The 'won't back down' situation

[finity]

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.

+1

The claim of "self-defense" is an affirmative defense (I think that's the term).

You have been charged with a crime (murder, manslaughter, battery whatever).

At trial you will have to make a decision to use "self-defense" as a defense.

If you don't you will have to argue against the facts of the case (I wasn't there, I didn't shoot etc.). At that point the state has the burden of proving the facts in the case.

If you do you must admit that, in fact you were there & you did shoot & the guy died (thereby taking the burden of proof away from the state)...But you had a legal reason to do so.

In claiming self-defense you are admitting to the basic facts of the crime charged (you killed someone etc.) but you are using self-defense as a justification. You now have to prove that you actually were justified in using self-defense. You can't "just say" that was the case. The verdict at that point completely depends on the reasonableness of your claims as to why you did it.

If the jury doesn't believe you or feel that your claim is not "reasonable" then they will find you guilty of the crime.

 

[JNG]

+1

The claim of "self-defense" is an affirmative defense (I think that's the term).

You have been charged with a crime (murder, manslaughter, battery whatever).

At trial you will have to make a decision to use "self-defense" as a defense.

If you don't you will have to argue against the facts of the case (I wasn't there, I didn't shoot etc.). At that point the state has the burden of proving the facts in the case.

If you do you must admit that, in fact you were there & you did shoot & the guy died (thereby taking the burden of proof away from the state)...But you had a legal reason to do so.

In claiming self-defense you are admitting to the basic facts of the crime charged (you killed someone etc.) but you are using self-defense as a justification. You now have to prove that you actually were justified in using self-defense. You can't "just say" that was the case. The verdict at that point completely depends on the reasonableness of your claims as to why you did it.

If the jury doesn't believe you or feel that your claim is not "reasonable" then they will find you guilty of the crime.

As a lawyer, let me say that'sa pretty good explanation for (I assume) a non-lawyer.

To cut to the chase of the question posed by the very first post--if you are sure that this guy poses an imminent lethal threat, draw and shoot.

But KNOW that if you shoot someone, and if the police arrive and find that your VICTIM was unarmed, three things will almost certainly happen: (1) you will be arrested; (2) you will be tried for a crime of homicide (maybe murder, maybe manslaughter); and (3) you will probably be convicted.

The police won't care much about your story--what they'll care about is the dude on the ground with two empty hands and your bullets in his chest. They, and the prosecutor, and the judge, and the jury, will want to know why they should believe that it was reasonable for you to kill an unarmed man in self-defense. If your story is, "he was walking towards me with his hand out," then plan on spending some time in prison.

 

[FordMan08]

I've tried searching, but haven't run into anything. I know there is no duty to retreat in IN, however there is a situation that comes to mind, that does play out in movies a lot, though if you run into the right crazy, it could be real life.

Enemy has assaulted you, whether verbally, getting in your face in a threatening way, whatever. Not battery, but assault. For the sake of the question, let's say that the threat was not immediate but imminent, standing 5+ feet away and you draw, not to fire but to diffuse. Please don't respond with 'you should only draw to shoot' responses either.

You draw your weapon and tell them not to move and give them a warning. 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.

My initial response would be, SHOOT. My question is, would there be any legal repercussions? Would an LEO say that he even verbally backed down and did not pose a threat when I fired?. Could a defense attorney for him argue that I used the gun unlawfully because he had already backed down and was moving in to shake hands?

The ultimate question is:
If a man is held at gunpoint and continues to advance though warned, in a 'slow, non threatening manner', is this means to fire? It's either that or run imo. thoughts?

Let's hear answers for both on my property vs. in public (ally, mall, wherever)

Put your gun away and kick his ass.

 

[ah1g]

Are you willing to live with killing and unarmed man cause he was "high" or born retarded ?

How many people have been killed by a person who was "high" or mentally
unbalenced?

 

[kingnereli]

As a lawyer, let me say that'sa pretty good explanation for (I assume) a non-lawyer.

To cut to the chase of the question posed by the very first post--if you are sure that this guy poses an imminent lethal threat, draw and shoot.

But KNOW that if you shoot someone, and if the police arrive and find that your VICTIM was unarmed, three things will almost certainly happen: (1) you will be arrested; (2) you will be tried for a crime of homicide (maybe murder, maybe manslaughter); and (3) you will probably be convicted.

The police won't care much about your story--what they'll care about is the dude on the ground with two empty hands and your bullets in his chest. They, and the prosecutor, and the judge, and the jury, will want to know why they should believe that it was reasonable for you to kill an unarmed man in self-defense. If your story is, "he was walking towards me with his hand out," then plan on spending some time in prison.

Do you have experience or evidence to back that up? It would be helpful to see some real cases like this. Do you suggest we should just take our beating and possibly be killed so we don't have to face a jury? Also there is a lot more to this scenario then "he was walking towards me with his hand out." You have already been verbally assaulted. That might make a difference. I don't know. Hopefully there would be witnesses thought that might complicate things further if they her the guy actually say "I'm unarmed. I'm not going to do anything."

 

[2ADMNLOVER]

How many people have been killed by a person who was "high" or mentally
unbalanced?

Sort answer as far as being high , IDK . I would think that everyone who kills would be mentally unbalanced in some form or fashion .


To JNG: Where'n the hell was you a week ago when I could have used you ????

 

[JNG]

One of the main obstacles to "is X situation legal self-defense" discussions is that people don't want to acknowledge that there are a lot of lose-lose situations out there. In the situation described in this thread, for example, you might get killed if you don't shoot. You'll probably go to prison if you do. That's not at all fair. But it's reality.

The discussion gets off-track when people can't recognize that the law isn't always fair. Just because you were right about the need to shoot, doesn't mean you'll be able to persuade a jury to see things the same way. They won't know the fear in your stomach; they won't be able to see the crazed look in the guy's eyes as he approaches. All they'll have to go on is the police testimony, which will be that you shot a man with no weapons, who hadn't touched you, and your only justification is that you thought he was too close to you on a public sidewalk. You may have been right--but good luck proving it.

Do you have experience or evidence to back that up?

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."

TO 2ADMNLOVER: What happened a week ago?

 

[kingnereli]

One of the main obstacles to "is X situation legal self-defense" discussions is that people don't want to acknowledge that there are a lot of lose-lose situations out there. In the situation described in this thread, for example, you might get killed if you don't shoot. You'll probably go to prison if you do. That's not at all fair. But it's reality.

The discussion gets off-track when people can't recognize that the law isn't always fair. Just because you were right about the need to shoot, doesn't mean you'll be able to persuade a jury to see things the same way. They won't know the fear in your stomach; they won't be able to see the crazed look in the guy's eyes as he approaches. All they'll have to go on is the police testimony, which will be that you shot a man with no weapons, who hadn't touched you, and your only justification is that you thought he was too close to you on a public sidewalk. You may have been right--but good luck proving it.



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."

I wasn't being accusatory, just asking. I just think seeing a real example of this would help. Lose-lose = that sucks. So would the outcome change if he had actually punched you before hand? What if he swiped at the gun or something simple like that? Those things would be quite hard to prove too. I am basically asking, in your opinion, what would it take to justify shooting an unarmed aggressor? I, personally, have unarmed defense training and carry a couple of non-lethal alternatives to my firearm so I could (hopefully) respond with the appropriate level of force and escalate from there as needed. Maybe that's the best answer.

 

[Richard]

I bounced this thread's scenario off one of them, and his response was: "Yeah, that dude is going to jail."

I disagree with your friends assessment.

An armed victim is under no legal obligation to allow an unarmed attacker to get close enough to them to take their weapon away from them.

To sum it up; the use of reasonable force, up to and including deadly force is justified by the victim in order for them to maintain control over their weapon.

 

[JNG]

I disagree with your friends assessment.

Disagree all you want--if you end up in this situation in his county, you're going to end up as a criminal defendant.

kingnereli--I didn't take you to be accusatory--and I didn't mean to sound defensive! The central question in a self-defense case is: Did the Defendant have a reasonable belief that if he did not shoot the victim, the victim would kill him or injure him gravely? It doesn't matter if you honestly believed that dude was going to kill you--a jury has to find that your belief was "reasonable." If the person you shot was unarmed, you've got to convince a jury that it was reasonable for you to believe that an unarmed man was going to kill you or put you at death's doorstep with his bare hands unless you shot him. That's a tough row to hoe, no matter how you cut it. If you argue that he might have grabbed your gun, they're going to respond "how do you know that?"

 

[Richard]

Disagree all you want--if you end up in this situation in his county, you're going to end up as a criminal defendant.

That's possible but if I believe an attacker is intent on taking control of the weapon I have pointed at them, I'll take that chance.

If you argue that he might have grabbed your gun, they're going to respond "how do you know that?"

Probably because "common sense" would dictate it.

 

[JNG]

That's all I'm saying. Shoot him if you truly believe your life depends on it--but being right isn't neccesarily enough to keep you out of prison.

 

[ntrngr]

And unfortunately...should you ever have to kill a man (or woman) to protect your own life...that statement may be produced by an attorney and used to hang you out to dry. Be cautious about what you say and offer for public viewing. You and I both know it's not meant as a threat...and was probably intended as half-humorous...but an attorney will produce that statement and say, "Did you or did you not, on 05/17/2009 at 08:41 hours post a comment on a local gun owners forum stating that you intended to kill a person if you ever got into a physical confrontation because if you killed that person they would not be able to testify against you"?

I'm not making a "tin foil hat" reference that somewhere, someone is taking notes on everything you say or post...but remember, "anything you say (and post) can be used against you". You only shoot a firearm to neutralize an imminent threat to life and safety...yours or that of someone else...never to kill. That should never be the intention. We've all done it...I'm just saying...

...as an IT professional, I can tell you that this is an *ABSOLUTE*. They will go through your life with a fine toothed comb and part of that is everything you said that they can dig up in any archive on the planet. I know because I've been hired to do it for both the prosecution and the defense. I've interrogated machines, logs, and pulled stuff out that nobody even knew they had and raised a few eyebrows in the process. I've even tested and found archives of stuff I wrote back IN THE MID 80s! (...I've been online for a LONG time...) Plan on it. If you said it and they figure out that you're online, they'll hire a guy like me to go dig it up. Then, you'll have to explain it if the prosecution wants to use it against you.

That being said, we are talking threat. How far does your responsibility go to stop that threat? Is it only the immediate threat? What if the stopping of one threat could create another threat that could compromise ones life for a very long time? ...and even family members? One may think so, however, the statement that was made about "dead men don't need lawyers" (probably a spin off of the older "dead men tell no tales") simply speaks to the fact that, while this person is threatening you physically, if you stop it without the termination of his life, he will simply rape and pillage your life legally and emotionally or maybe wait for another chance when you don't have your weapon. Does your right of self defense extend beyond the current altercation? ...and what about the police? ...and the press? If they publicly advertise who did it and how, if that threatens your safety and security, are they accessories? Civil suits? Lawsuits and harassment can be just as damaging and scarring as a good "azz whoopin'".

The more questions I try to answer the more I come up with. I'll stop for now.

 

[Joe Williams]

That's all I'm saying. Shoot him if you truly believe your life depends on it--but being right isn't neccesarily enough to keep you out of prison.

Yep. Gotta convince a jury of your peers that you had darn good reason for taking a human life.

And it won't be a jury of your peers. Odds are extremely high that the DA won't let a gun owner on the jury.

 

[SMiller]

After 18 pages what it all boils down to is the prosicuter and police where it happens, maybe the pros. is having a $hitty day and feels like ruining your life, other day he\she might feel like moving to another case. In my small town the pros. would go nuts, it would be the story of his life. In Indy maybe they would look the other way...

There is no right or wrong, just a matter of how it all goes down. I know first hand of a guy that went to prison that was so in the right its not even funny and we all know of guys that walked that shouldn't have. When the time comes you will do what is right, that is all there is to it. You might go to jail and you might not, still better then being a victom!

 

[Bubba]

This thread's been interesting - especially the most recent posts. I really don't see this as an issue of prosecutor temperament. As far as I read it, and to quote Joshua, "the only winning move is not to play." However, assuming one has to play, I see four endings to the scenario. I will ignore the part about having already drawn a weapon, not because I believe in "if you draw you shoot" (I don't), but because if you've drawn you've severely reduced your options.

Ending 1:
BG shouts ugly things, then advances. Armed citizen is alone or travelling with other able-bodied individuals. Armed citizen chooses to retreat from the confrontation and is able to safely do so. I don't see in the OP where it states retreat is not an option. There is no duty to retreat, but sometimes discretion is the better part of valor.
Result: Wounded pride, but a free man

Ending 2:
BG shouts ugly things, then advances. Armed citizen tries to withdraw, but is prevented from doing so. Perhaps there are limited avenues of egress and the BG changes course to prevent escape. Perhaps the armed citizen is disabled, or traveling with a child or elderly person who cannot retreat faster than the BG advances. Either way, a visible effort is made to get away. BG continues to advance. Armed citizen commands (loudly) for the BG to stay back. BG advances. Armed citizen draws, warns again. BG advances. Armed citizen fires his weapon.
Result: Hope for lots of good witnesses and/or CCTV. Otherwise, good chance of jail.

Ending 3:
BG shouts ugly things, then advances. Armed citizen stands his ground, draws and warns BG to stay back. BG advances. Armed citizen fires his weapon.
Result: Probably jail. Stock up on Vaseline.

Ending 4:
BG shouts ugly things, then advances. Armed citizen stands his ground but refuses to use a firearm against an unarmed threat, either before or after displaying a firearm.
Result: There's a good chance this is going to hurt.

Duty or no, it seems like attempting retreat is probably the only way this unfortunate soul might continue to enjoy nice home-cooked meals in the near future.

 

[Richard]

I am going to suggest that those of you who would allow an attacker to get close enough to take your weapon away from you because you are to afraid of what a prosecuter might charge you with afterwards, is to just keep your firearms locked up to prevent yourselves from being killed or injured with your own weapons.

 

[kingnereli]

I am going to suggest that those of you who would allow an attacker to get close enough to take your weapon away from you because you are to afraid of what a prosecuter might charge you with afterwards, is to just keep your firearms locked up to prevent yourselves from being killed or injured with your own weapons.

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.

 

[Rookie]

I have always believed that the laws of the land are designed to protect criminals.

 

[roscott]

Good always deploy the tactical pistol whip.

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