Every man's dilemma

[MLeake]

First note: I don't have issues with other races. Half the guys in my dojo are black. A high percentage of our senior instructors, when we have seminars, are Cuban and Puerto Rican from Miami. In my previous school, the senior instructors were Japanese. I spent a long time in the Navy, and now work in defense contract stuff; work with people from multiple races, no issues.

Second note: There's a difference between people walking in the same area, and people taking every single turn you take. Now, if going between a major venue and the nearest parking garage, this could happen and be quite benign. There are plenty of variables that could be factored into whether the situation would seem threatening or not.

Third note: It's good to avoid general brawls. When LE shows up, there are bound to be conflicting witness statements all over the place, and odds are that everybody will be charged. Drawing a weapon in a neighborhood melee will be harder to defend than drawing a weapon against a mugger.

Fourth note: For all the talk of evasion and avoidance, bear in mind that it's not always feasible. There are forum members with physical disabilities who will virtually never be able to evade. No doubt there are other forum members who have loved ones that would serve as anchors (small kids, injured relatives, elderly relatives) and prevent effective evasion.

Fifth note: For many of these folks, a physical confrontation is right out (one friend of mine would probably be crippled for life if you hit him - long term damage from a car accident). Some of us have the strength, size, or training to go hands-on if need be; many do not.

Last note: In any case where you do anything that could be construed as threatening, you should be able to clearly state what you perceived as a threat to yourself, and why your response options were limited.

 

[maestro pistolero]

I might have first picked up the pace a bit. Once it's clear you are being pursued by multiple suspects, there is a disparity of force that weighs in as to justified self-defense.

If, at some point is escape becomes impossible or unlikely, it is time to call them on their intentions. Ordering them to STOP, DON'T COME ANY CLOSER, with your hand on our weapon, but perhaps not drawn, may be a good next step before actually pointing it at them. If they close distance after that, there can be little doubt of their intentions.

Was the OP perfect in his response? No. Did he have a reason to fear for his safety and that of his girlfriend? Probably.

I reserve judgment, as I wasn't there, and the OP clearly didn't intend to threaten anyone except to deter a perceived, potential attack. He just needs perhaps one or two more tactics in his back pocket.

My two cents.

. . . that if you pull you should be shooting.

Highly doubtful. As pointed out, the overwhelming majority of justified uses of force end without a shot being fired.

You just can not draw your gun because you feel "unsafe"

Not completely accurate. Or, at least, not the whole picture.

In most states, if a person 'reasonably believes' that life or limb is in imminent danger, lethal force is justified. That legal description is a whole lot like 'feeling unsafe'. It just clarifies that it has to be reasonable. And it may or may not include actually having to shoot.

 

[lawnboy]

In all of this it is important to remember that only YOU can decide whether you feel like you are in danger at any particular time. Only YOU can decide if drawing a weapon is the right move.

BUT it is equally important to realize that after the fact none of it will be up to you. A police officer will decide if you will be arrested. A prosecutor will decide whether to file charges against you. A judge will decide whether those charges have sufficient merit to go to trial. And finally, a jury will decide whether your actions were warranted. What you think or thought will no longer matter, except as far as your lawyer presents your defense.

I took a business law course a long time ago in college. On the first day the professor said something that stuck with me. I paraphrase: "The law is not interested in right and wrong. The law is interested in legal and illegal. The law is not interested in what actually happened. The law is interested in what you can prove happened. The law does is not interested in what you believe. The law is interested in what you can make someone else believe."

 

[Tom Servo]

So sounds like he was legal.

Law enforcement and the courts might disagree. It sounds like the guy couldn't articulate a credible threat.

If I'm getting a weird "vibe" from someone, I seek out the nearest well-lit, preferably crowded area. I'd also do my best to shake the people following me if that's what they were actually doing.

Several years ago, I nearly got a face full of pepper spray from a lady who thought I was following her through our building's parking garage after hours.

 

[Sefner]

They were 20 yards away when he pulled the gun? At least I didn't read anything about them closing the distance, only talking louder.

I'd say he failed miserably if he didn't intend to threaten them when he showed the gun.

IMHO, what he did was very much illegal. If I had done that in Texas and the "punks" had called the police, I could lose my right to carry forever. They may have just been going from the same concert to the same parking garage and talking loudly because they were sitting closer to the music.

In the situation described, lethal force was not called for. I think Sleuth's suggestion of calling 911 to loudly report the suspicious activity would be the best course of action. Of course, if they were partially deaf from the loud music they may not have heard anyway.

Best post in this thread. Your friend did not handle this well, he could have moved his shirt to go into open carry mode to do the same thing. Unholstering is not the best course of action here.

Imagine him telling this to a prosecutor "Well I didn't want to seem threatening, so I pointed my gun at the ground". The prosecutor seems 1. you just admitted you were not threatened by them and 2. you admit to drawing your gun when you didn't feel threatened.

Also about the 21 foot rule, no law that I know of even mentions a range for self defense...

 

[OldMarksman]

According to him, he pointed it down at the ground being careful not to point it at them as he did not want to threaten them but only wanted them to see that he was prepared to defend himself if need be. At this point they had not threatened him or his wife although he figured it was imminent....

Not pointing the gun does not mean that drawing it did not create in the other person an apprehension of imminent harm.

But--let's go beyond the question about the legality of the act and consider what else may have happened by turning the tables for a moment.

Suppose that someone turns toward you and draws a gun. Would you not reasonably believe that the gunman had the ability and opportunity to cause death or serious bodily harm? Would you have any reason to presume that the person's motive was other than to harm you?

Had one of the so called "punks" drawn and fired at that point, he might well have been judged to have been fully justified in doing so.

He didn't say a word to them. When they saw the pistol, they scattered and took off running. He figured they didn't look like the types that would go call the cops so he figured he was safe and never heard anymore about it.

First, had they been undercover detectives acting on a tip, you can bet that they would not "look like the types that would go call the cops", and it may well have been that maintaing their anonymity was too important to make an arrest on the spot. Second, the 911 call need not come from one of the "punks"--anyone could make the call.

It all depends on how well one is able to articulate and justify ones' actions in accordance with state law imo.

Yes, and to justify one's actions, one must produce evidence sufficient to cast doubt on any contradictory evidence produced by the state.

In most states, producing the weapon would not be justified unless one were engaged in a lawful act of self defense; that is true in Missouri, where I live. Of course, that does not mean that one must actually fire, because the imminent threat may be immediately ended by the production of a the weapon.

 

[Sarge]

I must learn to never, ever open these kinds of threads. But since I have...

The only law that matter during the encounter is the law of the jungle. Two predators discovered their prey had bigger claws and fangs than the both of them, so they skedaddled. Christians 1, Lions 0.

The only law that matters after the encounter are the laws regulating Atlanta, GA or whatever suburb these folks happened to be in at the time.

... and those laws only matter to the players if the police get called, actually have people to respond, arrive before everybody scatters and finally, deem the incident worthy of a follow-up investigation. Generally, if there are bodies or blood and shell casings present then yes, there will be one. Otherwise, it'll be when somebody calls, admits to being involved and wants to prefer charges against an (allegedly) offending party. I'm not holding my breath on this one.

What you saw here was the Second Amendment working as designed. Speaks well of the drafters, I think, that it still works perfectly some 223 years after its ratification.

 

[lawnboy]

You're right Sarge, it worked out for them. This time.

But the question was:

My question is if the police been called or witnessed the episode could he have been charged with a crime since he felt threatened and he did not point the gun or threaten them but only made them aware he was armed.

The answers of most of us have been "yes, he could've been charged".

When considering the old saying: "I'd rather be judged by 12 than carried by 6" you can't forget the "judged" part.

So one has to make sure they have a good understanding of what constitutes a threat, legally speaking.

And never forget that doing what is right does not eliminate the possibility of legal consequences.

Legal and Right are two different things. Unfortunately.

 

[OldMarksman]

Posted by Sarge: Two predators discovered their prey had bigger claws and fangs than the both of them, so they skedaddled.

Well, that is the side of the story told GregInAtl and subsequently related to us. That may well have been the true perception of Greg's friend. However, it may not reflect what actually occurred.

Once again, let's turn the tables. Suppose that you and a friend were walking somewhere, and by coincidence your route put you behind someone else for several turns. Perhaps that someone else mistakenly interpreted some sounds as your shouting to him. Remember, you have not threatened anyone.

And then, one of them turned and pulled a gun. Any one of several things could have happened then:

• You wisely escaped, but for personal reasons at the time, chose to let it go, and there were no further complications;
• you wisely escaped, but for personal reasons at the time, chose to let it go, but someone else reported the incident and gave a description, which would have lead to assault charges and charges involving weapons violations had the persons been picked up;
• you escaped, and decided to report the incident and gave a description, which would have lead to assault charges and charges involving weapons violations had the persons been picked up; or
• You drew and fired in self defense.

Had you been armed, and had you elected to follow the fourth course, at that point the story would not be, "two predators discovered their prey had bigger claws and fangs than the both of them, so they skedaddled". Rather, it would be, "citizen threatened by gunman shoots attacker".

 

[MLeake]

Yet again...

.... GreginATL is relaying a story, secondhand.

For all we know, there were several other details noted by his friend, that didn't get communicated to Greg, or that Greg failed to include in the post.

We really don't have enough info to know why the guy in the incident made the decision he did, so we can't really say whether he was right or wrong.

 

[Sarge]

You left out the option where the big underground snakes from Tremors pop out of the ground and eat all three of them, Old Marksman.

Obviously I was commenting on the story as related, not the innumerable possibilities which might have occurred, in the same situation.

 

[Aguila Blanca]

There have been a number of good posts on both sides of the argument, but IMHO all miss the mark by a bit. Some by more than a bit.

First, those who advocated "displaying" the gun without drawing. I'm not from Georgia and I don't have time to look up Georgia statute to see if they have a definition of "brandishing" but, in general, "brandishing" means to display a weapon in a threatening manner. If that's pretty much the essence of the law in Georgia, then legally there would be no difference between drawing, and simply raising your shirt or jacket to ensure that the punks could see that you're packing.

Then there are those who condemned the action because the gentleman had no "reasonably articulable" justification to draw. Wrong. First, self defense laws for individuals do not use the word "reasonably articulable." The word "articulable" has come into our parlance because the courts used it in establishing limitations ON POLICE OFFICERS for when they can stop and interrogate a person on the street. For them (the police), the standard is that there must be "a reasonable suspicion, based on clearly articulable facts, that a crime is being committed, has been committed, or is about to be committed."

You won't find that in self defense laws. Typically, self defense laws start off by saying that nobody can use deadly force for any reason ... and then they spell out the specific exceptions. The laws (again, typically) require that the individual "reasonably" is in fear of losing his life or suffering serious bodily injury. So the laws typically say something abut "reasonable," but they don't typically say anything about "articulable." Of course, if you're going to employ deadly force (and drawing a gun, or even displaying it in the holster, is legally considered to be "employing" deadly force even if you don't fire a shot), you will very possibly have to "articulate" to a police officer or a jury WHY you thought it was reasonable. But it's not in the law.

In common law, when the laws use the word "reasonable" it boils down to what the lawyers call the "reasonable man" theory. In short, the law asks a jury "Would a hypothetical reasonable man have acted the same way in this situation that this guy did?"

So in assessing this man's actions, I think we need to apply the "reasonable man" test. He and his wife have left a concert. It's late at night. It's downtown. They are parked at some distance from the concert venue. They KNOW that there have been muggings at night downtown. They see two punk-appearing people following them. The punks are talking at them in a taunting manner, trying to (and succeeding in) make them uncomfortable -- fearful.

Personally, I do not think it's a stretch to think that a hypothetical "reasonable man" would be in fear of death or serious injury in such a situation. I consider myself to be a reasonable man, and I would be in fear of an attack in the circumstances described.

IMHO the only mistake he made was in NOT calling 9-1-1 immediately after the punks ran away. I think any time you use your gun, even if you don't fire it, you should call the police and report that you just defended yourself against a potential attack.

 

[OldMarksman]

Posted by Sarge: Obviously I was commenting on the story as related, not the innumerable possibilities which might have occurred, in the same situation.

Yes, of course.

My point was that that "the story as related" describes what one party to the incident thought had happened. That party perceived that two people were behaving in a threatening manner. He then acted in a manner that, had the incident been reported by anyone, would have required him to present evidence of justification. Of course, in the event, no report entered into the picture--but that was the luck of the draw.

The problem is that an investigation, had it occurred, might not only failed to support his defense of justification (due to absence of evidence of ability, opportunity, and/or jeopardy), it might even have led to the conclusion that his concerns had been completely unfounded.

Regardless, his having drawn a gun might well have led to his being shot. That shooting might well have been ruled to have been justifiable under the circumstances, but even if it were not, that would not have helped the OP's friend very much.

Posted by Aquila Blanca: In common law, when the laws use the word "reasonable" it boils down to what the lawyers call the "reasonable man" theory. In short, the law asks a jury "Would a hypothetical reasonable man have acted the same way in this situation that this guy did?"

Yes indeed.

But first, the "guy" has to produce at least some evidence that he had a reason for believing that he was in imminent danger--in danger of death or serious bodily harm at that moment.

Contending that one had left a concert downtown at night and that there had been muggings in the area provided a reason for believing that imminent danger existed would surely fall short, particularly when the only pertinent action had been words.

 

[MLeake]

Old Marksman, that would depend in large part on what those words were. We all recognize menacing language and tone when we hear it; problem in this case is we didn't hear it ourselves.

 

[Aguila Blanca]

Contending that one had left a concert downtown at night and that there had been muggings in the area provided a reason for believing that imminent danger existed would surely fall short, particularly when the only pertinent action had been words.

I disagree.

If he had been arrested and tried, his "articulation" of his reasons for fearing for his life or bodily safety MIGHT not convince a jury, but I don't think -- given the description of the situation as related -- that we can say with any degree of certainty that his justification "would surely" fall short of the mark. I have been in similar situations. I was unarmed (other than a pocket folding knife), and I was very much in fear for my safety. If I were on his jury, I'd buy his story in a heartbeat.

And my vote to acquit wouldn't even be jury nullification. It wouldn't be that I thought he was guilty but I wanted to let him off anyway. I think his actions were reasonable under the circumstances and IMHO that's what the law calls for.

 

[Tom Servo]

Once again, let's turn the tables. Suppose that you and a friend were walking somewhere, and by coincidence your route put you behind someone else for several turns. Perhaps that someone else mistakenly interpreted some sounds as your shouting to him.

Case in point:

One night, I was at a gas station. My car was parked at pump #2. There was an Acura occupied by a 16-19 year old woman on pump #4. I went in, paid for my gas, coffee, Jolt cola, NoDoz, and Trucker's Pal Pep Pills.

As I exited and approached my car, a man roughly her age ran across the parking lot to the Acura and started banging on the window, screaming "give me the car, _____."

Alrighty! Time for Captain Hotpants to play the hero and save the day, right? Right?

Three seconds into the exchange, the young woman rolled down her window and said, "yeah, real funny, Travis." The whole episode was a joke.

There's a lesson in this. What if I'd drawn? Worse, what if I'd have shot? For a split second, it was very easy to misjudge the situation.

Maybe a jury would have understood my side of the story. Maybe.

 

[OldMarksman]

Posted by Aquila Blanca: I disagree [(with the the idea that contending that one had left a concert downtown at night and that there had been muggings in the area provided a reason for believing that imminent danger existed would surely fall short of constituting evidence that would support a defense of justification, particularly when the only pertinent action had been words].

If you say so. However, appellate findings in many states, and jury instructions based on same, would differ from your opinion.

In most jurisdictions, objective evidence is required, and "mere words" do not begin to suffice.

And if sufficient evidence were not produced, the jury would not be given the task of deciding whether there had been justification.

Put another way: if you were on the jury, you would not have even hear an argument that the act had been justified.

 

[lawnboy]

I'm not a lawyer.

I've always assumed that there is a very high standard for what actually constitutes a threat out in the world. We want there to be such a standard. Otherwise, if someone notices we are armed (legally of course) what is to stop them from "feeling threatened" and putting one right between our eyes?

 

[Aguila Blanca]

If you say so. However, appellate findings in many states, and jury instructions based on same, would differ from your opinion.

In most jurisdictions, objective evidence is required, and "mere words" do not begin to suffice.

Appellate decisions and jury instructions don't mean diddley. I don't know what appellate decisions you think might affect this but, ultimately, what we're talking about is a jury getting inside the defendant's mind. What the laws say (typically) is that you ARE allowed to use deadly force if you are in fear of death or serious bodily harm. Period.

At trial, should a case go that far, the prosecutor is trying to convince the jury that the defendant was NOT in fear or that it would have been "unreasonable" for him to be in fear. The defendant is saying, "But I WAS in fear."

A judge's instructions cannot tell the jury what to decide. All the judge can do is explain the law -- which in cases such as this will typically involve an explanation of the "reasonable man" theory. It is then up to the jury to decide if the defendant's claim of being in fear was "reasonable" under the circumstances, or not.

I'm not saying that in the case presented here a jury wouldn't convict. They might. I'm saying it's far from being certain that they would. I know for a fact that, based on the facts presented, I would not convict. I think his actions were reasonable, and I think it was reasonable in that situation to fear death or serious bodily harm. If I were sitting on his jury, I would not vote to convict. If I were the only holdout, then we'd have a hung jury.

 

[Sport45]

I know for a fact that, based on the facts presented, I would not convict.

I would not convict either. But not because of the facts presented. I would not convict because there has been no EVIDENCE presented to make a determination.

Our system dictates that everyone is innocent until PROVEN guilty.

Even the guys that were following the friend...