Question about seeking out a shooter at the other end of the mall

[Aguila Blanca]

True, but it is more "affirmative" in some states than others. For example, a few states still have an explicit "duty to retreat" that would easily make acting in the OP's hypothetical case problematic.

Yes, and no.

I was thinking of "duty to retreat" when I put up my earlier post in this thread. In fact, I attended a talk just last night by one of my state's chief prosecutors, and he mentioned that this state does still have a duty to retreat. However, like many (most?) such states, it is a duty to retreat when you know you can do so in complete safety. Even the prosecutor had to admit that this factors into the shooter's mindset, because if the shooter says, "I couldn't retreat safely," then the prosecutor has to prove NOT that he could, but that his belief he could not was unreasonable.

Now ... fast forward to the defense of a third party. In such a situation, according to the laws of most states, you (the shooter) are putting yourself (in terms of the law) in the position of the third party whom you are defending. So in a third party situation, it isn't a question of whether or not YOU could retreat safely, it's a question of whether or not you believe the person whom you are defending can retreat safely.

 

[kevinjmiller]

I've never seen a "Duty to Retreat" law that didn't include exceptions for the reasonable assumption of complete safety for the defender and all other innocent parties.

True, but that fact that it is there for some states, not there for others, and explicitly limited in specific circumstances (ex. home, vehicle, any place you have a right to be) for others still complicates the legal calculus of self-defense in some states over others.

Even the prosecutor had to admit that this factors into the shooter's mindset, because if the shooter says, "I couldn't retreat safely," then the prosecutor has to prove NOT that he could, but that his belief he could not was unreasonable.

Regardless of who has to prove what, and personally my operating understanding of affirmative defense even though IANAL is that I as a defendant would have to show that the facts of the situation meet the standard of the law, "duty to retreat" is more on the table for some states versus others and therefore should be considered in making a decision to shoot or not.

Even assuming that the law, in word and practice, regarding the prosecution of deadly force self-defense of third parties was consistent across all states (which I don't believe to be true), the situation regarding civil suit liability is clearly highly variable from state to state. There are many googlable reports of civil suits filed against legally justified defenders by the perpetrators or their families. In some states these suits are summarily dismissed, in others they don't even start, but in some (OH example) they do go forward, and are even successful sometimes. Even if such a suit is not successful the cost and aggravation can be very significant. IMNSHO the risk of the loss of significant income, even livelihood, and the pain and aggravation of a civil suit can be just as much a legal deterrent as potential criminal prosecution.

 

[ClydeFrog]

clear shot.....

In my view, if you can not take a clear shot then DO NOT take it in a critical incident.
As a license holder or armed citizen you must justify your statements & actions.
You may say: "yey haw screw the law" or hey so what but you'll face serious criminal or civil actions because of what you do.
The upcoming George Zimmerman trial(06/10/2013) in Sanford FL is a great example.
The FBI, police and state investigators scoured every speck of Zimmermans life & background.
Could you withstand such scrutiny after a lethal force event? If the answer is honestly no, then you may reconsider carrying a loaded firearm in public.

 

[csmsss]

I'm sorry, but I see no equivalencies between the Zimmerman case and an active shooting scenario. And at the end of the day, Zimmerman's life will be relevant to his trial only insofar as the laws of evidence provide. Sure, he's being dragged through the mud because that's what happens during the pretrial investigation, particularly in a high profile case - but none of his personal life will be admissible unless it is pertinent to understanding his state of mind at the time of the event.

 

[Vireye]

This is a scenario I think about fairly often, actually.

I work in Mall Security as a Site supervisor. We're unarmed, but most of us have our carry permits, and carry to and from work. Most of us are also either prior or current military. (we make ALOT of enemies here, so sometimes its warranted).

If that happened, aside from my professional duty to "observe and report", if I could reasonably get to my weapon and end the threat, I would do so. It WOULD cost me my job, as we canNOT carry firearms while in uniform.

That being said, I wouldn't regret it if I could save lives, and I'm sure there are other companies that would hire me in the aftermath.

 

[Glenn E. Meyer]

Zimmerman is off topic for this thread. It shows that nothing is guaranteed to be a good shoot but we don't discuss him yet. There is a sticky explaining our reasoning.

Thanks.

 

[Aguila Blanca]

Regardless of who has to prove what, and personally my operating understanding of affirmative defense even though IANAL is that I as a defendant would have to show that the facts of the situation meet the standard of the law, "duty to retreat" is more on the table for some states versus others and therefore should be considered in making a decision to shoot or not.

Not all states posit self-defense as an affirmative defense. My state does not.

IANAL so I will not presume to discuss the nuances of whether or not statutory provisions for self-defense are or are not set forth as an affirmative defense. I'm pretty certain that Frank Ettin has covered this a time or three in the past, and he IS a lawyer.

Basically, I think this just reinforces the fact that there are 51 sets of laws in place (if we include Washington, DC, as a jurisdiction), and there is simply no substitute for understanding what the law says in the jurisdiction where you are situated.

 

[godot]

In virtually all of the United States one has the right to use deadly force to protect one's self from the eminent harm or death. Once we've gone beyond this the waters get a little muddy. In Chicago one may use deadly force to prevent arson or felony theft. Evidently they didn't consider the people of the other end of the mall when writing the law.

Unfortunately the smart thing to do would be to gather up your friends and associates and leave by the nearest exit. I am not saying this would be the noble thing to do, merely the smartest. A few years ago at the NRA came up with the figure of $50,000 to protect oneself in a " righteous shooting ". Lord knows what the figure is today.

Another aspect of this which is perhaps not legal in nature, is that it is impossible for you to be absolutely certain about what is going on at the other end of the mall. It could be a film that is using the mall as a backdrop. It could also be some kind of security exercise for the employees of a certain store using blank ammunition. I know these sound far-fetched but are at least possible. For me the use of deadly force requires almost absolute certainty and this scenario doesn't quite satisfy it.

 

[Spats McGee]

Regardless of who has to prove what, and personally my operating understanding of affirmative defense even though IANAL is that I as a defendant would have to show that the facts of the situation meet the standard of the law, "duty to retreat" is more on the table for some states versus others and therefore should be considered in making a decision to shoot or not.

Not all states posit self-defense as an affirmative defense. My state does not.

IANAL so I will not presume to discuss the nuances of whether or not statutory provisions for self-defense are or are not set forth as an affirmative defense. I'm pretty certain that Frank Ettin has covered this a time or three in the past, and he IS a lawyer.

Frank has covered the basic outlines of SD law on many occasions. IMO, here is one of his better posts on the topic. It might not answer the question at hand, but it is a helpful post on the basic outlines of uses of force.

 

[Big-Blue]

Spats McGee's post

Frank has covered the basic outlines of SD law on many occasions. IMO, here is one of his better posts on the topic. It might not answer the question at hand, but it is a helpful post on the basic outlines of uses of force.

http://thefiringline.com/forums/showpost.php?p=5529931&postcount=33
was an excellent read.

 

[kevinjmiller]

Not all states posit self-defense as an affirmative defense. My state does not. ... Basically, I think this just reinforces the fact that there are 51 sets of laws in place (if we include Washington, DC, as a jurisdiction), and there is simply no substitute for understanding what the law says in the jurisdiction where you are situated.

Exactly the point!

Frank has covered the basic outlines of SD law on many occasions. IMO, here is one of his better posts on the topic. It might not answer the question at hand, but it is a helpful post on the basic outlines of uses of force.

Very well written. Some fine excellent advice therein.
So back to the OP, the answer is "it depends"

 

[Frank Ettin]

Not all states posit self-defense as an affirmative defense. My state does not...

Whether or not self defense is considered an affirmative defense under the laws of a particular State may have more of a technical than a practical significance.

AFAIK, in every State, in order to get a self defense instruction to the jury, the defendant will need to have put on sufficient evidence to establish, prima facie (on the face of things), that the elements of justification under applicable law have been satisfied. In other words, the prosecution doesn't need to try to convince the jury that it was not self defense unless/until the defendant has made such prima facie showing.

There is a unique wrinkle in Florida law, however.

As the laws of a number of States now do, Florida law provides for immunity from criminal prosecution and from civil suit for someone who uses force in justified self defense. See 776.032:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection

The difficulty is that there will always be some threshold questions to be decided before it can be determined whether or not immunity applies. Immunity only applies when the use of force meets all the legal requirements for justification.

In Florida, as provided under 776.032, that would mean that the defendant's use of force was, "...as permitted in s. 776.012, s. 776.013, or s. 776.031..."; and each of those statutes has conditions that must be satisfied for there to be a finding of justification. If the DA agrees that someone's use of force was justified, that would resolve at least the criminal side of things.

Issues, however, arise when the DA thinks someone's use of force was not justified. If there is that fundamental disagreement, there needs to be a way to resolve it. Ordinarily, that would be done at a trial, as described above. Florida has established a slightly different procedure.

In Dennis v. State, 51 So.3d 456 (Fla., 2010), the Supreme Court of Florida ruled:

We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. ... and [we] approve the reasoning of Peterson on that issue.

And in Peterson v. State, 983 So.2d 27 (Fla. App., 2008), referred to by the Florida Supreme Court, the appellate court ruled:

Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution...

Based on these seminal Florida court decisions, if a defendant is charged with a crime (or, it would appear, sued) based on a use of force, and if the defendant claims justification as his defense, instead of raising self defense as an affirmative defense at trial --

1. The defendant would raise his defense in a motion to dismiss based on the immunity provided under 776.032; and
   
   
2. The court would hold an evidentiary hearing on the motion; and
   
   
3. The defendant at that hearing would need to prove by a preponderance of the evidence that each element required for legal justification has been satisfied.
   
   
4. Should the court deny the motion, it appears from certain language in Peterson that he would still be able to raise self defense as an affirmative defense at trial.

I'm unaware of any other State currently using a pre-trial evidentiary hearing to test a self defense claim.

 

[csmsss]

That's very interesting. It was my (obviously incorrect) assumption that these immunity clauses were specifically for civil liability, and not criminal liability.

 

[Big-Blue]

Frank, help me better understand. After three readings of your post I'm still confused. Are you saying that there are two defenses: "justification" and "self defense"?

Cutting to the quick. Is a person who is not in danger by an active shooter, but who chooses to seek out and to engage that active shooter to protect innocents not known to him/her, justified to use violent force so long as the active shooter was not a law enforcement officer?

From reading the three references below (especially 776.012) I believe the answer would be--yes. The references below make it pretty clear that the person need not know the people they are defending. It also appears to me, that unless the active shooter is wearing a police uniform, they can be justifiably shot because they are engaged in causing imminent death or great bodily harm and are in the commission of a forcible felony.

Here are the three sections referenced in Frank's post:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, 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.

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(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:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:
(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

776.031 Use of force in defense of others.—A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

 

[Frank Ettin]

Frank, help me better understand. After three readings of your post I'm still confused. Are you saying that there are two defenses: "justification" and "self defense"?...

No, self defense is just a shorthand for legally justified use of force in defense of oneself or others.

The laws of all States, AFAIK, recognize that one may use force, including when appropriate lethal force, in defense of an innocent third party, even if a stranger to the actor. The general standard is that the actor "steps into the shoes" of the person defended, so the actor may be justified in using whatever level of force that person defended would be justified in using. (So if the person defended was the initial aggressor, or otherwise unable to justify a use of force in self defense, and even if that wasn't known by the actor, the actor can not defend his use of force on the basis of justification.)

The underlying legal issue in the situation posited by the OP is whether the actor might lose the opportunity to defend his use of force if he entered the fray from a place of safety. I don't think there's a sure or easy answer to that. However, in general the actor would have no legal duty to become involved.

And of course there are practical and tactical issues as well, but those are outside the scope of this thread.

That's very interesting. It was my (obviously incorrect) assumption that these immunity clauses were specifically for civil liability, and not criminal liability.

Actually, it depends on the particular immunity statute involved. They aren't necessarily all the same.

 

[mehavey]

Like Brian, I cannot fathom any legal downside to engaging an active shooter who:

1. Is CLEARLY the bad guy (and not an innocent)
2. Has CLEARLY already demonstrated lethal force (not just an OC-type exercising incredibly bad judgement)
3. Is CLEARLY still actively aggressive (and not retreating/surrendering)**

Whatever your choice, you will have pledged your life, your honor, and definitely your fortune in this day & age.





**
Aaaaaaah... There's the rub....
He "retreats" from you into a department store full of shoppers.
You have a clear shot.
At his back.


Oh boy.....

 

[Big-Blue]

Mehavey, Your signature is interesting. It is worth a thread of its own.

**
Aaaaaaah... There's the rub....
He "retreats" from you into a department store full of shoppers.
You have a clear shot.
At his back.


Oh boy.....

Assuming he just left a kill zone in the mall, the fact that he was walking away does not necessarily mean he was retreating. Sounds more to me like he was heading to a new hunting area. The fact that his back was turned to you doesn't change things a bit. We're not talking "sport" here. We're talking strictly about defending innocents.

 

[Tom Servo]

1. Is CLEARLY the bad guy (and not an innocent)
2. Has CLEARLY already demonstrated lethal force (not just an OC-type exercising incredibly bad judgement)
3. Is CLEARLY still actively aggressive (and not retreating/surrendering)

Yes, but situations like this unfold in an instant, and in the middle of a screaming crowd, clarity can go out the window pretty quickly.

 

[csmsss]

To me, it seems pretty obvious that no "active shooter" situation can be considered over before the shooter(s) is/are down, and separated from all weapons.

 

[mehavey]

1. Is CLEARLY the bad guy (and not an innocent)
2. Has CLEARLY already demonstrated lethal force (not just an OC-type exercising incredibly bad judgement)
3. Is CLEARLY still actively aggressive (and not retreating/surrendering)

Yes, but situations like this unfold in an instant,

You & I are in violent agreement that decisions will necessarily have to be made in seconds...

...and lived with for lifetimes.

No matter the choice.