I still have never heard of anyone being prosecuted for a defensive shooting that was 100% on the up and up.
The other night on PDTV, Mas Ayoob mentioned the case of a peace officer who was involved in a "good shoot" but who went to jail because of the way the aftermath was handled.
Does anyone have a link to a case where a victim was prosecuted for defending himself against an armed attacker? ... I want a cite for someone who was straight up accosted by an armed attacker/robber, defended him/herself with a firearm, then was subsequently prosecuted.
A "link"? To a story, maybe.
The problem is that there is no database for trial court records, and there are a lot of trial courts--count the counties in the country.
The only time you will find anything searchable is when a case has been reviewed on appeal.
I honestly can't recall it happening and if it has, I'd like to read about it.
Perhaps you might PM Mas Ayoob.
A person using a deadly weapon to commit a violent act against you is very cut and dry. This isn't one of those cases that's subjective, even in the slightest. There's a guy standing in front of you with a knife/gun/whatever. Robbery is theft by use of force or threat of force. It's the lovechild of Assault and Theft. Aggravated/Armed/Whateveryourstatecallsit Robbery is the same, but with a deadly weapon. BY DEFINITION, he is attacking you or threatining to attack you and he's using a deadly weapon to do it. There really isn't a situation that is more clear cut for self defense with a firearm.
I agree entirely, though in some states you may have to retreat if possible.
The problem is, in most places the defense of justifiability is an affirmative defense. To use it, the actor admits that he has in fact used deadly force--a criminal act
but for the circumstances that justified his action--and he must
provide evidence showing that his actions were justified.
It's unlikely that his word alone will suffice. Otherwise, most all murders would be defended on the basis of self defense. Maybe a lot of them are but not successfully
So, it's not just what the actor says happened, and it's not even just what actually happened, but it's what the evidence shows happened, and perhaps what witnesses say happened, and how the people in various stages of the judicial process evaluate the evidence and testimony.
ALL self-defense shootings should be clear cut. If they're not, then someone is doing something wrong.
Clear cut to whom? To the actor, yes. But that won't be the determinant.
The problem is, the shootings are not on a stage being filmed for later review.
But if you did what you were supposed to do, within the law and within reason, then the investigation will bear that out. It really will. Your actions will be tested against the elements of the criminal offense of murder then balanced against the law regarding use of force in self defense. If you did EVERYTHING like you were supposed to, acted within the law and within reason, then you will be fine.
That's what we hope. But it will depend on the evidence, on witness testimony if there were witnesses, on how well the actor is able to articulate the reasons for his action at the time, and on how all of that is evaluated by the jury.
In the case put forth by the OP, it may come down to witness testimony, or maybe a security camera. The only evidence mentioned is the presence of two weapons, and if one man kills the other
either way it goes there will be forensic evidence.
By the way, if the guy with the knife ends up killing the man with the gun, he will probably be claiming that it was self defense. Clear cut, within the law and all that.
Try this:
http://www.nacdl.org/public.nsf/01c...10c34fff2852572b90069bc3c?OpenDocument&Click=
I think this shows that as you say, the scenario set forth by the OP is a clear-cut example of justifiability (again, subject to retreat considerations). No question on that, in your mind or mine, because it seems clear that
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.1 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.
Here's the issue:
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.
Then there's the prosecution's evidence. There's
some risk that the forensic evidence may be such that it can appear harmful to your case.
In the OP's scenario, I
think my biggest concern would be the risk of unfavorable witness testimony--what people did not see, what they thought they saw, what they did not remember, and how they remembered what they saw.
The point is, the fact of "good shoot" (I think that's a law enforcement term, and I don't think it helps our case as civilian gun owners) is not sufficient without something to substantiate that fact after the event.
None of that says you shouldn't shoot (the armed man) if you have to.
In case by chance you haven't heard these, Ayoob says that if you do have to shoot, do the following:
Be the first to call 911
When the officers arrive, point out the man on the ground as the aggressor.
Say that you are the victim and that you will sign the complaint.
Point out the evidence [knife in this case?]
Point out the witnesses.
Say that you the officers will have your full cooperation in twenty four hours after you have conferred with counsel.
I think I've remembered those properly.
) because everyone here is the fastest draw ever, even with a sack of groceries in each hand, and has never had a single weapons malfunction. Just give those two points a brief whirl through the ol noggin.
), but I'm not trying to whiz in anyone's Cheerios here (that would be grounds for having "the hammer dropped on me"
