Engaging an "unarmed person..."

Keep in mind that in many jurisdictions, the burden of proof is on the prosecutor.
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In many it is not. A few years ago, in many more it was not.

In most places it used to be viewed as once you pulled the trigger, you committed a crime, and would be charged and left defending yourself in court, with "self defense" as a legal defense.

Within the last couple of years Ohio passed a Castle law, and one of the selling points was that if you shoot someone entering your home, the burden of proof is now on the prosecutor. Now, without sufficient evendence, you will not have to defend yourself, as you will not likely even be charged.
 
Backl to the OP's original scenario:
"...grabs the others head, and with all her might she bashes the other girls skull into the ground 3 times.
Then [the victim] locks up her legs. Her arms become distorted. Her eyes wide open. And begins seizing...."
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That is not some undefinable damage. That is life threatening -- or worse.
And just one "...bash..." into concrete can do it.

I would offer that the scenario presents a fairly clean case of "unarmed"-does-not-mean-non-lethal -- and in a split-second
 
Limnophile said:
Keep in mind that in many jurisdictions, the burden of proof is on the prosecutor.
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If you are charged with illegal use of force and you claim self defense, I believe you must prove that claim with the standard being the preponderance of the evidence (ie, to a certainty level of 50.1% in the mind of the jury)...
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In many (perhaps most) States now the burden on the defendant claim self defense is to put forth sufficient evidence to make a prima facie case, i. e., all elements necessary for the use of force to have been justified have been satisfied. If the defendant makes his prima facie case, he will get a self defense jury instruction and the burder shifts to the prosecutor to disprove the self defense claim beyond a reasonable doubt.

Of course as a practical matter the less convincing the defendant is the easier it will be for the prosecution to meet its burden of proof.
 
TimSr said:
...In most places it used to be viewed as once you pulled the trigger, you committed a crime, and would be charged and left defending yourself in court, with "self defense" as a legal defense.

Within the last couple of years Ohio passed a Castle law, and one of the selling points was that if you shoot someone entering your home, the burden of proof is now on the prosecutor. Now, without sufficient evendence, you will not have to defend yourself, as you will not likely even be charged.
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Well that's pretty garbled, so let me lay it all out.

  • Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.

    1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.

    2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.

    3. Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.

  • The amount of force an actor my justifiably use in self defense will depend on the level of the threat.

    1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --

      • Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

      • Opportunity, i. e., the assailant was capable of immediately deploying such force; and

      • put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.

    2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."

    3. "Opportunity" could be established by showing proximity, lack of barriers or the like.

    4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.

    5. And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.

  • If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

    • Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.

    • If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.

    • Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.

      1. Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?

      2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections (i. e., Castle Doctrine laws) for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.

      3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.

      4. It could also be another matter if you left the safety of your house to confront someone on your property.

  • Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.
 
^ Frank, that was a really good write up. Thank you for taking the time to post that. I read every word.

It depends on so many different things it's crazy. I've known that, just like I know how the United States of America looks on a map. However I don't know all the cities. You just laid out all the cities. Thanks again.
 
Merrill Kimball's comment “what am I supposed to do? He came at me. I’m 70 years old” did not sway the vote of a single juror in his murder trial, and the man he shot was younger and much larger than Kimball.
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Outside your home in Maine you have a duty to retreat. I believe that tyrannical duty violates natural law. When a big guy invites a gimpy geriatric onto his property then repeatedly assaults him he can't be too surprised to find himself eating lead in a free country.

Maine is not free. Those who own guns there ought to know that.
 
Posted by Limnophile:
Outside your home in Maine you have a duty to retreat. I believe that tyrannical duty violates natural law. When a big guy invites a gimpy geriatric onto his property then repeatedly assaults him he can't be too surprised to find himself eating lead in a free country.

Maine is not free. Those who own guns there ought to know that.
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Many people do seem to believe that the duty to retreat violates natural law, but when the learned men charged with deciding the question did so long ago, they decided otherwise.

That goes back quite a number of years before Geoffrey Chaucer wrote, in Middle English, a series of poetic tales about a group of people making a pilgrimage from Southwark to the shrine of Saint Thomas Becket at Canterbury Cathedral.

When the thirteen original British colonies won their hard-fought freedom from Great Britain, they all adopted the English Common Law, with which came the duty to retreat. Maine followed suit in 1820. Had the imposition of that duty been considered "tyrannical", it would not have remained in the law.

See this for a little background.

Fewer jurisdictions impose a duty to retreat today. That is likely due in part to the fact that people cannot outrun bullets.

The victim in the Kimball case was not using bullets.
 
The video shown has little to do with the use of lethal force against an unarmed individual. From the beginning of the video, it appears that both women are willing participants in the fight. While the outcome is certainly tragic, I doubt that anyone could have justifiably used lethal force against the victor of that fight. Once the girl began her seizure, the other girl got off her. The last few kicks were to the body and did not look to inflict any serious harm. The damage was certainly done when her head got bashed against the floor.

There have been many discussions about the sue of deadly force against unarmed individuals. The main thing argument always seems to come down to risking your life or risking your freedom. If you allow a potential assailant to get too close before you react, you will be behind the reactionary curve and put yourself in danger. If you draw too early, you are at risk of brandishing. You cannot really know if your potential assailant is unarmed until after the fact. If your physical condition is significantly worse (be it age or disability) than your attacker, the disparity of force will be much easier to prove. Similarly, if I am with my child and someone approaches in a threatening manner, I would not hesitate to draw if stern verbal warnings are ignored.

The best possible compromise is a less than lethal weapon such as a good pepper spray (foam is ideal). Obviously do not go looking for trouble, but be well prepared to defend yourself if trouble finds you.
 
If I'm attacked by a person, it is my responsibility to have the means to defend myself. Unfortunately, not being a psychic, I don't know if I'm likely to be attacked by a 7 ft tall MMA fighter on pcp, a 100 lb jealous ex girlfriend of my fiance, a mugger with a knife, a tweaker with a gun, a rapist with a really sharp pair of tweezers, or any other potential threat. I see having a ccw as the great equalizer. I don't care if/how the bad guy is armed. I know that physically I am likely not going to be able to take them on so I have my gun. I'd rather end up in prison, even unjustly, than most of the alternatives.

If some psycho hag decides to try to slam my head into the concrete I'd have no qualms about pulling and using my gun if necessary any more than I would a person who put their own gun in my face and told me to get in their windowless van.
 
Posted by Banger357:
I see having a ccw as the great equalizer. I don't care if/how the bad guy is armed.
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However you may see it, unless the attacker is armed or there is a clear disparity of force, centuries of trials tell us that the people who will decide will almost certainly see the use of your CCW as much more than necessary--more than "equal", if you will.

Discussing the Kimball case on tacticalproffessor, Claude Werner said this:

...if Mr. Kimball had carried a can of pepper spray with him, he probably wouldn’t be facing the probability of spending the rest of his life behind bars. I hear many objections to carrying pepper spray. Without exception, they are foolish, yet speciously alluring. As the prosecutor commented about the Kimball case:

"People have a right to carry firearms, but the law only provides for use of firearms in defense in very limited and particular circumstances, and this was not one of them."

I would much rather carry a can of pepper spray than a spare magazine or a defensive knife.
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Or as stephen426 put it,
The best possible compromise is a less than lethal weapon such as a good pepper spray (foam is ideal). Obviously do not go looking for trouble, but be well prepared to defend yourself if trouble finds you.
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...and how many of all of you who advocate less-than-lethal force, actually
carry LTLF w/ you in addition to a weapon?

I go back to the OP's original post -- a clear lethal situation developing
in 10's of seconds regardless of fault -- and what to do about it other
than walk away saying tsk, tsk tsk.
 
Constantine,

I was not trying to stray off topic. Any confrontation can turn deadly if you lose control of your weapon. I just turned 40. While I am still in decent physical shape (round is a shape), I would not want to go hand to hand against a younger and stronger adversary. Under-estimating your opponent (over estimating your own abilities) is one of the dumbest mistakes one can make.

As gun owners, we have a very real responsibility to ourselves and to others around us. Improper use of a firearm will land you in jail and you may lose your right to ever own a gun again. We have a responsibility to be proficient with our weapons so we minimize our chances of hitting bystanders. A gun has the ability to easily take someone's life and it is not a responsibility I take lightly.

I carry a knife pretty much every day (unless I am traveling and can't bring one). I carry my gun fairly regularly but not daily. I need to buy some more pepper sprays. Mine is expired.
 
I don't think "duty to retreat" was the issue with the Kimball case. The question was whether he had reason to be in fear of his life.

I would assume that getting shoved and told to leave isn't cause to kill anyone in any state.
There was also the big issue of whether he had gone there (armed, and after a few drinks) with the intention of getting into a fight.

As far as the OP, I'd think, in most caseses, it would be hard to justify using lethal force against an unarmed person if they haven't actually assaulted you.
If you don't have something less lethal to deploy, and you are in fear that things are going to go south, it might be a good idea to simply draw your gun and tell them to go away. That might make the attacker think twice about continuing the assault, and would put you in a better position to fire if it does turn into an actual assault.

I know that "brandishing" is considered a crime (or, has the same threshold as shooting) in a lot of areas, so you'd still want to call the police and make a report.
However, brandishing is probably less likely to be prosecuted than shooting - particularly if you call it on and explain yourself. Shooting someone who isn't seemed and hasn't actually harmed you seems like it's inviting some nasty charges/press.

Taking a hit or two isn't pleasant, but probably more pleasant than explaining to a jury that you killed a person because you thought they were probably going to hit you. Or beyond the potential legal problems, why of your just misread the situation?

I'm a bigish, scaryish looking guy. I run in the park with headphones from time to time, and after a few miles tend to kind of zone out.
I certainly hope some paranoid old codger doesn't decide to shoot me someday because he's convinced I'm chasing him, and I don't hear him tell me to stop.
 
@ mehavey,

If there is the POSSIBILITY to retreat SAFELY, it SHOULD be done IRREGARDLESS of the DUTY TO RETREAT. Even a good shoot will complicate your life significantly. You may be prosecute by an overly aggressive DA, you may be sued by the family of the deceased/injured, you and your family may be threatened (especially if the person you shot was a gang member). We all believe in better judged by 12 than carried by 6 or else we would not own and carry guns.

You say that you can see a
a clear lethal situation developing
in 10's of seconds regardless of fault
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Developing means that it has not fully developed yet. Based on the timing of your reaction, you may either be ahead of the curve or behind the curve. Timing it just perfectly would probably be really hard. I'd rather be ahead of the curve with less than lethal force. You may have your own opinions of which you are very much entitled to. I'm just stating what I'd rather do and what I feel would give me some level of protection without overly complicating my life.
 
If there is the POSSIBILITY to retreat SAFELY, it SHOULD be done IRREGARDLESS of the DUTY TO RETREAT.
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RTP. Someone else is in deadly risk of death/lethal brain injury, and with no means of retreat.

Do something? (and if so, what?)
or walk away.

You have 3 seconds....
Decide.*




* (actually,I believe you have already told me what you decided.)

.
 
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I should just point out irregardless is not a word.

But there is a dtuy to retrear but also the ability to protect others from loss of life limb or eyesight....wish you guys would watch that mas ayoob video instead of living jn ignorance.
 
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