Question on use of deadly force

S

Snapshot

Inactive
I'm currently debating someone on the Use of Deadly Force and have a question. Is there a limit to the number of rounds that you can fire before it being considered "excessive force"?

For example, let's say someone breaks into my house at night and he has a knife. I yell at him to stop and that I am armed, but he rushes at me. I then proceed to empty all 15 rounds from my Beretta 92FS into him. Can I potentially be charged with using excessive force (if there is such a crime?)

Example 2: Same situation, except this time I empty, say 15 or 20 rounds from my AR-15 into him. Same question: Can I be charged with excessive force or another crime?

I seem to remember reading an article somewhere about someone using an AR for self-defense, and the DA was going to charge him with excessive force or something like that...

If someone has references to actual court cases, I'd appreciate it...

thanks,
Snap
 
If there is ANY question about your use of force in that type of situation you will be charged. It may be Voluntary Manslaughter, Murder II, etc. You will have to convince a jury of your peers (that couldn't get out of jury duty) that you were in immediate fear of life and limb and any one of them would have done the same thing given the same circumstance. Excessive use of force (real or perceived) can be a mitigating factor against you.

Most jurors know little about firearms and defensive tactics compared to folks here. If, however, I was on a jury and the homeowner popped a BG 20 times with an AR at contact distance, I would need some pretty good convincing about the necessity of that much firepower. They had better all hit him while he was still standing. Shots through the body and into the floor would be damn hard to explain.

I don't recall all the particulars but a case was reported where a man shot an intruder several times while emptying his 15 shot 9mm. It was at night in near total darkness and his claim was that he couldn't tell if he was hitting his target and he was so scared that he just kept pulling the trigger. He faced charges and a trial and I believe he was eventually cleared but it was nip and tuck for a while.

Mikey
 
I counsel my wife to empty the gun on any intruder that puts her in direct and immediate fear of her life. That would be 15 shots.

WHY? Because I have seen animals like deer, antelope, rabbits, coyotes, bobcat, etc RUN, yes, I said "RUN" after being hit with a killing shot out of a rifle. Even with a killing shot, some animals can live for some time after being hit and so it is with humans. Ifr a perp is going after my wife, she will empty her gun on him to make SURE he is dead. Simple, isn't it? Better to be judged by 12 than to be carried by six.
 
I would guess that it depends on the state you live in. In some states the empty magazine might be used as evidence that you truly did fear for your life. When I took my CCW class, I was told that if the police show up at a home and find a dead body on the floor with six holes in it, and a wide-eyed woman repeatedly pulling the trigger on a revolver loaded with 6 spent rounds, they will know that she feared for her life.
 
The question is not deadly force (guns are deadly force) but excessive force. That depends on the circumstances and your defense attorney. Basic Rule is that the force used must be reasonable under the circumstance. What is reasonable depends on what the jury believes.

The California version of Bernard Getz was in San Francisco. The fellow, with his girlfriend and minding his own business, gets mugged by 4 BG, one of whom punches him and knocks his glasses off. In defense, Mr. Browning appears and barks out - 14 times. 1 BG dead (with some shots to the back). The DA tried murder, no go. Manslaughter, no go. The only thing the DA got him on was CCW w/out license. 3 years probation altogether.

I think the Def. Attorney was Tony Serra, a real sharp cookie (protrayed by James Wood in some movie - True Believer?). Plead to the jury something along the lines of, "If you feared for your life, and was surrounded by four bad guys, one of whom had already punched you, knocking your glasses off your face, wouldn't you use a gun? Wouldn't you be so scared, as my client was, that you would fire until they all ran away? And wouldn't you so scared, that it wouldn't matter if it was a gun, if it was a knife, a club or even a bazooka you would use it to defend yourself?" Yep, the jury bought it.

BTW, the prosecution was a politically motivated one to discourage vigilantism. Heck, SFPD and Dirty Harry weren't there to protect this guy and he was in a high tourist area (Aquatic Park near the Cable Car and Ghiradelli (sp?) Square).

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Vigilantibus et non dormientibus jura subveniunt
 
The bottom line here is you keep shooting till the BG stops forward movement and is no longer a threat. You base your actions on his, not what the court will think. When the police arrive I would just keep repeating "I thought he was going to kill me, he wouldn't stop coming at me".

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"It is easier to get out of jail then it is a morgue"
Live long and defend yourself!
John 3:16
 
This exact scenario happened in Miami a few years back. A business-owner, Manny Roman, heard noises in his office, armed himself with a 15-shot semi-automatic handgun, and went to investigate. He encountered an intruder who raised a hammer toward him in a threatening manner, and Roman fired all 15 rounds. He hit the BG 11 times. The DA (a Janet Reno clone) was almost run out of town on a rail when she threatened to prosecute Roman. She eventually did drag him before a grand jury which declined to prosecute.

Having said that, there are legal questions that can arise when an armed citizen uses "too much" force. In a "must-read" book on the subject, attorney Andrew F. Branca (The Law of Self-Defense) outlines a strategy to avert criminal and civil charges. (1) Avoid a potential confrontation--i.e., walk away from an aggressor. (2) Placate the aggressor, if at all possible. (3) If neither of these works, use non-lethal options (voice commands, a non-lethal weapon such as pepper spray, etc.). (4) Retreat. (5) Present. If none of the above wroks, show your gun and hope the BG disappears, which is the way this usually works. (5) Engage, or fire only if there's no other option. But only fire enough rounds to stop the attacker. Your goal is not to kill the assailant, but to stop his attack. Whether you agree or not, this is the recommended legal strategy for keeping yourself out of trouble with the law.

Robert
 
Branca brings up some excellant points. However, lest we forget, some states still consider a person's home their castle and while in their home, there is no duty to retreat. Just a thought and you have to check your jurisdiction.

Better to attempt an effort to retreat to avoid confrontation and when cornered, then there is no choice but to engage. The idea is that you've demonstrated every effort to avoid resorting to deadly force but, when compelled to protect oneself or one's loved ones from threat of death or great bodily injury, responded as would any normal prudent person would: with deadly force.

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Vigilantibus et non dormientibus jura subveniunt
 
If someone came into my house while I was home, this person probably does not care if he has to harm the inhabitants of this home to get what he wants. Thus, I would harm him first. In Alabama, the house is considered the castle and I sure am not about to back down. There are other people in my house that need to be protected. Whether I use 15 or 3 rounds should be irrelevent, just so I stop the perp. (Shooting him in the back while he is down would not be a good idea.)

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"Those that give up essential liberties for a little temporary safety deserve neither liberty nor safety."
 
How dead is dead? I agree with the point made that they should all be in the body while the BG is standing, stapling them to the ground will get you in trouble unless ist's really, really clear that they continued to come at you.

Multiple assailants add another dimension, though, and knocking them down and making sure they stay there has it's merits, thoug I still wouldn't want to try to explain it to a jury.

In VA, you can shoot until 'the treat is neutralized'. Pragmatically, anyone worth shooting, is worth shooting twice, i.e. either lethal force is justified or it isn't. I hope I never have to test this theroy. M2
 
There are two reasons that I would not retreat from my home. (Actually three, it's an apartment so the front door is the only way in/out.)
#1, My wife may be home. There's no way I'm going to take off and leave my wife with the BG.

#2, I've got guns in my apartment. Most are locked up, but a couple are ready and waiting. So, if I take off and the BG decides to hang out and wait for the cops, and in the process gets one of my guns I'm going to be in legal trouble as well as feeling horrible forever if one of my guns was used against a cop or innocent bystander.

Back to the excessive force thing. I think that as long as you don't back-shoot the BG, or administer a coup d'grace you will be okay legally if you didn't reload in the process of your shooting. (Assuming that all other aspects of the shooting are "good".) If you pop the perp 15 times, reload and go another 15 you are going to have a whole lot more 'splainin' to do, Lucy.
I think that in a real life incident (dang, doesn't that word just minimize the whole thing?) it's going to be pretty tough to differentiate between a continued attack and a forward-staggering fall powered by momentum (if the guy was charging as you fired).
If the guy has a knife, I'll stop shooting when he is down and at least ten feet away.

If the guy has a gun, even if he is down I will continue to shoot if that muzzle starts wandering toward me or my wife. That's regardless of the fact that he may be bleeding profusely, one eye shot out, bones sticking out of his arm or whatever.

So, basically I'll stop shooting when I perceive the threat is over. Yes, I'll probably go to jail overnight, as do nearly all persons involved in a shooting, but the prosecution is going to have to prove that the threat had ceased a while prior to my stopping shooting if they intend to nail me with excessive force. What are they going to do, ask the bad guy? I doubt it.

I hope never to be in a shooting, the psychological, physical, social, marital and financial repercussions would certainly be significant.
But, if I'm in a shooting I would rather shoot until I think the threat is over (and live to deal with the burdens ahead) than to be killed and leave a widow.
$.02, -Kframe
 
Just remember, Its you and your family that is alive and wondering about too much firepower--not the perp!!!!!!

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From my cold dead hands.
 
The more sane states follow the Common Law which states that a Man's home is his castle and within his castle, there is no duty to retreat. Heck, states like Nevada allows you to use deadly force to protect your property.

States like California regard human life more valuable than property and put every onerous impediment in your way. For instance, if a BG fell through your skylight in Kali, he sues you for failure to inspect, make safe latent hazards (Rowland v. Christan).

Point is to know your state laws and know what you can legally do. Don't even stop at just defence from criminal prosecution. Consider civil liability in the form of a wrongful death suit (BG's wife sues you because she hasn't any viable income now that you've dusted her hubbie; even though he's never held a job in his life). When the shooting ends, the nightmare begins. May none of us ever have to resort to deadly force.

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Vigilantibus et non dormientibus jura subveniunt
 
If it's you and the badguy, your response must be based upon your evaluation of the situation. The "reasonable man" does not apply, becayse when faced with likely death and mayhem, who is reasonable? (Isnt that a good queation?)
That is why you have to get your mind straight about what you will do in extreme circumstances. There will be no time to do much except to react. That is one of the reasons why the military places such emphasis on training. You can react in an appropriate fashion without thought.

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Better days to be,

Ed
 
k-frame: I think if an assailant was running after me a .45 could set him down nicely. I wouldn't let anybody harm my family, but man, the court BS would be a bummer. This is one situation that I hope I never have to be in.

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"Those that give up essential liberties for a little temporary safety deserve neither liberty nor safety."
 
Very good question. Let's see, I think it really depends which side of the badge your on. (No offense intended to the offiers in the crowd).
BUT, in my little podunk town, several years back, a young man was shot some 27 times by several *officers*, who claim he had a gun in hand. Hmmm, 27 times.
My wife's cousin is currently a common law with another local cop. He confided in her once, that that was a gross screwup, that they'd( the officers at the incident) over-reacted to a non-lethal situation. A throw-away was then planted on him to disguise the blunder(murder??), and subsequent truth.
Oh, to the point, at the inquiry, all parties involved (alive),were admonished of any guilt, or question of wrongdoing.
It might be safe to say then, that up and including 27 rounds would NOT constitute excessive force.
 
Isn't it sad that some of us don't think we have the right to use as many bullets as we want when protecting ourselves in our own home? What's even more sad is that there are DA's out there that will even pursue such an incident. We have truly become a sick society when even our homes are no longer sacred. The fact that we have come to a point where that is even a worry is a sign of the times. The "flower children" have grown up, but they're still a pain in my ass. If someone comes in my home, they're going to soak up enough rounds to be dead. For sure. Lawsuits are hell. Dead men tell to tales.
 
Snap - good question/s. Can't comment as to your particulars as I can't get at your profile that says where you're at (frankly, probably wouldn't matter anyway). Different jurisdictions have different rulings. CO says that if an intruder comes into your home uninvited & "w/intent" - you can smoke 'em (obviously paraphrased). Shoot till the threat is stopped. Obviously, over-shot will be observed w/oversight & you will be called on the carpet for that.

Regardless, if you were justified to shoot him (her, to be politically correct)once w/any acliber, you are justified to blow a garbage can-sized hole through it/them to stop the threat. 'Course, this must all be believed by the jury (who will not be gun-owners, BTW - that'll be decided in the jury selection. Lots of luck) Various jurisdictions have various legalities re use of force. Some -you must flee, if you can.Others, you can stand your ground & shoot. Better know your turf.

If you contemplate ever dropping the hammer on anybody, it would certainly behoove you to first understand the jurisdiction under which you live. I cannot state this more fervently.

We could all state how we would defend our (& families' lives) to the utmost. All well & good & I would agree. But, to know the law would save you more in the long run.

A quote: A lawyer can steal more w/a briefcase than any robber ....

consider it well.

Too, there's been instances where files (such as this) have been brought into court to proove predisposition towards violence, prooving that you were "begging" to have a chance at a bad guy. No machismo ever won the day.
 
Under North Carolina law, no-one is expected to retreat from their home when faced with an intruder. Lethal force is legally justified if you have reason to believe the perp intends to commit a felony (mind-reading???)

My personal rule is, if the perp has a gun, he's going down, how ever many shots it takes. If not armed with a gun, then I evaluate the situation, and go from there.

The excessive force issue (too many shots fired) is rather neatly mitigated by using a shotgun. :)

Sorry, I don't have any court case references.

[This message has been edited by boing (edited December 14, 1999).]
 
A good friend of mine shot and killed an assailant at the convenience store owned by his father. Shot him four times with a .45ACP after the man came behind the counter threatening mayhem. One double tap and the man was still standing. Second double tap and the man went down. All rounds impacted in the center of the chest and could be covered with a playing card.

My friend was charged with murder. There were no witnesses to the shooting. The DA tried to make a big deal of four shots being fired. It didn't work. My friend was found innocent. He lost a wrongful death civil suit but he was young at the time and had no seizable assets. He declared bankruptcy and the plaintiffs never saw a dime from him.

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Byron Quick
 
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