[Fly-Sig]

This topic has come up a few times embedded in other threads. It is important enough to deserve it's own topic. IANAL, but believe the following to be universally true.

It has been stated by some that if you draw your weapon, you are obligated to fire, and you are obligated to "shoot to kill". If you don't then you have committed a crime. I would like to explore this in 3 relevant parts.

Let's imagine a scenario where you are approached by one or more attackers. They make a clear threat on your life and have the means clearly visible. They have knives, guns, baseball bats, tire irons or other obvious weapons. There is no reasonable avenue of retreat to safety.

Let's call this point in time TIME ZERO.

Part 1 You are clearly authorized by law at TIME ZERO to use deadly force in defense of your life. If you were instantly able to deliver deadly force, you could legally do so. However, we are human and therefore have to physically obtain defensive force and then we have to bring it to bear. So, you have to grasp your XD, then you have to remove it from the holster, then you have to point it at the attacker. Now, finally, you have to put your finger on the trigger to prepare to fire it.

Let's call this point in time TIME ONE where your finger is on the trigger and you are an instant away from firing a bullet.

Between TIME ZERO and TIME ONE, the attackers continue to press their attack. You are authorized by law during this entire period to apply deadly force. You are in fact attempting to apply deadly force during this entire period.

There is a very important legal concept which we must understand as we continue. An action which is legal when it happens cannot become retroactively illegal by later events. You were within the law to apply lethal force at all moments between TIME ZERO and TIME ONE. Therefore, no matter what happens next your previous actions cannot become illegal.

At TIME ONE there are a couple of ways things can unfold.

PART 2 As your XD is aimed at the perps, they can either flee or continue their attack. If they do not flee instantly (within the time cycle where you see, understand, and react), you are legally authorized to use deadly force to stop their attack. Note that this does not mean that you are required to use deadly force, just that you are authorized to use it. If you fire, you are within the law.

The other possibility is that the attackers cease. At this time, your authorization to use deadly force expires.

We'll call this instant where the attack ceases TIME TWO

From TIME ONE all the way until TIME TWO you were legally allowed to use deadly force. Between TIME ZERO and TIME ONE you were obtaining the means to apply deadly force. This time period was only one or two seconds long. Between TIME ONE and TIME TWO you were physically trying to apply deadly force. This time period was a fraction of a second.

Everything that you did was legal based on what you, a reasonable adult, believed to be happening. However, after TIME TWO, the attack ceased and you stopped just milliseconds prior to pulling the trigger.

The legal principle that we discussed earlier comes into play here. What you did between TIME ZERO and TIME ONE was legal and could not be made illegal after the fact. What you did between TIME ONE and TIME TWO was legal based on what was happening then, and can not be made illegal after the fact. You do not know what will happen 5 seconds later, so you can only act based on the information you have.

PART 3 Brandishing is a related issue which I think is causing confusion. In general, brandishing is when you display your weapon in order to deliberately threaten or frighten when deadly force is not justified. IOW, if a driver flips you the bird, you may not brandish a firearm because deadly force is not justified.

However, if a criminal threatens you with a knife, you are not "brandishing" your XD when you pull it out, you are preparing to use it as deadly force to defend your life.

THerefore, you should not draw your XD, or pull up your shirt to make it visible as a threat, unless you are also legally authorized to shoot somebody in self defense. This is where the confusion comes in. If you don't shoot, does it mean that deadly force wasn't legal? NO, not at all. However, a prosecutor may try to prove that lethal force wasn't authorized so therefore you are guilty of "brandishing". The fact that you did not shoot is irrelevant unless you state that you had no intention of shooting at the instant you decided to draw your weapon. If you had no intention of shooting, you obviously did not believe that deadly force was necessary, and you are guilty of brandishing. But, if you intended to shoot then you did not "brandish", you were preparing to use deadly force. If events unfolded such that you no longer needed to apply deadly force, your actions were all completely legal.

Finally, as to the issue of "shooting to kill", it is an important one. If you shoot, you may or may not kill the attacker. A prosecutor or a personal injury attorney may try to portray the shooting as unnecessary, and one way to do that is to get you to admit that you were only trying to scare or wound the attacker. If you say such a thing, you are apparently admitting that you did not believe that deadly force was necessary, and therefore you cannot argue that your shooting was justified.

If you shoot with legal justification, you are authorized by law to use deadly force in order to stop the attack. The law is not authorizing you to kill, the law is approving the use a level of force which might result in the death of the attacker, but because of the level of threat being made to your life it becomes reasonable to use such strong force.

We always shoot to stop. Period.

We never shoot to injure. Period.

Lawyers are welcome to correct anything that I've posted here which is incorrect. I believe that in general these concepts are valid, but your locality may have additional legal considerations.

 

[Rob Longenecker]

Excellent! Clear. Well done.

 

[retired]

A very concise, logical essay. Excellent job. I believe the info re the brandishing should clear up some misconceptions for some.

We were always trained to stop the threat in my dept. Of course, this might mean 10 or more shots if the threat continues. And, also of course, the public couldn't understand this. They felt we should have shot the weapon out of their beloved's hand. Even tho the net effect might be a dead suspect, one would certainly not get on the stand and say, "I shot to kill." Might have a little trouble keeping your job and keeping out of jail.

Again, Fly-Sig, an excellent post.

 

[one-eyed-fatman]

Excellent! Clear. Well done.

I agree. Excellent! Clear. Well done. Unfortunately you may find out in court the law is not Excellent! Clear. Well done.

 

[[TASF]Overkill]

I agree. Excellent! Clear. Well done. Unfortunately you may find out in court the law is not Excellent! Clear. Well done.

+73 billion.

 

[Hornetsnest]

A very concise, logical essay. Excellent job. I believe the info re the brandishing should clear up some misconceptions for some.

+1

They felt we should have shot the weapon out of their beloved's hand.

I LMAO every time I hear someone say that.

 

[JimLongley]

Excellent treatise.

Now consider this:

I am a lower level IDPA shooter, I can draw from concealment and fire my first shot, accurately, in less than 1.5 seconds and my average shot to shot time is about .5 seconds give or take transitioning from target to target. Thus my TIME ZERO to TIME ONE time is less than 1.5 seconds and my TIME ZERO to TIME TWO time, depending on the number of threats and shots fired necessary, at a guess of two shots per threat is (a formula: SHOTS = THREATS x 2, TIME TWO = 1.5 + ((SHOTS - 1)x.5) seconds, which yields:

For one threat TIME TWO = 1.5 + ((2 - 1)x.5) seconds = 2 seconds.
For two threats TIME TWO = 1.5 + ((4 - 1)x.5) seconds = 3 seconds.
For three threats TIME TWO = 1.5 +((6 - 1)x.5) seconds = 4 seconds.
For four threats TIME TWO = 1.5 +((8 - 1)x.5) seconds = 5 seconds.

Which is enough, I think, for the example because anything beyond that may involve a reload ( for 1911 carriers) or not, which would drastically change the formula. OTOH, if you have already stopped four of the threats in five seconds, chances are that any more might be rethinking the adviseability of carrying on the attack.

OK, why the above exercise? Well, I am a Marksman classified IDPA shooter, which is the lowest classification above Novice, so I am not the best or fastest shooter around, by far. If I can do it that fast, then there are lots of others that can do it faster than me. And don't forget those are ballpark figures based on my usual times and do not reflect personal bests (draw from concealment, with two shots on target in 1.36 seconds) and such.

So between TIME ZERO and TIME TWO, with TIME ONE in transit, there is not a lot of time for thinking, just reacting, and the "shooting to stop the threat" reasoning becomes very important.

Of course if it takes more then two shots to stop each or any threat, it throws my silly little formula right out the window, but all I was doing was using it to make the example of how little time there might be.

 

[So Flo]

Good refresher information, thanks.

 

[ArmoredXD]

if you draw, you must shoot to incapacitate the individual. meaning stop the threat.

 

[NExd]

pretty close to accurate.

In general, here is the law covering said topics

People, just realize we never want to ever be involved in a shooting. More than likely you will go up against a jury of your peers unless it is clearly justifed. I have had extensive discussions with my Crim law professor/assistant district attorney regarding self defense, and frankly, it scares me their outlook on the matter, especially if someone is breaking into your house. :shock:

Remember that common law self defense requires you to retreat "to the wall" (if possible, and that you have to be threatened with serious bodily harm / death to justify the use of self defense. Many states modified their self defense from this standard to not absolutely requiring retreat but approaching the opportunity to retreat as relevant to reasonableness. Hence here, you get some major judgment calls when it is reasonably necessary to use self defense

In sum, many states for self defense, the defendant must show that he reasonably believed that:
1. It was necessary to defend himself
2. phsyical harm was threatened
3. harm was imminent/about to be inflicted
4. harm was unlawful
5. harm required the defensive force actually used (and use of only amount of force reasonably necessary to prevent the harm)

and for deadly force, all of the above including:
1. reasonably believed that death or serious bodily injury was imminent
and
2. reasonably believed deadly force was necessary to prevent it

If he would have realized, or in the exercise of reasnable care would have realized, that nondeadly force would suffice, she has no defense to a crime consisting of the use of deadly force. If you shoot someone and it was under a unreasonable belief that it was necessary, you likely have a manslaughter charge and 15 years of pound me int he ass time.

Summary, If you can get away, get away. Using a firearm to accomplish this is not against the law. Brandishing a firearm has a built in affirmative defense, which is self defense or defense of others. If you are in a situation where a reasonable "man" would have done the same thing, you are fine. If you are in a gray area, you likely will go before a jury and you will have the burden of proof that it was warrented given the situation.

My two cents, realize above rules are general but very accurate for most states.

 

[JimT]

keep in mind, according to a national survey conducted by John Lott, 98% of the time people use guns defensively, they merely have to brandish a weapon to break off an attack

 

[03RangerXLT]

of course, blast me for this, bu I have seen a cpuple of episodes of cops whgere a civie has drawn and held a suspect by gunpoint only to have teh cops show up and thank teh cicie for soing what he did. Seems like a good time for the civie to draw his weapon.

 

[Arrowman]

very well put and well articulated. my only thing to say to it and im sure somewhere in there that it is assumed that thru it being a situation that demands deadly force, that it is a situation in which one could not safely remove oneself from. i know deadly force laws differ from place to place, but i think you have a very clear and rational universal way to look at it, it will only require minor tweaking as local law requires. again...well done. +1 in the respect column for you if this is your own original thought on the subject. no accusations, just want to make sure the respect given were due.

 

[Delija]

Thank you for your very clear and logical explanation. I have been one of those who has been unsure of what the rules really are.

I am still not completely clear on how much time is a reasonable amount of time in which to re-consider your actions once your actions go into motion.

You were within the law to apply lethal force at all moments between TIME ZERO and TIME ONE. Therefore, no matter what happens next your previous actions cannot become illegal.

...........................

The other possibility is that the attackers cease. At this time, your authorization to use deadly force expires.

you stopped just milliseconds prior to pulling the trigger.

The legal principle that we discussed earlier comes into play here. What you did between TIME ZERO and TIME ONE was legal and could not be made illegal after the fact.

However, if a criminal threatens you with a knife, you are not "brandishing" your XD when you pull it out, you are preparing to use it as deadly force to defend your life.

THerefore, you should not draw your XD, or pull up your shirt to make it visible as a threat, unless you are also legally authorized to shoot somebody in self defense.

Finally, as to the issue of "shooting to kill", it is an important one.

We always shoot to stop. Period.

We never shoot to injure. Period.

I hope my "edit" does not make any of this go out of context.....my intent was only to leave in the statements that seem confusing (to me) regarding the "expiration" of the authority to use deadly force. And also to leave in your very well stated explanations of what distinguishes "brandishing" from using the threat of a gun to diffuse a situation with the legal display of a firearm. And lastly the shoot to injure issue you so nicely defined.

"no matter what happens next your previous actions cannot become illegal".
this seems not to fit well with:
"The other possibility is that the attackers cease. At this time, your authorization to use deadly force expires."
Seems like so little time between drawing a gun and firing it to be able to take that time and reassess. I guess it's the "no matter what" part I am stuck on.

Once again, I especially appreciate how you so nicely addressed the "brandishing" issue and the "shoot to injure" issues.
Thanks again.

Peace,
D.

 

[Delija]

pretty close to accurate.

I have had extensive discussions with my Crim law professor/assistant district attorney regarding self defense, and frankly, it scares me their outlook on the matter, especially if someone is breaking into your house. :shock: ......

................Remember that common law self defense requires you to retreat "to the wall" (if possible, ...........

...........Summary, If you can get away, get away. ..

I believed the "Castle Doctrine" (right to stand your ground in your home or place of business) was applied universally. Apparently I was wrong if what you say is true. If it is NOT universal, it certainly does apply in Florida. When I tried to find out more about the Castle Doctrine, I only recall that it predates American History. I thought it was part of western common law.

Peace,
D.

 

[MonkeyWithAGun]

pretty close to accurate.

I have had extensive discussions with my Crim law professor/assistant district attorney regarding self defense, and frankly, it scares me their outlook on the matter, especially if someone is breaking into your house. :shock: ......

................Remember that common law self defense requires you to retreat "to the wall" (if possible, ...........

...........Summary, If you can get away, get away. ..

One of the things that the prosecutor that spoke to us said when asked was that (in Missouri atleast) you DO NOT have to retreat in your home. However, deadly force was still not justified unless threatened with bodily harm.

 

[NExd]

pretty close to accurate.

I have had extensive discussions with my Crim law professor/assistant district attorney regarding self defense, and frankly, it scares me their outlook on the matter, especially if someone is breaking into your house. :shock: ......

................Remember that common law self defense requires you to retreat "to the wall" (if possible, ...........

...........Summary, If you can get away, get away. ..

One of the things that the prosecutor that spoke to us said when asked was that (in Missouri atleast) you DO NOT have to retreat in your home. However, deadly force was still not justified unless threatened with bodily harm.

That is true, that is actually almost universal common law, but your still going before a jury 90% of the time.

 

[NExd]

of course, blast me for this, bu I have seen a cpuple of episodes of cops whgere a civie has drawn and held a suspect by gunpoint only to have teh cops show up and thank teh cicie for soing what he did. Seems like a good time for the civie to draw his weapon.

ranger had a good friday night

 

[NExd]

pretty close to accurate.

I have had extensive discussions with my Crim law professor/assistant district attorney regarding self defense, and frankly, it scares me their outlook on the matter, especially if someone is breaking into your house. :shock: ......

................Remember that common law self defense requires you to retreat "to the wall" (if possible, ...........

...........Summary, If you can get away, get away. ..

I believed the "Castle Doctrine" (right to stand your ground in your home or place of business) was applied universally. Apparently I was wrong if what you say is true. If it is NOT universal, it certainly does apply in Florida. When I tried to find out more about the Castle Doctrine, I only recall that it predates American History. I thought it was part of western common law.

Peace,
D.

Even with the castle doctrine, expect to go before a jury. She really freaked me out, and this is in conservative country. You basically dont have to retreat, but the prosecutor will likely try to nail you to the wall for the other elements of self defense/deadly force. The castle doctrine wil remove part of the burden to retreat but wont take the reasonable element out. If the prosecutor wants to be a dick, they can easily. You will especially run into this issue when the person is a neighbor, etc. where they might be drunk and confused


Long story short. Avoid at all costs. Last resort. That is all I got to say reguarding this threa.d The rest you roll the dice for a understanding prosecutor

 

[awbrollini]

This should be different in the state you live in.

In Arizona you have the right to *threaten* (sp?) deadly force to protect property. Someone is breaking into your car and you come up on him you can draw your weapon, point it at his head, and say you'll use it. You just can't. You cannot actually *use* deadly force to protect property.

If you then place him into Citizen's Arrest, once he is "arrested" you can use as much force as necessary to keep him detained. Somebody's earlier comment about the COPS episode is very true. BUT that's why i'm going to get a pair of cuffs. Better to put him in cuffs and wait for the cops than to have cops roll up to you with your weapon pointed at somebody. Also for people to continue to drive by and naturally freak out at what they are seeing.