for real. I didn't like the situation, but I just walked by and didn't think much of it. I then heard his footsteps coming up behind me in a very dark place.

I immediately bolted across the 4 lane road with traffic to go to fried chicken place. Just as I get to the other side of this busy street, a Wash D.C. Cop comes screeming to a halt and gets out of the car and yells at me, What the !!!! are you doing here. You had one almost get you. When I told him I lived "right over there." he said get there and don't come out again at night.

I can't say I was too smart when I was young, my wife tells me I am not too smart today, but getting back to this thread, perceiving the threat is an incredibly important survival skill. Fortunately, in the instance above, I had the sixth sense without looking back over my shoulder that I was in BIG trouble. Since then, I don't put myself in that type of really stupid situation in the first place. Unfortunately, my own kids are still too naive and look at me weird when I put my gun on my hip or my pocket. "Oh dad." Well, chalk it up to experience, but taking notice that there are BG's out there is the first step to staying out of trouble.

I never would have been walking those streets that time of night without some one else armed in a group of us. The first part of not being a victim is not looking like a victim. I didn't do well in my first attempted mugging situation not looking like an easy target. I have learned since then.
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Old April 14, 2011, 07:51 PM   #57
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When I was training folks at our academy, I kept reminding them that 'when the hair stands up on the back of your neck, that is a primal warning that something is wrong" .
The immediate priority over everything else is changing the situation. Leave, find cover, do whatever it takes to change the situation to your favor. There have been times where I have had a gun drawn where no one could see it, because I could articulate "an immediate threat of death or serious bodily harm to myself or others."

Don't ever forget this.
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Old April 14, 2011, 10:14 PM   #58
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In these situations, everyone will see what they want to see.

I posted some time ago about leaving a movie theater, a black male, (I'm white) came running around a car full speed to wards me and my brother. Turns out he had left his phone in the theater and was trying to retrieve it, as we heard a few cars down.

I live in Athens, GA, not far from Atlanta, I go there often for entertainment. I don't discount the possibility that ill will was meant toward the OP's friends, but you can't just assume that simply because someone of another age, race, creed, color, or religion happened to be walking behind them that they intended evil.

What one racial group sees as normal behavior may be perceived as another as hostility. If I pulled a gun on everyone I thought looked "sketchy", I'd walk around with a drawn pistol all day.

It's like the old saying, "If you're a hammer, everything looks like a nail". I'm for concealed carry, I'm for personal defense, but understand that carrying a firearm for personal defense means that you need to understand that everyone isn't just like you and doesn't have the same personal boundaries, etc.
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Old April 15, 2011, 12:30 AM   #59
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Originally Posted by stonewall50
Hm. State of Florida law (only 1 i can speak for) states that if you pull you should be shooting.
Interesting. I have a FL permit. They sent me a handbook with Florida's gun laws, and I don't recall seeing one that said anything like "If you draw your gun you must shoot someone."

Could you cite the section of FL statutes where this appears?
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Old April 15, 2011, 12:47 AM   #60
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An attorney I know says drawing and brandishing the pistol in the absence of a real and visible threat is not kosher, except possibly in Texas....

I know a co-worker who displayed a revolver during a neighborhood argument. He was arrested for that and found guilty. There was no credible threat to him or anyone else present, no one had displayed any other weapon, or touched anyone else, just a noisy argument. The co-worker still says he felt threatened, so much for rational thought.
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Old April 15, 2011, 06:55 AM   #61
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First note: I don't have issues with other races. Half the guys in my dojo are black. A high percentage of our senior instructors, when we have seminars, are Cuban and Puerto Rican from Miami. In my previous school, the senior instructors were Japanese. I spent a long time in the Navy, and now work in defense contract stuff; work with people from multiple races, no issues.

Second note: There's a difference between people walking in the same area, and people taking every single turn you take. Now, if going between a major venue and the nearest parking garage, this could happen and be quite benign. There are plenty of variables that could be factored into whether the situation would seem threatening or not.

Third note: It's good to avoid general brawls. When LE shows up, there are bound to be conflicting witness statements all over the place, and odds are that everybody will be charged. Drawing a weapon in a neighborhood melee will be harder to defend than drawing a weapon against a mugger.

Fourth note: For all the talk of evasion and avoidance, bear in mind that it's not always feasible. There are forum members with physical disabilities who will virtually never be able to evade. No doubt there are other forum members who have loved ones that would serve as anchors (small kids, injured relatives, elderly relatives) and prevent effective evasion.

Fifth note: For many of these folks, a physical confrontation is right out (one friend of mine would probably be crippled for life if you hit him - long term damage from a car accident). Some of us have the strength, size, or training to go hands-on if need be; many do not.

Last note: In any case where you do anything that could be construed as threatening, you should be able to clearly state what you perceived as a threat to yourself, and why your response options were limited.
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Old April 15, 2011, 11:17 AM   #62
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I might have first picked up the pace a bit. Once it's clear you are being pursued by multiple suspects, there is a disparity of force that weighs in as to justified self-defense.

If, at some point is escape becomes impossible or unlikely, it is time to call them on their intentions. Ordering them to STOP, DON'T COME ANY CLOSER, with your hand on our weapon, but perhaps not drawn, may be a good next step before actually pointing it at them. If they close distance after that, there can be little doubt of their intentions.

Was the OP perfect in his response? No. Did he have a reason to fear for his safety and that of his girlfriend? Probably.

I reserve judgment, as I wasn't there, and the OP clearly didn't intend to threaten anyone except to deter a perceived, potential attack. He just needs perhaps one or two more tactics in his back pocket.

My two cents.

Quote:
. . . that if you pull you should be shooting.
Highly doubtful. As pointed out, the overwhelming majority of justified uses of force end without a shot being fired.
Quote:
You just can not draw your gun because you feel "unsafe"
Not completely accurate. Or, at least, not the whole picture.

In most states, if a person 'reasonably believes' that life or limb is in imminent danger, lethal force is justified. That legal description is a whole lot like 'feeling unsafe'. It just clarifies that it has to be reasonable. And it may or may not include actually having to shoot.
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Old April 15, 2011, 01:14 PM   #63
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In all of this it is important to remember that only YOU can decide whether you feel like you are in danger at any particular time. Only YOU can decide if drawing a weapon is the right move.

BUT it is equally important to realize that after the fact none of it will be up to you. A police officer will decide if you will be arrested. A prosecutor will decide whether to file charges against you. A judge will decide whether those charges have sufficient merit to go to trial. And finally, a jury will decide whether your actions were warranted. What you think or thought will no longer matter, except as far as your lawyer presents your defense.

I took a business law course a long time ago in college. On the first day the professor said something that stuck with me. I paraphrase: "The law is not interested in right and wrong. The law is interested in legal and illegal. The law is not interested in what actually happened. The law is interested in what you can prove happened. The law does is not interested in what you believe. The law is interested in what you can make someone else believe."
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Old April 15, 2011, 09:37 PM   #64
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Quote:
So sounds like he was legal.
Law enforcement and the courts might disagree. It sounds like the guy couldn't articulate a credible threat.

If I'm getting a weird "vibe" from someone, I seek out the nearest well-lit, preferably crowded area. I'd also do my best to shake the people following me if that's what they were actually doing.

Several years ago, I nearly got a face full of pepper spray from a lady who thought I was following her through our building's parking garage after hours.
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Old April 15, 2011, 09:57 PM   #65
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Quote:
Originally Posted by Sport45
They were 20 yards away when he pulled the gun? At least I didn't read anything about them closing the distance, only talking louder.

I'd say he failed miserably if he didn't intend to threaten them when he showed the gun.

IMHO, what he did was very much illegal. If I had done that in Texas and the "punks" had called the police, I could lose my right to carry forever. They may have just been going from the same concert to the same parking garage and talking loudly because they were sitting closer to the music.

In the situation described, lethal force was not called for. I think Sleuth's suggestion of calling 911 to loudly report the suspicious activity would be the best course of action. Of course, if they were partially deaf from the loud music they may not have heard anyway.
Best post in this thread. Your friend did not handle this well, he could have moved his shirt to go into open carry mode to do the same thing. Unholstering is not the best course of action here.

Imagine him telling this to a prosecutor "Well I didn't want to seem threatening, so I pointed my gun at the ground". The prosecutor seems 1. you just admitted you were not threatened by them and 2. you admit to drawing your gun when you didn't feel threatened.

Also about the 21 foot rule, no law that I know of even mentions a range for self defense...
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Old April 16, 2011, 08:56 AM   #66
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According to him, he pointed it down at the ground being careful not to point it at them as he did not want to threaten them but only wanted them to see that he was prepared to defend himself if need be. At this point they had not threatened him or his wife although he figured it was imminent....
Not pointing the gun does not mean that drawing it did not create in the other person an apprehension of imminent harm.

But--let's go beyond the question about the legality of the act and consider what else may have happened by turning the tables for a moment.

Suppose that someone turns toward you and draws a gun. Would you not reasonably believe that the gunman had the ability and opportunity to cause death or serious bodily harm? Would you have any reason to presume that the person's motive was other than to harm you?

Had one of the so called "punks" drawn and fired at that point, he might well have been judged to have been fully justified in doing so.

Quote:
He didn't say a word to them. When they saw the pistol, they scattered and took off running. He figured they didn't look like the types that would go call the cops so he figured he was safe and never heard anymore about it.
First, had they been undercover detectives acting on a tip, you can bet that they would not "look like the types that would go call the cops", and it may well have been that maintaing their anonymity was too important to make an arrest on the spot. Second, the 911 call need not come from one of the "punks"--anyone could make the call.

Quote:
It all depends on how well one is able to articulate and justify ones' actions in accordance with state law imo.
Yes, and to justify one's actions, one must produce evidence sufficient to cast doubt on any contradictory evidence produced by the state.

In most states, producing the weapon would not be justified unless one were engaged in a lawful act of self defense; that is true in Missouri, where I live. Of course, that does not mean that one must actually fire, because the imminent threat may be immediately ended by the production of a the weapon.
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Old April 16, 2011, 09:35 AM   #67
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I must learn to never, ever open these kinds of threads. But since I have...

The only law that matter during the encounter is the law of the jungle. Two predators discovered their prey had bigger claws and fangs than the both of them, so they skedaddled. Christians 1, Lions 0.

The only law that matters after the encounter are the laws regulating Atlanta, GA or whatever suburb these folks happened to be in at the time.

... and those laws only matter to the players if the police get called, actually have people to respond, arrive before everybody scatters and finally, deem the incident worthy of a follow-up investigation. Generally, if there are bodies or blood and shell casings present then yes, there will be one. Otherwise, it'll be when somebody calls, admits to being involved and wants to prefer charges against an (allegedly) offending party. I'm not holding my breath on this one.

What you saw here was the Second Amendment working as designed. Speaks well of the drafters, I think, that it still works perfectly some 223 years after its ratification.
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Old April 16, 2011, 10:22 AM   #68
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You're right Sarge, it worked out for them. This time.

But the question was:

Quote:
My question is if the police been called or witnessed the episode could he have been charged with a crime since he felt threatened and he did not point the gun or threaten them but only made them aware he was armed.
The answers of most of us have been "yes, he could've been charged".

When considering the old saying: "I'd rather be judged by 12 than carried by 6" you can't forget the "judged" part.

So one has to make sure they have a good understanding of what constitutes a threat, legally speaking.

And never forget that doing what is right does not eliminate the possibility of legal consequences.

Legal and Right are two different things. Unfortunately.
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Old April 16, 2011, 11:34 AM   #69
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Posted by Sarge: Two predators discovered their prey had bigger claws and fangs than the both of them, so they skedaddled.
Well, that is the side of the story told GregInAtl and subsequently related to us. That may well have been the true perception of Greg's friend. However, it may not reflect what actually occurred.

Once again, let's turn the tables. Suppose that you and a friend were walking somewhere, and by coincidence your route put you behind someone else for several turns. Perhaps that someone else mistakenly interpreted some sounds as your shouting to him. Remember, you have not threatened anyone.

And then, one of them turned and pulled a gun. Any one of several things could have happened then:
  • You wisely escaped, but for personal reasons at the time, chose to let it go, and there were no further complications;
  • you wisely escaped, but for personal reasons at the time, chose to let it go, but someone else reported the incident and gave a description, which would have lead to assault charges and charges involving weapons violations had the persons been picked up;
  • you escaped, and decided to report the incident and gave a description, which would have lead to assault charges and charges involving weapons violations had the persons been picked up; or
  • You drew and fired in self defense.

Had you been armed, and had you elected to follow the fourth course, at that point the story would not be, "two predators discovered their prey had bigger claws and fangs than the both of them, so they skedaddled". Rather, it would be, "citizen threatened by gunman shoots attacker".
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Old April 16, 2011, 12:05 PM   #70
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Yet again...

.... GreginATL is relaying a story, secondhand.

For all we know, there were several other details noted by his friend, that didn't get communicated to Greg, or that Greg failed to include in the post.

We really don't have enough info to know why the guy in the incident made the decision he did, so we can't really say whether he was right or wrong.
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Old April 16, 2011, 12:06 PM   #71
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You left out the option where the big underground snakes from Tremors pop out of the ground and eat all three of them, Old Marksman.

Obviously I was commenting on the story as related, not the innumerable possibilities which might have occurred, in the same situation.
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Old April 16, 2011, 01:26 PM   #72
Aguila Blanca
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There have been a number of good posts on both sides of the argument, but IMHO all miss the mark by a bit. Some by more than a bit.

First, those who advocated "displaying" the gun without drawing. I'm not from Georgia and I don't have time to look up Georgia statute to see if they have a definition of "brandishing" but, in general, "brandishing" means to display a weapon in a threatening manner. If that's pretty much the essence of the law in Georgia, then legally there would be no difference between drawing, and simply raising your shirt or jacket to ensure that the punks could see that you're packing.

Then there are those who condemned the action because the gentleman had no "reasonably articulable" justification to draw. Wrong. First, self defense laws for individuals do not use the word "reasonably articulable." The word "articulable" has come into our parlance because the courts used it in establishing limitations ON POLICE OFFICERS for when they can stop and interrogate a person on the street. For them (the police), the standard is that there must be "a reasonable suspicion, based on clearly articulable facts, that a crime is being committed, has been committed, or is about to be committed."

You won't find that in self defense laws. Typically, self defense laws start off by saying that nobody can use deadly force for any reason ... and then they spell out the specific exceptions. The laws (again, typically) require that the individual "reasonably" is in fear of losing his life or suffering serious bodily injury. So the laws typically say something abut "reasonable," but they don't typically say anything about "articulable." Of course, if you're going to employ deadly force (and drawing a gun, or even displaying it in the holster, is legally considered to be "employing" deadly force even if you don't fire a shot), you will very possibly have to "articulate" to a police officer or a jury WHY you thought it was reasonable. But it's not in the law.

In common law, when the laws use the word "reasonable" it boils down to what the lawyers call the "reasonable man" theory. In short, the law asks a jury "Would a hypothetical reasonable man have acted the same way in this situation that this guy did?"

So in assessing this man's actions, I think we need to apply the "reasonable man" test. He and his wife have left a concert. It's late at night. It's downtown. They are parked at some distance from the concert venue. They KNOW that there have been muggings at night downtown. They see two punk-appearing people following them. The punks are talking at them in a taunting manner, trying to (and succeeding in) make them uncomfortable -- fearful.

Personally, I do not think it's a stretch to think that a hypothetical "reasonable man" would be in fear of death or serious injury in such a situation. I consider myself to be a reasonable man, and I would be in fear of an attack in the circumstances described.

IMHO the only mistake he made was in NOT calling 9-1-1 immediately after the punks ran away. I think any time you use your gun, even if you don't fire it, you should call the police and report that you just defended yourself against a potential attack.
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Old April 16, 2011, 02:46 PM   #73
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Quote:
Posted by Sarge: Obviously I was commenting on the story as related, not the innumerable possibilities which might have occurred, in the same situation.
Yes, of course.

My point was that that "the story as related" describes what one party to the incident thought had happened. That party perceived that two people were behaving in a threatening manner. He then acted in a manner that, had the incident been reported by anyone, would have required him to present evidence of justification. Of course, in the event, no report entered into the picture--but that was the luck of the draw.

The problem is that an investigation, had it occurred, might not only failed to support his defense of justification (due to absence of evidence of ability, opportunity, and/or jeopardy), it might even have led to the conclusion that his concerns had been completely unfounded.

Regardless, his having drawn a gun might well have led to his being shot. That shooting might well have been ruled to have been justifiable under the circumstances, but even if it were not, that would not have helped the OP's friend very much.

Quote:
Posted by Aquila Blanca: In common law, when the laws use the word "reasonable" it boils down to what the lawyers call the "reasonable man" theory. In short, the law asks a jury "Would a hypothetical reasonable man have acted the same way in this situation that this guy did?"
Yes indeed.

But first, the "guy" has to produce at least some evidence that he had a reason for believing that he was in imminent danger--in danger of death or serious bodily harm at that moment.

Contending that one had left a concert downtown at night and that there had been muggings in the area provided a reason for believing that imminent danger existed would surely fall short, particularly when the only pertinent action had been words.
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Old April 16, 2011, 03:32 PM   #74
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Old Marksman, that would depend in large part on what those words were. We all recognize menacing language and tone when we hear it; problem in this case is we didn't hear it ourselves.
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Old April 16, 2011, 04:12 PM   #75
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Quote:
Originally Posted by OlMarksman
Contending that one had left a concert downtown at night and that there had been muggings in the area provided a reason for believing that imminent danger existed would surely fall short, particularly when the only pertinent action had been words.
I disagree.

If he had been arrested and tried, his "articulation" of his reasons for fearing for his life or bodily safety MIGHT not convince a jury, but I don't think -- given the description of the situation as related -- that we can say with any degree of certainty that his justification "would surely" fall short of the mark. I have been in similar situations. I was unarmed (other than a pocket folding knife), and I was very much in fear for my safety. If I were on his jury, I'd buy his story in a heartbeat.

And my vote to acquit wouldn't even be jury nullification. It wouldn't be that I thought he was guilty but I wanted to let him off anyway. I think his actions were reasonable under the circumstances and IMHO that's what the law calls for.
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