The topic is whether a defender can draw their weapon when they are attacked by a group of unarmed individuals.
My question is, Lets say they didnt have a knife or a gun, but did try to rob me and my gf simply because we are obviously outnumbered, am i legally allowed to draw my weapon? to keep the attackers away?, even though they might have had no weapon.
Your attacker must have the ability—the physical, practical ability—to cause you harm. Common sense applies here, as does context. A gun gives your attacker ability (lethal ability, in fact); a knife gives ability as well. Indeed, most weapons qualify, all the way down to glass bottles, baseball bats, and screwdrivers. While the latter are not designed as weapons, if they are applied as such, they can certainly kill you just as dead.
Other “ability” considerations include disparity in size or physical power between you and your attacker—a very large man versus a very small man, a strong man versus a cripple, a trained fighter versus a bookworm, a man versus a woman, all can apply. And don’t forget disparity in numbers—four men attacking one can very easily kill or cripple, unless that one is a Hollywood action hero.
d. Excessive force
1) You may not use force greater than that offered by the antagonist.
2) The level and amount of force may not exceed that which is required to reduce the threat to an acceptable level.
3) Any blow delivered that is outside the requirements of “necessity” is not justified.
The AOJ Triad
Reasonableness can be hard to quantify. The attorney may wish to look at the factors self-defense trainers teach their students. Self-defense trainers refer to adversaries or aggressors who have the ability and opportunity to cause harm, and reasonable people who, observing the aggressive conduct, believe they are in immediate jeopardy of death or serious injury. Essentially, these factors (called the AOJ triad) restate the common law of self-defense.
Ability means the aggressor has the capacity to kill or seriously injure the defender. The attorney should ask the jury to consider relative age, strength, gender, training, level of aggressiveness, weapons, number of aggressors versus number of defenders, etc.
Opportunity means the aggressor is in a position to use his ability. Look at distance, obstacles between the aggressor and defender, cover, and escape routes. An aggressor armed with a firearm has a greater opportunity to harm a defender at range than one armed with a baseball bat.
Jeopardy means that the aggressor’s behavior would lead the defender, and a reasonable observer, to conclude the defender is in imminent danger. Look to threats, gestures, and sudden movement towards the defender. Also consider the defender’s age, fitness, and health. If the defender was injured or was unable to flee due to ill health or disability, he or she might have been in jeopardy earlier than a healthy or uninjured person.14
Experts who train civilians (non-police officers) also include a fourth factor — preclusion. The defender must be precluded from retreating in complete safety. (See “Duty to Retreat” below.)
In questioning the client, the attorney is not looking for the client’s conclusion that he was in danger from the aggressor. Instead, the attorney is looking for the observations that led the client to that conclusion. What did the aggressor say and do that showed he or she was dangerous? Members of the jury should come to see the situation as it appeared to the client. They should come to the conclusion that the aggressor intended to seriously injure or kill the client, and that there was no option other than the use of deadly force.
Where I live, a civilian cannot "exhibit" a gun "in angry or threatening manner" except while engaged in a lawful act of self defense.
For me that means I will not draw unless I can legally shoot. And as a matter of fact, I won't draw unless I intend to shoot if necessary. That doesn't mean that I will shoot, because the threat may dissipate.
You are missing the spirit of the law.
Drawing your weapon in fear is NOT the same as "in an angry or threatening manner" while engaged in a lawful act of self defense.
You may draw your weapon if you feel or believe that you might need to employ your weapon in self defense (or the defense of another person) from serious bodily harm or death.
If you wait until you need to shoot before drawing your weapon, there is a good possibility that it is already too late.
It is my belief that the continuum of force should not have drawing my firearm and discharging my firearm on the same level.
I would assume NOTHING in this situation. For all you know the police will arrive and will have to sort things out based on conflicting stories from you and your adversary/adversaries, as well as, possibly, witness statements - many of said witnesses possibly being unfriendly to you. They are not allowed to make their determination based on their personal opinion of who the "good guy" is. Likely they will drag BOTH of you to jail. Most folks of civil temperament and disposition would likely be horrified at the prospect of sweating it out in a holding cell. Anything I can do to avoid such an unsettling prospect, I'm going to do. In this case, that means not drawing my carry pistol unless and until I have identified an actual threat to my life or someone else's, or my property.With all the talk about pulling prematurely and brandishing etc, do you really believe the "low life" causing the threatening situation is going to call the LEO on you and document your words/actions etc, when he/they know they are the aggressor? I highly highly doubt it. These people are low life, and want nothing to do with the law. Thus, an honest CCW holder minding his own business should be able to do what he needs to do to stop the situation threat. If he needs to pull early, then it should be justified. This does not mean he has to fire unless he needs to.
...did you read the rest of my post??How so?
No, the way the code reads, I cannot exhibit the weapon in a threatening manner (and how else would drawing it in a "street situation" be interpreted?) unless I am engaged in a lawful act of self defense.
OldMarksman said:Switch to pocket carry, which allows me to get my hand on the gun without giving away my intent, shortening the time required to draw and shoot;
You're missing that it all depends on who is actually doing the threatening. You would be drawing your weapon because you are feeling threatened with imminent bodily harm or death. That is much different because you are not drawing your weapon to threaten anyone.
You pull your gun because you expected you might need to use it to defend your life.
It very simple actually and your lawyer will, if you did your part correctly, will have no trouble proving this to a jury of your peers if you end up in court.
Well, "feeling" is not the determining factor, but if you have reasonable belief that there is an imminent threat of death or serious bodily injury, you're OK.
I see. You must be able to read the minds of the bad guys as to when they are a threat and when they are just kidding. Being that I am not a mind reader, I will be pulling my weapon based on the signals and body gestures coming from the bad guy which indicate a threat towards me. Based on enough accumulated threatening gestures, there will be a point where I will feel justified in shooting to stop the threat."You pull your gun because you expected you might need to use it?" Where on earth did you get that idea? Best that you consult an attorney before carrying.
"Feeeeeling" works on Oprah, or on Dr. Phil.
Being able to articulate a reasonable fear for one's life is what will get you through the day.
Most all states predicate their laws on "what a reasonable person would do", and not what "a blissninny might feel".
Substitute "Defense Attorney" for "Prosecutor" in the text above, and sure...a direct examination might go that way. Cross-examination, on the other hand? Not a chance. You as a defendant will not be given the opportunity to make such short, succinct declaratory statements in your own defense. You will be asked to provide very explicit, detailed information about the shooting and the events that preceded it. You will be grilled over ANY contradictory statements you may have made to the police, if you were foolish enough to make any statements to them, that is. The prosecutor will require you to elaborate exactly what was so threatening about the particular individual and event, and will go to great pain to show the jury that you had other means of avoiding the shooting that you chose not to pursue. You will probably be grilled about your choice of firearm, choice of ammunition, and why you were where you happened to be at that time, particularly if it wasn't a place you frequent.Prosecutor: "Why did you pull your gun"
Defendant: "I was in fear for my life."
Prosecutor: "Why did you shoot?"
Defendant: "If I didn't shoot, I was about to be killed or hurt very badly."
Making a phone call is a lot better than shooting someone. You should have made a beeline to your house while calling the cops.
Being that I am not a mind reader, I will be pulling my weapon based on the signals and body gestures coming from the bad guy which indicate a threat towards me. Based on enough accumulated threatening gestures, there will be a point where I will feel justified in shooting to stop the threat.
In the vast majority of states, the basic elements of self-defense by means of deadly force (firearms and other weapons) include:
The client had reasonable grounds to believe he or she was in imminent danger of death or serious bodily harm. Heated words, vague threats, and the possibility of future harm are not enough. The harm must be serious and imminent.
The client actually believed that he or she, or a third person, was in such imminent danger. Establishing this subjective belief often requires the client to testify.
The danger was such that the client could only save himself or herself by the use of deadly force. Some states do not require the defendant to retreat, even if he or she can do so safely. Most states do not require the defendant to retreat if he is in his own home defending against someone who is unlawfully present. Law enforcement officers are not required to retreat.
The client had to use no more force than was necessary in all the circumstances of the case.
At a minimum, the defense must include some evidence, generally viewed in the light most favorable to the defense, on each of these factors in order to receive an appropriate jury instruction.
The attorney needs to establish that the danger was imminent. Insults do not pose a danger. Threats, even credible ones, do not constitute an immediate danger. Claiming to have a weapon is not an imminent danger.