More than one Attacker...

[Hirlau]

I think the Moderator "Pax", just asked you to get back on topic!

 

[Glenn E. Meyer]

Sorry for the thread drift, Pax.

 

[pax]

It's a good topic for another thread. (hint...)



pax

 

[ZeSpectre]

The topic is whether a defender can draw their weapon when they are attacked by a group of unarmed individuals.

I've seen the aftermath of a "group stomping".
I've seen someone killed by a bare fist strike.
It is easy to conceal weapons.
It is possible, even easy, to strike from concealment such that a weapon is never observed.

Knowing these things my default assumption is that someone who is actively assaulting me believes they have enough "horsepower" (be it strength, training, weapons, backup) to think they can take me down.

"MMO" is a good yardstick (means, motive, opportunity) but in a case of group aggression I don't consider there to be any particular need to actually observe a "weapon" before I can legitimately call it a self defense scenario.

HOWEVER

You'd best have additional plans because sometimes responding to a group like this will cause them to scatter, but other times it will trigger pure bloodlust and you'd get mobbed and overrun.

 

[OldMarksman]

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.

As previously pointed out, it's going to depend a lot on the law in the particular state.

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.

Many states have similar laws. In Florida, "it is unlawful to have or carry a firearm in the presence of one or more persons and exhibit the firearm in a rude, careless, angry, or threatening manners, except in cases of self-defense."

In Arizona, the prior Governor (now head of Homeland Security) very recently vetoed a bill that reportedly would allowed a person to "defensively display a gun when feeling justified to protect against unlawful physical force".

In Texas, one may draw if force is required without being guilty of having used deadly force. One can only imagine the circumstance that necessitated that provision.

On top of that , one presumes that no one would draw a gun simply to threaten, without being prepared to shoot if necessary--and if justified, of course. So the question would seem to be, can you shoot if you are outnumbered by unarmed persons?

Maybe or maybe not. It would depend on the circumstances.

Here are a couple of links worth studying. Read the articles all all the way through at least once.

http://www.useofforce.us/

Relevant excerpt:

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.

http://www.teddytactical.com/archive/MonthlyStudy/2006/02_StudyDay.htm

Relevant excerpt:

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.

http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f587d7d10c34fff2852572b90069bc3c?OpenDocument&Click=

Relevant excerpts:

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.

I strongly recommend discussing the matter with an experienced local criminal trial attorney rather than relying on a lay interpretation.

I hope this proves helpful.

 

[Creature]

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.

 

[OldMarksman]

You are missing the spirit of the law.

How so?

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.

I agree. The law says that I may present the weapon for the purpose of lawful self defense--and no other. If I am engaged in a lawful act of self defense, however, I must reasonably believe that the use of deadly force is immediately necessary to prevent imminent death or serious bodily harm. That is, that the assailants have the ability and opportunity to harm or kill me, that I am in jeapardy, and unless I am in my house, car, or other shelter, I cannot safely retreat. Being "fearful" of what might unfold is not sufficient.

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.

"Might need to employ?" 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. The threat must be imminent, not potential, or I am not engaged in a lawful act of self-defense, according to my training an lay understanding.

If you wait until you need to shoot before drawing your weapon, there is a good possibility that it is already too late.

The question of when you do need to shoot is key. That's one reason the Tueller Drill is taught.

When I took my state-required CCW course and got my carry endorsement, this issue was the most troubling to me.

I've done two things: 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; and I carry a Kimber Pepper Blaster, which provides for an effective but less than lethal force option in circumstances that may later be seen as questionable.

It is my belief that the continuum of force should not have drawing my firearm and discharging my firearm on the same level.

I agree with your thought, and that was in fact the main argument of the supporters that Janet Napolitano recently vetoed in Arizona. A majority of the legislators not only agreed with you, but they agreed that existing law was not appropriate and that citizens were subject to prosecution if they judged wrong in drawing. Gov. Napolitano disagreed and vetoed the bill on the basis of the argument that people would be drawing guns when it was not necessary.

In our course, we were told that drawing without imminent threat, etc, would not only violate the section of the weapons law that I have quoted, but could also bring about civil and criminal assault charges. There have been threads on this and other fora on the subject of when it is too early to draw and when it is too late. It's a real dilemma.

 

[Only S&W and Me]

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.

 

[csmsss]

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.

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.

 

[Creature]

How so?

...did you read the rest of my post??

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.

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. Figuring out what you feel is "Imminent Threat" is what you will have to square in your mind beforehand.

 

[Tennessee Gentleman]

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;

Exactly my thinking. I think that is the best way to carry a firearm concealed for those reasons. Plus with a revolver (which I carry) you can shoot through the pocket as well.

As to the other arguments it seems that if the elements necessary for self defense are present then drawing to hold your attacker at bay would seem prudent. Of course, factors like distance and numbers may "shorten" the time you have to react and why I too like pocket carry. The fastest draw I have heard is when you have your hand on the gun.

As to pepper spray there are some who swear by it and some who swear at it. I've been hit with it and could have fought through it if I wanted to badly enough.

 

[OldMarksman]

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.

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. Of course, others will have to agree that the evidence was such that a reasonable person would have come to the same conclusion.

You pull your gun because you expected you might need to use it to defend your life.

"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.

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.

That will depend entirely on what evidence you are able to produce. Your attorney cannot create evidence that did not exist at the time.

Taking the point of view of the other party, you need to realize that if you or I were to draw a gun whenever we "felt threatened," it could well be reasonably be judged that we were the aggressors. That would not only deny us the ability to justify our actions on the basis of self defense, it might well give the other party the legal justification for using deadly force against us.

Think about it--or better yet, and once more, consult a criminal trial attorney.

 

[Creature]

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.

Uh...yes, "feeling" is the determining factor. Belief is feeling! If you FEEL that your life is being threatened, then you are within your rights to draw your weapon. And if you feel threatened enough, you are justified in shooting.

"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.

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.

 

[orionengnr]

"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".

Thank God.
Have a nice day

 

[Creature]

"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".

This is amazing. Okay...lemme try:

Prosecutor: "Why did you pull your gun"

Defendant: "Because I felt that I was in danger."

Prosecutor: "Why did you shoot?"

Defendant: "Because I felt that if I didn't shoot, I was about to be killed or hurt very badly."

Wow. That was hard.

 

[orionengnr]

Okay...my turn:

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."

No "feeeelings" required. Succint. Articulate. Reasonable. Statements of fact.

 

[csmsss]

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."

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.

In short, should you ever face trial for shooting someone and have the unfortunate experience of taking the stand in your own defense, you had best get ready for the second-worst experience of your life.

 

[orionengnr]

...and if I have acted in accordance with the laws of my state, it will never get past the Grand Jury.

We have drifted far afield here, and I apologize for my part in it. I'm done.

 

[GetYerShells]

Making a phone call is a lot better than shooting someone. You should have made a beeline to your house while calling the cops.

Yes I agree that a cell phone call to the cops would have been my first move before drawing my weapon, but why on earth would you want to put your back to your threat? That leaves you open to get mugged. Never turn your back to a perceived threat...that's not very smart. I would have walked backwards to my front door with my phone to my face, and my hand on my gun.

 

[OldMarksman]

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.

I suggest that you study the papers linked in Post 45 very carefully.

Here's another relevant excerpt from one of them, which was written for attorneys defending justifiable use of force cases.

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.

Now, that's just about what orionengnr said, but don't forget this little detail:

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.

Thus, your statement that you reasonably believed that you were in imminent danger may well prove insufficient in avoiding charges, avoiding indictment, or prevailing in a trial court. I wouldn't want to have to rely on my testimony alone, particularly if my actions had been based on " 'signals and body gestures' coming from the 'bad guy' which 'indicate a threat' towards me."

The DA can be expected to try produce evidence that contradicts your testimony (that's his job). Say, an eyewitness or two who testify that they saw you draw and if you fired, saw that, but could not convincingly describe anything to evidence a compelling reason justifying your action.

Those may include those against whom you drew your gun. They'll clean up very well and do very well on the stand after coaching. Do not assume that you will be regarded as the "good guy."

So, when to draw? That was the original question.

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.

The answer will depend on the situation. Too late and it's curtains. To soon and it may well be bars. Study the Tueller Drill. Remember that Tueller's advice to draw soon if the situation appears dangerous was intended for peace officers, who may do so.

What to do? Try to defuse; try to avoid, even if your state law doesn't have a retreat requirement; and be able to draw and fire very quickly indeed should the need arise. Finally, after the event, follow these steps:

1. Be the first to calll the police; describe yourself and stay on the line; do not have a gun in your hand when the police arrive.
2. When the police arrive, point out the attacker, identify yourself as the victim, and say that you will sign the complaint.
3. Point out the evidence and the witnesses.
4. Promise your cooperation in twenty four hours after you have conferred with counsel and say no more.