When to Go to the Gun (or Bat or Club)

[OldMarksman]

A number of years ago, we had a member whose sig line read something like "it's not about whether you can shoot (legally), but whether you have to shoot". I cannot remember the exact words, but I have never forgotten the sentiment.

From time to time, we read posts along the lines of "in my state, deadly force may be used when..." and "I know when deadly force can be used under the laws of my state".

It is important to know the use of force laws in one's jurisdiction, but nothing in them should ever be taken as a green light for using force.

Also, going back to that old sig line, we should add something about putting one's hand on, displaying, drawing, or pointing a weapon.

We may indeed have to do so, under some exigent circumstances, if we have no other choice.

We would be justified in doing this if (1) it has become immediately necessary to defend against an imminent threat of death or serious injury, and (2) we are not the initial aggressor (or we have stated our intention to withdraw from the confrontation). Our action must be reasonable, and the force we use must be proportional. Depending on jurisdiction , we may may not have a duty to retreat if retreat is safely possible, and our failure to retreat may or may not be taken into account in determining whether our action was reasonable.

We should understand that when we have done so, our justification--the account of what we did and why--will not be judged solely on the basis of what we say. It will depend on fragments of incomplete evidence gathered after the fact, and on testimony that may well be faulty. It will be judged by people who were not there. That is not a good place to be at all, but it may be a lot better than the alternative--or not.

One related point: the criminal justice system is not perfect. Even if one does everything right, attorneys tell us that there is perhaps a 10% chance of conviction.

Let's simplify things by first outlining when we do not want to go for the gun:

• To defend moveable, tangible property (that's legal in one sate under very limited circumstances, but it is rarely worth doing)
• To prevent or terminate trespass
• To prevent someone from breaking i to a house or car unless it is occupied
• To detain a suspect (if he chooses to depart, you may not shoot him)
• To shoot a fleeing suspect
• Warning shots
• To shoot to wound
• When you have knowingly and willfully entered into a controversial encounter
• If you cannot use your weapon without putting others at unnecessary risk
• If there is any other alternative

That last one includes avoidance and retreat, even if retreat is not legally required; deescalation and apology; "not stopping there"; going somewhere else; driving away; and so on.

Suppose, however, that we do have to reach for the gun for self preservation. What next?

• Act decisively, without delay.
• Think "backstop", if possible.
• Be alert for his accomplice(s).
• Do not use any more force that is necessary to stop the attack.
• Be the first to call the police.
• Stay at the scene unless it is too dangerous to do so (flight is an indication of guilt).
• Get the gun out of our hands as quickly as possible before first responders arrive--drop it if necessary.

One should engage an attorney ASAP. Realize that the clock for billable hours will start then.

One should never discuss the incident with any reporters or other people or post anything about it on social media, and one should limit discussion with law enforcement to saying what is necessary to identify ourself as a victim and to identify any witnesses and evidence before they disappear.

The aftermath will likely be very costly and traumatic.

We are assuming, of course, that the defender is successful in preserving his life and those of his loved ones. That is, after all, the real purpose of all of this.

One other thing: the subject of defending a third party is often raised. That is lawful in all US jurisdictions, but only if the third party would be lawfully justified in using deadly force to defend himself. In some states, a reasonable belief about that justification will suffice (but that does not mean "based on what I saw, she sure looked innocent"); in others, the third party must actually be justified in defending himself. That means that one should never enter into a situation without knowing what has previously transpired. And, of course, all of he requirements of lawful self defense apply.

Personally, I will not subject myself to physical, financial, and legal risk unless I know the third party.

I hope this proves helpful.

[ghbucky]

One should never discuss the incident with any reporters or other people, and one should limit discussion with law enforcement to saying what is necessary to identify ourself as a victim and to identify any witnesses and evidence before they disappear.

And for the love of God don't talk about it (or upload videos of the incident) on social media!!!

[OldMarksman]

And for the love of God don't talk about it (or upload videos of the incident) on social media!!

Thanks--the OP has been edited to inlude thst.

[BobCat45]

Took my first Texas CHL class in 1996, as an adventure and to have the license "if I ever needed it."

Much of the class was concerned with the laws governing use of force, and lethal force. The phrases about "reasonably believes...immediately necessary" are engraved on my mind.

At a coffee break some of the students started asking the instructor - an off-duty policeman - about scenarios, with questions sounding like "can I shoot under circumstances such as...?".

He got a real tired look on his face and said something to the effect of, 'Shoot if it is the only way for you to survive the encounter' and left it at that.

To me, that sounds similar to the signature referenced in the original post.

[WyMark]

When you have knowingly and willfully entered into a controversial encounter

Now why does that have such a familiar ring to it?

[davidsog]

"Were they watching? I don't know. Again, we're still going through the video but there was a lot of people, in my opinion, that should've intervened. Somebody should've done something. It speaks to where we are in society. Who would allow something like that to take place? So it's troubling but again, we're working on that and we're trying to identify anyone that we saw coming on and off the El at that time," Upper Darby Police Superintendent Tim Bernhardt said.

https://www.cbsnews.com/news/woman-r...-fishton-ngoy/

[MarkCO]

Most of that is good for regular discussion...

One thing that comes up in many cases I work on, while not codified in the law, is use of verbal. So few instructors teach anything about verbal.

Things like "Don't make me kill you" or, if there is sufficient time, saying nothing before going to the gun, can hurt a defense with some sets of circumstances. Practicing verbal, especially in this day of cameras everywhere, can be a very beneficial component of a defense when the appropriate words are said during or prior to going to the gun.

If you cannot use your weapon without putting others at unnecessary risk AND Think "backstop", if possible.

Biggies, especially in crowded places. Use of muzzle angles up or down to assure you can hit the threat but not others is also a big miss of many "courses".

[TunnelRat]

Originally Posted by MarkCO

Most of that is good for regular discussion...

One thing that comes up in many cases I work on, while not codified in the law, is use of verbal. So few instructors teach anything about verbal.

Things like "Don't make me kill you" or, if there is sufficient time, saying nothing before going to the gun, can hurt a defense with some sets of circumstances. Practicing verbal, especially in this day of cameras everywhere, can be a very beneficial component of a defense when the appropriate words are said during or prior to going to the gun.



Biggies, especially in crowded places. Use of muzzle angles up or down to assure you can hit the threat but not others is also a big miss of many "courses".

I think this is a good point. Another thing I’ve had instructors reinforce is checking the status of people around you after a threat is stopped. Beyond the tactical reasons of knowing the status of yourself, the people you’re with, and even strangers in the event you can render aid, it also helps establish a narrative that you were trying to help in the first place.

I’ve seen people in force on force scenario based training seemingly refuse to communicate at all. To some extent they might just be nervous about the event, but being polite and receptive of courtesy can help prevent escalation (while keeping in mind that someone may be deliberately trying to distract you). It also can help you gather some information about the people you’re interacting with and their demeanor, which may play into your threat analysis. Women in these courses seemed much more willing to do this than men, generally to their benefit.


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[davidsog]

One thing that comes up in many cases I work on, while not codified in the law, is use of verbal.

+1

https://thefiringline.com/forums/sho...5&postcount=75

Keep in mind, we all live under a social contract.

It is spelled out in the Pre-Amble of our Constitution.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

There seems to be a narrative that a CCL holder's only options are to hide or shoot. That is not the case. Hiding is sometimes the safer route and always will avoid any legal issues. Shooting in the absence of verbal inquiry is not the correct action either without clear, imminent threat to your life. It will lead you to legal issues.

While you can never provoke or instigate, You do have the right to inquire about disturbances to your domestic tranquility. Your rights end where others begin and you are free to push yours to the boundary. In, fact, that "rights vs rights" is a Marxist tactic using one right to suppress another in the latent and incipient phase of an insurgency. That's another subject.

Speech is not violence and inquiry is not denial of rights. It is perfectly legal and IMHO prudent to ask, "What is going on?"

If during that process the situation changes and you believe your life is in threat of being taken....you have the right to defend yourself. Should you think about that and be mentally prepared before opening your mouth? I would.
Most states extend that right to defense of others should you reasonably believe IN THE TIME that such action is warranted. There are no laws that require you to have some crystal ball knowledge or special insight.

[MarkCO]

Well stated, and expanded, davidsog

[OldMarksman]

Most states extend that right to defense of others should you reasonably believe IN THE TIME that such action is warranted.

That is true. However, whether one's belief was in fact reasonable will be determined by others, based on evidence and testimony gathered after the fact. Assumptions based on initial appearances may not suffice at all. The apparent innocent victim may not be an innocent victim, and an apparent criminal attacker may be acting lawfully.

To think otherwise is naive.

There are no laws that require you to have some crystal ball knowledge or special insight.

In some jurisdictions, the law requires that the defender's belief to have been right.

In any event, the costs of legal defense, and criminal and civil liability, all of which can be extremely severe, are borne by the civilian defender. That's not to mention loss of income, and medical expenses.

To think otherwise is naive.

This is why trainers and other subject matter experts strongly advise against armed intervention unless (1) the actor knows what has transpired between the other parties from the beginning, or (2) the actor knows the victims.

Calling 911 and taking video is almost always appropriate, if it can be done with safety.

When a sworn officer intervenes in his or her own jurisdiction, he or she is shielded from civil liability, provided that all relevant procedures are properly followed. The community goes to bat for the officer.

That's not the case for the civilian.

[MarkCO]

Qualified Immunity is gone from several places now, including my home state...so the LEOs and the SD Civilian are in the same boat. Carry a big bag of corks.

[davidsog]

Qualified Immunity is gone from several places now, including my home state...so the LEOs and the SD Civilian are in the same boat. Carry a big bag of corks.

Exactly.

Additionally, many folks seem to think Qualified Immunity is a get out of jail free card. There is no Qualified Immunity in existence that protects you from negligence.

[tangolima]

Innocence, imminence, avoidance, proportionality, and reasonableness. 5 pillars of self defense. One needs to meet all 5 simultaneously.

-TL

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[ghbucky]

There is no Qualified Immunity in existence that protects you from negligence.

oh, really?

NYPD cops shoot 9 innocent bystanders in a shootout
https://www.foxnews.com/us/nypd-9-sh...police-gunfire
Police commissioner: "I believe it was handled well"

Imagine you are in self defense situation and shoot 9 additional people besides the guy you were shooting at. Are you seriously going to tell us that you would get off with no charges?

This cop shot and killed an unarmed man. Was fired, but ultimately re-hired by the PD, allowed him to medically retire with a pension:
https://www.azcentral.com/story/news...ng/1698540001/

The city paid the settlement for the wrongful death charge.... not the shooter.

As a civilian, you get to pay that wrongful death charge.

[davidsog]

ghbucky says:
oh, really?

NYPD sued over shooting at Empire State Building

https://www.foxnews.com/us/nypd-sued...state-building

Qualified Immunity does not cover negligence. It also does not react to public opinion, your opinion, or mine. It reacts to Department Policy, Officer Training, Facts of the Incident, and a Jury of our Peers.

If the Officers followed Department Policy and their training they are covered. If the Department Policy is not sound, they the Department is responsible and that will be determined by a Jury of our Peers who in theory have examined all the facts of the case during a trial.

From ghbucky linked story at :https://www.azcentral.com/story/news...ng/1698540001/

Philip "Mitch" Brailsford, a former Mesa police officer acquitted of killing an unarmed man in 2016, was temporarily rehired by the department so he could apply for a monthly pension, records show.

A Maricopa County jury found Brailsford not guilty of second-degree murder in the shooting of 26-year-old Daniel Shaver, who was unarmed and on his knees begging for his life when the officer shot him five times in the hallway of a Mesa hotel.

So in your mind, if you are found not guilty after being accused of a crime you are not entitled to have your life put back whole from the consequences of being accused of a crime you did not commit?

I am confused as to your sense of justice.

ghbucky says:
As a civilian, you get to pay that wrongful death charge.

That depends on your state. Many states have a clause:

776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—
(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
History.—s. 4, ch. 2005-27; s. 6, ch. 2014-195; s. 1, ch. 2017-72.

http://www.leg.state.fl.us/Statutes/...0776/0776.html

If your state laws do not have such protections for Self Defense, I would say pay more attention at the Ballot Box and vote better in the future.

[davidsog]

Innocence, imminence, avoidance, proportionality, and reasonableness. 5 pillars of self defense. One needs to meet all 5 simultaneously.

-TL

+1

[OldMarksman]

So in your mind, if you are found not guilty after being accused of a crime you are not entitled to have your life put back whole from the consequences of being accused of a crime you did not commit?

Entitlement and achievability are two different things.

That depends on your state. Many states have a clause--Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.

What those provisions do is provide an avenue for resolution of the case without going through a full-blown trial.

That's a great thing when the defendant is granted immunity, but the defendant's burden of proof in an immunity hearing is a lot higher than at trial.

[davidsog]

Entitlement and achievability are two different things.

Very true.

Qualified Immunity did not cover the appearance of negligence in this specific case. After an Investigation, The Department felt the officer had not followed policy, evidence was presented to a Grand Jury which brought charges. Those charges went to trial where a Jury of our Peers found the officer "NOT GUILTY".

The 4th Amendment guarantees due process. Facts are this poor officer will never shake the shadow of negligence. He is still be found guilty by accusation as evidenced by his situation appearing on these boards.

That the Department could in some small way rectify his situation in an attempt to make him whole again speaks volumes about the integrity of that Department as well as their sense of justice.

What those provisions do is provide an avenue for resolution of the case without going through a full-blown trial.

What those provisions do is grant Immunity from any further legal action in cases of self defense.

That's a great thing when the defendant is granted immunity, but the defendant's burden of proof in an immunity hearing is a lot higher than at trial.

In the CRIMINAL Pre-trial if a claim of Self Defense is raised; the burden of proof on the PROSECUTION is higher.

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

In the State of Florida, If the use of deadly force was lawful self defense you are automatically entitled to immunity from further prosecution in both civil and criminal court. You do not have to ask for it; It is the law.

In the criminal pre-trial immunity hearing phase, if self defense is raised by the defendant; The court places a higher burden of evidence upon the prosecution who is seeking to OVERCOME the defendants immunity from prosecution.

[OldMarksman]

In the State of Florida, If the use of deadly force was lawful self defense you are automatically entitled to immunity from further prosecution in both civil and criminal court. You do not have to ask for it; It is the law.

No one cn know whether the act was lawful until there has been an immunity hearing or trial. Of course, the charging authority may choose to not prosecute a criminal case.

In the criminal pre-trial immunity hearing phase, if self defense is raised by the defendant; The court places a higher burden of evidence upon the prosecution who is seeking to OVERCOME the defendants immunity from prosecution.

At trial, the burden of proof for a criminal defendant is "a reasonable doubt", and for civil defendant, a preponderance of the evidence. In an immunity hearing, the burden of proof for a criminal defendant in Florida is much higher than at trial--it is something less than "clear and convincing evidence", which is whatever the judge says it is.

[ghbucky]

It is worth pointing out that George Zimmerman exercised enormous restraint before resorting to deadly force to defend himself and still was demonized and financially ruined by the legal process-- in Florida.

[davidsog]

No one cn know whether the act was lawful until there has been an immunity hearing or trial. Of course, the charging authority may choose to not prosecute a criminal case.

Yes. If during the pre-trial immunity hearing, the trial, or at any time the use of force is deemed lawful self defense...you are granted immunity from prosecution in both civil and criminal court.

If the prosecution chooses not to charge you are still immune from civil and criminal prosecution. At the pre-trial immunity hearing, the prosecution declines to charge...the judge will then deem lawful self defense. That is the whole point of the pre-trial immunity hearing. The prosecution choosing not charge means they do have evidence that meets statutory requirements.

In an immunity hearing, the burden of proof for a criminal defendant in Florida is much higher than at trial--it is something less than "clear and convincing evidence", which is whatever the judge says it is.

That is the way it USED to be in that the DEFENDENT had to prove a higher level than the state. That resulted in immunity almost never being granted by the court.

Florida Supreme Court has reversed such that the STATE has to prove at a higher evidentiary level than the defendant.

Ultimately, the Florida Supreme Court decided that self-defense immunity could be sought pre-trial, and that the burden of persuasion on immunity fell upon the party seeking immunity, and by a preponderance of the evidence. As a practical matter, however, Florida courts began granting immunity almost never. The view of many defense attorneys in Florida began to be that there was no point in seeking immunity because it was hardly ever granted, and thus the effort was not worth the damage of having to argue the defense’ case in front of the prosecution before a trial proper had begun.

The effect was that the state’s self-defense immunity law was left gutted and toothless. Proponents for self-defense immunity sought an important change in the law, initially demanding that the burden fall on the prosecution to disprove self-defense beyond a reasonable doubt in order to deny immunity. This is, in fact, the burden that the prosecution must meet in defeating a claim of self-defense at trial.

The standard of beyond a reasonable doubt was deemed too high, ultimately, and the legislature finally agreed that the burden of persuasion on self-defense immunity ought to fall on the State, to disprove self-defense, but only to the legal standard of clear and convincing evidence. Clear and convincing evidence can be thought of as more than a preponderance of the evidence, but less than beyond a reasonable doubt.

https://legalinsurrection.com/2017/0...ense-immunity/

In Florida, the state has to prove by clear and convincing evidence you did not use lawful self defense.

[davidsog]

ghbucky says:
It is worth pointing out that George Zimmerman exercised enormous restraint before resorting to deadly force to defend himself and still was demonized and financially ruined by the legal process-- in Florida.

Zimmerman was not destroyed by the State of Florida.

He was destroyed by people who deemed him guilty by emotion without ever having examined the facts.

Sad state of affairs that is the result of emotion instead of fact and reason driving the narrative. It is the same dynamic you will find in places like North Korea, The Killing Fields of Cambodia, and the reason why 100 million have died under socialism.

[OldMarksman]

If the prosecution chooses not to charge you are still immune from civil and criminal prosecution.

Not unless immunity is granted by the court.

Florida Supreme Court has reversed such that the STATE has to prove at a higher evidentiary level than the defendant.

Yeah.

What I said was, at a criminal immunity hearing, the burden of proof for a criminal defendant in Florida is much higher than at trial.

[davidsog]

Not unless immunity is granted by the court.

Immunity is already granted by the law.

776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—
(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action

You are looking for a paradox. Randomly shooting people is illegal. It will result in criminal charges. Self defense is lawful. No charges to be filed and we do not charge people for obeying the law.

A judge does not follow you around making a decree every time you obey the law. You don't get a printout from the state on how many traffic lights you stopped at or how many miles you have driven while obeying the speed limit.

The only time you will get a judgement of "Self Defense" is if the state charges you. If they do not have the evidence then there is no charges then they will conclude it was self defense. That does not mean you are charged with anything. That means it was lawful and you are immune.

It's not a snake eating its tail where you have to be charged and then deemed lawful.

What I said was, at a criminal immunity hearing, the burden of proof for a criminal defendant in Florida is much higher than at trial.

Which is wrong. The burden of proof FOR THE STATE is higher; not the defendant.