Deadly force to retain handgun
- Thread starter 45_auto
- Start date
Agree. There's some idealism in what he says that I just can not fathom. I'm trying to wrap my head around how he separates the disarming of an individual from it potentially being an attack on his/her life. Rationalizing that a defensive carry weapon of any kind is simply property and equal in standing to a purse or wallet is ridiculous. Would he himself be so willing to lie down for a criminal attempting to disarm him?
Aguila Blanca
Staff
In many (most? All?) states, threatening to use deadly force is no different from actually using deadly force. In those states, saying or suggesting that you will use deadly force IS legally considered to be using deadly force.
Not all states. There are jurisdictions where, for example, display of a weapon to get an aggressor to cease his actions is considered justifiable at lower levels of aggressor's force than actually shooting that weapon would be.
Also, bear in mind that in all jurisdictions in the US, if, when the weapon is drawn, the aggressor ceases his aggression and retreats, use of force is very likely no longer justified. (IE, don't get into the mental trap of, "I only draw if I am going to shoot, therefore, if I draw I must shoot.")
Also, bear in mind that in all jurisdictions in the US, if, when the weapon is drawn, the aggressor ceases his aggression and retreats, use of force is very likely no longer justified. (IE, don't get into the mental trap of, "I only draw if I am going to shoot, therefore, if I draw I must shoot.")
Frank Ettin
Administrator
Aguila Blanca said:
In any case, display of a firearm in a threatening manner is, in all States, assault (although the laws of one or more State may call it by a different name) and is prima facie a criminal act. To avoid averse legal consequences you will need to establish that your assault satisfied the applicable legal standard for justification.MLeake said:
In most States the standard for justifying the threatening display of a gun is the same as for justifying the use of lethal force in self defense. In a few, it's a somewhat lesser standard. But in all States you would need to be able to show at least prima facie that your display of a gun in a threatening manner was justified.
Bob Wright
New member
All of the foregoing makes me wonder one thing: Why wasn't the drawing (of the weapon) terminated with a shot fired?
I certainly don't intend to pull my gun just to cover somebody. If the threat of bodily harm or death is imminent, then I intend to draw and fire. Otherwise, nobody else will know I'm armed.
Bob Wright
I certainly don't intend to pull my gun just to cover somebody. If the threat of bodily harm or death is imminent, then I intend to draw and fire. Otherwise, nobody else will know I'm armed.
Bob Wright
If someone invades your home, it wouldn't be about your property that he's there to steal. It would be about the danger he represents to you that would authorize deadly force.
And, it wouldn't be about property if someone is reaching for a gun. Even if the gun is in your hands. ESPECIALLY if the gun is in your hands. Even a jury of anti-gun AARP retirees could understand what he meant to do with it after you were disarmed, even if the DA who charged you couldn't.
Sharpsdressed Man
Moderator
Try telling a cop that he can't shoot a "grabber" for trying to take his gun (given that is, of course, the last resort and he is about to "lose" his gun to a grabber). That pretty much defines WHY you MAY shoot a gun grabber.
Frank Ettin
Administrator
Bad analogy. In many States, statutes specifically provide a presumption of reasonable fear in the case of someone breaking into your home.Nnobby45 said:
For example, see Title XLVI Florida Statutes, Section 776.012:
Many other States have similar statutes. Without such a statute, one would still have to establish reasonable fear of death or great bodily harm.
CWO4USCGRET
New member
Over my dead body.....
I carry a firearm at work everyday and off-duty as well. I have a Colt Delta Elite 10mm on me now as I type this.
Someone attempting to take my gun by force from my person is without a doubt an attempt to use deadly force against me. There should never be any doubt whatsoever. I will use whatever I have, including the gun, to stop the threat...
I carry a firearm at work everyday and off-duty as well. I have a Colt Delta Elite 10mm on me now as I type this.
Someone attempting to take my gun by force from my person is without a doubt an attempt to use deadly force against me. There should never be any doubt whatsoever. I will use whatever I have, including the gun, to stop the threat...
http://usnews.nbcnews.com/_news/2012/08/29/13539614-west-virginia-state-trooper-suspect-killed-in-shootout-following-traffic-stop?lite
The trooper in the above story may have been killed with his own weapon.
So you tell me. Is an attempted disarm justification for deadly force? It appears so to me. And our rules of force support it.
Yup. I also carry extremely sharp knives in a couple locations on my support side for just such a contingency in the event I have to maintain control of the gun with my strong side hand, someone is getting gutted and filleted with the other.
The trooper in the above story may have been killed with his own weapon.
So you tell me. Is an attempted disarm justification for deadly force? It appears so to me. And our rules of force support it.
Yup. I also carry extremely sharp knives in a couple locations on my support side for just such a contingency in the event I have to maintain control of the gun with my strong side hand, someone is getting gutted and filleted with the other.
Pointshoot
New member
As incredible as it seems, I've heard this same argument over uninvented armed men entering a business or home - - "They may have had their guns out pointing at you . . . but that doesn't mean they were going to shoot." 
There are stupid people not worth your time or effort.
There are stupid people not worth your time or effort.
Well...
I certainly did'nt expect the personal attacks, questioning of my intelect, or questioning my supposed career with the NYPD from this forum. But I guess it is what it is.
I do admit my post may sound a bit nutty on face value. Unlike many people here I have first hand experience in many of the issues discussed. From both sides of the coin. As a subject of a police involved shooting, and as a investigator of shootings. Most of my posts, and rants are based on my own experience, and training.
A firearm is property... you cant use deadly force to prevent the theft of property. So... If any of you had someone try and take away your gun and shot them... would anyone say... he tried to steal my gun and I shot him?
OK If you feel threatened enough to pull your gun and someone tries to get it from you, out of your hand... are you automatically authorized to use deadly force? If someone pulled a gun on you, and you tried to defend yourself by taking the gun away... Would that person be authorized to use deadly force against you? If the guy you pulled the gun on turns out to be Ms Mabels grandson who was delivering some apple pies, and he resists and you shoot him. Think that will go over well? I had a personal experience recently... I was answering a service call in a gated community at night. I was making some noise and an owner came out and pulled out a handgun when he saw me. Would I have been justified in shooting him?..NO! would he have been justified in shooting me if I attempted to disarm?... NO! This kind of situation is far more likely to happen than a CCW pulling on a random unarmed person then shooting when the unarmed person tries to defend himself. IMO He'd be just as justified in shooting you if he does get the gun.
I think everyone would agree that in order to prove a self defense, saying "I was in fear for my life" is NOT going to cut it. And you may be looked at as the guy who brought a gun to a fist fight.
As some of you have said... you want to understand the logic behind my thinking. Well there you have it... This post like most of them by me are intended to share my knowledge, and provoke thought and discussion. If one person learn something from me then it will have been worth it. I must say that I have learned quite a bit from the membership.
I'm not in any way insulted or angry. I am a bit dissapointed. But I'll get over it. And I'll stay a member as long as the forum will have me.
I certainly did'nt expect the personal attacks, questioning of my intelect, or questioning my supposed career with the NYPD from this forum. But I guess it is what it is.
I do admit my post may sound a bit nutty on face value. Unlike many people here I have first hand experience in many of the issues discussed. From both sides of the coin. As a subject of a police involved shooting, and as a investigator of shootings. Most of my posts, and rants are based on my own experience, and training.
A firearm is property... you cant use deadly force to prevent the theft of property. So... If any of you had someone try and take away your gun and shot them... would anyone say... he tried to steal my gun and I shot him?
OK If you feel threatened enough to pull your gun and someone tries to get it from you, out of your hand... are you automatically authorized to use deadly force? If someone pulled a gun on you, and you tried to defend yourself by taking the gun away... Would that person be authorized to use deadly force against you? If the guy you pulled the gun on turns out to be Ms Mabels grandson who was delivering some apple pies, and he resists and you shoot him. Think that will go over well? I had a personal experience recently... I was answering a service call in a gated community at night. I was making some noise and an owner came out and pulled out a handgun when he saw me. Would I have been justified in shooting him?..NO! would he have been justified in shooting me if I attempted to disarm?... NO! This kind of situation is far more likely to happen than a CCW pulling on a random unarmed person then shooting when the unarmed person tries to defend himself. IMO He'd be just as justified in shooting you if he does get the gun.
I think everyone would agree that in order to prove a self defense, saying "I was in fear for my life" is NOT going to cut it. And you may be looked at as the guy who brought a gun to a fist fight.
As some of you have said... you want to understand the logic behind my thinking. Well there you have it... This post like most of them by me are intended to share my knowledge, and provoke thought and discussion. If one person learn something from me then it will have been worth it. I must say that I have learned quite a bit from the membership.
I'm not in any way insulted or angry. I am a bit dissapointed. But I'll get over it. And I'll stay a member as long as the forum will have me.
Aguila Blanca
Staff
I don't think there is any way -- ever -- to "prove" self defense.Glenn Dee said:
As you have stated, the basis of most (if not all) states' self defense laws is that the victim (meaning the person who defended himself) must "reasonably" have feared either death or serious bodily injury.
But the devil is in the details. As Frank Ettin has posted more than twice previously, the beginning of a self defense claim is an admission that you killed the assailant. In other words, you are charged with a homicide (murder, manslaughter, negligent homicide, whatever). You do NOT get to sit in court and play the "Prove I did it" game. In order to assert a claim of justified homicide for reasons of self defense, you must begin by admitting that you killed someone.
As Frank has also written, this essentially reverses the roles in court. The state no longer has to prove beyond a reasonable doubt that you killed someone; you already admitted to that. Now YOU have to demonstrate two things: (a) that you were in fear for your life (or in fear of incurring serious bodily injury), AND (b) that your belief was reasonable.
The fact is that, in a self defense case, you do exactly what you said above: You go into court and say, "I was in fear for my life." However, as the idiot retired firefighter in Texas (?) found out recently, those words are not a magic spell, and they do not automatically result in your getting to go home. There is probably no way you can "prove" something as ephemeral as a state of mind, but you CAN do your best to convince a jury that, under the same circumstances, any reasonable person probably would have been in fear for their life, and therefore the jury should accept that it's reasonable for you to have been in fear for your life.
Frank Ettin
Administrator
The think the real lesson needs to be that nothing is automatic. It's never exactly a matter of "if he does X, I get to shoot." It's never that simple. You will always need to be able to articulate how and why a reasonable person in like circumstances would conclude that lethal force was necessary to prevent immediate, otherwise unavoidable death or grave bodily injury to an innocent (or whatever the exact applicable standard for justification is in the jurisdiction).
Maybe we can expect that if someone is fighting us to take away our gun, it shouldn't be too difficult to justify our use of lethal force to prevent it. And that may indeed be correct: it might not be too difficult. But it still can't necessarily be a foregone conclusion.
You will always have to show that the standard for justifying your use of lethal force was met. Sometime, for example a guy running full tilt at you swinging an axe, or a couple of guys smashing through your front door in the middle of the night, or a guy trying to wrestle your gun away, you;d expect it to be pretty straight forward to do so. But you will still have to explain yourself.
Maybe we can expect that if someone is fighting us to take away our gun, it shouldn't be too difficult to justify our use of lethal force to prevent it. And that may indeed be correct: it might not be too difficult. But it still can't necessarily be a foregone conclusion.
You will always have to show that the standard for justifying your use of lethal force was met. Sometime, for example a guy running full tilt at you swinging an axe, or a couple of guys smashing through your front door in the middle of the night, or a guy trying to wrestle your gun away, you;d expect it to be pretty straight forward to do so. But you will still have to explain yourself.
Statistics on LEO shootings tend to bear out the argument that if someone is attempting to take your firearm by force, then you have just cause to shot that individual. Most LEOs are killed or wounded with their own weapon.
The second fact in this type of shooting (any shooting) get a good lawyer who will defend you for their $45,000 fee and not your 16 year old son who attacked you, beat you severely and attempted to kill you. (Pinal County AZ court case)
The second fact in this type of shooting (any shooting) get a good lawyer who will defend you for their $45,000 fee and not your 16 year old son who attacked you, beat you severely and attempted to kill you. (Pinal County AZ court case)
Aguilla
As I hope everyone understands "self defense" is an affermative defense. In any criminal case the defendant enjoys the presumption of innocence. And further the defendant can not be forced to provide incriminating evidence against himself. The burden of proof is on the state. The state must prove it's case against a defendant to a very high standard of beyond a reasonable doubt.
In a self defense case the burden of proof is on the defendant. The defendant must make statements against his own penal interest. The standard of proof is "Justification" The defendant is responsible to prove the standard of justification. The defendant MUST prove justification or be criminally charged.
As far as the police having gun's taken from them. There was a period in the 70's where most Officers shot were shot with their own gun. This was mostly a result of poorly thought out equipment, and poor tactics. Those numbers changed with the advent of security holsters, and better training. A gun snatch from a police officer is one of those things that cant compare to a civilian gun snatch. The police are almost always wearing their gun out in the open. So snatches are more likely attempted from the holster, while a CCW is carried out of sight and out of mind. All the dicussion so far has been a person trying to wrest an already drawn gun away. This almost never happens with the police. I say almost because I have worked a case where a gun was taken from a uniformed officers hand. As a point of interest... In that case the Officer wasnt shot or even threatened. We got the gun back with a little slick police work. Further the police are wearing a uniform or at least a badge or shield. Any attempt to disarm a uniformed police officer carries a very limited set of presumptions, and almost always are in furtherance of escape from custody or resisting arrest.
I think Mr Ettin has written a very good response. NOTHING! is automatic. Every situation will be judged on it's own merit on a case by case basis.
As I hope everyone understands "self defense" is an affermative defense. In any criminal case the defendant enjoys the presumption of innocence. And further the defendant can not be forced to provide incriminating evidence against himself. The burden of proof is on the state. The state must prove it's case against a defendant to a very high standard of beyond a reasonable doubt.
In a self defense case the burden of proof is on the defendant. The defendant must make statements against his own penal interest. The standard of proof is "Justification" The defendant is responsible to prove the standard of justification. The defendant MUST prove justification or be criminally charged.
As far as the police having gun's taken from them. There was a period in the 70's where most Officers shot were shot with their own gun. This was mostly a result of poorly thought out equipment, and poor tactics. Those numbers changed with the advent of security holsters, and better training. A gun snatch from a police officer is one of those things that cant compare to a civilian gun snatch. The police are almost always wearing their gun out in the open. So snatches are more likely attempted from the holster, while a CCW is carried out of sight and out of mind. All the dicussion so far has been a person trying to wrest an already drawn gun away. This almost never happens with the police. I say almost because I have worked a case where a gun was taken from a uniformed officers hand. As a point of interest... In that case the Officer wasnt shot or even threatened. We got the gun back with a little slick police work. Further the police are wearing a uniform or at least a badge or shield. Any attempt to disarm a uniformed police officer carries a very limited set of presumptions, and almost always are in furtherance of escape from custody or resisting arrest.
I think Mr Ettin has written a very good response. NOTHING! is automatic. Every situation will be judged on it's own merit on a case by case basis.