Disproportionate Response?

[waynesan]

Perhaps this has been discussed before but a search did not give me any results so here's my question. Does the law define what many refer to as "disproportionate response"?

A host on a local talk show said this week that you cannot use a weapon to defend yourself unless your assailant has a weapon. He said if you are a reasonably physically fit individual and some thug tells you he is going to beat the crap out of you, then you do not have the right to use a gun to defend yourself from attack. I think he's wrong in his interpretation of the law but that is what he said.

Now I know the law says that you can use a weapon to defend yourself if you have a reasonable belief of an imminent danger of death or serious bodily injury and quite frankly, I would assume that someone coming at me, with the intention of hitting me, is attempting to cause me "serious bodily injury." But I was wondering if there are any actual cases where the "theory" of disproportionate response played a part in how someone was treated for using a weapon in self defense.

[Smith]

You are correct in your interpretation. Keep in mind if you shoot till the threat is neutralized (as my instructor put it... not to mention several LE firends!) there will only be your word.

[Fallguy]

I had something longer typed up but decided to just go with this...

There is no black and white answer....

[Guest tedbo]

That has kind of been rolling in the back of my mind also.

Having broken my back 2 1/2 yrs ago I don't have near the abilities I used to.

I am back to doing things around the farm.

I know that after my injury I really don't look to wrassling with someone out to do me bodily injury.

It has taken me SO much to get up to the level of health I have now.

Some days I feel like I used to,other days I feel like I'm 90 yrs old.

[waynesan]

Tedbo, that's exactly why this question has bothered me as well. Anyone who looks at me would probably think for a middle 50's guy that I'm in pretty good shape and could handle myself in a physical confrontation. But my deteriorated disk that gives me a constant backache and my slightly out of whack rotator cuff prevent me from being able to bring the appropriate force to the game if the need should arise. Therefore I must rely on force bought at the gunstore to see me through the tough times should they appear.

[Guest bkelm18]

I think it applies differently to each person what they consider a threat of death or bodily injury. Some scrawny little crackhead coming at you with a bat may be perceived as a serious threat to the average person, but maybe not so much to a 300 lb body builder who can bench press a Volkswagen. You would be justified in killing the crackhead whereas the gigantor might not be able to convince whoever that he was in serious fear of his life.

[Guest SUNTZU]

That is why I took the PPCT/ expandable baton class. If a guy comes at you with a bat, that's assault and deserves a gun IMO. If he came barehanded, use the baton, if he pulls a knife, pull a gun. The PPCT/expandable baton class is worth every penny.

[BrasilNuts]

I think it applies differently to each person what they consider a threat of death or bodily injury. Some scrawny little crackhead coming at you with a bat may be perceived as a serious threat to the average person, but maybe not so much to a 300 lb body builder who can bench press a Volkswagen. You would be justified in killing the crackhead whereas the gigantor might not be able to convince whoever that he was in serious fear of his life.

Is gigantors skull thicker than a smaller mans? Is he knee better protected or more able to absorb a blow due to his size? Size is not really a good argument here, IMO. No doubt I am quite a bit larger than Chuck Norris, no doubt he could kick my butt. I am a large man, if someone tries to attack me I am going to try to shoot them. If all they have are their fists... Well, they just made a fatal mistake.

I am not going to bet my life on my ability to beat an attacker with my hands when I have a gun.

[Guest bkelm18]

Is gigantors skull thicker than a smaller mans? Is he knee better protected or more able to absorb a blow due to his size? Size is not really a good argument here, IMO. No doubt I am quite a bit larger than Chuck Norris, no doubt he could kick my butt. I am a large man, if someone tries to attack me I am going to try to shoot them. If all they have are their fists... Well, they just made a fatal mistake.

I am not going to bet my life on my ability to beat an attacker with my hands when I have a gun.

It was a simple comparison, please re-read the very first thing I said.

I think it applies differently to each person what they consider a threat of death or bodily injury.

[BrasilNuts]

I understood it all. This was what I was replying to.

You would be justified in killing the crackhead whereas the gigantor might not be able to convince whoever that he was in serious fear of his life.

[Punisher84]

It's really going to depend on if it it goes to trial or not. Remember the Harold Fish incident? The guy was crazy, had a violent history, and had a screwdriver on him. Guess how much of that went to trial? Zip, zero, nada.

I'm 6'3 175 pounds athletic and work Security. I also can claim different belts in 2 different styles of martial arts and basic military training. I am probably not gonna be able to justify shooting 1 unarmed attacker. Now multiple attackers or attackers with weapons, probably so.

The thing to remember is you must be able to defend why you felt the way you did at the time you pulled the trigger. You must be in fear or your life or serious injury.

Fallguy pretty much summed it up when he said there is no black and white.

[Oh Shoot]

It's really going to depend on if it it goes to trial or not. Remember the Harold Fish incident? The guy was crazy, had a violent history, and had a screwdriver on him. Guess how much of that went to trial? Zip, zero, nada...

I think it was not allowed because Fish didn't know the guy, so couldn't know about his history.

Don't remember if the victim deployed the screwdriver or not.

- OS

[Punisher84]

I think it was not allowed because Fish didn't know the guy, so couldn't know about his history.

Don't remember if the victim deployed the screwdriver or not.

- OS

Correct. It wasn't admissable because Fish didn't know these things at the time he shot his assailant. The assailant never deployed the screwdriver.

[Guest Matchguy]

Hello gents,

As a firearms instructor I've run up against this topic many times over the years, and my answer to you in class would run something like this:

The principle of using deadly force in defense of your life, as usually understood, taught, and prosecuted throughout the country, starts with a presumption that an assault with "hands-only" is not sufficient justification for the use of deadly force in response to the assault. Which generally means that you will be required to establish that such an assault gave you a reasonable fear that death or great bodily harm was about to be inflicted on you. If the attacker did so with a gun, the gun's ability to kill would be self evident and you would not have to establish that a gun was capable of inflicting death or great bodily harm. But you WOULD have to establish that fact before the shooting of an unarmed person would be found justifiable in response to an unarmed attack.

There are cases on file in which an unarmed assault was found to fulfill the requirement, and I would encourage you to look into those cases for your guidance, not to rely on opinions expressed by your internet friends. Generally you are very unwise to try and write your own personal self defense law, since self defense law is the oldest and most well developed law we have.....it literally goes all the way back to the days of the 13 Colonies, and case law on the subject would fill a football field to a depth of at least a foot. Probably the best answer an instructor could give you in such an instance is: "It depends on the Prosecutor you get" or "It depends on the jury you get." But one thing is for certain: If your response appears obviously excessive on the face of it, such as shooting an unarmed man, you'd better get a good lawyer and count on a trial. No prosecutor or police chief is going to dismiss it on his own authority.

Think these courts' findings over. If you shoot an unarmed man, these cases and many like them from throughout the country will be part of the body of law that will apply to the finding. The first is a 1922 California case that has plenty of company in other states:

"A simple assault does not justify homicide." People v. Anderson (1922) 208 P. 204,57 C.A. 721. So you can see from this that the burden of proof will be on you to establish that the assault was life threatening, and you can also see why prosecutors aren't going to be very willing to dismiss such a case without a trial.

Here is another California case that is a strong precedent in such matters and is common in principle to most states: "Justifiable homicide connotes only the use of force which is necessary, or which reasonably appears to be necessary, to resist other party's misconduct; and use of excessive force destroys the justification." People vs. Young (1963) 29 Cal. Rptr. 595, 214 C.A.2d 641.

So, just remember (1) that the law nationwide has always required that a defensive response to an attack be proportionate to the level of force posed by the attack, and that the principle cannot usually be overcome without the most compelling of justifcations, and (2) be careful where you get your answers when you start discussing "what if's", or which circumstances would constitute "the most compelling of justifications" I just mentioned. The wrong answer can put someone in prison for a long, long time. Look to the law.

Thanks for listening

MG

Edited January 21, 2009 by Matchguy

[Guest db99wj]

Hello gents,

As a firearms instructor I've run up against this topic many times over the years, and my answer to you in class would run something like this:

The principle of using deadly force in defense of your life, as usually understood, taught, and prosecuted throughout the country, starts with a presumption that an assault with "hands-only" is not sufficient justification for the use of deadly force in response to the assault. Which generally means that you will be required to establish that such an assault gave you a reasonable fear that death or great bodily harm was about to be inflicted on you. If the attacker did so with a gun, the gun's ability to kill would be self evident and you would not have to establish that a gun was capable of inflicting death or great bodily harm. But you WOULD have to establish that fact before shooting an unarmed man would be found justifiable in response to an unarmed attack.

There are cases on file in which an unarmed assault was found to fulfill the requirement, and I would encourage you to look into those cases for your guidance, not to rely on opinions expressed by your internet friends. Generally you are very unwise to try and write your own personal self defense law, since self defense law is the oldest and most well developed law we have.....it literally goes all the way back to the days of the 13 Colonies, and case law on the subject would fill a football field to a depth of at least a foot. Probably the best answer an instructor could give you in such an instance is: "It depends on the Prosecutor you get" or "It depends on the jury you get." But one thing is for certain: If your response appears obviously excessive on the face of it, such as shooting an unarmed man, you'd better get a good lawyer and count on a trial or coronor's hearing. No prosecutor or police chief is going to dismiss it on his own authority.

Think these courts' findings over. If you shoot an unarmed man, these cases and many like them from throughout the country will be part of the body of law that will apply to the finding. The first is a 1922 California case that has plenty of company in other states:

"A simple assault does not justify homicide." People v. Anderson (1922) 208 P. 204,57 C.A. 721. So you can see from this that the burden of proof will be on you to establish that the assault was life threatening, and you can also see why prosecutors aren't going to be very willing to dismiss such a case without a trial.

Here is another California case that is a strong precedent in such matters and is common in principle to most states: "Justifiable homicide connotes only the use of force which is necessary, or which reasonably appears to be necessary, to resist other party's misconduct; and use of excessive force destroys the justification." People vs. Young (1963) 29 Cal. Rptr. 595, 214 C.A.2d 641.

So, just remember (1) that the law nationwide has always required that a defensive response to an attack be proportionate to the level of force posed by the attack, and that the principle cannot usually be overcome without the most compelling of justifcations, and (2) be careful where you get your answers when you start discussing "what if's", or which circumstances would constitute "the most compelling of justifications" I just mentioned. The wrong answer can put someone in prison for a long, long time. Look to the law.

Thanks for listening

MG

Good first post and welcome to TGO.

[Guest Matchguy]

Thank you Sir for both the compliment and the welcome. I'll try not to be too big of a trauma to the tailfeathers.

MG

[Punisher84]

I'll second Db99wj. Excellent post and welcome to TGO Matchguy.

[DaveTN]

As Fallguy said there is no black & white answer, but let me try a short version…

1. You can’t shoot someone because you are afraid of an azz whipping.

2. No one gives a rolling rip down a razor blade if you feel you are in danger of death or great bodily harm. They only care what a reasonable person would feel. And they will make that decision based on the evidence presented to them.

3. The cops first on the scene; the investigating officers, the states attorney; they all have tremendous influence on whether or not you end up in court. There are people involved; so it’s a roll of the dice.

[Punisher84]

As Fallguy said there is no black & white answer, but let me try a short version…

1. You can’t shoot someone because you are afraid of an azz whipping.

2. No one gives a rolling rip down a razor blade if you feel you are in danger of death or great bodily harm. They only care what a reasonable person would feel. And they will make that decision based on the evidence presented to them.

3. The cops first on the scene; the investigating officers, the states attorney; they all have tremendous influence on whether or not you end up in court. There are people involved; so it’s a roll of the dice.

Again well said.

[Guest 270win]

I took my concealed handgun license class in Arkansas. We were taught (per state law) to retreat in public, IF it is safe to do so. Prosecutors will not go after people in AR when it is clearly a self defense shooting and they didn't retreat. This is used against gang members who claim self defense for shooting their cousins. The safe to do so retreat does not include using deadly force to stop burglary or arson. You cannot be sued in AR for using legal deadly force...it has been on the books there for 25 years.

Though TN's laws are different regarding deadly force in public, I think it is still wise to avoid at all cost confrontation/deadly force. Deadly force should always be regarded as a last resort. It is better to punch the gas and drive away from a car jacker, if possible, and not deal with police and prosecutors. Each situation is different and justifiable homicide (is it called that in TN?) is judged often by the facts available. You will be regarded in a more favorable light if it appeared you had no other option than deadly force, than if you were in public 50 yards from a thug who is yelling that he wants your car, and taking that 50 yard shot! My instructor in AR said that if you are shooting at someone in public further than 10 yards and claiming self defense....you could have problems.

[strickj]

Hello gents,

As a firearms instructor I've run up against this topic many times over the years, and my answer to you in class would run something like this:

The principle of using deadly force in defense of your life, as usually understood, taught, and prosecuted throughout the country, starts with a presumption that an assault with "hands-only" is not sufficient justification for the use of deadly force in response to the assault. Which generally means that you will be required to establish that such an assault gave you a reasonable fear that death or great bodily harm was about to be inflicted on you. If the attacker did so with a gun, the gun's ability to kill would be self evident and you would not have to establish that a gun was capable of inflicting death or great bodily harm. But you WOULD have to establish that fact before the shooting of an unarmed person would be found justifiable in response to an unarmed attack.

There are cases on file in which an unarmed assault was found to fulfill the requirement, and I would encourage you to look into those cases for your guidance, not to rely on opinions expressed by your internet friends. Generally you are very unwise to try and write your own personal self defense law, since self defense law is the oldest and most well developed law we have.....it literally goes all the way back to the days of the 13 Colonies, and case law on the subject would fill a football field to a depth of at least a foot. Probably the best answer an instructor could give you in such an instance is: "It depends on the Prosecutor you get" or "It depends on the jury you get." But one thing is for certain: If your response appears obviously excessive on the face of it, such as shooting an unarmed man, you'd better get a good lawyer and count on a trial. No prosecutor or police chief is going to dismiss it on his own authority.

Think these courts' findings over. If you shoot an unarmed man, these cases and many like them from throughout the country will be part of the body of law that will apply to the finding. The first is a 1922 California case that has plenty of company in other states:

"A simple assault does not justify homicide." People v. Anderson (1922) 208 P. 204,57 C.A. 721. So you can see from this that the burden of proof will be on you to establish that the assault was life threatening, and you can also see why prosecutors aren't going to be very willing to dismiss such a case without a trial.

Here is another California case that is a strong precedent in such matters and is common in principle to most states: "Justifiable homicide connotes only the use of force which is necessary, or which reasonably appears to be necessary, to resist other party's misconduct; and use of excessive force destroys the justification." People vs. Young (1963) 29 Cal. Rptr. 595, 214 C.A.2d 641.

So, just remember (1) that the law nationwide has always required that a defensive response to an attack be proportionate to the level of force posed by the attack, and that the principle cannot usually be overcome without the most compelling of justifcations, and (2) be careful where you get your answers when you start discussing "what if's", or which circumstances would constitute "the most compelling of justifications" I just mentioned. The wrong answer can put someone in prison for a long, long time. Look to the law.

Thanks for listening

MG

This is not California!

Quoting cases from there just doesn't do it for me.

If someone comes at me,I'm reacting with deadly force.

Countless people have been killed by hands,and hands alone,and I'm not risking my life because some judge in CA was anti-gun.

As far as "it depends on the attacker,and defendants circumstances",well I think I would have a pretty damn good defense that I was in danger over other folks

Edited January 22, 2009 by strickj

[Guest Matchguy]

If someone comes at me,I'm reacting with deadly force.Countless people have been killed by hands,and hands alone,and I'm not risking my life because some judge in CA was anti-gun.

As far as it depends on the attacker,and defendants circumstances,well I think I would have a pretty damn good defense that I was in danger over other folks

Looks like you missed the part about not trying to write your own personal self defense law. MG

[Guest Revelator]

I too think Fallguy said it best. The bottom line is that it's all going to depend on the facts of that particular situation. There's no way to come up with a pre-planned response system to every threat out there. There are too many variables. You can certainly go over them in your head, but how you come out legally from a deadly force encounter is really going to be a lot like how you come out physically--a lot of it's going to come down to discretion, common sense, and quite frankly, luck.

[strickj]

Looks like you missed the part about not trying to write your own personal self defense law. MG

What am I writing?

The law says immediate fear of of body injury or death......if people have died by hands,how am I writing anything?

[Guest Boomhower]

This is a touchy subject. There is no way of knowing what an attacker coming at you is capable of doing, with or with out a weapon. But I can tell you that I would rather be standing up with full intent of using what I have with the fear of prosecution in the furtherest reaches of my mind, than laying on my back fighting for my life hoping with all hopes that once panic mode sets in, you've mentally prepared to overcome your emotions.

Yes, touchy subject indeed.