The 'won't back down' situation

[Richard]

One more thing. Yeah, letting an aggressor close distance on you is stupid. If I do have him at gunpoint and he starts walking my way I'd be movin' too. Backpedalling, sidestepping, whatever; anything to keep as much distance as possible.

I believe the OP specifically excluded the ability to flee as an option in the original scenario.

 

[agentl074]

I like the "run away, live to fight another day" motto - but if you don't have a choice and are in fear for your life - you must do what you have to. There are too many variables to take a chance IMO. The perp could be much bigger or be trained in martial arts/HTC combat.
Most LEO's and DA's are humans too, and they put their pants on one at a time. They understand disparity circumstances.

If you can handle yourself, kick em in the baggies!

 

[kingnereli]

I believe the OP specifically excluded the ability to flee as an option in the original scenario.

The original post says nothing about the lack of ability to flee. Regardless, the act of attempting to flee would change the scenario altogether.

 

[kingnereli]

Good always deploy the tactical pistol whip.

Although that would only work very well if you are young and able-bodied.

Agreed, I think it is important to acknowledge other alternatives to shoot him or take a beating.

 

[MyGlockRocks19]

You're right. They are facing SBI or death.

At what point in the OP scenario could the 'attacker' (in this case it's more like the 'yell-er at-er') have become the victim because they "withdraw(s) from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action."?

After he states that "I'm not going to hurt you. I'm unarmed, I'm not going anything" or walks toward you in a "non-threatening manner"?

It may be a ruse but if you can't articulate a reasonable threat to yourself of SBI then you're going down, not the other guy. If you continue the fight (& I think shooting him would count there) after he withdraws from combat, you are now the aggressor. It looks like that's the way the law is written.

So you'll shoot someone who is unarmed at 10 to 15 feet away? Based on the idea that "well, I had a buddy who was a 5th degree black belt & he could take my gun from me from that distance so I was scared this guy could do it, too"? Does that really sound reasonable? If not then it fails the test.

I guess now that we've read about it happening on the internet then that now becomes the baseline for all of our responses to a vaguely threatening situation? "I was scared he would take my gun because I read about it happening on the internet."

Ok, being the king of post resurrection that I am, I dug this out to respond to it.

To be quite frank, I don't see your point. Under what circumstance does someone move towards a person that has a weapon drawn on them, ready to fire, in order to diffuse the situation? Regardless of "my buddy being a black belt", this is obviously an aggressive move, and it don't think its inappropriate to respond to it as such.

Anyone with any amount of common sense would either stand still, or back away. Unless they were preparing to take aggressive action. To think that just because you have a firearm pointed at someone means you have complete control of the situation is foolish, and not being prepared to react to even a "non-threatening" advance by someone can get you killed.

Yes, if someone 10 feet away from me continued to advance towards me, despite the imminent threat of SBI or death, I'd fire. 10 feet of distance isn't that far, and if you think it is, you'd be shocked at how quickly that short of a distance can be closed. How useful is a gun that is out of position, pressed up against your body pointing towards the sky or ground or worse yet, back at you?

 

[JNG]

Ok, being the king of post resurrection that I am, I dug this out to respond to it.

To be quite frank, I don't see your point.

The point there is quite important legally. If the aggressor withdraws from the conflict before you "defend" yourself against him, the affirmative defense of self-defense is no longer applicable. That's the law, like it or not. For example, in this scenario, when the "aggressor" says, "I'm not going to hurt you," the court may find that he stopped being an aggressor at that moment--and, therefore, you could not have reasonably feared for your life when you fired. And, therefore, that you should go to prison.

This is a hard scenario because you face two bad options--the possibility of being injured vs. the probability of being imprisoned. The options would be a lot more favorable if the shooter had the two ounces of common sense required to keep his iron holstered.

 

[thompal]

I've never defended a client accused of homicide who claimed self-defense, if that's what you're asking. But a number of my old law school friends are prosecutors in various places--some still in Indiana--and we discuss criminal law issues frequently. I bounced this thread's scenario off one of them, and his response was: "Yeah, that dude is going to jail."

Do you think that would still hold true if, instead of being alone, you had been with your young child at the time this happened? (Since I frequently walk around with my kid, this would be a likely scenario for me.)

 

[thompal]

Probably because "common sense" would dictate it.

If you go through life expecting 'common sense' decisions from judges, you will often be disappointed.

 

[JosephR]

Quit playing Devil's Advocate. This thread already had it's run of Bullsh*t ignoramus comments.

There is no reason to flee, no reason to look to see if the OP mentioned the ability to flee. It's your property. You can flee if you want. Then again, you can defend it if you so chose and that was the OP's intent- defend within the law.

 

[JosephR]

Now that is easy to say. If my obligation is to take care of my family I can't do it if I am in prison or dead. These things have to be considered. And this isn't necessarily an attacker. It is a man that has angrily shouted at you and is walking your direction. Maybe yes, maybe no. Drawing the gun too early would be a problem as well as drawing too late (or drawing and letting someone get ahold of it.) I like these kind of discussions because it requires us to think. As much as the macho part of me wants to say I'll shoot if I'm threatened I'm not willing to get anywhere near that point. Talking about these things helps shore up in our minds how we would act. If there is a really good chance that the shooter would go to prison for a long time then it is reasonable to be motivated to seek other avenues for defense.

Here is what I have decided if confronted with an aggressive, angry yet unarmed man. I would try to keep as much distance as I can. I would try to retreat if I could. I don't think that I would feel I was in danger of death or serious bodily harm if I had means of escape from an unarmed mad guy. If no exit is available hopefully my attempts would keep time and distance on my side. Enough time maybe to deploy OC spray (This would assume that the aggressor is still coming and is thereby showing himself as more of a threat.) From there it would be classic escalation of force. Try OC. Try, I don't know, a taser. The gun would come into play later.

I know there are plenty of holes in that approach, but they can't be filled without knowing the exact reactions of the aggressor to my counteractions. From what I gather, if you make it as simple as to shoot or not shoot an angry man walking my direction you probably won't come out ahead in any outcome. I agree with the sentiment that at the end of it all I am going to be walking away unharmed any way I can, but that still leaves room for a more dynamic approach then whether or not to shoot.

One more thing. Yeah, letting an aggressor close distance on you is stupid. If I do have him at gunpoint and he starts walking my way I'd be movin' too. Backpedalling, sidestepping, whatever; anything to keep as much distance as possible.

When did the OP turn this thread into a thread about an unarmed person on his land? Why discuss what you'd do if confronting an unarmed man? I would guess it's the same thing you do when confronting unarmed A-holes each and every day, no?

 

[Srtsi4wd]

I'm going to wade in on this topic with my .

IMHO, I think that you will have to have witnesses to back up your actions if you shoot an unarmed assailant. I can't see a situation where it is you and the BadGuy totally isolated and alone that ends well for the shooter when the BG ends up being unarmed. Your only hope is that you are coherent and smart enough to give the right statements at the scene so that the investigating LEOs see it thru your eyes. I know that can very easily become bad news for you if the wrong things are said.

Now if you are on CCTV, have bystanders or other witnesses that can back up the chain of events that justify your use of your weapon, I think it would be a good shoot and you will probably be OK.

The scenario as I envisioned it is this:
Conflict begins, verbal sparring and such.
BG begins to become threatening to you.
Physical intimidation by BG and you feel in danger of your safety.
Weapon is displayed, LOUD verbal command to back off is made and BG knows it.
(Now heres where it gets tricky)
BG sees weapon and fixates on it, movement is altered but still towards you. Even with arms out and open, BG is now angling towards the weapon now. (In my mind this means the intent to disarm and take your weapon. If I am in conflict with someone to this point I have no reason to expect any honesty from them. The statement of "I'm not going to hurt you" is a lie unless the BG backs off and leaves the scene. This works both ways though, BG may not believe you will make good on your threat to use your weapon.)
BG ignores repeated LOUD commands to stop, back off, cease, freeze, whatever.
Tipping point is reached and shots are fired.

To me statements of mindset will be vitally important to your defense.
"I was in fear for my life."
"I told the BG to stop and that I had a weapon."
"BG didn't care and I believed that my weapon was going to be taken from me."

There are no good answers to this sort of situation. I just know that if you put bullets into someone, there better be a d*mn good reason for it.

 

[finity]

Quit playing Devil's Advocate. This thread already had it's run of Bullsh*t ignoramus comments.

There is no reason to flee, no reason to look to see if the OP mentioned the ability to flee. It's your property. You can flee if you want. Then again, you can defend it if you so chose and that was the OP's intent- defend within the law.

When did the OP turn this thread into a thread about an unarmed person on his land? Why discuss what you'd do if confronting an unarmed man? I would guess it's the same thing you do when confronting unarmed A-holes each and every day, no?

(It would be nice to know who your post is directed to so the person can respond if necessary. )

Back on subject...

The OP never said anything about the situation happening on his own property - not that it changes much (aside from his home or occupied vehicle). The OP specifically stated that the man said he was unarmed & no weapon was visible.

Defending within the law is the debate going on in this thread..what exactly is the law. Some people's idea of what the law is can get them in serious trouble.

 

[kingnereli]

When did the OP turn this thread into a thread about an unarmed person on his land? Why discuss what you'd do if confronting an unarmed man? I would guess it's the same thing you do when confronting unarmed A-holes each and every day, no?

Look at the original post. The aggressor is either unarmed or at least appears to be unarmed. Nobody said anything said anything about being on "his land." This whole thread has been following the line of legal ramifications of different reactions to an advancing unarmed man who has verbally assaulted you. So my previous post fits into the topic of this thread.

 

[Richard]

This whole thread has been following the line of legal ramifications of different reactions to an advancing unarmed man who has verbally assaulted you.

No matter how it's phrased or rephrased by some folks inorder to "downplay" or somehow minimize the threat the victim is facing at that peticular moment, the simple matter of the fact is that the victim is A.) justified in pointing their weapon on someone they believe is about to use "unlawful force" against them.

And the bottom line so to speak is that B.) once that weapon is pointed at the attacker, the victim is further justified in the use of that weapon if the attacker continues to advance, in order to ensure that they maintain their control over that weapon.

Granted the victim's statements after the fact can & will play a major role in the follow up investigation however the basic justification for the victim's use of force remains legally sound IMHO.

 

[JNG]

No matter how it's phrased or rephrased by some folks inorder to "downplay" or somehow minimize the threat the victim is facing at that peticular moment, the simple matter of the fact is that the victim is A.) justified in pointing their weapon on someone they believe is about to use "unlawful force" against them.

And the bottom line so to speak is that B.) once that weapon is pointed at the attacker, the victim is further justified in the use of that weapon if the attacker continues to advance, in order to ensure that they maintain their control over that weapon.

This is a common misconception. To prevail on the use of a firearm in self-defense, it's not enough to show that the BG was about to try to hurt you--you have to show that you reasonably believed that he was going to kill or seriously injure you.

In this hypothetical, the evidence supports an argument that even if your victim was trying to take your gun from you, he was just defending himself against your unjustified aggravated assault (that is, from you pointing your gun at him). Because the victim, not you, was the one engaging in lawful self-defense, you--not the victim--are the one goes to prison.

 

[Richard]

This is a common misconception. To prevail on the use of a firearm in self-defense, it's not enough to show that the BG was about to try to hurt you--you have to show that you reasonably believed that he was going to kill or seriously injure you.

In this hypothetical, the evidence supports an argument that even if your victim was trying to take your gun from you, he was just defending himself against your unjustified aggravated assault (that is, from you pointing your gun at him). Because the victim, not you, was the one engaging in lawful self-defense, you--not the victim--are the one goes to prison.

I normally refuse to debate people who insist that "water isn't wet" but since this is a serious topic I sort of feel obligated to.

IC 35-47-4-3 & IC 35-41-3-2 authorizes a victim to point a firearm at an attacker in self-defense if they believe that an attacker is going to use "unlawful force" against them.

There is no "threat of serious bodily injury or death" legal requirement at this point, only the threat of "unlawful force" is required.

However if the attacker continues his advance, it is reasonable for the victim to assume that the attacker fully intends to take control of their weapon away from them, thus creating the threat of serious bodily injury or death.

It is at this point when IC 35-41-3-2 subsection 2a (1) & (2) authorizes the victim to use deadly force.

 

[JNG]

I normally refuse to debate people who insist that "water isn't wet" but since this is a serious topic I sort of feel obligated to.

IC 35-47-4-3 & IC 35-41-3-2 authorizes a victim to point a firearm at an attacker in self-defense if they believe that an attacker is going to use "unlawful force" against them.

There is no "threat of serious bodily injury or death" legal requirement at this point, only the threat of "unlawful force" is required.

However if the attacker continues his advance, it is reasonable for the victim to assume that the attacker fully intends to take control of their weapon away from them, thus creating the threat of serious bodily injury or death.

It is at this point when IC 35-41-3-2 subsection 2a (1) & (2) authorizes the victim to use deadly force.

And I normally don't argue with non-lawyers about what the law says, but, as you say, this is a serious issue. Reading the statute is a good start, but read the whole thing. 35-41-3-2(a)(2) limits justified deadly force to situations where such force "is necessary to prevent serious bodliy injury . . . ." That's why all the cases on this issue interpret this statute to require proportionality--that is, only the threat of serious bodily injury or death justifies deadly force.

It's not impossible to meet that standard when your victim has empty hands and hasn't attacked you, but it's an uphill climb for sure.

 

[Richard]

Reading the statute is a good start. Reading the many cases that interpret it to require proportionality--that is, only deadly force (or the serious threat therof) authorizes deadly force--is even better.

You failed to grasp the point I was trying to make.

The legal justifications for the act of "pointing a weapon" in a self-defense scenario are legally distinct from the "use of deadly force" requirements.

 

[kingnereli]

No matter how it's phrased or rephrased by some folks inorder to "downplay" or somehow minimize the threat the victim is facing at that peticular moment, the simple matter of the fact is that the victim is A.) justified in pointing their weapon on someone they believe is about to use "unlawful force" against them.

And the bottom line so to speak is that B.) once that weapon is pointed at the attacker, the victim is further justified in the use of that weapon if the attacker continues to advance, in order to ensure that they maintain their control over that weapon.

Granted the victim's statements after the fact can & will play a major role in the follow up investigation however the basic justification for the victim's use of force remains legally sound IMHO.

You better have tons of witnesses and the "aggressor" better be some kind of mega karate master for that to be the case. Pulling a gun on an unarmed man changes the bottom line. switch places for a bit. If you lost your temper and yelled at somebody and they pulled a gun on you then surely you would feel like you were the victim and he was the threat.

 

[JNG]

You failed to grasp the point I was trying to make.

The legal justifications for the act of "pointing a weapon" in a self-defense scenario are legally distinct from the "use of deadly force" requirements.

Thanks for the clarification. 34-47-4-3 states that pointing a gun is a crime except (in relevant part) for "a person who is justified in using reasonable force against another person under . . . 35-41-3-2." In the situation in the OP's original post, proving self-defense for the shooting automatically takes care of the pointing (and the pointing I would think would fold into the homicide as a lesser included, anyway).

If no shooting occurred, then the analysis would be a little different--it wouldn't be, "was it reasonable to use deadly force?" but rather "was it reasonable to threaten deadly force?" In either case, the empty hands / no initial attack make it an uphill climb for the defendant.

I found an interesting case on point: Piper v. State, 891 N.E.2d 670 (Ind. Ct. App. 2008) (table).

Here are the facts, quoted directly from the opinion:


". . . . Piper arrived at Rose's house, with the younger and older boys, and Piper and Rose began to argue about property lines. Their voices escalated and Rose's neighbor, Jesse Cline, started heading toward the group to see what was happening. In the meantime Rose's wife, who heard the arguing, called the police.
There is conflicting evidence as to whether Cline approached the group walking or running, with or without something in his hands, and what was said between Piper and Cline as Cline approached Piper. The evidence most favorable to the conviction is that Cline had nothing in his hands as he walked toward Piper. Cline stated while he was approaching the group Piper pulled a gun out and pointed it at Cline and said, "come on, fat boy, I'll kick your fat ass," and "come on fat boy, I'll shoot your fat ass." Tr. p. 178. Words were exchanged, and Piper put the gun away. Three people (Cline's sister, Rose, and one of the younger boys) testified they did not see anything in Cline's hands."


Here is what the Court said about Piper's self-defense claim--which it found had been rebutted:

"The facts most favorable to the judgment indicate Piper overreacted. He was approached by Cline who was unarmed and non-threatening. There were three witnesses that stated Cline had nothing in his hands.In addition to the witnesses' testimony, the police did not find any weapons that resembled a tire-tool when searching the area. The facts are sufficient to negate Piper's claim of self-defense."

Food for thought.