Parking lot incident

[noelf2]

Wow, I think we are almost at agreement on a couple of things.

I surmised that breaking the glass would meet the threshold.

So would I. I wouldn't shoot unless he did just that.

Quote:
Point is, I draw and point before the glass is broken.

At that point what we have is an argument.

Incorrect. The situation became more than an argument when he smacked the vehicle and made threats of severe bodily harm. That's not something your average sane person does. At that point I am in fear of my safety and need to prepare myself.

Police officers operate under different sections of the code. They are permitted to carry openly, and they may point guns under circumstances in which citizens may not.

Maybe not in Florida, but I can also openly carry in my state. So can any law abiding Virginian 21 or over, but I don't see how open carrying is relevant here. So cops and citizens have different codes which allow them to draw and point in different situations, but they can both draw and point when they are being attacked (we just disagree on whether the op was attacked or not).

Necessary, but not at all sufficient. The litmus test also includes the determination of whether a reasonable person, knowing what the OP knew at the time and under the same circumstances, would have held that belief. Simply believing it doesn't cut it.

Obviously the Cop on scene believed it cut it because the OP wasn't arrested! I assume the Cop was a reasonable person, don't you? Let me know if you find out that he has been arrested afterwards (won't happen, I'll wager money on it).

Hey Microgunner, let us know if you get arrested...

 

[scottaschultz]

I will sum it up for you noelf2...

I said:

Something that hasn't been mentioned in the last 180 posts is what could have happened after MG drew his .380. What if, upon seeing a gun pointed at him, this bully had reached around and pulled out his .45?

To which you responded:

Didn't seem likely that the scenario could reach your imagined conclusion given the OPs description.

And I replied:

Why on earth would you NOT consider him to be armed? You know what they say, "NEVER ASSUME!"

Then you replied with:

Wow, I don't know where that came from. I would never assume that the nutjob wasn't armed, nor did I intend to imply that in any of my posts.

I have now officially made my point on ths topic more than once. You can nitpick this to death if you want, but I am done. I will just wait for the next story/scenario... and there will be another one!

Scott

 

[OldMarksman]

The situation became more than an argument when he smacked the vehicle and made threats of severe bodily harm.

Even the Texas Penal Code states explicitly that mere threats do not constitute imminent danger. So does case law in most if not all other jurisdictions (goes back centuries, by the way), but in Texas there was a perceived need to actually write that into the law.

That's not something your average sane person does.

Completely irrelevant, I'm afraid.

At that point I am in fear of my safety and need to prepare myself.

I agree with that (preparing yourself), but that doesn't mean you are permitted to actually point or display your gun.

In Florida, Missouri. Virginia, and a lot of other places, you can't do that until imminent danger exists and the use of the gun would be justified in lawful self defense.

In Florida, if a person is in the process of unlawfully and forcefully entering the car--that provides a presumption of justification (the presumption is rebuttable).

In Missouri, an unlawful attempt at entry would suffice, but no one I know would ever recommend interpreting someone's banging on the back window as an attempt at unlawful entry.

And "fear"? In Virginia, the “bare fear” of serious bodily injury, or even death, however well grounded, does not justify the taking of human life, and it is unlawful to point, hold or brandish any firearm in such manner as to reasonably induce fear in the mind of another unless one is engaged in excusable or justifiable self-defense.

Preparation, yes. Pointing the gun? Foolhardy, and in most places unlawful.

Consequences vary a great deal. Misdemeanor in Missouri and Virginia, much more serious in Florida where it counts here.

Prepare yourself? Good idea. Buy a newspaper and put it in your lap. Have your weapon ready in case you need it. But do not let the fellow see it.

Obviously the Cop on scene believed it cut it because the OP wasn't arrested!

We do not know the peace officer's motivation. Maybe he didn't want the aggravation of filing two arrest reports and having to testify. Maybe he sympathized with both participants and hoped that doing nothing would not endanger his career. But in any case, he is not the decision authority.

Let me know if you find out that he has been arrested afterwards (won't happen, I'll wager money on it).

I seriously doubt it will happen.

But we should all understand one thing very well. We've probably all heard that one should not discuss anything with the police about an incident without the benefit of counsel. Anyone who has listened to Mas Ayoob on the subject also knows to not say anything to the media.

Those warnings do not evaporate when one hears that he will not be charged. They remain valid until there has been a trial and acquittal, a pardon, the expiration of the statute of limitations, or the actor's death, whichever comes first.

Let's hope that the OP's having put this out for public consumption doesn't come around and bite him--or the "cop".

 

[FireForged]

I am no expert but just a common joe citizen.. This is just my small opinion and observation. I am glad everything worked out OK and I am passing no specific judgement since I was not there.


Threat: (1) Angry bad guy making threats, smacking window once, no visible weapon)

Ability to cause harm? Yes

Opportunity to cause harm? Not Yet
(threshold of vehicle not breached)

Jeopardy exist? Not Yet

 

[Brian Pfleuger]

I am no expert but just a common joe citizen..

and the non-expert common joe citizen gets it right.


Also, don't forget preclusion.

A vehicle being blocked in does not always mean that there is no escape. For example, if you're driving a hummer and the "BG" is behind you in a Prius then you may very well be able to, uh, "extricate" yourself without using lethal force. Yes, pushing someone's car out of the way is going to cause you all manner of trouble. Shooting someone is going to be worse.

 

[noelf2]

We're just going over the same things, over and over again. Hard to prove anyone right or wrong for obvious reasons. Anyway, I think this is played out, at least for me. Was a great debate and I learned a lot.

No hard feelings. Be safe.

 

[OldMarksman]

Was a great debate and I learned a lot.

That's good, and I think that's one of the great things about TFL.

I've been a gun guy since 1956 (.22's at the range, advocacy for gun rights), and on more than one occasion over the years the presence of my gun has saved the day.

But I'm here to tell you, that when I took the required CCW class in Missouri about a year ago, I learned an awful lot that I had not known--A,O, J, P, ADEE, Tueller drill, castle law, let the threat come to you, duty to retreat outside, do not detain, let 'em flee, risks of intervening for third person, forget using deadly force to protect property, how to pass though Illinois , to name a few things--some of these being peculiar to Missouri.

Through this and other fora and through books, I've tried to learn more--the principles of and requirements for an affirmative defense, liability to third persons, what to expect if there is a shooting, importance of the admissibility of forensic evidence, situational awareness, preparedness (frankly, I would never have even considered carrying a gun in the house before), tactics, don't draw unless justified, risks inherent in making a citizen's arrest, and other things. There is a tremendous amount of responsibility thrust upon an armed citizen.

Oh, and I am now smart enough to keep the doors locked. We didn't do that before until bed time.

So, why might I try to be slightly conversant in the laws of Colorado, Arizona, Kansas, Texas, Mississippi, Alabama, Florida, Virginia, and so forth? Well, our permit is honored in a number of states, but I am bound by the laws of the states I am in when I travel through them.

By the way, it was in a prior life, working for and with attorneys for a couple of decades, that I learned the importance of not trying to interpret the meaning of the law from a lay reading and dictionary definitions, out of context.

If you haven't read them, here are some things worth bookmarking and studying when you can:

http://www.useofforce.us/

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

http://www.corneredcat.com/

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

There's a lot there, far too much to paste, but I believe that you will find that it is all worth your while.

By the way, I've also learned that many of the people who post here really know what they are talking about.

 

[45Gunner]

I am a Florida Resident and a former Govt. Agent. I'd like to add my two cents worth. I'm not taking sides here as I have seen more morons in Florida than I have any place else. The right to stand your ground has nothing to do with some jerkoff banging against the window in your car. I think pulling a weapon on him was excessive and uncalled for. If, indeed, he was coming at you and your life was in danger, then you are justified in presenting your weapon. From what you relate, he made no attempt to pull you from your vehicle...he just looked mad. I think the correct response would be to call the police from your cell phone and tell them someone has road rage in the parking lot and is acting in a threatening manner. You are lucky that the officers that responded did not press charges.

Several years ago, my wife and I were returning from an out of the country vacation and as such, I did not have my weapon with me. We were stopped at a traffic light when a couple of kids exited their vehicle which was stopped next to mine and started pounding on the window of my car. My wife was terrified and I realized that the only weapon I had was my fist. I jumped from my car, chased those kids back into their car, only to watch them peel out thru the red light. It was a lucky day for them. Had I been armed, there may have been a dead kid. I was outnumbered and in this particular instance, we were in fear of our lives as they were definitely attempting entry into our vehicle. As a highly trained Govt. Agent, I didn't need a weapon to take down an assailant and again these kids were lucky they ran faster than me.

My point here is that Stand Your Ground only applies to protecting your life and property if it is at risk. Some ****** off guy in the parking lot is only threatening your life if he comes at you with a weapon of any kind or attempts to pull you out of your vehicle. Otherwise, you may put your own freedom or right to bear arms at risk.

 

[45Gunner]

One last comment...one that was mentioned in a previous post. When carrying a concealed weapon, your mantra for survival should be, "Pull the weapon, pull the trigger." Never, ever use a firearm as a threatening tool. It is not meant for that and again as mentioned, could cause serious escalation of what could have been just a minor irritation. Your weapon out of it's holster means you are either going to clean it or you are going to shoot it. And damn, if you're shooting it, make it a center mass shot to bring down the assailant that is threatening to take your life. If he is not threatening to take your life, your firearm belongs in your holster and is not to be used as an extension of your tongue. No one, to my knowledge, ever went to prison for failure to draw a weapon during a disagreement.

 

[Trashcan-man]

I just spoke with a police officer that I know about this situation. I explained the situation and yes, he is a currently employed sworn LEO in the state of FL. He said that this is one of those grey areas that he would have had to have been on scene to make a real decision. He also said that the OP being handicapped would have had some effect on his decision. HOWEVER, he also said that in this instance based on the facts given he would have arrested both parties, thw OP for brandishing and the second party for assault. He said the OP would have been justified had the second party gone through the window but not before.
This is fefinately not a clear cut case of right and wrong but there you have a LEO's perspective.

 

[Stevie-Ray]

Now, in Florida, had the glass been broken, the display of a weapon, and even it's use, might well have been justified. Lay opinion.

Under the facts as exactly related by the OP, glass breaks, use of weapon justified.

Seriously? But not simply pounding on it in an attempt to break it? Guys, Herculite is not that hard to break. Unfortunately, I'm 2 for 2 in trying it for strength with my fist. Somehow I don't believe justification depends on the strength of a particular sidelight.

How about he punches it, it shatters, and he stands there dumbfounded and says, "I didn't really mean to break it!" Still justified?

As I said in a previous post, intentions can change. Sounds like this guy was properly deflated when a gun was pointed at him. It was probably his adrenaline high saying "shoot me!" And it was his coming down and common sense not taking it any further than that. Nobody can say he wouldn't have escalated if the OP would have just remained passive.

 

[MLeake]

He wasn't pounding on the window when the gun was pointed...

...according to the OP's description.

He pounded, once, on the window of the back door as he came around the vehicle, then stood outside the driver's window screaming, but there was no further physical contact, unless the OP simply left that part out of his description.

One rap on a window where nobody was seated, as the guy continued moving, does not constitute a reasonable belief that the guy is breaking into the vehicle. Not saying it's appropriate behavior, or sensible, but it doesn't pose a serious threat to life and limb.

Florida's castle doctrine, which does extend to vehicles, would not allow you to shoot some guy acting like an idiot outside the front door of your house. It would allow you to do so if he were actively kicking your door in. Same concept here. Guy was acting like an idiot outside the door, not smashing out the glass.

Responding officer should have arrested at least one of the parties, and probably both.

 

[spacemanspiff]

All who say the glass is 'easily broke with simple fists', please, go to a junkyard and start punching glass if its so easy. Take a video camera to document it, post it on youtube or liveleak so we all can learn.

If the glass was so easy to break and the OP's life truly threatened, why would we need to have special instruments specifically designed to break glass in an auto in the event of an accident and the doors are unable to be opened?

Do police punch through glass with fists? Or do they use their expandable batons?

 

[MLeake]

Not so easy with fists...

... very easy with a center punch or screwdriver; you don't even have to hit them hard. Remember seeing a safety video that advocated keeping a center punch on a string attached to the center console, in case of going off the road into water. Find the string, find the punch, bust out the windows to equalize water pressure and get the door open.

Had a mapcase mounted escape tool in my truck. Pointy hammer on one side of the head, with a seatbelt cutting razor mounted in the handle below the head, similar to the shroud cutters we used to carry in our flight suit inner thigh pockets. Lost it, need to find another.

Side windows resist wide area blunt force pretty well, but don't resist small point pressure well at all.

 

[OldMarksman]

But not [justfied if] simply pounding on it in an attempt to break it?...Herculite is not that hard to break.

So--in pounding once with his hand and then screaming, was he attempting to break into the car unlawfully and with force? Sounds like a real stretch to me. If it didn't break and it's not that hard to do, sounds like a really, really big stretch. Was he in the process of breaking in? That seems to be the threshold in Florida.

How many times do you think people whack on someone's car door or window in the course of an argument? Do you think the Florida statute was intended to justify the use of deadly force whenever that happens?

Had he been banging away with a hammer, would people assess the situation differently?

What if someone banged once on the glass part of the door of your house with his knuckles? With a crowbar, repeatedly? Varies. In Colorado, some part of the fellow has to have entered the house. By the way, their castle law does not extend to one's automobile.

 

[Stevie-Ray]

So--in pounding once with his hand and then screaming, was he attempting to break into the car unlawfully and with force? Sounds like a real stretch to me.

Which makes this post all the more questionable, especially coming from someone that makes a point of contentious debate out of just about every thread that involves pulling a gun:

Under the facts as exactly related by the OP, glass breaks, use of weapon justified.

The back doorglass shatters, he comes to the front doorglass, screams his gibberish and the OP can simply shoot him? (After rolling down the window, of course) I doubt it, but then I don't really have an honest opinion for the OP, except, as I said, intentions can change.

Oh and,

All who say the glass is 'easily broke with simple fists', please, go to a junkyard and start punching glass if its so easy.

Not that this silly post needs answering, but sometimes you should just take it for granted that some people simply know more about a subject than you.

 

[MLeake]

Once again...

... according to the OP's original post, the other guy was NOT pounding on the front window when the OP chose to point a gun at him.

Screaming and ranting don't equal the imminent threat of deadly force from outside a vehicle, without either a serious attempt to break into the vehicle, or the display of a weapon that could be used to breach or directly attack from outside the vehicle.

Whether he could have broken the window with his fist becomes irrelevant, given that by the OP's description, the guy wasn't attempting to do so.

 

[TailGator]

He wasn't pounding on the window when the gun was pointed...
...according to the OP's description.

He pounded, once, on the window of the back door as he came around the vehicle

I am ashamed to say I missed that detail in the OP. With that, it is nothing more than a jerk with a foul mouth - unpleasant, but no justification for turning it into an armed confrontation.

 

[MLeake]

It seems to me...

... that in an awful lot of threads, a lot of people take a pretty cavalier attitude about when it's legally and morally appropriate to draw a weapon.

"Morally" is pretty subjective. "Legally" is somewhat subjective, but not THAT subjective. Most of us would benefit by periodic review of the statutes pertaining to the use of deadly force, and the threat of deadly force, as it pertains to SD in our areas.

Please note, I am not saying that one should wait until one has been stabbed, shot, hit with a hammer, etc.

I am saying that one should not escalate situations; one should not assume that since he has a hammer (the gun), that every problem looks like a nail (draw the gun); one should do one's best to avoid scenarios that require the drawing and possible use of a weapon.

On the other end, there are those who say that if one draws, one should fire. Given the estimate that 95% of SD uses of a gun do NOT result in gunfire, that train of thought seems illogical. The FBI and the cops do NOT use that rationale, else every time an agent or officer draws a weapon, shots would ring out. What was taught to me in Navy Security training was one should not draw unless one is prepared to shoot - this is not the same as don't draw unless you will shoot. However, one should not draw a firearm unless use of the firearm would be justified. For LEO, this has to do with steps in the force continuum. For citizens, it has to do with when the use of deadly force is lawful for SD.

Pointing a weapon at a person without the requisite threat to justify use or threat of deadly force for SD is, at minimum and with a good lawyer, brandishing, and more likely assault or assault with a deadly weapon. It's not something to do every time one encounters a loudmouthed, red-faced moron.

Note also that if your actions prior to drawing your weapon were found to have been escalatory (this does not seem to apply to the OP in this thread, but now I'm speaking in general), then you very well may have given up your right to an affirmative SD defense.

In the OP's situation, I might have drawn but kept the weapon out of sight; I'd definitely have told him the wife was on the line with 911, and the police were inbound. I'd also have been looking for an opportunity to move my vehicle and myself out of the threat area.

I would NOT have let him see the weapon, let alone have pointed it at him, unless he actively attempted to bust out the window, force the door, or attack me through the window. Unless, of course, he'd displayed a firearm, in which case the situation changes radically.

Note: this line of thought isn't so far from that used on a larger scale for standing worldwide CJCS Rules of Engagement. Military and LEO take the pointing / slewing / training of weapons very seriously; more posters here should do the same.

 

[Al Norris]

I am ashamed to say I missed that detail in the OP.

I have long noticed that people, as a general rule, will read only what they want to read. Details be damned. As a corollary to that, once a thread gets past the first page, very few folks read the whole thing, before commenting.

TailGator, this is not meant to identify you personally, it just happened that you made my point, with the quote above.

The reason I would point this out, is that selective reading and haste to post a persons 2 cents, mean that we will always argue over the finer details of any specific scenario.

Add to this, the following:

It seems to me that in an awful lot of threads, a lot of people take a pretty cavalier attitude about when it's legally and morally appropriate to draw a weapon.

The arm-chair commandos (what I like to call the "kill 'em all and let God sort it out" crowd), seem to bask in their so-called internet anonymity. Never quite coming to grips with the fact that 1) They are not anonymous (seriously, did you think you were?) and 2) they do harm to the cause of responsible gun ownership - the gun-woobies, as Wild likes to call them.

It's a crying shame. Really, it is.

On this board, many times (and in several areas) we discuss things that affect us both legally and/or physically. This is the time one should look hard at reality and what may or may not happen.

Here, we have that time. Out there? You will have seconds, at best, to make your judgment calls. Here we learn. There, we act or react as the situation calls.

Microgunner? Please take this as it is meant (to be helpful): Read that post by MLeake (above mine) and reflect upon it.

I'm closing this, as all that is happening at this point (200+ posts), is that we are going round in circles.