New Orleans would be robber takes flight after being disarmed. Legality questions

[Kimio]

http://www.wwl.com/pages/16209701.php

Okay, I was wondering, in this scenario, the victim managed to disarm the perp whom immediately fled the scene.

The question is, would lethal force have been justifiable if the victim had, after gaining possession of the criminals firearm, fired upon him as he fled.

As I understand it, you have to have reasonable cause to believe your life is in danger or are in danger of grievous bodily harm. Since the perp was fleeing, if he was shot, and killed, could the victim be charged with man slaughter?

There is a bit of a gray area here I think, unless I'm misunderstanding something.

[southjk]

I can't imagine ever being in the right for shooting someone that is running away from you. How can you claim you feared for your life when they had been disarmed (as far as you know) and were running away?

[Brian Pfleuger]

Actually, it's almost never a grey area. You are authorized to use lethal force when your life is in danger and not one second before or after. A fleeing suspect is not a danger unless he's firing a gun at you over his shoulder or something.

In some localities, there are laws that allow the use of lethal force on a fleeing criminal who has committed certain crimes. Even so, it is almost never wise and I don't believe that simple armed robbery is one of them, in most any place.

[Kimio]

That's what I was thinking, the victim wasn't in any danger once the criminal took off. It was wise of him to simply let him go and not fire the gun (if it was indeed loaded)

I wasn't entirely sure if he could be charged or not, but seeing as this could have gone south in so many ways, I'm just glad that the guy wasn't hurt by this thug.

What's mildly amusing is that the perp had the stones to drive up next to the guy and demand a trade for his weapon back.

[JimDandy]

In some localities, there are laws that allow the use of lethal force on a fleeing criminal who has committed certain crimes. Even so, it is almost never wise and I don't believe that simple armed robbery is one of them, in most any place.

I believe I live in one of those localities, but I wouldn't find out for sure. At lest not the hard way.

Originally Posted by Washington State Lawmakers

RCW 9A.16.020
Use of force — When lawful.

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction;

(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody;

(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;

(4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public;

(5) Whenever used by a carrier of passengers or the carrier's authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to the offender's personal safety;

(6) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person.

In the situation you described, Either 2 or 4, or 2 and 4 could apply. Though, again, I wouldn't volunteer to find out for sure.

Additionally on the subject we have..

Originally Posted by Washington State Lawmakers

Homicide is also justifiable when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.

Neither of those actions would necessarily apply, but you can still use force to apprehend the guy running away after his epic fail at armed robbery. I'd go bench trial, and cite a the Supreme Court case... Tennessee v. Garner - 471 U.S. 1 (1985) and where that leads me- because that wasn't the case I thought it was, but it led me to the one I was thinking of and can't find right now as I'm juts about to pack up- and pray like my life depended on it Because it would.

[Evan Thomas]

Originally Posted by JimDandy

This, and the rest of the passage you quoted, deals with the use of force, not with the use of deadly force.

All the use-of-force statutes I'm aware of make a clear distinction between the two -- unless a particular passage says something like "use of force up to and including deadly force," deadly force is not permitted in situations like those in the passage you quoted. With the exception of (1), which deals with law enforcement, the rest of the cases clearly state that force may be used in order to arrest, detain, expel, or restrain someone, should any of those be justified by the circumstances set out in each paragraph.

It's vital to be clear about this distinction. There are many, many circumstances when the use of (non-lethal) force is justified, but the use of lethal force would likely get you convicted of murder.

In general (as Brian notes, there are rare exceptions to this), once an assailant ceases to be a threat, lethal force is never justified. That's certainly the case once the assailant in the video has started to run away.

And I'm utterly at a loss as to how you think Tenn. v. Garner gives a private citizen any right whatsoever to use deadly force to to stop a fleeing suspect. That case dealt with what police officers may do, and held that

The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 497 U. S. 7-22. (my emphasis)

[Aguila Blanca]

Originally Posted by Kimio

There is a bit of a gray area here I think, unless I'm misunderstanding something.

No grey area at all.

Not legal.

[Maxb49]

There is a bit of a gray area here I think

Absolutely not. There is no legal, ethical, or moral justification for shooting someone whom you have disarmed, no longer poses a threat to your physical safety, and is in the process of running away. None whatsoever.

[Plumbnut]

I would have shot the guy if I could have got the gun away from him.

Here is the reason......the robber could have had another gun and could have been running for cover to get the gun out of his pants or a leg holster.

Thats just how I would have reacted under the stress. Sorry.

In my location I can use lethal force when my life is not in danger while on my property to protect my property. if I walk out in he middle of the night and a guy is in my car stealing my stuff I can kill him on the spot.

The law was changed a few years ago because an old man kept getting his rural house broken into. The house had a long driveway and several times the old man would come home and people would run out of his house with his stuff.

The last time he told the police if you cant stop tem the next time I will with my 30-30 rifle.

Well a few months later the old man came home and a guy ran out of his house with a stereo or a tv....cant remember and took off running across a field.
The old man stopped his pickup truck took out the 30-30 and shot the guy in the back killing him.

Cops came and took report and the D.A. took it to the grand jury. Several times the grand jury failed to bring charges. The general public got involved and protested any charges being brought against the old man.

The law was changed so the D.A. wouldn't have to even bring it to the grand jury if it ever happened again.

People around here are TIRED of having METH heads steal their personal stuff and what they use (tools) to make a livng with and support their families.

About a year after that a couple guys robbed a pawn your car title for cash place.....the owner was in the back watching the robbery.....after the robbers ran out the door....the owner ran out the front door chasing them and shot one guy in the back that was in the NEXT parking lot killing him.

No charges filed...ruled justified.

What does this tell you??? Dont come to Alabama if your a thief becuase you probably will get shot sooner rather than later.

[SerenityNetworks]

Absolutely not. There is no legal, ethical, or moral justification for shooting someone whom you have disarmed, no longer poses a threat to your physical safety, and is in the process of running away. None whatsoever.

I disagree. My understanding of Texas law is that it may be perfectly legal.

Texas Penal Code - Section 9.42. Deadly Force To Protect Property
§ 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

As to whether deadly force would be ethical &/or moral, I believe the matter would be dependent upon the circumstances. I can understand where a victim would believe they are ethically &/or morally obligated (not just justified) in using deadly force on a fleeing criminal that has already demonstrated the willingness to kill, that knows the victim &/or has the ability to locate the victim again, and announces the intent to carry out additional crimes on the victim.

I pray that I am never faced with needing to make that decision and I pray even more for those that yet will be faced with that loose-loose decision.

[ClydeFrog]

My personal view(s) are you can use lethal force on a fleeing subject under some limited conditions...
Those things would include witnessing a serious violent crime(stab, shooting, hit with a rock/brick/stick-bat), shooting or waving a knife/edged weapon as they fled, clearly armed with a loaded firearm or making terroristic threats while holding a firearm or weapon, a subject who attacks or shoots a sworn LE officer or agent & is now trying to escape/dangerous fugitive, a subject involved in terrorism or who has a WMD like a bomb, arson, or other destructive device designed to cause mass casualties.
The recent Boston MA/Watertown events are a great example. Closer to my area, two uniformed deputies shot & killed a aggressive subject who had a pellet gun that looked real. The subject made threats to several hotel guests & employees then refused to comply with the uniformed deputies. Part of the event was on CCTV.
As I've posted before, if I sat on a jury or inquest panel, Id take these factors into account when it involves a armed citizen or license holder.
Armed citizens do not have to be RoboCop or Ben Matlock & shouldn't be risk adverse if they face a critical incident.

CF

[Evan Thomas]

Originally Posted by plumbnut

In my location I can use lethal force when my life is not in danger while on my property to protect my property. if I walk out in he middle of the night and a guy is in my car stealing my stuff I can kill him on the spot.
<snip>
Dont come to Alabama if your a thief becuase you probably will get shot sooner rather than later.

Plumbnut, I don't know why you believe this, but you're mistaken.

From the Alabama use-of-force statutes:

Section 13A-3-25 - Use of force in defense of premises.

(a) A person in lawful possession or control of premises, as defined in Section 13A-3-20, or a person who is licensed or privileged to be thereon, may use physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon such premises.

(b) A person may use deadly physical force under the circumstances set forth in subsection (a) of this section only:

(1) In defense of a person, as provided in Section 13A-3-23; or

(2) When he reasonably believes it necessary to prevent the commission of arson in the first or second degree by the trespasser.

Section 13A-3-26 - Use of force in defense of property other than premises.

A person is justified in using physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes it to be necessary to prevent or terminate the commission or attempted commission by the other person of theft or criminal mischief with respect to property other than premises as defined in section 13A-3-20.

Alabama laws are in line with those in most other jurisdictions: deadly force may be used only to protect people, or to prevent arson.

Physical force, but not deadly force, may be used to crimes against property.

As I said in my earlier post, anyone who is prepared to use a gun in self-defense must understand this distinction.

Originally Posted by ClydeFrog

My personal view(s) are you can use lethal force on a fleeing subject under some limited conditions...

Clydefrog, your personal view is incorrect, and won't protect you from prosecution if you ever act on it.

If a fleeing suspect is armed and dangerous, police may use deadly force to stop him. Private citizens may use deadly force to protect themselves from immediate threats; a fleeing suspect is not an immediate threat, and private citizens (unlike police, in some circumstances) may not use deadly force to prevent a future crime.

[Plumbnut]

I believe that because people get shot here all the time and no charges filed.

Just last weekend a guy got shot WHILE RUNNING out the door of a liquer store after he robbed it. No charges filed.

I cited a few other cases.

Friend of mine woke up one night and heard his backdoor open....alam system was off and he heard the "BeeP' when the door opended.

He was thinking one of his kids was sleep walking......he started to get out of bed and started hearing noises inconsistant with his kids.

He grabs his 1911 and walks out of his bedroom......only to have a 6'4 gentleman looking back at him in the hallway about 20' away.

He raised his weapon and commanded the man down on the floor.....the man just stood there........no reaction. My friend squeezed the trigger and the gun did not fire.....it had an empty chamber.

The man just froze...friend racked a round and the man immediately dropped to the ground with his hands out.

Cops came and my frend asked if he was going to jail......cops said yeah we have to take him to jail because you didn't kill him like you should ahve done.

I believe what I posted because I live here.....I know lawyers,cops etc and there are cases on file that people have used deadly force to protect their property. No charges filed.

Rule number one if you use deadly force. Do not say a word until you speak to your attorney. Its your right and its one you should exercise.

[SerenityNetworks]

VANYA:
If a fleeing suspect is armed and dangerous, police may use deadly force to stop him. Private citizens may use deadly force to protect themselves from immediate threats; a fleeing suspect is not an immediate threat, and private citizens (unlike police, in some circumstances) may not use deadly force to prevent a future crime.

I believe for some states that is an incorrect statement. An individual must understand the laws of the state in which they take such action.

[Evan Thomas]

The law I quoted above is very clear. If there are instances in which it's not enforced, or in which a jury chooses not to convict someone, they don't change that fact; neither do they justify breaking the law.

Originally Posted by SerenityNetworks

I believe for some states that is an incorrect statement. An individual must understand the laws of the state in which they take such action.

Can you quote a state law that permits such an action? My whole point is that a citizen must understand the laws of his/her state; belief isn't sufficient. If you're going to make this claim, you need to back it up with at least one example.

[ideaman]

Putting the law aside temporarily. Can a person declare a personal war on you by attacking with intent to do bodily harm? In war the enemy can be shot running away. Just be cause he lost the advantage he wants to turn his back on you and say "can't touch me" , I get a do-over later, bye?

War is war either by country or personal, (hatfield & McCoys). If the criminal hadn't lost the advantage your life would be at his mercy and that's ok by law?

I would love to see a good lawyer convince the jury with that one and set a precedent.

[Plumbnut]

Here is an example of another case.

Teenagers are out breaking in hunting cabins in a remote area of the county.

Three men heard noises coming from a friends cabin across the river.

The three men walk out onto the river bank and saw three people breaking into the cabin and demanded that they STOP.....the teenagers (unknown at the time) did not stop.

One of the three men fired what he claimed to be a warning shot.

One of the teenagers was shot in the head by th warning shot.

The only charges filed WAS AGAINST the OTHER TWO TEENAGERS for MURDER

WHY???? Well because during the act of a felony someone died as a result.

Welcome to ALABAMA.
http://blog.al.com/live/2013/01/thre...n_fatal_g.html
---------------------------------------------------------------------------------

Another case.......college student took some dope. College student freaks out and strips all his clothes off.

College student runs around campus yelling and ends up at the campus police station.

College kid is now completely butt naked and banging on the windows of the campus police station.

One officer is in the station and comes out with his GUN drawn.

The college kid is a former wrestler and starts to lunge at he officer,the officer retreats and commands the college kid to STOP.

College kid does not obey....officer shoots the naked unarmed kid in the chest killing him.

Officer had a baton and pepper spray but did not use it.

All of this on video tape for the most part.

No charges filed and the shooting was ruled justified and the cop is back on the job.

welcome to ALABAMA

http://blog.al.com/live/2013/03/univ...bama_co_3.html

[Tom Servo]

I'm sure any of us can dig up cases in which someone was shot while fleeing, or shot over property, and in which the shooter was not prosecuted. That misses the point.

The taking of a human life is never something to be done without the utmost necessity and cost. Our system of law, and society in general, frown upon it for good reason.

So, yeah, maybe a jury will find I was justified of shooting that guy in the back because he punched me before he ran off with my Barry Manilow records. Maybe not. Even if the moral issue of killing another human being isn't a big concern, I wouldn't want to have to take that chance before a jury.

[SerenityNetworks]

VANYA:
Can you quote a state law that permits such an action? My whole point is that a citizen must understand the laws of his/her state; belief isn't sufficient. If you're going to make this claim, you need to back it up with at least one example.

I am not an attorney and I sadly recognize that our laws and the language used within the 'professional' body of knowledge that phrase our laws is so convoluted as to render it impossible for anyone other than a 'professional' to fully understand the language and apply it. Yet that said, I believe the Texas Penal Code that I quoted in my first post provides just the example you are seeking.

Regards,
Andrew

[Gary L. Griffiths]

FWIW, I teach judgmental use of force and gunfighting tactics to law enforcement agencies nationwide.

Under Tennessee V. Garner a Law Enforcement Officer is justified in using deadly force to stop a fleeing felon who has (1) used or threatened to use deadly force in the commission of the crime, or has used or threatened to use deadly force in attempting to escape.

Deadly force is authorized regardless of whether the fleeing felon is still armed, or not. The Court ruled that a fleeing felon meeting either of those criteria is an imminent threat to the community if allowed to escape.

The key here is Law Enforcement Officer. To the best of my knowledge, no case of a citizen using deadly force in either circumstance has ever resulted in a court ruling the shooting justified; but I'm not aware that a Garner defense was ever presented in such a case.

Citizens have the same power as LEOs to make arrests for felony crimes committed in their presence. In theory, they could avail themselves of a Garner defense.

Having said all that, I'd sure hate to be the first poor ba*d to try to argue that before a court.

[Plumbnut]

I was told by a lawyer that EVERYTHING is against the law......but they enforce the ones they want to.

For isntance its against the law to feed a stray cat (I break that one everyday...somtimes 5 times a day)

Its also against the law for a women to wear high heal shoes downtown.

Its against the law to use drano in your pipes here.

You can drink alcohol on one particular street here during certain hours......but theres one block that you cant and technically you would have to throw your drink out to cross the street...once across the street you could buy another drink and keep walking.

I thought about throwing my drink way up in the air and catching it on the other side.

One city here banned people letting their pants sag showing their underwear.

[Evan Thomas]

Originally Posted by SerenityNetworks

I am not an attorney and I sadly recognize that our laws and the language used within the 'professional' body of knowledge that phrase our laws is so convoluted as to render it impossible for anyone other than a 'professional' to fully understand the language and apply it. Yet that said, I believe the Texas Penal Code that I quoted in my first post provides just the example you are seeking.

There's nothing in that piece of Texas Code that authorizes a person to use deadly force because he believes a fleeing suspect might commit a crime in the future. The Texas code does permit -- under very limited circumstances -- the use of deadly force to prevent the "imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime..." It also permits using deadly force, again under restricted circumstances, to prevent someone fleeing with your property. But that's quite different from shooting someone in the back because you, as a private citizen, believe he's likely to commit a crime after he leaves. Private citizens are much more limited than law enforcement in what they can do in that situation.

[csmsss]

Just throwing something out, but...how can we always be sure the bad guy is "fleeing" and not just running for cover to reload and reengage? The fact that someone is running away from us is not necessarily proof positive he is exiting the scene and fleeing for his life. It's quite arguable he/she is just trying to get to a more favorable position.

[Evan Thomas]

If he's running away, he has ceased to be a threat. If he then turns around and threatens to attack again, from cover or otherwise, then you'd be justified in defending yourself from a renewed threat.

You really, really don't want to have to explain to a jury why you shot him in the back.

[Plumbnut]

I would ask fora bench trial in that situation.

No Jury involved.

I assure you if I ever get robbed and I have my gun and the guy turns and runs I'm dropping him with multiple shots. he could decide to turn around at any moment and shoot me....he decides he can be identified and does not want to leave a witness.

I will then wait for the police and ask for my attorney.

If I ever walk out of home and a person is in my vehicle and I order them to "get on the ground" and they fail to obey I will assume they are reaching for a weapon and I will defend my life with deadly force.

bad as it may be I didn't make the choice to "steal and "rob" and then fail to follow direction. Like the cops say....."I'm going home tonight"