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Old November 18, 2012, 07:54 AM   #76
OldMarksman
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Posted by Frank Ettin: As for 776.07, that presumes a person in custody as a result of an arrest.
Yes, it does.

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But what are the rules applicable to a citizen lawfully performing an arrest?
In order to lawfully employ force in the course of an arrest, a citizen must have been summoned or directed by a sworn officer to assist in the arrest.

The law in some states permits a citizen to employ force to effect a citizen's arrest without having been requested by an officer to assist. The requirements vary among jurisdictions, but no one in his right mind would want to expose himself the civil liability.
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Old November 18, 2012, 08:28 AM   #77
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The law in some states permits a citizen to employ force to effect a citizen's arrest without having been requested by an officer to assist. The requirements vary among jurisdictions, but no one in his right mind would want to expose himself the civil liability.
Over my many years of being on this earth I have made two of them. Something’s an officer can make an arrest from witness statements and sometimes by the citizen doing it, it makes a stronger case. in this case there was a sexual act, disturbing of the peace, endangerment of a child so it would have been a solid case and if she was to use deadly force. I could only assume because of the child it would have been justified in any state

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Old November 18, 2012, 08:47 AM   #78
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...this thread should be moved to law and civil rights.
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Old November 18, 2012, 09:25 AM   #79
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Posted by barstoolguru: in this case there was a sexual act, disturbing of the peace, endangerment of a child so it would have been a solid case and if she was to use deadly force. I could only assume because of the child it would have been justified in any state.
Said use of deadly force could not be justified as having been immediately necessary for the lawful defense of the woman or the child against a serious crime, and it would therefore be very unlawful indeed.

Anyone who believes that one would be justified in using deadly force in a case of indecent exposure, disturbance of the peace, or mere verbal threats would be well advised to leave his or her firearm at home until he or she has learned just a little bit more about the use of force laws.

A really good place to start would be Ayoob's MAG-20. Expensive? Inconvenient? Not nearly as costly or as "inconvenient" as the consequences of believing and acting upon that kind of terrible advice.
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Old November 18, 2012, 09:43 AM   #80
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As stated before this is a multi-state forum and as such it’s hard to say what the laws are in other states BUT in Texas (my state) she was well with in her rights to protect herself and child against a sexual predator. To say all he is going to do is sit there and pleasure himself is a guess and might be a fatal mistake. a sexual assault does not have to employ physical contact but can be a verbal and visual

PC §9.32. DEADLY FORCE IN DEFENSE OF PERSON.
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
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Old November 18, 2012, 09:52 AM   #81
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Posted by jhenry: I believe she would have been legally justified in brandishing the firearm in Missouri as I read RsMO 571.030 and 563.031
Unfortunately or fortunately, your reading of the statutes would not be determinative, and is incorrect.

Unless, of course, she could present some evidence that the offender in this case actually presented a threat of physical force or violence (i.e., committed a forcible felony).

Same thing in Washington, which is more relevant. A significant difference is that in the State of Washington, a citizen need not retreat.
Incorrect sir,

The statute, 563.031 states "reasonably believes to be the use or imminent use of unlawful force by such other person". There is no requirement for the unlawful force to be at a felony level level as you assert. He approached her in an aggressive manner while she had the responsibility of providing protection for her disabled minor son. He was also in the act of committing a crime which coupled with his aggressive demeanor could easily and reasonably cause the mother to be in fear of an imminent assault. The only requirement for the aggressor to be in the act of a "forcible felony" is if deadly force was used. It was not. She did nothing which a reasonable person would understand could cause the loss of life or limb. Brandishing, even when it is contrary to the law, is not the use of deadly force.
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Old November 18, 2012, 09:57 AM   #82
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Posted by barstoolguru: To say all he is going to do is sit there and pleasure himself is a guess and might be a fatal mistake.
One cannot go around shooting people because of what they "might" do, anywhere.

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a sexual assault does not have to employ physical contact but can be a verbal and visual
I suggest that you read the definition of sexual assault in Texas Penal Code - Section 22.011. Sexual Assault very carefully before making such statements.

But we digress. The incident took place in the State of Washington; deadly force was not employed; the woman did not attempt to effect a citizen's arrest.

The key, and unanswered, question is whether or not she was defending herself against the use of presently threatened unlawful force.
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Old November 18, 2012, 09:58 AM   #83
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I had stated early on that the woman would be justified in her use of force in Texas. Back in the mid 1980's my aunt shot a man in the junk with rock salt from a 20 ga. shot gun from about 15 yards. He was in the yard masterbating while children where playing in the yard across the alley. While he was on the ground screaming and holding himself she let him know that the next one was buck shot, and if he ran, or made a sudden move she would give it to him.

The cops that arrived on scene told her "good shooting." The man was convicted of a felony later on for the event.

She stated that the cops who saw where she put the shot shuddered when they heard where she shot the guy.
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Old November 18, 2012, 10:04 AM   #84
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The lady should have just left the scene. Why would any sane person want to shoot someone for exposing themselves? Especially when it occured in a public place that could have been easily vacated.
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Old November 18, 2012, 10:20 AM   #85
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Posted by jhenry: The statute, 563.031 states "reasonably believes to be the use or imminent use of unlawful force by such other person".
Yes, one may lawfully employ physical force to defend against the useof unlawful force by another person.

But she did not do that. She didn't touch him. She threatened deadly force.

Do we know any case law on the distinction? Do we have a qualified legal opinion?

But that would be of academic interest only. There was no report of any threat of the imminent use of unlawful force. None.

And as long as we are discussing Missouri, since when was not inside her residence or automobile on property that she owned or leased, there's also the little matter of a duty to retreat, unless she could show that retreat had not been safely possible. Long-standing common law here.

Not that Missouri law matters here.
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Old November 18, 2012, 10:27 AM   #86
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sp

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Posted by m&p45acp10+1: Back in the mid 1980's my aunt shot a man .... The cops that arrived on scene told her "good shooting."
No one should ever rely upon such a statement as legal advice.

First, the "cops" are not the final decision authority; second, one may always be charges at any later date up to and until (1) one has been tried and acquitted; (2) one has been pardoned (but that won't shield against civil liability); (3) the statute of limitations has run out; or (4) one dies.

We often advise people to limit what they say after a defensive action. That advice applies for a very long time.

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Old November 18, 2012, 10:32 AM   #87
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One cannot go around shooting people because of what they "might" do, anywhere.
Yes you can if you are in “fear for your life”…. Texas PC SS 9.31/9.32 now for the record this is Texas law and you should use some common sense when using a gun in self-defense. In the state of Texas you can brandish a gun if it stops a crime as she did. Was she with in her rights to do so; I believe so. who is to say how far the man was going to take it.



As I stated: a sexual assault does not have to employ physical contact but can be a verbal and visual. This paragraph does not state physical contact has to be made but implied
Sec. 22.011. SEXUAL ASSAULT. (a) A person commits an offense if the person:
(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;

just incase you missed it, you don't have to wait for it to happen but fear it will:
PC §9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another: B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Last edited by barstoolguru; November 18, 2012 at 10:40 AM.
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Old November 18, 2012, 10:34 AM   #88
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I say, good for the lady and hopefully it makes the pervert think twice before exposing himself again. I'm gladly she demonstrated great restraint by not shooting off the offending appendages.

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Old November 18, 2012, 11:09 AM   #89
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Posted by barstoolguru: Yes you can (shoot someone for what they might do) if you are in “fear for your life”….
NO!

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Texas PC SS 9.31/9.32 now for the record this is Texas law and you should use some common sense when using a gun in self-defense.
YES!

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In the state of Texas you can brandish a gun if it stops a crime as she did.
Yes, if force is required under 9.31. Not all crimes justify the use of force.

But why does Texas matter here?

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Was she with in her rights to do so; I believe so. who is to say how far the man was going to take it.
It just doesn't matter.

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As I stated: a sexual assault does not have to employ physical contact but can be a verbal and visual.
Yes it does!

Quote:
This paragraph does not state physical contact has to be made but implied
Sec. 22.011. SEXUAL ASSAULT. (a) A person commits an offense if the person:
(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
Well, yes it does. Sexual assault under Subsecion (a)(1) involves penetration or certain kinds of contact. They are spelled out very clearly.

Sections (b) (1)-(11) simply define conditions under which such penetration or contact is considered to have been made without the consent of the victim.

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just incase you missed it, you don't have to wait for it to happen but fear it will:
"Fear" will not suffice. The defender must reasonably believe that deadly force is immediately necessary. That reasonable belief will be judged by others, who will weigh the evidence in terms of the questions of ability, opportunity, jeopardy, and preclusion.

Nor will "will" cut it, ether. The threat must be imminent. Now.

I strongly suggest that you consult an attorney before relying on your interpretations or making reckless statements upon which other unfortunates may rely.
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Old November 18, 2012, 11:23 AM   #90
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PC §9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another: B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Quote:
Apparently the woman was on the phone with 911 dispatchers when the shooting occurred, and she told deputies she feared for her life. She was later questioned by investigators and placed in the back of a patrol car.
http://www.khou.com/news/local/Man-s...170022816.html
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Old November 18, 2012, 11:26 AM   #91
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^^^

It would seem from the report that the person against whom the deadly force was attempting to enter unlawfully and with force, the actor's occupied vehicle.

Under Texas law, the actor's belief that deadly force was immediately necessary to defend himself or herself is presumed to be reasonable under such circumstances.

Last edited by OldMarksman; November 18, 2012 at 11:35 AM.
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Old November 18, 2012, 11:48 AM   #92
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the point being who is to say what fear is to anyone. what fear is to you may not be what fear is to me. this lady on a park bench with her kid was /can be in fear of her safety by this man and has the right to defend herself

PC 9.22 Necessity:
reasonably believe the conduct is immediately necessary to avoid imminent harm
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Old November 18, 2012, 12:02 PM   #93
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Originally Posted by barstoolguru
the point being who is to say what fear is to anyone. what fear is to you may not be what fear is to me. this lady on a park bench with her kid was /can be in fear of her safety by this man and has the right to defend herself

PC 9.22 Necessity:
reasonably believe the conduct is immediately necessary to avoid imminent harm
And the point of that is that in the law it's a reasonable person standard. You might indeed genuinely be afraid, but if the DA, grand jury and finally your trial jury decide that your fear was unreasonably, you will be going to jail.
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Old November 18, 2012, 12:11 PM   #94
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Posted by barstoolguro: the point being who is to say what fear is to anyone. what fear is to you may not be what fear is to me.
And that is precisely why the term "fear" is not used in the statutes in most states.

What the lady in Houston reportedly said is completely irrelevant. The reported evidence would justify her action--or no. Appears that it would, here, from the report. It still remains to be seen.

Quote:
this lady on a park bench with her kid was /can be in fear of her safety by this man and has the right to defend herself
She would have the right to diplay a weapon to protecting herself against the use of presently threatened unlawful force by another (in Washington State).

We cannot judge whether such a threat existed. I haven;t seen any indication that it dis, but I will not rely on news reports.

The threshold for the use of deadly force is much higher.

Her personal level of trepidation would not enter into the question.
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Old November 18, 2012, 12:25 PM   #95
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I went back and reread the article and it mentions nothing about her getting arrested for brandishing OR threating another person. On top of that it supports her right to self-defense by saying she went to the police station and looked through mug shots later that evening

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And that is precisely why the term "fear" is not used in the statutes in most states.
9) that the person who discharged the firearm had a reasonable fear of bodily injury to the person or to another by a dangerous wild animal as defined by Section 822.101, Health and Safety Code.
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Old November 18, 2012, 12:35 PM   #96
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Originally Posted by barstoolguru
I went back and reread the article and it mentions nothing about her getting arrested for brandishing OR threating another person. On top of that it supports her right to self-defense by saying she went to the police station and looked through mug shots later that evening...
Which means what, exactly? The fact that something isn't mentioned in an article doesn't mean it didn't happen. The fact that something isn't mentioned in an article doesn't mean it didn't happen until after the article was published.

Quote:
Originally Posted by barstoolguru
...9) that the person who discharged the firearm had a reasonable fear of bodily injury...
Note the word "reasonable" again. It's an objective, reasonable person standard.

And if you're going to cite a statute, use a complete and proper citation so that the rest of us can find what you're referring to.
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Old November 18, 2012, 12:38 PM   #97
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Plus, the fact that she was Female sure didn't hurt the legality of the incident. A female would be easily considered to be more at risk in this situation than a male for obvious reasons. They might frown on it if a male had drawn down on a flasher. So being Female, it was an acceptable response from her.
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Old November 18, 2012, 12:44 PM   #98
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Postedd by barstoolguru: I went back and reread the article and it mentions nothing about her getting arrested for brandishing OR threating another person.
If she is not charged, the decision will likely constitute a reasonable political call, and it will say nothing to the legality of her action.

But again, we don't know all the facts.

Quote:
On top of that it supports her right to self-defense by saying she went to the police station and looked through mug shots later that evening
Everyone has a right to self defense unless he or she was committing a crime of violence or engaged in mutual combat. Her helping to identfy mugshots has absolutely nothing to do with it.

When and under what circumstances it is lawful to present a firearm varies by jurisdiction. Minnesota, Texas, and Washington State are rather "permissive", and Arizona is unique in that it permits "defensive display" (but not drawing) under some circumstances in which deadly force is not justified.

Of course, people to get by with it from time to time when the authorities deem the action reasonable under somewhat questionable circumstances. That may be what happened here.

But if she expected to face any real, imminent danger, I suggest that carrying the weapon unloaded was not a prudent thing to do. She may end up being very lucky on more than one count.
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Old November 18, 2012, 01:10 PM   #99
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It seems to me that things worked out about as well as they could have.

The fact that she was with a child - and therefor less able to leave quickly - seems to me to make her decision to draw her weapon perfectly reasonable to me. Fortunately that's all it took to drive him off, so - in my mind - shooting him would have not been reasonable.
Hopefully, If I ever need to draw my weapon, I get the same outcome.
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Old November 18, 2012, 02:17 PM   #100
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...9) that the person who discharged the firearm had a reasonable fear of bodily injury...

Note the word "reasonable" again. It's an objective, reasonable person standard.
Seems like if she had killed the man the fact that a gun was "in play" and dead people can't tell their side of the story, with a decent lawyer she would be fine.

Officers of the law must have more wiggle room, they shoot unarmed people from time to time.
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