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Old May 26, 2016, 10:24 AM   #1
Lohman446
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Force less than deadly force

In another thread discussing use of a firearm 4V50Gary responded

Quote:
I'd resort to force up to and including deadly force.
I acknowledge I may be taking the quote differently than it was meant though I am not certain and it begs a question: outside of your immediate friends and family is there any situation you would involve yourself in that involved the use of force less than deadly force?

For me if I am using force the situation has risen to a point where I am legally and morally comfortable that the use of deadly force is required. I have no level of force less than deadly force. I have no intent of attempting to kill my attacker - I am shooting center of mass with the intent of stopping my attackers aggressive action. I simply acknowledge that death is a likely and possible outcome.

I have no intent of using any type of restraint hold, shooting at extremities, giving warning shots, pistol whipping someone to knock them out, or anything else. If I draw my firearm, if I use force against another individual acting in an aggressive and threatening matter, I have only one level of force available.
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Old May 26, 2016, 10:40 AM   #2
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Quote:
is there any situation you would involve yourself in that involved the use of force less than deadly force?
All the various “what would you do” post are interesting, but a lot depends on the specific situation. Several years ago I went to a local mall and as I entered three men were holding another man on the ground. Turns out the guy tried to steal a woman’s purse and she resisted which gave these guys time to pin the thief to the ground. I suppose this was less than deadly force and it seemed appropriate. Now, would I have gotten involved? Who knows?
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Old May 26, 2016, 10:44 AM   #3
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Quote:
For me if I am using force the situation has risen to a point where I am legally and morally comfortable that the use of deadly force is required.
I assume from that that you would never use non-deadly physical force for any reason.

Quote:
I have no level of force less than deadly force.
It would be a very good idea to remedy that.

Quote:
If I draw my firearm, if I use force against another individual acting in an aggressive and threatening matter, I have only one level of force available.
True for everyone.

Best to have an option other than the use of a firearm. Pepper spray, for example.
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Old May 26, 2016, 10:48 AM   #4
Lohman446
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OldMarksman:

I may have worded things slightly wrong. I have the ability to use force less than deadly force and if forced into it (IE weapon malfunction, too close to engage with a weapon) could use it and have trained for it. However in every situation I would use anything less than a firearm it would be in a situation where deadly force was justifiable morally and probably legally. Further I would use as much force as I could physically use.

You mention pepper spray for instance. In what instance would you use pepper spray that you would not use your firearm?

Maybe there is this massive hole in my outlook and that is why I am asking these questions. Is there this massive hole or is my outlook simply different?
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Old May 26, 2016, 10:52 AM   #5
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I don't know the thread being referred to, but I can think of lots of situations where using physical force would be justified and expected, whereas deadly force would not.
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Old May 26, 2016, 11:00 AM   #6
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In what instance would you use pepper spray that you would not use your firearm?
In just about any situation in which I were being threatened with non-deadly physical force and had no choice but to defend myself. In such a situation, the use of deadly force for self defense would not be proportional to the threat and would therefore not be lawful.
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Old May 26, 2016, 11:09 AM   #7
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How about this sort of thing?

http://montrealgazette.com/news/loca...nne-mance-park
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Old May 26, 2016, 11:28 AM   #8
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Quote:
You mention pepper spray for instance. In what instance would you use pepper spray that you would not use your firearm?
I carry OC as an alternative to having to go hands on with an aggressor that has not shown ability, opportunity or intent to do me deadly harm.

The situations abound where you might need to defend yourself but DEADLY force is not called for.

You might be pumping gas and a guy jumps out of his car because you cut him off pulling into the station. He has made up his mind to physically assault you (bare handed). So, here is a potential fist fight... But i cant afford to get into a fist fight because im carrying a gun, and he might get ahold of that gun during the struggle.

I cant shoot him, his attack has not at this point reached the point of "deadly force". So, as he advances, yelling and screaming about how he is going to "kick my a**".... I give him a blast of OC to the face and prepare a follow up response in case that doesnt do the trick

If all i have is a gun... That limits my options.
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Old May 26, 2016, 12:02 PM   #9
James K
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It is more than a little ironic that in many areas citizens are allowed to carry deadly weapons, but are prohibited from carrying or even owning less than lethal weapons. Even in states with "strong" gun laws, it is possible for most people to own a gun legally, and (in theory) carry it outside the home.

But tear gas spray is illegal to carry or even own in many areas; the same is true of Tasers, blackjacks, batons and other such weapons. Some areas even regulate training in unarmed combat because "a criminal can learn (whatever) and use it against people."

That is an area where police have an advantage; they have a variety of weapons and can escalate the use of force as necessary. The citizen cannot do that.

Jim
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Old May 26, 2016, 12:02 PM   #10
Lohman446
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Quote:
How about this sort of thing?

http://montrealgazette.com/news/loca...nne-mance-park
In Michigan kidnapping justifies the use of deadly force. I am not participating in physically detaining him as it puts my gun too close to him. If I act to stop it after I call 911 (assuming there is time) it will be to draw my gun, give a loud verbal command to stop, give a verbal warning of impending shots, and then to shoot if compliance (or flight) has not been attained.

Quote:
I carry OC as an alternative to having to go hands on with an aggressor that has not shown ability, opportunity or intent to do me deadly harm.

The situations abound where you might need to defend yourself but DEADLY force is not called for.

You might be pumping gas and a guy jumps out of his car because you cut him off pulling into the station. He has made up his mind to physically assault you (bare handed). So, here is a potential fist fight... But i cant afford to get into a fist fight because im carrying a gun, and he might get ahold of that gun during the struggle.

I cant shoot him, his attack has not at this point reached the point of "deadly force". So, as he advances, yelling and screaming about how he is going to "kick my a**".... I give him a blast of OC to the face and prepare a follow up response in case that doesnt do the trick

If all i have is a gun... That limits my options.
In a case like this I am getting into my vehicle, locking the doors, and calling the police. An attempt to force entry into my vehicle at that point would be a threat of great bodily harm and will be met with deadly force if the presentation of a firearm does not end the situation.

My options as I see them are retreat, appeasement (until the police are involved), or deadly force. I'm to old to be wrestling on the ground with someone and, as I understand it, the use of some middle level of force might actually be used against me legally. Can I use pepper spray outside of the threat of great bodily harm? And if I do use it and did not use my firearm will the fact that I decided on a mid-level of force indicate I did not really believe I was in danger of great bodily harm?
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Old May 26, 2016, 12:06 PM   #11
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Quote:
In Michigan kidnapping justifies the use of deadly force.
Yes, provided that all of the other elements of justification are present.

Quote:
I am not participating in physically detaining him as it puts my gun too close to him.
That's one very good reason for not doing so.

Quote:
My options as I see them are retreat, appeasement (until the police are involved), or deadly force.
If you can retreat safely, do so. Appeasement may or may not work. But should neither work, the use of deadly force would not necessarily be justified.
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Old May 26, 2016, 12:18 PM   #12
Lohman446
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Quote:
If you can retreat safely, do so. Appeasement may or may not work. But should neither work, the use of deadly force would not necessarily be justified.
That is an interesting thought though it is one I am going to, initially at least, disagree with. I am not a lawyer so take this conversation, at least on my side, as from someone who is trying to figure this out and is not qualified to give legal advice.

It strikes me (and I see myself as a reasonable person) that someone threatening you with physical violence (I'm going to kick your...) who continues to do so even after you retreat as much as possible and barricade yourself in a locked vehicle should be seen as a credible threat of severe bodily harm. If I am on the phone with the police I would feel comfortable retreating from the situation in my vehicle assuming it was possible. If that is blocked would it not further raise the argument that I was under a credible threat of severe bodily harm.
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Old May 26, 2016, 12:20 PM   #13
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Quote:
the use of some middle level of force might actually be used against me legally. Can I use pepper spray outside of the threat of great bodily harm? And if I do use it and did not use my firearm will the fact that I decided on a mid-level of force indicate I did not really believe I was in danger of great bodily harm?
THAT is one of the great myths about alternative force options. They dont have the same standards to utlize them as a firearm does. A firearm constitutes " Deadly force". It doesent matter if you shoot the attacker in the little toe. Its still considered Deadly force and that can only be used under very specific circumstances. Usually to protect your LIFE or someone else's LIFE.

Deadly force CANNOT be used to stop a fistfight (generally speaking). OC (pepper spray) can.

OC and similar less lethal options have a lower threshhold of threat before they can be utilized. You can spray someone LONG before you would be justified in shooting them

The thought that OC is not a good option because you have a gun is backward.

Think it through. Can you shoot a guy because he is going to punch you in the face? Can you spray him with OC.

Now, obviously, disparity of force issues can change that equation. But OC would be the preferred route. Shooting someone is not a pleasent experience under the best of circumstances. Shooting an unarmed assailant, because that was your only option (thru failure to plan on your part) will most likely haunt you for years to come.
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Old May 26, 2016, 12:28 PM   #14
Lohman446
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Quote:
Deadly force CANNOT be used to stop a fistfight (generally speaking). OC (pepper spray) can.
This may end up being a learning experience for me and I tend to learn through debate so bear with me on this.

Are you certain?

The only way I am getting in a fistfight is if you sucker punch me, my back is to a wall (or whatever obstacle), or I am standing between you and my children. I am very willing to be a very meek person, apologize, back up, and generally attempt to remove myself from a situation where violence is likely to occur. You might even get that one hit in on me in the process (I get that it is a tactical blunder) and have me still attempt to retreat (not sure - never been there).

I believe that I have legal justification to use deadly force to prevent the threat of great bodily harm.

I believe that someone physically striking me, even as I try to retreat, represents the threat of great bodily harm.

Am I wrong?

To continue the discussion on OC. I have no desire to escalate a confrontation and would see its use as such
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Old May 26, 2016, 12:32 PM   #15
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Quote:
It strikes me (and I see myself as a reasonable person) that someone threatening you with physical violence (I'm going to kick your...) who continues to do so even after you retreat as much as possible and barricade yourself in a locked vehicle should be seen as a credible threat of severe bodily harm. If I am on the phone with the police I would feel comfortable retreating from the situation in my vehicle assuming it was possible. If that is blocked would it not further raise the argument that I was under a credible threat of severe bodily harm.
A threat of physical violence below the level of deadly force ("kicking your....") would not constitute an imminent threat of great bodily harm.

In some jurisdictions, an attempt at unlawful entry of someone into your occupied vehicle might provide you with a basis for a reasonable belief that such a threat existed, assuming that you could not drive away. In others, actual entry would have to be made.
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Old May 26, 2016, 12:35 PM   #16
OldMarksman
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Quote:
I believe that I have legal justification to use deadly force to prevent the threat of great bodily harm.
You would, should all of the other elements of justification be present.

Quote:
I believe that someone physically striking me, even as I try to retreat, represents the threat of great bodily harm.

Am I wrong?
Yes, unless he is striking you with a deadly weapon.

Quote:
To continue the discussion on OC. I have no desire to escalate a confrontation and would see its use as such
compared to presenting a weapon? The question is one of necessity. If you have to use OC, and if you can, that's a far better solution than the use of deadly force.
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Old May 26, 2016, 12:41 PM   #17
Lohman446
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Quote:
Yes, unless he is striking you with a deadly weapon.
This may require a reconsideration of several things then. While not attempting to be offensive may I ask how certain you are of this?
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Old May 26, 2016, 12:48 PM   #18
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Fistfights you walk away from before they start. If you are frequenting places or with people who routinely get into verbal arguments and pick fights, change your behavior.

Get away from the idea of 'fistfight' when considering self-defense with a firearm. You're going to be assaulted, knocked down, and kicked to insensibility or death. It's not 1965 anymore out behind the high school.

If you didn't start or provoke the assault, maybe tried to retreat, and are at risk of disproportionate harm, due to age or physical condition, using your firearm is probably warranted. All it takes is one boot strike to your head and you may be on life support.
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Old May 26, 2016, 12:50 PM   #19
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To further add a question about physical violence, if a large disparity is present between the victim and assailant would deadly force be possibly justified. I ask this as I have a friend who is about 100lbs soaking wet and all of 5 feet tall. Someone who is fairly average, say 170lbs and around 5'9" would seem like a very likely candidate for the use of deadly force on as they could do some serious damage I would imagine.

On the other side OC wouldn't count as an escalation of force in my book, rather it's something use to defuse a situation before the use of deadly force would become necessary. For me getting into a fist fight wouldn't say to me I need to use deadly force.
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Old May 26, 2016, 01:01 PM   #20
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The answers to the questions posed above are very situation-sensitive and fact-sensitive.

Yes, punches, even a single punch, can kill or maim. But the issue is one of likelihood.

And yes, a significant disparity of force can enter into the question of justification. But that's often an extremely difficult defense. Read about Larry Hickey in Arizona.

We've had numerous discussions on these things before.

This is a very good time to suggest that everyone read this.

Sooner rather than later.
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Old May 26, 2016, 01:39 PM   #21
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We love to get deep into the weeds with the most unlikely scenarios. "Force" is putting your hands on somebody. The burden to justify putting your hands on somebody is a lot lower than the burden for shooting them. Theft, vandalism, trespassing, rarely justify shooting, but may justify "force". I've done so.
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Old May 26, 2016, 01:57 PM   #22
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OldMarksman presented an interesting case study on Mr. Hickey (though I only read through as far as the hung jury). At least as the author presents it Mr. Hickey and his wife were attacked by three individuals in their own driveway. Mr. Hickey was being assaulted by all three of these individuals to the point of possibly (not a lot of medical evidence) sustaining a concussion before drawing his firearm.

The big discrepancy seems to be the placement of the fight - either in Mr. Hickey's driveway (the author is biased and presents statements that the physical evidence supported this side of the story) OR the middle of the street.

I originally started typing this thinking it really proved the counter argument - that OldMarskman was right and you better not use a firearm if presented with a fist fight. Mr. Hickey was engaged with three individuals (originally two females with the third (male) jumping in). There was a clear disparity of force.

The point of contention is WHERE the fight occurred. The prosecutor argued it occurred in the middle of the street. He argued that Mr. Hickey had effectively marched forward and engaged in a mutual confrontation while bringing a gun to a fist fight.

So I get the point that OldMarskman makes and it is right - it does not appear (at least in Arizona) that an attacker (or three) represent in themselves a threat of severe bodily harm. However if you enter the fight and it escalates are you likely to find yourself in the same position Mr. Hickey was in (who according to the article did everything right). If you stand your ground and fight back (or use pepper spray) and are forced to go for your gun as the fight gets out of hand are you, from a legal stand point, helping yourself?

My take-away: you are screwed virtually no matter what you do if you use deadly force and your attackers are not armed.

Last edited by Lohman446; May 26, 2016 at 02:03 PM.
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Old May 26, 2016, 02:04 PM   #23
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As a Professional Use of force trainer for the past (gulp) 3 decades... Im very sure of it.

Without extenuating circs (mtpl attackers, disparity of force[male vs female or extreme size difference], some infirmity on your part, ect) you are going to have a hard time justifing using DEADLY force on someone that was trying to punch you

I know there will be responses like " Im 207 years old and if i get hit i might die". That would be one of those extenuating circimstances mentioned above.

As a basic use of force guideline... You cannot use deadly force against a fist.
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Old May 26, 2016, 02:17 PM   #24
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Quote:
If you stand your ground and fight back (or use pepper spray) and are forced to go for your gun as the fight gets out of hand are you, from a legal stand point, helping yourself?
This is where the "stand your ground laws" come into play. In states with a duty to retreat then you better do so.

In a general sense... Going towards the fight is not a good idea reguardless of the statutes. You must alway be "innocent" in the initial assault. Mutual combat negates your claim of self defense.

So, back to my earlier scenario at the gas station. Maybe you are returning to your car from inside and cannot SAFELY simply get into your car. Guy starts screaming at you..." You SOB!!! You cut me off and almost killed my kids!!! Im going to kick your Butt (pc for the Mods) and teach you a lesson"

Sure...try to deescalate the situation. Some good verbal judo. Back away.. Whatever. But the time comes when he is going to punch you if you wait any longer to respond.

Chose an option..
A. Shoot him with your lawfully carried pistol
B. Spray/Taz/whatever you have as a less lethat option
C. Get into a fist fight and maybe lose control of your pistol and get shot

I think i (and my Attny) can make a pretty good arguement why "B" was the best option at that moment
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Old May 26, 2016, 02:19 PM   #25
shafter
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Quote:
I have no intent of using any type of restraint hold, shooting at extremities, giving warning shots, pistol whipping someone to knock them out, or anything else. If I draw my firearm, if I use force against another individual acting in an aggressive and threatening matter, I have only one level of force available.
You have a problem then. Not all aggressive actions justify the use of deadly force. What is your plan if someone is finger jabbing you in the chest in a dispute? Or if someone grabs you from behind pinning your arms, or gets in your face spitting at you? The list goes on.

There are many cases where you may need to defend yourself where running away or drawing a gun are not options. Even a straight up punch in the face or multiple assailants may not be enough to justify deadly force.
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