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Old February 26, 2014, 07:44 PM   #3
Frank Ettin
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,362
Originally Posted by ATN082268
...When is it possible to safely retreat when deadly force is justified?
In a jurisdiction in which one has a duty to retreat, if the district attorney, grand jury and/or your trial jury concludes based on the evidence that you could have safely retreated, your use of lethal force will not have been justified. In that case your claim of self defense will fail, and you will be convicted of a crime.

Of course whether you could have safely retreated will be a question of fact based on the circumstances. And while you had only an instant to make the decision, the DA/grand jury/trial jury will be second guessing you at their leisure.

Let's look at the basic legal reality of the use of force in self defense.
  1. Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.

    1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.

    2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.

    3. Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.

  2. The amount of force an actor may justifiably use in self defense will depend on the level of the threat.

    1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --

      1. Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

      2. Opportunity, i. e., the assailant was capable of immediately deploying such force; and

      3. put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.

    2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."

    3. "Opportunity" could be established by showing proximity, lack of barriers or the like.

    4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.

    5. And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.

  3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

    1. Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.

    2. If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.

    3. Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.

      1. Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?

      2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.

      3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.

      4. It could also be another matter if you left the safety of your house to confront someone on your property.

  4. Good, general overviews of the topic can be found at and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.

  5. Sometimes a defensive use of lethal force will have grave consequences for the defender, even when ultimately exonerated. For example --

    • This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.

    • Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

    • Mark Abshire in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.

    • Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

    • Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.

    • Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.

    • And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
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