Do you have to fight?

[Aguila Blanca]

Some states have case law that firmly cones down on the side of fists NOT being presumed lethal force.

Please provide some citations.

The laws of just about every state provide that the use of deadly force in defense of yourself or a third party is justified if the actor (that's you) has a reasonable fear of death or serious bodily injury.

Anyone who claims that fists cannot cause serious bodily injury, and even death, simply hasn't been reading the newspapers. The law does not require that fists be defined as lethal force. The law requires only that you have a reasonable fear of being seriously injured by the assailant.

With that established, the scenario set out in the original question is deliberately constructed to make answering it as difficult as possible ... which is why my first response was, "It depends." The OP has stated that both assailant and victim are roughly equal in size and age. [No more discussions about why geriatric paraplegics can use guns when the rest of us can't.] The OP has stated that there is no exit. [No more suggestions to "Exit stage left."] It doesn't matter where the scene is set -- the parameter is that the only way out is through the bad guy, and he says you can't leave unless you fight him. And you don't want to fight.

NOW what do you do?

Personally, if I have a cell phone with a signal, I'm calling 9-1-1. If that results in the bad guy initiating an attack (or an approach signaling an attack), I'm going to shoot him. The law does NOT require that I submit to being assaulted before I am allowed to defend myself.

 

[threegun]

That would probably be legal in TX (I haven't checked it out thoroughly), but probably not in many other places. The analogy is very poor for this thread, however. A better analogy for the OPs post would be someone THREATENING to hit the window, not someone who's already in the progress of trying to break it.

No I think it is a pretty good example. The bad guy in Microgunners case was ticked off that MG was waiting for a handicap parking space (the lady backing up was rather slow). This traffic blocking upset the driver behind him. He simply wanted to fight with Microgunner. Now MG warned him that if the glass shattered he would fire however he wasn't necessarily trying to break the glass or into the vehicle.

So we have an unarmed bad guy wanting to fight and a good guy not wanting to fight. The way out is blocked. Seems the same.

 

[OldMarksman]

Posted by Aguila Blanca: The laws of just about every state provide that the use of deadly force in defense of yourself or a third party is justified if the actor (that's you) has a reasonable fear of death or serious bodily injury.

A reasonable belief and a reasonable belief that you have no other choice.

Problem is, someone else (the charging authority, perhaps a grand jury, and maybe a trial jury) will determine whether that belief was in fact reasonable.

In cases in which deadly force has been used against someone who was not armed, defendants have sometimes been able to prevail in a defense of justification if they were able to demonstrate a basis for a reasonable belief that the person had been armed, or if they could successfully show that there was a considerable disparity of force.

Absent both, they are likely in a great deal of trouble, with little chance of prevailing.

Study the story linked in Post #22 for an example of where a defendant was tried twice, and prevailed only because of a disparity of force and the element of necessity that were demonstrated not only by the fact that he was outnumbered, but by the fact that he was in fact being overcome and possesses a gun that would have been taken and used against him and his wife.

 

[Tyrant]

Fighting not in my vocabulary

I had my share of fights growing up in school just like the next guy. Now as an adult I do not fight. Fighting is something children do growing up.
My take is defend yourself by whatever means is necessary to end the attack because the attacker ALWAYS wishes to harm you.

I would try to let the attacker know that I am armed, do not desire a confrontation, and do not approach me. If the attacker stopped, I would leave and immediately let the local PD know what had transpired.

 

[OldMarksman]

Posted by threegun: The bad guy in Microgunners case was ticked off that MG was waiting for a handicap parking space (the lady backing up was rather slow). This traffic blocking upset the driver behind him. He simply wanted to fight with Microgunner. Now MG warned him that if the glass shattered he would fire however he wasn't necessarily trying to break the glass or into the vehicle.

Ah, now I remember that very long discussion from 2009. A guy pounded on the window, and the guy in the car pointed a gun at him.

The window did not break. Someone in the thread pointed out that fists do not break windshields or back windows.

The guy in the car was not arrested, but another LEO commented that he would have arrested both of them. Putting the story on the web could have gotten the guy in the car and the cop in a lot of trouble.

So we have an unarmed bad guy wanting to fight and a good guy not wanting to fight. The way out is blocked. Seems the same

No, not at all. In the case at hand here, no one is pounding on anything.

And, of course, if one of them points a gun when there is no imminent threat of death or serious injury, you now have two bad guys, if anyone wants to press the issue.

Now, had that window actually been broken, Florida's castle law may have kicked in. Not here.

 

[bighead46]

Not to keep beating a dead horse......
I agree fists can be deadly. What I was trying to point out is what you are legally up against if you decide to shoot,
Thugs in a courtroom become "youths", often disadvantaged youths. Prior crimminal records can't be brought in.
If you had ANY chance to run and you didn't- you are "trigger happy"
If you used anything other than a round nose plated bullet- you were toting a gun with "cop killer" bullets.
All I am saying is this- you are going to be in for the trouble of your life- you will probably have wished a hundred times over you had run instead of fighting it out. This is especially true if the situation wasn't that bad but you got into a yelling match that escalated to violence- you were an active participant to that escalation.
I carry a revolver instead of a semi-auto. I know you are supposed to report all shootings but if you don't leave a bunch of shell cases around with your finger prints on them- and if you had to shoot- I myself couldn't blame an innocent person if they just took off.

 

[OldMarksman]

Posted by bighead 46: I know you are supposed to report all shootings but if you don't leave a bunch of shell cases around with your finger prints on them- and if you had to shoot- I myself couldn't blame an innocent person if they just took off.

Do you think that the shooting would not be investigated? Do think that the likelihood that the shooter would not be found is greater than remote? And just how do you think the shooter would fare in the legal process, even if he had believed the shooting to have been justified, if he had not reported the shooing and had taken off?

And by the way, you do leave bullets around, with the identifying marks from your revolver on them, along with touch DNA, fibers, etc.

I understand not blaming him, but I think he would have cooked his own goose.

 

[threegun]

The guy in the car was not arrested, but another LEO commented that he would have arrested both of them. Putting the story on the web could have gotten the guy in the car and the cop in a lot of trouble.

Microgunner disagreed with you. He was able to articulate to the officer that he gave no provocation or escalation. He couldn't escape either. He's handicapped to boot. He was in fear of death or grave bodily injury. The officer agreed.

In the same scenario the only thing I would have done differently is pointing the gun. I would not have pointed the gun. I would have prepared to shoot, exposing the gun and verbally warned of my intentions should the glass break.

 

[OldMarksman]

Posted by threegun: Microgunner disagreed with you. He was able to articulate to the officer that he gave no provocation or escalation. He couldn't escape either. He's handicapped to boot. He was in fear of death or grave bodily injury. The officer agreed.

Do not ever confuse the opinion of an officer at the scene with a with a finding of guilt or innocence. It has no authority.

In the same scenario the only thing I would have done differently is pointing the gun. I would not have pointed the gun. I would have prepared to shoot, exposing the gun and verbally warned of my intentions should the glass break.

That "only thing" could make all the difference in terms of your record, your fortune, and your personal freedom.

 

[threegun]

That "only thing" could make all the difference in terms of your record, your fortune, and your personal freedom.

For me I agree. For Microgunner I disagree as the handicapped can articulate fear of death or grave bodily easier.

Do not ever confuse the opinion of an officer at the scene with a with a finding of guilt or innocence. It has no authority.

While true, I haven't seen a single case like this were the States Attorney comes back to charge after the officer doesn't make an arrest.

I also want to say that its very easy to sit behind the computer and analyze an event but without being there, feeling the bad guys violence and its effects on your gut, its just not the same.

I have known Microgunner for two plus decades (most as coworkers). One thing I know is that he doesn't spook easily. He is highly intelligent. The second to last thing he would want is to lose his gun rights (being an avid collector). The last thing he would want is to be injured or killed by a piece of garbage heck bent on doing him harm.

 

[MLeake]

Just spent an hour....

... a little while ago, today...

... getting choked out and armbar tapped out by some BJJ guys. I'm working on learning more down-on-the-mat techniques, as my personal repertoire is heavily biased toward standing locks and throws. Part of the learning process is accepting being humbled, and fighting on through it.

One of these guys looks like a monster if you see him with a shirt off; seriously washboarded, with very defined musculature. Dressed, he just looks like a 5'8", 170lb surfer dude. (BTW, he's going to Rio for a BJJ tournament later this year; I wouldn't be surprised to see him show up on one of the MMA shows in the next couple years.)

The other guy looks like a younger, darker-haired Kevin Spacey. Maybe 5'10", and maybe 170lbs. Not exactly intimidating looking. (Note, he is a former Marine, and he's in shape.)

In normal clothing, neither guy looks like all that much. Luckily, they are both very nice guys.

Either guy would have me out cold or broken in two minutes or less, in a real confrontation. Was forced to tap tonight to a couple of triangle chokes, a knee-to-belly choke, and an armbar that I got trapped into after I managed to slip out of a kimora. (I'm 6ft, 215lbs, and not all that far out of shape.) In reality, I'd have been out cold and helpless, or would have had a hyper-extended elbow or dislocated shoulder and been helpless.

It can be very dangerous to assume no disparity of force exists, because the BG is unarmed. If he's aggressive enough to want to start a brawl with a stranger, unprovoked, he just might have the ability to back up his attitude, and the conservative choice is to assume that's the case.

Would I recommend pulling a gun when other options exist? Of course not. But if the exit is blocked, and the guy continues to close, then I don't know that I'd recommend trying to slug it out with somebody who might be every bit as tough as he thinks he is.

Legal problems would suck. Death or disability would suck even worse.

 

[OldShooter]

Some good points here and some not so good "...it all happened so fast".

Get some instruction and know the laws of your area, state or municipality. A mistake could cost you dearly.

I once had a guy tell me he was going to kill me, he was serious. Of course he was drunk, very drunk. He couldn't stand up. He was on his back on the ground. I didn't carry in those days and I wouldn't have felt justified in shooting him, he was incapable of hurting me. I did want to kick him in the groin very badly, but I didn't even do that, the neighbors were watching.

 

[threegun]

Mleake, Great post. Like you I don't think some folks understand just how quickly someone with fight training can hurt them with only their body parts. Heck someone without training can do so as well. Thanks for the insight.

 

[threegun]

I once had a guy tell me he was going to kill me, he was serious. Of course he was drunk, very drunk. He couldn't stand up. He was on his back on the ground. I didn't carry in those days and I wouldn't have felt justified in shooting him, he was incapable of hurting me. I did want to kick him in the groin very badly, but I didn't even do that, the neighbors were watching.

The bad guy must have the following three things before you can shoot. Ability, opportunity, and intent to cause death or grave bodily injury. Your guy didn't have the ability.

In the op's case he had all three if the bad guy closed on him. In Microgunners case he had two however one, opportunity, was a thin piece of glass barrier away. Waiting for the glass to break for him to point could pose a problem given his physical condition.

 

[OldMarksman]

Posted by threegun: The bad guy must have the following three things before you can shoot. Ability, opportunity, and intent to cause death or grave bodily injury.

Right--and, of course, you must have no other choice.

In the op's case he had all three if the bad guy closed on him.

Not as I read it:

But what if there is no disparity of force, being that it appears to be an even match. ...The BG has no weapons except fists.​

Yes, it is possible that the man could cause you serious injury. The question is, would reasonable persons believe that the person, if he so intended, would cause you serouis unjury if you did not employ deadly force? I seriously doubt it.

In Microgunners case he had two however one, opportunity, was a thin piece of glass barrier away.

Based on Microgunner's account, I tend to agree. Disparity of force existed, and this surely indicates intent:

He stopped at my window and began screaming at the top of his lungs to move my %$#*&^ car or he was going to kick my %$#*)(^$#*^% a$$.​

The problem, and it would be a problem for all of us, is that unless there was a witness who was willing to testify to that effect, MG, or you or I for that matter, may not be able to produce the evidence necessary to even get a favorable jury instruction. That most intemperate man who was afflicted with acute parking lot rage at the time would appear to the jury as the very model of gentlemanly decorum, and he would surely tell a much different story.

Waiting for the glass to break for him to point could pose a problem given his physical condition.

I don't see that. He has a proper grip on his gun and is ready; it's just that he has the gun below the field of view.
He has done nothing to risk being charged or to give the other guy a basis for filing a complaint, and a smile and a wave with the other hand may have ended the tirade.

However, should the enraged oaf then attack, the man in the car should be able to completely empty the gun into the thug, if necessary, in less than half a second after he first hears the glass breaking.

At that point, all four prerequisites exist--ability, opportunity, jeopardy, and preclusion, and there should be ample evidence to support a defense of justifiability.

 

[threegun]

I don't see that. He has a proper grip on his gun and is ready; it's just that he has the gun below the field of view.
He has done nothing to risk being charged or to give the other guy a basis for filing a complaint, and a smile and a wave with the other hand may have ended the tirade.

However, should the enraged oaf then attack, the man in the car should be able to completely empty the gun into the thug, if necessary, in less than half a second after he first hears the glass breaking.

At that point, all four prerequisites exist--ability, opportunity, jeopardy, and preclusion, and there should be ample evidence to support a defense of justifiability.

Give the other guy a complaint? Seriously? The "oaf" attacked MG who simply prepared to defend himself since he couldn't flee.

In a perfect world everything goes as planned. In the real world the breaking glass gets in your eye causing a momentary pause and/or loss of target acquisition. In the real world the glass breaking blow is followed by another unhampered by anything. In the real world a man at arms length away is a real threat to gun retention. In the real world the drivers side compartment restricts movement preventing simple gun wielding or punch slipping.

So you can remain in your perfect world free of Mr Murphy. I'm going to take each event and apply a real world defense to it.

 

[OldMarksman]

Give the other guy a complaint? Seriously? The "oaf" attacked MG who simply prepared to defend himself since he couldn't flee.

Of course. We know that.

What is the evidence?

 

[cracked91]

After reading this thread for a while, this is the way I see it.

Option A: Do not draw or shoot till you are physically attacked.
Advantage: You are on stronger legal grounds, its going to be easier to justify in court.
Disadvantage: You risk being severely beaten, permanently injured, or killed. Its not the fists that get you, its the BG stomping on your head after you have taken a blow and fallen to the floor.

Option B: Draw and shoot when you believe an attack is imminent.
Advantage: Your probably still alive and unharmed
Disadvantage: Extremely weak legal ground drawing and shooting an unarmed person, especially without witnesses, your going to need a good lawyer.

Option C: Draw and prepare to shoot when you believe an attack is imminent.
Advantage: BG will probably take off as soon as he sees your gun emerge. If he does not, you have a MUCH better idea of what you are dealing with, and, are prepared to meet the attack if it does happen. If BG leaves, there is a 90% chance he is not going to call the police and tell them that he was mugging someone and they pulled a gun on him.
Disadvantage: Still not solid legal ground, but then again, its EXTREMELY rare to be on SOLID legal ground drawing a weapon outside of a home invasion. You could be charged with BRANDISHING!!! A MISDEMEANOR in most cases!!! Better then being charged 45k to have you face reconstructed with plastic!! And there is an extremely good chance you would not be charged if you called and reported first.

When I was in 14 years old, my then 17 year old brother was beaten nearly into a coma in his weight room at his high school. It started the EXACT same way as the OP describes. He stumbled after the first punch, as he was stumbling backward, a friend of the other kid stuck out his leg and tripped him. He fell backward and hit his head on a weight and was knocked out. After he was knocked out laying face down, the attacker sat down on his back and beat him till the back of his head was bloody. His jaw had to be mostly reconstructed. After going back to school, his GPA went from a 4.33 to a 1.86 within the first grading quarter. Before he had many, many scholarship opportunities. Now, he is working part time managing a small cafe while he pays his way through a community college. My parents are still paying off the plastic surgery.

Had this happened today with my little brother (that age now) in a setting other than a no-carry or school zone, I would have drawn and shot a 16 year old kid. And if I went to prison for 8 years, well tough luck.

Many people here seem to doubt what an unarmed person can do. These kids were not skilled fighters. None of them were over 17. None of them were over 180lbs. None of them had weapons. They didn't even kick or stomp on his head (which would have easily killed him).

Step into 2011, people don't pull off their shirts and hike their pants up to their belly buttons before boxing it out anymore.

 

[threegun]

Of course. We know that.

What is the evidence?

As I said in an earlier post, its very easy to sit behind the computer and Monday morning quarterback the event. What evidence.....ask Microgunner what his blood pressure was and how his stomach felt. Since you weren't there and don't possess the ability to imagine being there, we are simply at the end of the debate trail.

I thank you for the input and concern for TFL's members freedom.

 

[OldMarksman]

Posted by threegun.its very easy to sit behind the computer and Monday morning quarterback the event.

I'm afraid I was a little curt in post 117.

What I meant to say was, and from reading other posts of yours I believe you understand it, is that unless Microgunner had a corroborative witness or maybe a cell phone video, he would have only his own testimony that the other man was attacking, and the other man's testimony would of course contradict that.

So, if the other guy, having collected his wits, decided to report Microgunner for aggravated assault, he would potentially have one piece of corroborative evidence--the ability to describe the gun. That's from one of Ayoob's books; I didn't think of it.

Why might the guy do that? Two possible reasons: (1) he may have genuinely felt wrongly threatened, from his perception; or (2), he may have just been mean and vindictive, and he may heard enough about the mandatory sentencing law in Florida to give him an idea about how to harm Microgrunner.

Since you weren't there and don't possess the ability to imagine being there, ...

I was not there, and my imagination may not serve all that well.

However, I think everyone can understand that the episode was traumatic; heck, even having someone in a car box you in and yell will raise your heart rate and blood pressure.

So, what would I think that I might have done?

Microgunner said he would shoot if the window were broken. I am pretty sure I would too, at least if a disparity of force existed.

He also pointed the gun, and in the heat of the moment, I might have done exactly the same thing, at the time.

However, Microgunner's harrowing experience gave us all a lot of opportunity to think about it and hash it all out a year and a half ago, and just maybe I am, as a result, programmed to do something just a little different.

But then, whether I would be able to do that under great stress, as you imply, remains an unknown.

The question I am posing is not whether Microgunner was potentially wrong or culpable in any way; that's water over the dam, and none of us have been empaneled to decide it or given first hand testimony. The point is is whether we might be able to do better should it happen to us in the future, not because we are any smarter or wiser than he is, but because he has given us a scenario to think about before we do face the same kind of situation.