If I draw my weapon and my adversary immediately ceases all aggressive action I have no intention of using it anyways. However I also am not drawing my weapon as a threat - if I draw it is with the intent of using it to stop the threat's aggressive actions or make retreat possible. Nor am I using it when some massive disparity of force exists in my favor (an unarmed child does not pose imminent danger).
Good thinking!
The fact that an adult physically attacking another adult does not rise to the level of an imminent threat of great bodily harm is troubling to me.
That may be, but you had better accept it.
I get the example of Mr. Hickey (he was actively engaged in hand to hand combat with three individuals). The thing that gives me pause is the idea that Mr. Hickey and / or his wife engaged in this combat as mutual combatants in the middle of the street rather than in their own driveway while attempting to retreat (as the event is related by Mr. Hickey). This seems to be a fact in dispute.
To my knowledge, there was no allegation of consensual combat. The key issues were that the three individuals were
not armed and that Hickey resorted to the use of deadly force.
My question becomes - how many times do I have to physically disengage and retreat as much as possible (assume no massive force disparity) before I can reasonably come to a conclusion that my aggressor intends me severe bodily harm?
Zero times. But serious bodily harm moves into the realm of justifying deadly force--and intent (jeopardy, actually) is but one important consideration. There are also
ability and
opportunity.
Absent a weapon or a significant disparity of force, a reasonable person would have no basis for a belief that an
imminent threat of either death or serious bodily harm existed.
Sure, there is a
possibility of serious bodily harm, or even death, but that does not constitute an
imminent threat.
Let's go back to a scenario that I described--and you said you understood the point.
Someone attacks you with non-deadly force-- by punching you. He started it. You were innocent.
Suppose that you respond by threatening him with
deadly force. He then shoots you.
He may prevail in a defense of justification by claiming self defense.
You were the one who first presented a threat of death or serious bodily harm.
Though I am questioning if it [using a firearm] becomes a viable response after several physical attacks that continue despite retreat.
No, you may
not defend against non-deadly force by using deadly force.
However, if it becomes an immediate matter of keeping him from taking your firearm, then, and
only then, you may have no other choice, because his acquisition of the gun would rise to the level of a threat of death or serious injury.
If you had been carrying openly and if he had been fool enough to attack you, such an intent on his part would be reasonable to assume. But had you drawn from concealment,
your actions would come into question. Had your gun remain concealed, and had you started to lose consciousness, it would be a judgment call, as in the cases of Hickey and Zimmerman.
I do question if using pepper spray at the threat "I'm going to kick your butt" before the strike is reasonable.
Don't assume that being struck first is ever a requirement in a defense of justification.