Force less than deadly force

[JohnKSa]

The family appears to believe that the shooting was unjustified, and the family appears to be planning a suit.

Before it's over, the defender will, no doubt, wish that he had ended the confrontation some other way or avoided it altogether.

I say a blast of OC in that guys face would have been a better option then the shoving match and potential gun take-a-way situation we watched.

That seems very clear. I can't imagine that anyone would think that the outcome was ideal.

One comment by the Assistant Police Chief in one of briandg's links is very telling. The officer made the statement: "<I don't know why he would> actually attack a subject that he knew was armed."

I mentioned earlier in the thread that a defender who can't get away and has made it plain that he's armed should be very concerned about an attacker who continues to attack in spite of the fact that he knows that doing so could lead to serious injury or death. I believe that the Assistant Police Chief is articulating a similar sentiment with his question.

 

[briandg]

I agree. To go toe to toe with an armed man, especially one who looked as if he actually knew what he was doing tell me to strong possibilities. First is that he was just plain nuts, that he was so certain that the guy would wimp out and not fire, that he could, in fact, gain the upper hand, get the gun, win the fight, and achieve whatever goal he had

The second thought is that he was just nuts, period. That nothing forced it's way into his consciousness. This guy took a bullet to the abdomen, and rather than yelling"OUCH!" And asking for an ambulance, he pressed on. Still determined, still violent. The guy was clearly nuts, and just blindly fighting, in uncontrolled rage.

Every time I think about this I think of something new. What was he carrying, anyone have a guess? Any ball ammo would have gone through, and some cheap hp bullets as well, right? This guy was professional, he was carrying serious hardware and the best defense loads he could gat, right? The aggressor took the first round of what may have been .45-.40 in the belly, and with a grievous wound, continued.

Granted, he took that round through fatty tissues and intestines, and his level of pain may have been low,but where was the shock of taking a bullet hearing the shot?

This thing was unbelievable. A verbal spat turned violent, rapidly escalated, and ended in that nightmare. I think that this thing is one for the text books. I can't stop analyzing it.

 

[Lohman446]

That is a unique situation. We have been questioning if an unarmed attack really rises to a level that would allow or necessitate the use of deadly force. Interestingly enough advancement, even after the use of deadly force (the aggressor had been shot), seems to be evidence of the requirement of the use of deadly force.

While I get the point it seems tremendously circular.

 

[briandg]

Yes, it is a unique situation and it belongs in its own thread, and it belongs in a thread, imo, simply because it is so freakish. I dug into the history of this thing for well over an hour, and found very little information, but just based on some of the things I read online, the guy isn't being seen as someone who tries d to do the right thing, to help. that guy should not have left the parking lot, he was dangerous, and the precipitating event seems to be getting the license. He's either a hero or villain to the public.

 

[OldMarksman]

That is a unique situation.

Every use of force encounter is unique.

We have been questioning if an unarmed attack really rises to a level that would allow or necessitate the use of deadly force.

Actually, we started out looking at the justification of non-deadly force.

Interestingly enough advancement, even after the use of deadly force (the aggressor had been shot), seems to be evidence of the requirement of the use of deadly force.

I don't see it quite that way.

The defender had a gun in his hand, and the attacker pursued him "to the wall" as he tried to escape, in a stand your ground jurisdiction. The risk was not one of the unarmed attacker's use of force to cause death or serious bodily harm; it was one of the attacker taking the gun and using deadly force.

While I get the point it seems tremendously circular.

???

As has been said, the defender would have been a lot better off had he had the ability to use a less lethal option.

From a tactical standpoint, he would have been better off not leaving the store.

The existence of the video probably helped the defender a great deal in a number of ways here.

 

[Lohman446]

OldMarksman:

I was writing this one off as unique because it kind of makes this thread different. My original argument was that there was virtually no situation (against an able bodied adult) where the use of force would be required that would not rise to the level of the use of deadly force. I basically argued that facing physical assault despite an attempt to deescalate and retreat (and being forced into a position where retreat was impossible) would allow the use of deadly force.

The arguments against my position were pretty strong.

What I see as unique about this is that the defender used deadly force and the police basically said "hey if he was going to advance against someone willing to use deadly force he must have intended severe harm". He was shot, distance was created, and then he attacked again. Basically the use of deadly force (more correctly the continued attack after the use of deadly force) is being used as evidence that deadly force was justified. While I get that the point might be accurate it is not something that we should be willing to use to color our discussions on the matter because of its circular nature.

 

[Sharkbite]

The defender had a gun in his hand, and the attacker pursued him "to the wall" as he tried to escape, in a stand your ground jurisdiction. The risk was not one of the unarmed attacker's use of force to cause death or serious bodily harm; it was one of the attacker taking the gun and using deadly force.

A firearms retention situation rises to the level of deadly force. Thats not what we are discussing. The subject is an unarmed assailent violently encroaching on your personal space and showing the intent to assault you.

Baring some other circimstances that come to light (disparity of force, mtpl attackers, your serious medical contidions).... That does NOT rise to the level of justifing the use of DEADLY force.

So, you better have some other plan to deal with the situation. OC may not be the answer for you, but it is easy to use...reasonably effective in most situations and easily carried.

A small can slipped into your pocket each day, gives you an option that otherwise you are missing and you may end up (like the guy in the vid) shooting somebody that didnt really NEED to be shot.

Court costs, legal fees, loss of sleep, stress related medical problems. All of those are REAL issues following a shooting. Those issues are MUCH reduced (or eliminated) by spraying the assailant.

 

[OldMarksman]

...the police basically said "hey if he was going to advance against someone willing to use deadly force he must have intended severe harm".....

I don't interpret it that way at all. Intent would only provide one part of a successful justification. It would not be sufficient. Remember A, O, J, P.

Basically the use of deadly force (more correctly the continued attack after the use of deadly force) is being used as evidence that deadly force was justified.

Where do you get that idea?

The video shows pretty clearly that an unarmed man was trying to grab a man who had a gun. The only serious risk was that of the attacker acquiring the gun.

While I get that the point might be accurate it is not something that we should be willing to use to color our discussions on the matter because of its circular nature.

I see nothing circular about it.

 

[Sharkbite]

Oldmarksman,

I understand the Ability, Opportunity, Jeopardy part... What does the "P" stand for in you're example?

 

[OldMarksman]

Preclusion.

To be lawfully justified in using force, deadly or otherwise, the defender must have been precluded from employing some other safe means of avoiding injury or the unlawful use of force against him.

In some jurisdictions, that would include retreat, if safely possible.

Getting into the car and locking the door.

Moving your car out of his way, even if you are "where you have a legal right to be".

Stepping behind a barrier.

Shoving a shopping cart.

On and on.

 

[Ton]

I feel this is a great example of a shooting that could have gone either way in the legal realm after the fact. I think a few very important factors swooped in to save the shooter that the average CCW carrier probably should always not count on.

The first, and already discussed, is that he was openly carrying. It was no secret that he had a firearm, and at one point in the video before the physical altercation starts, it even appeared the aggressor acknowledges the fact that he is carrying a firearm. No reasonable person is going to argue the fact that if he ended up on the losing end of that fight the gun could be taken.

The second, is that, IMHO, there is a clear disparity of force there. The shooter is surely not defenseless, but the attacker is built like a dump truck, and still has probably 50+ pounds on him. Anybody who has ever participated in any sort of martial arts, boxing, can testify to the fact that a size difference of that degree would put the defender at an extreme disadvantage.

The third, and the way I see it most important, is the video evidence that CLEARLY (not a shaky 18 second cell phone video from a single perspective) shows that the defender did everything he could and was literally backed into a corner before he resorted to the use of deadly force. He did not provoke the attack, he DID use "force less than deadly force" (multiple pushes with his support hand) to try to create distance and get the attacker to back off, and he endured the attack for quite a while before he even drew his firearm. Had that video not existed, I still believe the DA probably would have cleared him based on witness accounts alone, but it surely would have muddied up the water alot more.

Had a few of these variables been different (concealed carry vs open carry, no video, no witnesses other than the clerk who was probably just trying to get out of the way and not super focused on the fight itself), I think it would have been possible for the shooter to end up getting crapped on.

 

[Mainah]

Why bother following a huge, angry, and irrational guy at a convenience store outside to capture his plates? Why not just hope that the store captured enough evidence on security cameras? The whole thing makes me wonder if open carry can make you more vulnerable to some poor soul seeking suicide by cop.

 

[briandg]

Why? Because there was a drunk, half crazed individual who presented as a danger to other people. He was getting the tag number for identifying him to the police. He couldn't have known that captain crazy was as dangerous as he proved to be, but I think that it's pretty obvious that he presented a serious threat to anyone else he might have encountered.

I think that he was a little cocky, maybe, and maybe he, without meaning to, set the guy off by it. The guy knew that the police would soon be looking for him.

There a re e several places in the video that I question what he did, but I am absolutely not going to try him and judge him based on what I see there. His actions reflect the moment, and his impression of the situation.

 

[stagpanther]

This thing was unbelievable. A verbal spat turned violent, rapidly escalated, and ended in that nightmare. I think that this thing is one for the text books. I can't stop analyzing it.

I've witnessed several shootings, one in particular I'll never forget--I was walking my dog one morning when I noticed a gangstah looking fellow stop at the stop sign across the street and down maybe 50 yds. While he was standing there, a white car pulled up and the rear window came down out came a 45 (I was there when the police later collected the spent cases) and the occupant rapid fired the entire clip at the guy--who was all of maybe 10 feet away. Incredibly, the guy did not go down and took off running, very fast, right towards me while reaching down towards his side pocket. I thought maybe he was reaching for a weapon and I took off running as fast as I could at an angle that split the difference between him and the car. I got to my house and called it in--the police got both the car and the guy who had been shot at--turns out what he was reaching for was a hole in his side where a bullet had done a complete pass-through.

 

[OldMarksman]

Why [bother following a huge, angry, and irrational guy at a convenience store outside to capture his plates]? Because there was a drunk, half crazed individual who presented as a danger to other people.

That's precisely why the actor should not have followed him.

He was getting the tag number for identifying him to the police.

So he said, And as it happened, the video seems to support his account. But under some circumstances, his having followed the man outside could destroy a defense of justification in the event of a deadly force encounter or even a less serious incident. It could work against him in a civil trial, too.

He couldn't have known that captain crazy was as dangerous as he proved to be, but I think that it's pretty obvious that he as he proved to be, but I think that it's pretty obvious that he presented a serious threat to anyone else he might have encountered.

That is the best reason in the world for anyone other than a sworn officer to stay away from him.

I think that he was a little cocky, maybe, and maybe he, without meaning to, set the guy off by it. The guy knew that the police would soon be looking for him.

"A little cocky"? It was very risky, not at all prudent, and counter to the advice of every trainer and expert.

 

[briandg]

Look, I agree. That was the one biggest mistake he made. I believe that it set the whole thing off.

He was right he should have gotten the tags, so that maybe someone else a half mile down the road didn't die, but he went outside and once again made a target out of himself. That guy was already angry, and he stepped into the danger zone by standing behind the car.

The event may have ended peacefully if he had been abit more discreet. He could have gotten the numbers as the car drove off. Would the guy have run when he cops found him? Would he have killed someone in a high speed collision?

Like I said, I can see several mistakes, all probably related to his overconfidence because he was a trainer. He wasn't a cop, or he would have had better situational skills.

Getting the tags was the right thing, it was handled badly.

I find it hard to fault this guy, he walked into something, and instead of letting it run its course and only intervening when needed, he inserted himself and escalated it beyond his capacity to resolve the situation peacefully.

Can we agree that his actions leading up to it and during it were poorly handled, and it resulted in an unnecessary shooting? There is no guarantee that the guy would have gone on his way peacefully, but mother Theresa could have calmed him down