If You Draw You Must Shoot

[JoeSixpack]

No, you're wrong. It's much more complicated than that. Bartholomew Roberts, a member here and a lawyer in Texas has clarified things --

He left his house to engage the men to protect property.

None the less that action will get you charged in Ohio.

That's also not accurate. See this thread.

ME

Really all castle doctrine does is change your disposition in a SD case from presumed guilty (prove self defense) to presumed innocent (have to prove murder)

Thread

The basic principle is that someone who is in his or own house is given certain presumptions regarding the justification of the use of force against an unlawful intruder that would not apply somewhere else.

ME

CD Really just make the burden on the state and removes things like duty to retreat.. typically your home and car.

Thread

Provisions vary from one jurisdiction to another. In general, however, "castle doctrine" laws and rulings do the following:

They provide a resident or his or her guest with a presumption that an unlawful entry by an intruder gives the occupant reason to believe that deadly force is immediately necessary to defend against an imminent threat of death or serious bodily harm; that belief is one of the fundamental requirements of a defense of justification for the use of deadly force;
they establish clearly that, once the conditions for justification have been met, there is no duty to retreat within or from the domicile in the event of an attack by an unlawful intruder.

 

[Frank Ettin]

No, you're wrong. It's much more complicated than that. Bartholomew Roberts, a member here and a lawyer in Texas has clarified things --

He left his house to engage the men to protect property.

None the less that action will get you charged in Ohio.

Again, you don't understand.

Joe Horn was exonerated by the grand jury in Texas because the evidence of an eye witness supported the inference that he was physically threatened by two, armed persons.

I won't offer an opinion on whether or not the same facts would yield a different result, but manifestly you're not qualified to.

That's also not accurate. See this thread.

ME

Really all castle doctrine does is change your disposition in a SD case from presumed guilty (prove self defense) to presumed innocent (have to prove murder)

Thread

The basic principle is that someone who is in his or own house is given certain presumptions regarding the justification of the use of force against an unlawful intruder that would not apply somewhere else.

Again, you don't understand.

One isn't presumed innocent under a Castle Doctrine law. One ratder has the benefit of a presumption, if certain conditions are met, that one element needed to support a claim of justification has been satisfied. Here's how I explain the Castle Doctrine law in Florida:

...II. How a Castle Doctrine/Stand Your Ground Law Can Help

Since this particular case arose in Florida, we'll look specifically at Florida law. However, all the self defense/Castle Doctrine/Stand Your Ground laws I've looked at are pretty similar.

[1] In general, under Florida law the use of lethal force can be justified as provided in Title XLVI Florida Statutes, Section 776.012:

...a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

[2] So if you claim your use of lethal force in self defense was justified, you will at least need to put forth evidence that the requirements of 776.012 were satisfied.

[3] The Florida's Castle Doctrine/Stand You Ground law at Section 776.013 helps by providing, among other things:

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.​

(2) The presumption set forth in subsection (1) does not apply if:...

[3] A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

[4] So you can establish that your use of lethal force was justified, thus satisfying 776.012, if --

1. You can show that
   
   
   • The person you used force against was, "...in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will..."; and
     
     
   • You, "...knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred...."
   
   
2. None of the exceptions in 776.013(2) apply.

And if you can do that, you don't have to specifically establish that you believed, "...that such force is necessary to prevent imminent death or great bodily harm to himself or herself...."

[5] But note that you don't get the presumption automatically. You need to show that the conditions that create the presumption exist. That might be easier than showing a fear of imminent death or great bodily harm, but you still must do some work to establish your claim of justification.

[6] And in the law, any available presumption is rebuttable. That means that even though one may be entitled to the benefit of a presumption as to a certain fact, the other side may try to prove that fact is not actually true. So, for example, even if you might have been entitled to a presumption that you were reasonably in fear for your life, the prosecutor could put on evidence and try to show that under the particular circumstances, a reasonable person could not have been reasonably in fear for his life.

III. The Bottom Line

Every Castle Doctrine/Stand Your Ground law has conditions, in general similar to those under the Florida statute, that you will need to show have been satisfied in order to be protected under those laws.

These are technical issues. Please avoid the temptation of trying to play lawyer when you aren't one. The details matter.

 

[Minorcan]

Originally Posted by Aguila Blanca - What you seem to be missing is that the involvement of a firearm is, in most jurisdictions in the U.S., considered to be using deadly force -- whether or not you actually fire the gun. In your first post you stated that many locals (I think you meant locales) have "similar" laws -- which I took to mean that you think there are places that don't allow the use of a gun other than to actually shoot someone.

In reality, the laws I have reviewed (which certainly does not include every state or every jurisdiction) generally address not "shooting" but the use of deadly (or "lethal") force. In many of them, simply drawing -- and in some cases just putting your hand on a holstered gun -- is deemed to be the use of deadly force, whether or not you shoot. So once you draw, you have employed deadly force in self defense. If simply showing the gun defuses or deescalates the confrontation and the threat goes away -- why would you then have to shoot? More to the point, since you propose that "many" locations require you to shoot if you draw -- please post even one reference to such a law.

Yes I did mean "locales". The issue is many people recommend drawing to prevent escalation. The laws in many states, Florida is one, is if you draw for a reason other than prevention of bodily harm or death then you are not justified and such display can be a felony with a minimum three year sentence. Advising people to draw when drawing can result in a felony charge is not wise.

The other part of this is you are taking my statement that if I draw I must shoot as meaning there is a law that says if a person draws then they must shoot. That is not what I said or meant. The law says if you draw and didn't shoot then you can/may be charged with aggravated assault with a deadly weapon. Again, the only time I will draw is when it is justified, if it is justified I must fire or suffer bodily harm or death.

For example in a road rage incident, one person is an aggressor and threatens another person but doesn't draw a weapon. The person being threatened gets ticked of to the point of drawing a firearm, the other person starts backing away. Many may think that the drawing of the firearm prevented an attack. The PDA may not see it that way. The person that drew his firearm has now become the aggressor and the person that started the threatening behavior was the aggressor but he has now become threatened party or the possible intended victim. The initial agreesor can call the police and file a complaint. When they investigate they find the initial aggressor didn't have a weapon and the person that drew obviously did. Who do you think will go to jail? It will be the person that drew when it was not justified. He will or at least could be charged with a felony, loose his right to carry and go to jail for a period of years. When gets out n more weapons ownership or right to carry.

So please don't twist my posts. The intent is to prevent someone that read the initial recommendation to draw in order to diffuse a situation as thinking it is a good idea to draw when it is not justified. It is not. The only time to draw is when it is justified to prevent certain injury or death and if you are in that situation you will have to shoot to prevent such injury or death. If draw for any other reason it is not justified. Therefore you shouldn't have drawn and you are now the aggressor with intent to harm. The other person is now the threatened party and if armed would be justified in drawing and shooting you. By drawing you escalate or stand a good chance of escalating the situation instead of preventing it.

As far as documenting the logic then I suggest you read "Florida Firearms Law, Use & Ownership" (Eighth Edition by Jon H. Gutmacher, Esq. He is the recognized exert of Florida Gul Laws. For the purposes of this discussion Chapters Seven, Twelve and Thirteen are most relevant.

 

[OldMarksman]

The law says if you draw and didn't shoot then you can/may be charged with aggravated assault with a deadly weapon.

Perhaps, but that will not be because you did not shoot.

 

[Gary L. Griffiths]

Good Grief, are we at this topic again? OK, I'll disregard the alarm bells going off in my head and weigh in: Back in the day, my commander on several occasions reminded me, "Mr. Griffiths, it's my policy that you won't draw your weapon unless you're going to use it." My response was, "Colonel, every time I draw my weapon, I use it!" I never had to shoot anybody, but I can recall at least three occasions in which the only reason I didn't have to shoot was because I was ready and the subject wisely decided he couldn't outdraw a trigger-pull. Of course, as a Federal LEO, I was indemnified against prosecution for a reasonable use of force.

Here's what I have yet to see in this thread: Just as intentionally shooting and killing someone is not always murder or manslaughter, neither is pointing a firearm at another in order to prevent him or her from taking a life-threatening action against you or another innocent person. Aggravated assault, under common law, is assault with a means likely to cause death or grievous bodily injury. Pointing a gun at someone certainly falls within the category of such a means, but assault requires an intent to cause harm or to place another in fear of death, etc. You may justify an action that would otherwise be a serious crime by stating that you reasonably believed that doing so was necessary to prevent death or grievous bodily injury. For example, if a thug pulls a knife and demands your money, but you pull a gun and point it at him, telling him to "Put the weapon down!" will you be charged with aggravated assault? Well, in NJ, NY MA or CA, all bets are off, but ordinarily the law will recognize your action as justified.

I'd be willing to bet that the brandishing laws, all of which are strictly statutory, contain some provision exculpating those who do so in response to a threat. Perhaps not, as we hear stories all the time about someone being arrested for "brandishing" because a gust of wind blew a concealing garment aside. It would behoove you to know the law in your state.

It has always been my philosophy, "When in doubt, whip it out!" However I must now be mindful of the immortal words of Frank Drebbin (Leslie Nielson - Police Squad): "Now that I'm not a cop, the next time I shoot someone, I could go to jail!"

As always, the outcome of any use of your weapon will depend highly on your ability to articulate how your actions were reasonable under the circumstances, and on the policies and prejudices of the local law enforcement and prosecutors.

 

[Frank Ettin]

...I'd be willing to bet that the brandishing laws, all of which are strictly statutory, contain some provision exculpating those who do so in response to a threat.....

That's really not necessary. Satisfying the legal standard for the justification of the threat or use of force can be a basis upon which to defend against any charge of a crime involving the threat or use of force.

 

[Minorcan]

Well said Mr. Griffiths

 

[OldMarksman]

I never had to shoot anybody, but I can recall at least three occasions in which the only reason I didn't have to shoot was because I was ready and the subject wisely decided he couldn't outdraw a trigger-pull.

So can I.

...assault requires an intent to cause harm or to place another in fear of death, etc. You may justify an action that would otherwise be a serious crime by stating that you reasonably believed that doing so was necessary to prevent death or grievous bodily injury.

Yes indeed.

However, it is also usually unlawful to display or handle a weapon in a manner that is careless and reckless.

It has always been my philosophy, "When in doubt, whip it out!"

Not mine.

 

[Aguila Blanca]

The other part of this is you are taking my statement that if I draw I must shoot as meaning there is a law that says if a person draws then they must shoot. That is not what I said or meant. The law says if you draw and didn't shoot then you can/may be charged with aggravated assault with a deadly weapon. Again, the only time I will draw is when it is justified, if it is justified I must fire or suffer bodily harm or death.

This is where your logic falls apart.

You are using Florida law, so we'll go with that. The law doesn't address "shooting," specifically, it addresses the use of deadly force. As you note, drawing a firearm constitutes the use of deadly force. So does shooting another individual. So, whether or not you actually shoot, if you draw in self defense you can be arrested and charged. There's just no way around that.

The law does NOT say that if you draw and didn't shoot you may be charged with aggravated assault. If I'm wrong, quote the statute -- I'm reasonably certain the law doesn't even mention drawing without shooting.

So let's suppose you are in a situation where you are confronted by a mugger with a knife. He tells you to hand over your wallet "or else." I think most reasonable people would agree that's a situation in which you could genuinely and legitimately be in fear of death or serious bodily injury. So you draw your firearm, in preparation to defend yourself, and as soon as the mugger sees the gun he turns around and starts to run away. Do you still say you must shoot, simply because you already drew the gun? If you shoot, you'll be shooting a fleeing man -- who now does NOT pose any threat to you -- in the back.

I don't think that's what the law says, implies, or intends. When you drew, there was a credible threat, so you were justified in drawing. The threat evaporated before you could shoot. So how can you justify shooting?

Let's look at your road rage example:

For example in a road rage incident, one person is an aggressor and threatens another person but doesn't draw a weapon. The person being threatened gets ticked of to the point of drawing a firearm, the other person starts backing away. Many may think that the drawing of the firearm prevented an attack. The PDA may not see it that way. The person that drew his firearm has now become the aggressor and the person that started the threatening behavior was the aggressor but he has now become threatened party or the possible intended victim. The initial agreesor can call the police and file a complaint. When they investigate they find the initial aggressor didn't have a weapon and the person that drew obviously did. Who do you think will go to jail? It will be the person that drew when it was not justified. He will or at least could be charged with a felony, loose his right to carry and go to jail for a period of years. When gets out n more weapons ownership or right to carry.

We'll assume you are person number 2. Person #1, the [initial] aggressor, threatens you. You believe (for reasons that are valid to you, but which may or may not be viewed as valid by a jury) that you are in danger of death or serious bodily injury, so you draw your firearm. Per your example, the other person (the [initial] aggressor) starts backing away.

Under your logic, he now shifts from being the aggressor to being a victim, and you somehow morph from being the victim to being the aggressor. I don't see how that transformation takes place, but the real question is this: You have drawn your gun. Your personal rule is that if you draw, you MUST shoot. So person #1 starts to back off, and you shoot him anyway -- because you already drew your gun.

How is that going to in any way make you LESS likely to be arrested, charged, and tried?

 

[OldMarksman]

The only time to draw is when it is justified to prevent certain injury or death....

That may be your philosophy, and it is the law in most jurisdictions, but as pointed out in the post linked in Post #36, there are a handful of jurisdictions in which a lesser threshold applies.

... and if you are in that situation you will have to shoot to prevent such injury or death.

It's not clear what you are trying to say.

 

[Aguila Blanca]

... and if you are in that situation you will have to shoot to prevent such injury or death.

It's not clear what you are trying to say.

I think it's clear what he's trying to say but, respectfully, I think he's wrong. If drawing the gun -- or even uncovering the gun and laying your hand on it while still holstered, which would also constitute the use of deadly force in many jurisdictions -- is enough to terminate the threat, then obviously you DON'T have to shoot to prevent injury or death.

The gun forums and the [print] gun magazines are full of reports of incidents in which just showing a gun resulted in the bad guys having a sudden change of heart. With so many such incidents documented -- and all apparently with the person who drew or displayed the gun having managed to avoid being arrested for felony aggravated assault -- it's difficult to understand why Minorcan insists that one MUST shoot if one draws.

The other part of this is you are taking my statement that if I draw I must shoot as meaning there is a law that says if a person draws then they must shoot. That is not what I said or meant.

But that is exactly what you said, in post number 3.

In Florida brandishing a firearm can be agravated assault with a deadly weapon is a felony and has a minimum three year sentence. Don't draw unless you have to which translates to must shoot. I said that if I draw I must and will shoot. Many thought I was an idiot . In fact many locals have similar laws.

I don't know what you think you meant, I can only go by what you wrote, and this is what you wrote. I asked you to cite even one jurisdiction that actually has a law saying that, and so far you haven't responded with a citation.

 

[K_Mac]

I've read through this thread a couple of times. Many very knowledgeable folks have carefully detailed the reasons why drawing a gun to stop a potentially deadly attack, and actually firing it are two separate actions. While I understand that speed and accuracy are critical in most defensive shootings, the most important element is good judgement. I agree with Don P that anyone who thinks that because the gun is drawn it must be used should not carry one.