Also, IMHO, Tamara would have survived criminal proceedings in all but the most liberal anti-gun judge/jury's courtroom if she had shot the BG on the floor. Had she waited until he was going out the door and shot, she *might* have had trouble justifying, but I still believe that *most* courts would throw it out even then.
Here's why:
#1- She used less than lethal force first, the OC spray, even though she was armed with a pistol. This proves that she avoided using readily available deadly force and that she isn't a nut just waiting to pull the trigger on someone.
#2- She fled the attacker and tried to seek refuge in the safety of her residence instead of further confrontation of the BG, even though she was armed. This makes two attempts on her part to avoid using, or even threatening to use deadly force. She tried to avoid the confrontation. This makes for a great defense.
#3- The BG continued his attack after being sprayed with OC by giving chase and entering into her residence. This clearly displays his determination to cause her harm.
All three elements of justifying deadly force were met.
The intent, giving chase...entering her appartment by force.
The ability to do harm, male against female...continued attack after being hit with OC, failure of less than lethal force to stop the attacker...
The opportunity, close proximity...at "in same room" distances in an appartment he was close enough to pose a threat to even an armed victim. The rule of thumb "ability" distance in LE training is usually 21 feet. This means that the average person can close this diatance before the average person can react and effectively defend his/her self.
Now, had she shot him in the process of aborting his attack, given the very fast paced, short time frame nature of the attack she would most likely be covered by a "action/reaction" defense.
Basically, this defense is based on the proven fact that an attacker can abort his threat and turn away in the split second between the victim making the decision that shooting is necessary and the time they actually break the shot. According to research, once the brain decides to shoot, it is virtually impossible to abort the action.
Given the fact that the shooting was justifiable by the three above requirements when the decision to shoot was made, the fact that the BG aborted before the shot broke doesn't necessarily mean that the shooting isn't justifiable. Of course, proper knowledegable legal council is paramount to the successful application of this defense. It is a proven and valid defense, but it has to be executed precisely.
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