March 5, 2013, 12:53 AM | #1 |
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jeopardy
In one case in my area a person with a CHL was recently arrested for murder for shooting an un-armed attacker. (The outcome of this case is still pending... and not the point of this thread). In this case it was reported that a person cannot meet physical force with deadly force and thus the arrest was made. Talking about this subject I had a hard time explaining to someone who asked if it was legal to use deadly force (firearm) if your not physically able to thwart an un-armed attacker!
I explained "AOJ" (Ability, Opportunity, Jeopardy), but the question remained if a person cannot use deadly force against a physical attack and does not have the physical strength to stop the attack then how do they determine if deadly force is allowed? Say on an attacker who is intent on beating you for something you did not provoke... are you really in jeopardy of life and limb? I realize the question could be a big grey area in determining or proving the attacker met the jeopardy requirement even while un-armed but is there a way to determine what a reasonable armed person would do in a situation where they cannot physically stop an un-armed attack? Lastly, if I posted this in the wrong section please have mercy I had the best intentions.
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March 5, 2013, 01:03 AM | #2 |
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Aside from state laws the question of jeopardy falls under disparity of force.
If you are 6'2" and 215# of muscle threatenned by a 150# kid who is unarmed you will have a hard time claiming disparity of force were you had cause to fear for your life. On the other had a 5'4" asthmatic threatenned by a 250# biker is in a differrent situation. Essentially it comes down to the local DA's opinion, public sentiment and possibly a jury who will decide what is reasonable. There is no magic formula.
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March 5, 2013, 01:09 AM | #3 | |
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March 5, 2013, 01:13 AM | #4 |
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FWIW, I'm 5'4", over 60, and have Parkinson's and osteoporosis. I've cracked a rib just leaning my chest against a fence. Somebody punching me in the chest could kill me, by breaking my ribs into my heart. I certainly can't fight anybody hand to hand, and I can't run.
For me, any physical force is the same as deadly force.
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March 5, 2013, 02:16 AM | #5 |
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Many states have a "reasonable person" standard, in which the jury is asked to put themselves in the defendant's shoes and ask if they'd done the same.
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March 5, 2013, 09:42 AM | #6 |
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Fights, confrontations...
You have the legal right & ability to move freely in society without being harassed or threatened by harm but you must also use common sense & good judgement.
You can not start a argument or scream at someone then as they move to attack you, draw a firearm & shoot them. If you have a dispute you should be a mature adult & leave w/o incident(as suggested by sworn LE officer/legal use of force expert; Massad Ayoob) or contact LE/private security or guard(if there is a security guard available). You can use lethal force if you are attacked & in fear for your life but I can honestly tell you, your location, dress, actions, demeanor, background(criminal history), and other factors may be involved in a use of force incident. The recent Martin/Zimmerman mess is a good example. It's not fair or ethical but it's the real world in 2013. ClydeFrog |
March 5, 2013, 11:10 AM | #7 | |
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Obvious disparity of force, but he's not done anything that justifies shooting him. Laws broken, probably. Bad situation with likelihood of getting worse, probably. You shoot him, you go to jail.
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March 5, 2013, 11:23 AM | #8 |
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Under the circumstances, would a reasonable person believe that his or her life was in danger?
For example, did the attacker reach for his pocket and say, "I'm going to kill you." or words to that effect? Witnesses? Just a bit of advice. If your concealed firearms instructor did not discuss what to do after you discharge your firearm, I suggest, IMAO, that you develop a plan in accordance with your local laws and your right not to incriminate yourself.
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March 5, 2013, 12:47 PM | #9 |
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Lie-witness...
I honestly would not trust any "eyewitnesses" in about 80-90% of the areas where a critical incident would take place.
Some people may be honest or help you out but as a armed security officer & someone who worked in LE, I can say that many times bystanders make snap judgements, lie, are on drugs or alcohol or are so spun out they don't even know what happened. Watch the local news stories of incidents in your area & see how witness statements vary. CCTVs, smartphone cameras & audio recordings can help a lot. Stay safe! CF |
March 5, 2013, 01:09 PM | #10 | |
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You won't hear me say this often but it is times like this I am thankful for the use of force laws in Illinois. I don't know the specific case you are referencing, but in Illinois you can defend yourself with force that is likely to cause serious injury or death if the person you are shooting is in the process of committing a "forcible felony", which includes burglary/home invasion. No requirment for them to be armed, disparity of force etc. Shooting a fleeing suspect will get you in trouble but there have been several high profile cases where mainly store workers/owners have actually chased, shot and killed people who robbed their stores and the store workers/owners have not been charged.
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Common sense could have gone a long way to stopping that whole situation in the first place. Another example (Cant remember the state) is where an armed CCer went to confront his neighbor, in his neighbors driveway about his loud music, proceeded to instigate a situation then shot the neighbor claiming "self defence" Doesnt work. Look before you leap applies big time!
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March 5, 2013, 06:36 PM | #11 |
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IMO its about doing everything possible to de-escalate the problem. The hardest part is swallowing the pride pill and let the agressor vent or have their way. Knowing your armed during a confrontation should assume the higher position to walk away. I also look at it as what its worth to me.... is it really worth lawyers and possible freedom and jail to prove you were right to a stranger? ...and over what, a parking space or whatever? I dont think there will ever be a clear answer but at least if it escalates beyond your control, you can say you did everything reasonable to mitigate the situation.
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March 5, 2013, 06:43 PM | #12 |
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One of the complicating factors in all this is that there is a gun present, and the attacker could feasibly take it and use it against the defender.
Does that mean the attacker would? No. It does mean that if the total evidence supports a reasonable conclusion that the attacker would have done so, then that should be used in the defense. And, as others have noted, disparity of force can come in many forms, particularly if the defendant suffers from some other medical condition and realistically can't be expected to take any beating without long-term effects. |
March 5, 2013, 07:03 PM | #13 |
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Without knowing what state the incident occurred in, we can't look up the governing state law. Without knowing exactly what the state law says, we are engaging in idle speculation.
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March 5, 2013, 08:28 PM | #14 |
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what if it a 200 pound man with a gun and a 170 pound man without a gun doing the threatening. The guy might be able to win a fight, but if he has a gun and the fight turns to wrestling then who knows if he can control his gun and keep the smaller man from getting his hand on the gun and firing it point blank into the bigger stronger guy with the gun.
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March 5, 2013, 08:32 PM | #15 | |
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March 5, 2013, 08:41 PM | #16 | |
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March 5, 2013, 10:30 PM | #17 | |
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If you have done everything in your power to leave the situation and end up using deadly force does that have any weight if your attacker is of similar size as you?
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A lot of good comments here about disparity of force, it seems that if disparity is not obvious then neither is deadly force justified. Considering the emphasis on this grey area of a minor disparity its my thought to make a physical effort to elude and evade any confrontation that puts you in jeopardy of physical harm but not life or limb. I should consider working that into my training including retention. http://www.oregonlive.com/portland/i...vancouver.html
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March 5, 2013, 10:44 PM | #18 |
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Life threatening situation before deadly force is allowed. A guy could be sitting on your chest and beating the living hell out of you and you have to "convince" the court you were sure you would die if he continued...and that's why you shot him.
You have more responsibility and liability when you have control of a handgun. People watch too many movies where a person "whips" it out and scares the bad guys away. Whipping it out for show could cost you the permit and potential jail time. |
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