Threat of Physical force and Threat of Deadly force are not the same... Verbalizing the threat doesn't make up for the lack of a weapon... I think a jury would have a hard time seeing your life being in danger in this scenario... The Ayoob theory of the man continuing to advance after you had drawn your weapon would be a moot point, because I think drawing your weapon without an imminent deadly threat would be questioned...
-
Be sure to read this post! Beware of scammers. https://www.indianagunowners.com/threads/classifieds-new-online-payment-guidelines-rules-paypal-venmo-zelle-etc.511734/
Who's right and wrong here?
- Thread starter Tapout75
- Start date
-
- Tags
- legal scenario
The #1 community for Gun Owners in Indiana
Member Benefits:
Fewer Ads! Discuss all aspects of firearm ownership Discuss anti-gun legislation Buy, sell, and trade in the classified section Chat with Local gun shops, ranges, trainers & other businesses Discover free outdoor shooting areas View up to date on firearm-related events Share photos & video with other members ...and so much more!
Member Benefits:
indytechnerd
Master
Size is far from indicative of one's ability to deliver an ass-whooping. I offer Exhibit A:
Seriously though..
Atty(since he should be the one talking): "My client believed he was in danger. He and his wife have both stated that the decedent approached rapidly while shouting that he was going to kill my client. My client has also stated that, upon drawing his weapon and telling the man to stop, the decedent continued to advance. This statement is also corroborated by his wife. My client waited to fire until the last possible moment before the decedent reached him."
Another issue in this thread is the LEO perspective. LEOs are taught a specific force continuum, as evidenced by the one posted earlier. However, John Q. doesn't carry a batbelt full of goodies; baton, spray, taser, etc., nor does he (most of the time) have the training in de-escalating threats such as this. Neither side is wrong, make no mistake, they are just different approaches.
Seriously though..
IANAL, but it seems to me that my belief that the guy was about to try something stupid towards my wife or my self, coupled with my wife's belief that he was going to try something stupid towards her, would lead to this being a good shoot. If it were me alone, I think it'd be hard to prove that I didn't just pop some random walker. My wife being present, making her both a potential victim and a witness, should seal the deal.
- "I'm going to kill you", and advancing satisfies this part of 2(a): "reasonably believes to be the imminent use of unlawful force".
- Continuing to advance after I've presented my weapon and verbally warned him should satisfy "justified in using reasonable force", because if he quits the engagement we're all good. He yelled, I yelled. He advanced, I drew. Now we're into the force continuum, I've met verbal with verbal, met his escalation with (apparently) a greater escalation, and he is continuing to press the situation.
- The BG is now within an area where his momentum, plus the length of his body including outstretched arms would allow him to be hands on by jumping at me.
- I cannot take the chance that I will overcome his grapple attempt.
Atty(since he should be the one talking): "My client believed he was in danger. He and his wife have both stated that the decedent approached rapidly while shouting that he was going to kill my client. My client has also stated that, upon drawing his weapon and telling the man to stop, the decedent continued to advance. This statement is also corroborated by his wife. My client waited to fire until the last possible moment before the decedent reached him."
Another issue in this thread is the LEO perspective. LEOs are taught a specific force continuum, as evidenced by the one posted earlier. However, John Q. doesn't carry a batbelt full of goodies; baton, spray, taser, etc., nor does he (most of the time) have the training in de-escalating threats such as this. Neither side is wrong, make no mistake, they are just different approaches.
squirrelhntr
Shooter
first i would have yelled very harshly "YOU TALKIN TO ME? YOU TALKIN TO ME ? WAIT A MINUTE I'M THE ONLY ONE HERE. YOU GOTTA BE TALKIN TO ME ?" Robert De Niro. Taxi Driver 1976. rent the movie
Last edited:
This is a good point that I thought everyone sort of understood. Fights between grown men who are serious about it are going to lead to serious injury. It's not the school yard or the playground. I won't fight for a stupid reason, but if I'm in a fight, someone is going to lose something important. If I can my hand on an eye, it's coming out. If something comes near my mouth, I'm going to attempt to bite it off. To me, a fight is a life and death affair, anyway. If you're armed, even more so.
I've heard this argument and I just can't agree with it. In fact, it was taught to me formally for my CCW class (required in Colorado) that you shouldn't pull your weapon to stop the threat by showing it, but only to fire it to stop the threat.
I'm just not going to follow that advice. Many, many documented incidents have shown that displaying the weapon is very likely to end the situation before someone gets hurt. I'll take my chances with that before I kill someone, and I think I can explain that to the jury.
If I couldn't retreat fast enough to get my wife and I away, I think the shooting would be necessary and justified. Now what if the shooter had trained in martial arts in the past to at least black belt? I think the shooting would still be justified due to the known/unknown factors posted already. However, how bad would it be in court?
If he doesn't have a gun, pistol whip him then beat him with your hands.
Yes, because everyone who carries is:
A: Healthy
B: In shape
C: Quicker than their attacker
D: A black belt in "gangsta-fu" and trained in "pistol whip style"
IANLEO, or a lawyer, but threatening, a life, IS Felony, intimadation, and you can shoot to stop the commission, of a FELONY .....
eldirector
Grandmaster
FORCIBLE felony (rape, murder, assault, and the like). You can't shoot someone for drug possession, for instance.
I tend to agree otherwise. Someone voicing their intent to murder you, and acting to make good on it, even when they KNOW you are prepared to defend yourself, would very much make this a defensive shooting.
Depending on the county, you MIGHT get charged with something anyway.
The general impression I get from this is that it's legal to shoot,but is it wise to try
to wing this guy? I can just hear him at the trial..."honest your honor, I said I'm
going to 'kiss you'- not 'kill you' " Besides, you'd be lucky to get your gun out and hit center mass in this scenario. I can't see the effectiveness of pistol whipping someone
with my plastic pocket pistol.
to wing this guy? I can just hear him at the trial..."honest your honor, I said I'm
going to 'kiss you'- not 'kill you' " Besides, you'd be lucky to get your gun out and hit center mass in this scenario. I can't see the effectiveness of pistol whipping someone
with my plastic pocket pistol.
indytechnerd
Master
1. I don't think it's ever wise to try to "wing" the guy. Shoot to end the threat definitively or don't shoot at all.
2. I think in this scenario, as written, you've already got the weapon drawn and presented, so you're pretty much pointing at center mass already.
It's been said already but the correct plan of action would be to turn and run. If you have a way out, then that is your option. Equal or lesser force should be used if combat begins, use of deadly force only when he's in the act of committing a felony or your life(or 3rd party) is in actual danger. You would be in danger if you were in a dark alley backed into a corner and this were happening.
From my interpretation saying "I'm going to kill you" isn't a felony. If the guy were bludgeoning someone with a hammer, then he would be in the act of committing a felony, therefore use of deadly force would be in order.
The situation is a tough one, and many people untrained to deal with the adrenaline already surging by this point could make some very bad decisions. I personally would go hands on, even though I carry concealed without retention. If I have my pepper spray, then I'd hit my hand with it and smack him in the face.
You never know when you might be facing a mental patient who pLays violent video games, has ADHD, hasn't taken his meds today, and only speaks one phrase of English language("I'm going to kill you!").
From my interpretation saying "I'm going to kill you" isn't a felony. If the guy were bludgeoning someone with a hammer, then he would be in the act of committing a felony, therefore use of deadly force would be in order.
The situation is a tough one, and many people untrained to deal with the adrenaline already surging by this point could make some very bad decisions. I personally would go hands on, even though I carry concealed without retention. If I have my pepper spray, then I'd hit my hand with it and smack him in the face.
You never know when you might be facing a mental patient who pLays violent video games, has ADHD, hasn't taken his meds today, and only speaks one phrase of English language("I'm going to kill you!").
eldirector
Grandmaster
Well, THERE's your problem!
Well, THERE's your problem!
Keep agreeing with me and you'll soon learn that being brilliant, good-looking, and always right can be a lonely place.
Just let me reiterate what others have already said (IOW, I'll pile on):
NO!
You in no way are legally obligated to take a beating. You are not required to meet force with like force. The only thing that matters is that you can reasonably explain why you felt under threat of SERIOUS BODILY INJURY.
Here, let me post the definition of that phrase for you:
If you are in reasonable "fear" of getting broken bones, knocked out or just being put in extreme pain then deadly force is justified.
I didn't just make that up. It's pretty clearly written into the law.
That I sort of agree with.
It's not just about being unarmed though. As stated above someone can be a serious threat without having a "weapon".
It has to do with whether the person has given up.
If he's out of bullets & throws his gun at you & HE SAYS "I QUIT" then you have to cease your defense. Otherwise you lose your legal ability to claim self-defense. At that point, YOU become the aggressor. YOU are then the criminal & HE can claim any further actions on his part were in self-defense of YOUR aggressive actions.
You don't have to KNOW his ability. You can't be held to a standard that requires you to know something about someone that others in that same situation wouldn't also "KNOW" by direct observation or some other similar means.
You can only be required to KNOW what can be seen by anyone else & you are allowed to make reasonable assumptions based on that, & that alone.
You have no legal requirement to "evade". You have no "duty to retreat". It may be prudent but it is in no way a legal requirement & shouldn't be considered in INDIANA as to whether your use of force was "reasonable".
You could...
But it's not legally required.
Denny347 is held to a higher standard based on his department policies, training & laws/court rulings on use of force by agents of the state (mostly by department policy).
We, as non-LEO's, are not bound by all those same restrictions.
The only restrictions on us in IN are that:
1 - we must be in imminent threat of SBI or a forcible felony.
2 - our use of force is reasonably believed to be necessary to prevent it or stop it.
YOU DON'T JUST HAVE TO BE IN FEAR OF DEATH TO USE DEADLY FORCE!!
Read above.
Also drawing your weapon is not "using deadly force". Pointing your gun at them would be considered "deadly force" but not simply drawing it. Heck you can walk around with it in your hand & it's completely legal. Unless you are drawing & threatening someone with it for a lawful act (on their part) then there is no crime.
Threatening to kill you is not a "lawful act" so the "intimidation" charge goes completely away.
At that point it goes back to "did you have a reason to believe you were in danger of SBI?" & Ayoobs "theories" are back in play.
Uuummm...no.
& it's been said (by me
) that you don't HAVE TO run. That may be the case in other states but not in INDIANA.& you are basing those requirements on...what?
If that's your opinion then say so. If that's what YOU would do then say so. Don't say it as fact unless you have something based on IN law or above to base it on.
Nope. You're right.
But it IS enough for a person to reasonably believe that they are under imminent threat of SBI & that is all that's required.
Yes & by that time it would be too late to act to save the person in most cases. So what's the point of having the right to defend yourself with deadly force if you won't be legally allowed to use deadly force to protect yourself until you are right on the cusp of being DEAD?
That's why all the LAW requires is that you reasonably believe that your use of deadly force is necessary to PREVENT (again PREVENT) Serious Bodily Injury. You can't PREVENT something if you are required to wait till it's already happened before you act.
That's why there is precedent that says that someone can't be made to rationally consider every eventuality in that split second when their life or health is being threatened. That's why the standard for using deadly force is that we "reasonably believe" it's use is necessary. It's not that we absolutely need to KNOW that we have to use it. That would be a standard that would be too high for anyone to meet unless that person was already dead or seriously injured. But, again, then it would be too late.
So who's problem is that?
Is that your problem so that you can be forced to evaluate in every instance whether that may be the case? Or is that the mental patients problem (or the parents/spouse/hospitals/states problem if they are under their care)?
Besides, who's to say that "a mental patient who pLays violent video games, has ADHD, hasn't taken his meds today, and only speaks one phrase of English language("I'm going to kill you!")" WOULDN'T be a real danger to you? I'd say that the likelihood of that being the case is pretty darn good.
Are you saying I need a degree in psychology & training to be a psychic before it would ever be reasonable for me to EVER use deadly force to protect myself?
It isn't all about perception to self, it's about perception and proof within the court when being judged by your peers. What may seem to be a reasonable use of force to you may not be reasonable to the jury. The way I interpret the statue is that if there is means of escape or use of force that is not deadly, then that is what I must use. We can split hairs all day long but this case has been tried before, and it has gone both ways.
As for the example of a mentally disturbed, distraught, or disabled person, then understanding that when everything is said and done then I would say this carries a bit of weight in a court but of course wouldn't determine innocence or guilt if you shot the person.
Oh and no, you don't need a degree in anything, but understand the law doesn't always work to be fair or equal given the circumstances of the situation, and justice doesn't always prevail. While yoou may think that you're in the rights given within the law, but as I previously stated your fate will then be decided by the jury and not your personal belief system.
IC 35-41-3-6
Mental disease or defect
Sec. 6. (a) A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.
(b) As used in this section, "mental disease or defect" means a severely abnormal mental condition that grossly and demonstrably impairs a person's perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.
And for the record I don't speak from experience in the case, nor do I claim to be an expert, but I do study the law and have been a lifetime student of criminal justice having been raised by a career law enforcement officer and now in college.
Well, except that the IC EXPLICITLY states that YOU HAVE NO DUTY TO RETREAT then I guess I could see where you might think that...
I agree it could go both ways.
So the real question is "what can we do about it?"
How can we act so that we have the best chance of surviving, both in court & on the street?
To me, it is to follow the law the way it is written.
If I hesitate to act in any situation that would be legally jusifiable & I end up getting hurt or dying then what good is being worried about going to court? If I "think" I know the law & act outside of it & end up spending my life or most of it behind bars then what was the point of "defending" yourself?
Know the law (as much as possible) & act within it. If you want to make up laws for yourself to follow then so be it, but don't make blanket statements that aren't based on the law.
You can't always win. Sometimes you get some prosecutor who is better at telling their "version of the truth".
I would bet that most of the time though, in IN, you are going to be fine if you are a reasonable person who acts like any other normal reasonable person in the same situation.
I'm not saying that it isn't prudent to run away if you can rather than shoot someone. I'm just saying that it isn't required by law.
If it makes no difference to your innocence or guilt then it carries no weight at all in court. It's just another useless bit of fact that the jury has to try to disregard because it has no bearing at all on whether the person thought they were a real threat or not.
That could be true but the prosecutor does have the requirement to prove beyond a reasonable doubt that you WEREN'T under the belief that using DF was necessary.
Those are facts of law. The state has to meet certain criteria to prove that an act claimed as self-defense wasn't.
While, to raise a claim of self-defense, you must show some evidence to back up your claim, the prosecutor has TO PROVE you weren't. If the prosecutor can't prove that, no matter what you have said or not said, then you aren't guilty.
Miller v. State of IN
Umm.
That is for the defense of a mentally incompetent person in COURT.
That has no relationship to the actions of a private person who has no prior knowledge of his incapacity. Heck even if I KNEW that someone was mentally diseased but still felt they were a threat I am not bound by that law you quoted. Just because he has a mental disease doesn't mean I have to let them kill me or injure my family.
And it doesn't change the fact that I'm not required to retreat before using deadly force.
Oh, since your dad's a cop & you're going to college, in that case I will concede to your vastly superior knowledge.
Better yet, why don't you show us a bunch of cases where a person was convicted for
1 - not retreating instead of using DF against a BG as described by the OP
2 - using DF against a person such as in th OP who was later determined to be incompetent when the defendant didn't know it.
I can search case files and waste my time, or you can take a step back, re-read your own post and see how you're coming off with a bit more of an attitude than was absolutely necessary. I gave a disclaimer saying I wasn't an expert though I have worked security and also worked for the TSA. As I've said I already study law on a daily basis and breakdown court cases, precedents, along with current cases being tried, and I don't need to burden the load anymore than I already have.
One subject of the law we've had to deal with a lot is mental competancy, and while the IC I quoted isn't particularly for that there have been rulings with similar justification.
Otherwise, I'll tell you what, if you have such an issue with ym belief/opinion on the subject, and feel you need to roll your eyes at a fact I've stated about myself, feel free to PM me and get my phone number or meet me sometime in person to discuss this further.
One subject of the law we've had to deal with a lot is mental competancy, and while the IC I quoted isn't particularly for that there have been rulings with similar justification.
Otherwise, I'll tell you what, if you have such an issue with ym belief/opinion on the subject, and feel you need to roll your eyes at a fact I've stated about myself, feel free to PM me and get my phone number or meet me sometime in person to discuss this further.
Last edited:
Site Supporter
Staff online
-
d.kaufmanStill Here
Members online
- Kenjiboijoi
- dougha5
- Born2vette
- jake 2000
- BeDome
- cosermann
- patience0830
- red_zr24x4
- Glock22
- HoughMade
- Needmorammo
- manifest destiny
- kaiser9815
- KG1
- indyjohn
- dieselrealtor
- Onebad06vtx
- Demoderb1989
- Keith_Indy
- Scott58
- indiucky
- brettholycross
- den57
- d.kaufman
- joe138
- slims2002
- gpasp101
- ironjaw77
- dan1856
- bulldog242
- purple72
- harvey4
- macolesby
- jwamplerusa
- dwain
- ECS686
- Jose I317
- c604
- Malware
- Zjhagens
- PTSC
- Kinkopet33
- Creedmoor
- J D
- Sagamore - One
- 55fairlane
- Rburney
- Ark
- archer_advice
- BigMoose