The 'won't back down' situation

[finity]

Well, the practical courtroom strategy advice is you had better shoot him dead quick and dirty because if you get into a discussion about whether he continued to come at you and whether it was threatening or non threatening you have already lost your case and you will be pleading out to a voluntary manslaughter because you can't run the risk of doing 55 on a murder charge.

That was kind of what I was saying. You have to be able to convince the jury you had no other choice.

You better be able to say it was an onslaught of aggression and there was no time to even provide a warning.
In a criminal proceeding if you had time to warn him you had time to back away yourself and if you are pulling your gun and giving a warning then the situation wasn't so threatening was it? Either it is life threatening or its not. You either react or you don't. The legal system is practical terms does allow for the muddy situation described. Its called manslaughter not murder.

I agree with you there. I was just responding to the OP's scenario of him already having his gun out & the person still advancing.

But that does bring up a question for clarification (you are a lawyer, correct?):

The way I read the law is that "pointing a loaded firearm" is a felony unless you are justified in using just "reasonable force" (not deadly force) according to the self-defense statute.

I always thought, until recently, that pointing a gun at someone was the same as using deadly force but according to the law (as I read it) that's not the case.

IC 35-47-4-3
Pointing firearm at another person
Sec. 3. (a) This section does not apply to a law enforcement officer who is acting within the scope of the law enforcement officer's official duties or to a person who is justified in using reasonable force against another person under:
(1) IC 35-41-3-2; or
(2) IC 35-41-3-3.
(b) A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.

IC 34-41-3-2 is the self-defense law.

In that case you would be justified in pulling a gun on someone who you felt was going to use unlawful force against you in order to prevent the potential attack as long as you didn't actually use it unless you were justified in using deadly force under that part of the law.

IOW, pulling a gun on someone in self-defense is legally defined as reasonable force. Correct?

Perception of the situation is what is most key. We all view situations through our own lens and what one person may see as threatening another may not.

That's the reason for the "reasonable person" standard. That's what determines whether you can be found to not be justified as a 250 lb. guy to use deadly force against a "granny with a cane" (as someone else mentioned). It's "unreasonable" to feel threatened enough to kill someone in that scenario.

If not for that then anyone could claim justification, no matter what, by just saying they felt scared.

 

[JosephR]

You're a bit off on whether or not you can use deadly force to defend yourself against someone who is unarmed but has a huge chance of harming you- same as if there are a number of individuals attacking you.

As far as I know, you can use deadly force to prevent a threat from someone either much larger, in greater numbers, or with the ability to do you great bodily injury or death, regardless of what is in their hands.

The law is meant to be clear cut in this scenario but ends up being a little wordy.

I used to think you could never point a firearm at someone and therefore it was always "draw to shoot" only but that is not the case. You can draw and then not shoot if the threat subsides or you can hold someone at gunpoint if they've committed the forcible felony that is also a justifiable reason to use deadly force. There is nothing wrong with sneaking up on someone robbing a gas station and disarming them and holding them at gunpoint.

 

[jsgolfman]

No mention of size of aggressor or number of aggressors in the code. There are several instances covered, but nothing about those criteria.

 

[JosephR]

Doesn't matter. If you feel your life threatened, you use deadly force. Some people argue that it's not enough just because they are bigger or in larger numbers so they wrote that in as an "ok" reason.

Now, you are free from criminal charges if it's believe you were in fear of your life or great bodily injury. Civilly, you WILL have to explain why you thought he was big enough to tackle you and take your gun or why you thought 3 guys could harm you.

 

[dross]

No.

I'm saying that you better have a better reason than, "he was walking toward me, in a non-threatening way, after he yelled at me & I heard on the internet it was possible to take my gun away faster than I could pull the trigger from 10 feet away so I shot him" or even that "he was walking toward me silently with his index finger pointing at me from beneath his hoodie" like a modern day variation of the Grim Reaper.

You have to have an articulable reason why you felt it was justified that you used deadly force on someone. You have to be able to convince a jury (of potentially anti-gun people) why you thought you had to kill someone. The burden of proof is on you not the state to prove otherwise.

It is not illegal to walk toward someone who has a weapon pointed at you. It is stupid, but not illegal. It will put you on alert for a possible attack but it doesn't justify deadly force by itself.

My advice at that point to completely cover yourself legally (& some would say morally) is cover & protect your weapon (i.e. raise your non-gun hand to fend off a possible attack & pull the gun to your hip/torso in a point shooting position), continue to give loud commands to back away in case of any witnesses & if they make contact with you or produce a weapon then you are justified in using deadly force to stop them.

If they really are 'attacking' (& not just posturing for their friends or GF) at some point they will have to 'make their move'. You can't 'attack' someone by moving slowly & non-threateningly. You can't punch or stab someone slowly. Be prepared for it & then react accordingly.

I think the OP brought up an excellent question. It is not your typical "MWAG demanding your money or your life" scenario. It is nuanced & requires a nuanced response. Sometimes self-defense isn't clear cut & you have to be ready for those situations as well as the more in your face types. I personally think he would've handled it wrong (based on the "I think I would shoot" comment). He asked for advice & I gave it.

OTOH, if it is one of those in your face types of scenario's or if they are attacking your house or occupied car then by all means, shoot 'em to the ground.

My first duty is to preserve the life of my wife and child. My second duty is to preserve my own life. My third duty is to obey the law.

I agree with you that unless I have a very good explanation, I'm likely to go to jail.

You say it's not legal to approach someone, I think maybe it is, depending on the context.

For instance, if I approach you with a bat in my hand after you tell me to stop coming toward you, you're going to jail if we're playing baseball, but the same action in an alley probably justifies deadly force.

Let's say you didn't have good reason to draw your gun. That doesn't change the fact that a guy continued to approach you after you indicated you would shoot him. The context changes everything, even if you didn't have justification to brandish your weapon. A guy is ignoring your verbal commands and approaching you in disregard of a deadly weapon. You must consider this person to be very dangerous. To do otherwise is to raise some other value higher than that of preserving your own life. There are such values, saving a threatening person's life isn't one of them.

 

[JosephR]

No.

I'm saying that you better have a better reason than, "he was walking toward me, in a non-threatening way, after he yelled at me & I heard on the internet it was possible to take my gun away faster than I could pull the trigger from 10 feet away so I shot him" or even that "he was walking toward me silently with his index finger pointing at me from beneath his hoodie" like a modern day variation of the Grim Reaper.

You have to have an articulable reason why you felt it was justified that you used deadly force on someone. You have to be able to convince a jury (of potentially anti-gun people) why you thought you had to kill someone. The burden of proof is on you not the state to prove otherwise.

It is not illegal to walk toward someone who has a weapon pointed at you. It is stupid, but not illegal. It will put you on alert for a possible attack but it doesn't justify deadly force by itself.

My advice at that point to completely cover yourself legally (& some would say morally) is cover & protect your weapon (i.e. raise your non-gun hand to fend off a possible attack & pull the gun to your hip/torso in a point shooting position), continue to give loud commands to back away in case of any witnesses & if they make contact with you or produce a weapon then you are justified in using deadly force to stop them.

If they really are 'attacking' (& not just posturing for their friends or GF) at some point they will have to 'make their move'. You can't 'attack' someone by moving slowly & non-threateningly. You can't punch or stab someone slowly. Be prepared for it & then react accordingly.

I think the OP brought up an excellent question. It is not your typical "MWAG demanding your money or your life" scenario. It is nuanced & requires a nuanced response. Sometimes self-defense isn't clear cut & you have to be ready for those situations as well as the more in your face types. I personally think he would've handled it wrong (based on the "I think I would shoot" comment). He asked for advice & I gave it.

OTOH, if it is one of those in your face types of scenario's or if they are attacking your house or occupied car then by all means, shoot 'em to the ground.

READ the thread. It's been stated and explained what "you are in imminent danger" means and that you are in "imminent danger". Regardless of what I believe that to be or you believe that to be or the broad spectrum it can mean, YOU DO FEEL YOU ARE IN IMMINENT DANGER and the guy is 5 feet away. WHAT DO YOU DO?

PLEASE don't do like everyone else does and hijack the thread to place in your own agenda of "but it's not right to kill an unarmed man" because the law says it CAN be.

 

[LPMan59]

very good thread. i dont have anything to add as i have little to no experience, but i have been reading with great interest. very educational.

 

[2ADMNLOVER]

Only thing I can add now is be sure what you THOUGHT you read , was actually written . Trust me , I have experience .

Understanding now , what I missed in the first 11 pages , (that you've already been assaulted ) , I'd have to assume that the BG is coming to finish the job . I'd also have to assume that he'd had some training to allow him not to fear your weapon . In this light , I'd shoot him to .

Although , what if it turns out that he'd had no training , was depressed and decided to commit suicide by you ?

 

[agentl074]

Only thing I can add now is be sure what you THOUGHT you read , was actually written . Trust me , I have experience .

Understanding now , what I missed in the first 11 pages , (that you've already been assaulted ) , I'd have to assume that the BG is coming to finish the job . I'd also have to assume that he'd had some training to allow him not to fear your weapon . In this light , I'd shoot him to .

Although , what if it turns out that he'd had no training , was depressed and decided to commit suicide by you ?

Some people can be extremely dangerous with HTH

 

[ATM]

Although , what if it turns out that he'd had no training , was depressed and decided to commit suicide by you ?

I'd say he had a successful plan. Kudos to him.

 

[Joe Williams]

I'd say he had a successful plan. Kudos to him.

I'd say his estate owes me a buck for each round I had to expend on him!!

 

[Goodcat]

holy crap, 16 pages and going! Last I checked it was at 4, I've got some reading to do tonight :-)

 

[Goodcat]

I'm just saying that you don't make the statement that he was approaching in a non-threatening manner and then claim that you felt threatened. If you believe someone is trying to take your gun that's still being approached in a threatening manner.

Real quick, as I'm reading these. "non-threatening" was just to help visualize the slow movement, the sarcastic talk. The person in this situation, as would be explained to the LEO responding, would be EXTREMELY threatened. The explanation was not what would be said to the police, but rather a descriptive way to help you visualize the situation

 

[Goodcat]

Why don't you read that if you were in IMMINENT danger then you don't tell the officer that the guy was non-threatening!

JosephR: "I shot him because I was in imminent fear for my life."
Officer: "So you felt that he was a threat?"
JosephR: "No, he was totally non-threatening! Why do you ask?"

Once again, I did not say "the following post is my report I would give to a police officer." Just want to make that clear, as you keep bringing it up. It was to help visualize the situation.

 

[Goodcat]

I guess the part that said:

"They say, "chill out, I'm not going to hurt you. I'm unarmed, I'm not going anything" and continue slowly advancing toward you. They have their arms extended, no weapon in sight." & "in a 'slow, non threatening manner'".

I'm asking the OP to exactly define the threat. Someone walking toward them in a non-threatening manner isn't a threat (hence the term non-threatening). Even if they just "yelled" at them.

Again, as with the last few quotes I just made. It was to visualize the situation. Victim in this situation would obviously feel threatened, or he would not draw or consider it.

 

[Goodcat]

Just finished reading all that! Thanks for everyone's responses, some great replies here.

It seems the only people bent up on "you should have run away because you say he was non-threatening" did not understand the intent of the original post (see above) It was intended to visualize the situation. Obviously, victim would feel extremely threatened to react the way said victim did by drawing in first post.

Great discussion everyone!

 

[JosephR]

That's very true.

& that's part of the problem, as well...

You have to prove that you were in reasonable fear of severe bodily injury based on what another reasonable person would have done in exactly the same situation knowing exactly what you did before you acted before you can use deadly force in self-defense.

You have no way of knowing that the person has had martial arts training & was more dangerous than the average person. All you knew was that he was somehow 'assailing' you (again what is the manner of the 'assailment'?) from over 10 feet away. Do you get to shoot someone who is cussing at you from 10 feet away? From 20 feet?

I agree with you when you say that the legal problems won't go well for someone in this situation.

You do NOT have to prove why, just that you were. You can simply say you've seen the guy threaten others, which you did see in the past, or if he does a little bruce lee style stance before the words were exchanged, you're covered.

 

[JosephR]

Once again, I did not say "the following post is my report I would give to a police officer." Just want to make that clear, as you keep bringing it up. It was to help visualize the situation.

Just for the record, I did NOT say what he had in his quotes about talking to a police officer- someone else created that as an example...

This part, in no way shape or form came from me:

Originally Posted by Alerion
Why don't you read that if you were in IMMINENT danger then you don't tell the officer that the guy was non-threatening!

JosephR: "I shot him because I was in imminent fear for my life."
Officer: "So you felt that he was a threat?"
JosephR: "No, he was totally non-threatening! Why do you ask?"

 

[Ashkelon]

You do NOT have to prove why, just that you were. You can simply say you've seen the guy threaten others, which you did see in the past, or if he does a little bruce lee style stance before the words were exchanged, you're covered.

Yes, you do. I respectfully agree to disagree.

You may raise imminent threat as a defense but your fact finder, whether it be a judge or jury, must be convinced you acted in a reasonable manner. Just because you say you felt you were in imminent danger does not make it so. Simply saying it allows you the opportunity to demonstrate a defense and then you can illustrate a basis for your feelings--- but you still have to provide evidence that would persuade a fact finder. The true obligation of proving a threat to be imminent rests with the person asserting that claim.

I believe you may be short circuiting the reality of the process. You may be covered as you say but you will still have to go through the legal process to get such coverage.

Additionally, If a person asserts an imminent threat claim and discusses what he has seen an individual do in the past in his relationship with others the threat will likely not be deemed imminent. If you are around a person known to be a shithead judges and juries will assume you are around shitheads voluntarily and thereby not threatened.

 

[Alerion]

Once again, I did not say "the following post is my report I would give to a police officer." Just want to make that clear, as you keep bringing it up. It was to help visualize the situation.

[Sigh]

I said that you should not tell an officer that the other person approached you in a non-threatening manner.
You have said that you would not tell an officer that the other person approached you in a non-threatening manner.
So where are we in disagreement?

The problem was that a couple of other posters read into my statement that I was saying that the other guy was non-threatening. I never said that or even made any judgement about how threatening the other guy was. But the other posters kept insisting that somehow I had. My comment was simply about a person's choice of words when talking to an officer. The only reason I kept repeating my original statement, in various forms and examples, was in the hope that they would realize what I was saying was NOT what they thought I was saying. I didn't have a lot of luck! I think they started with the mistaken assumption that I was against you somehow and worked from there.

I never said that the guy was non-threatening or "you should have run away because you say he was non-threatening." In fact, I made no judgements about your actions whatsoever. In any situation, not just to you or in the scenario presented in this thread, my statement remains, if you felt threatened, which is needed to claim self-defense, then don't tell a police officer that the guy was non-threatening!