Disproportionate Response?

[Punisher84]

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.

That is pretty much the biggest issue. There are alot of guys out there that are average size and don't look menacing at all. To bad they have 20 years of 8 different types of martial art and special forces training uder their belt. Really to bad they just decided to go the heck off and are now trying to kill you.

Likely scenario? Probably not, but it does go to what you know when the threat is taking place. If a guy punches you, you better not shoot him. If you fall to the ground and he is trying to stomp your head into the ground...different story.

It's a weird what if. You really are looking at 1000 different variables.

[Guest Phantom6]

All of this falls under a legal notion known as "the theory of the reasonable man". Remember that the following will be important in your defense:

1. The use of deadly force is a tool of LAST RESORT.
   
2. Whatever level of force you use in response to an aggressor you must be able to properly articulate in a court of law, before a jury of your peers, just what and why you responded as you did.
   

[Guest db99wj]

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.

True, however, we need to discuss what if's. Each time a "what if" scenario comes up, I learn a little. Some times there is good info, sometimes there is bad info. And very true about there is "no way to come up with a pre-planned response system to every threat out there". But the way I look at it is like taking a training class at the range, except these "what if's" are training for the mind. They help me be aware of my surroundings more, and run scenarios as I am seeing different things.

All the training in the world from the best instructors in the world, can only do so much for you due to as you mentioned, there are 1000's of variables that will take place.

So you and a neighbor get in an argument over the property line, he punch's you in the face, and kicks you in the nutz, you really don't need to shoot him. Guy kicks down your door.....that is fearing for your life. Guy mugs you at the ATM and has a weapon...I'm fearing for my life, drunk guy at a sporting event...not fear of my life, carjacking....fear for my life.

Also, the mentality of the DA and police. It appears that here in Shelby County, they are supportive of self defense cases. Your results may vary.

Great discussion. Got me thinking.

[Guest Matchguy]

All of this falls under a legal notion known as "the theory of the reasonable man". Remember that the following will be important in your defense:

1. The use of deadly force is a tool of LAST RESORT.
   
2. Whatever level of force you use in response to an aggressor you must be able to properly articulate in a court of law, before a jury of your peers, just what and why you responded as you did.
   

Excellent comment, sir. There is another very important factor we need to consider here if we're going to discuss levels of threat and levels of force, and it is related to Phantom 6's comment about deadly force being a last resort.

As I've come to understand self defense law over the years, the law requires that a person using deadly force in defense of his life only do so in response to a reasonable fear that another person is about to inflict death or great bodily harm. But the factor I failed to mention in my earlier post is that I was always trained to understand that bare fear alone is not sufficient to warrant the use of deadly force......that the fear must be accompanied by the other party having the present ability to inflict such a wound. This, in turn, becomes a part of establishing that your fear was the required reasonable fear, and goes back to establishing whether or not an unarmed assault was sufficient to cause death or great bodily injury.

An example of this principle would be: the late night knock on the door.....you generally would be found wrong in firing through the door and blasting the person off you doorstep merely because he scared you with his late nite knock. By firing before investigating, and having only the late hour and the knock to go on, you had no reason to believe he had the "present ability" to inflict death or great bodily harm and you lacked the required reasonable fear that your life was in jeopardy. The last time I answered my door late at night I had a very big revolver behind my leg and when I yelled: "Who is it?" the knocker replied; "It's Charley from across the street. A drunk just hit your car at the curb and totalled it out." I recognized his voice and went outside to investigate......Sure enough, my Caprice was five feet shorter than it was when I went to bed.

Whether or not the other party possessed the "present ability to inflict such a wound" will be examined very closely by the jury, and really is at the heart of our discussion about firing in defense against an unarmed assault.

I'm hoping someone among us has time to look up some Tennessee cases and see how the courts have ruled on this issue in the past. Only then will we have a solid answer to our question.

Best wishes,

MG

Edited January 22, 2009 by Matchguy

[Fallguy]

The trouble is what you think puts you in fear of your life may or may not put someone else in the same fear...or even worse a jury may not see it as a reasonable fear.

When I used to dispatch 9-1-1 I got many calls that weren't true emergencies and no one with any common sense would think was an emergency, but many of the people that made those calls thought it was an emergency...at least to them.

[Guest db99wj]

The trouble is what you think puts you in fear of your life may or may not put someone else in the same fear...or even worse a jury may not see it as a reasonable fear.

When I used to dispatch 9-1-1 I got many calls that weren't true emergencies and no one with any common sense would think was an emergency, but many of the people that made those calls thought it was an emergency...at least to them.

We should probably make the assumption that we are not "those" types that call 9-1-1 when they have a hang nail or when baby daddy is drunk again and won't get up..or they need to go to the er for a headache..... I bet you could spend a day just telling us about crazy 9-1-1 calls.

Knocking....don't shoot through the door

Kicking my door...not going to shoot through the door

Breaking down my door......at the least they are going to look up and be starring down the barrel of a .45....oh wait that is a song, a .40 in my case.

Broke down door and is standing in my dinning room..... I'm retreating due to recoil..

[Smith]

The trouble is what you think puts you in fear of your life may or may not put someone else in the same fear...or even worse a jury may not see it as a reasonable fear.

When I used to dispatch 9-1-1 I got many calls that weren't true emergencies and no one with any common sense would think was an emergency, but many of the people that made those calls thought it was an emergency...at least to them.

People who carry only need 911 after the fact!

[Fallguy]

People who carry only need 911 after the fact!

LOL

My point though was not about calling 9-1-1 in relation to a threat, but that different people can see the exact same situation differently.

[Guest Matchguy]

LOL

My point though was not about calling 9-1-1 in relation to a threat, but that different people can see the exact same situation differently.

Wow. Now you really want me to stick my neck out, don't you? The answer to your last phrase concerning "how different people can see the exact same situation differently," can get sticky. But as a general principle, the law does not necessarily hold the citizen accountable for what the situation actually was. Rather, the citizen in held accountable under the law for what he reasonably beleved the situation to be.

Let's say some nut wants to commit suicide by cop and pulls an empty gun on an officer and begins to bring it up to aim it at him during a traffic stop, and the officer draws and shoots him before he can fully raise the gun. Is the officer expected to know the other guy's gun was empty? Nope. He had every reason to believe his life was in jeopardy and responded with a level of force authorized by law. The same holds true for the armed citizen in the same situation. (By the way, a peace officer's right to self defense is identical to the citizen's right to self defense. They both answer to the same standards.)

The critical issue here goes back to a comment made by a gentleman earlier that the principle of the "reasonable man" prevails to protect us here.....i.e. we will be judged by the jury asking "what would a man of ordinary reason and prudence believe under these circumstances?" This gives us some latitude for understanding that people can see things a little differently based on their individual life experiences. Self defense law is pretty strict, but is usually pretty reasonable at the same time, or at least most juries are. IMHO.

MG

Edited January 22, 2009 by Matchguy

[Fallguy]

I agree on the statements about reasonable MG.

What I was saying just as the person who called 9-1-1 about the neighbor's dog barking thought it was an emergency. You may have someone on here say that if a person is saying they are going to kick their but, it is reasonable to them to shoot them. Which I don't think much of us would think is reasonable. So the answers recieved from asking for advice or specifics on this need to be taken with a grain of salt, is what I am trying to say.

[Guest grimel]

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?

I'm pretty sure it says grevious bodly injury.

You are showing typical response to having only a hammer as a tool, every problem must be a nail. What you need is a greater tool selection. Learn to use an impact weapon, OC spray, and/or a good method of H2H.

This gives you the honest statement - I tried everything I could before I shot him.

[Guest Matchguy]

I agree on the statements about reasonable MG.

What I was saying just as the person who called 9-1-1 about the neighbor's dog barking thought it was an emergency. You may have someone on here say that if a person is saying they are going to kick their but, it is reasonable to them to shoot them. Which I don't think much of us would think is reasonable. So the answers recieved from asking for advice or specifics on this need to be taken with a grain of salt, is what I am trying to say.

I get your point and I'm sorry if I misunderstood you earlier, Fallguy. I certainly agree that opinions on the subject should be viewed as opinions and not necessarily law or fact.

I have a friend who teaches the HCP course, has a law degree and used to be a prosecutor here in Tennessee. I'll bend his ear about all this in the near future and see if I can get some cases we can look at on the subject and eliminate some of the questions we have.

I've been laid up for about three months and am going away for the weekend to get out of the house for the first time in many moons. You guys have a good weekend.

MG

[Fallguy]

I get your point and I'm sorry if I misunderstood you earlier, Fallguy. I certainly agree that opinions on the subject should be viewed as opinions and not necessarily law or fact.

I have a friend who teaches the HCP course, has a law degree and used to be a prosecutor here in Tennessee. I'll bend his ear about all this in the near future and see if I can get some cases we can look at on the subject and eliminate some of the questions we have.

I've been laid up for about three months and am going away for the weekend to get out of the house for the first time in many moons. You guys have a good weekend.

MG

No worries...

Those that said this is good discussion are not all wrong either.

Court cases are always a good reference.

Have a great weekend!!

[towerclimber37]

this sort of discussion always reminds me of something that happened when I was stationed at ft. Hood.

there was a guy in Austin that was driving in his truck. a delivery van comes along and swipes off his mirror and fails to stop. the guy pulls along side and it's a huge samoan driving the truck (open door type...think UPS trucks).

the Samoan fails to stop and actually tries to get away from the guy....the guy stops beside him at a red light and says..it's ok, you can run if you like now..I have your tag number.

the Samoan jumps out and starts punching the man through the open window of his truck. the man yells stop after the first punch..the 2nd punch breaks his jaw.

he pulled his pistol and shot the samoan point blank in the chest. His case was justified ONLY because he said "stop"..

under the laws at that time..if he hadn't said that, he would have been found guilty of manslaughter.

go figure!!

turns out, the Samoan had a record of spouse abuse and lots of charges on him for assault.

Using a firearm to stop a hands on type confrontation is NOT going to go well for you afterwards, unless you can, Like Phantom said, articulate to a jury of your peers that you were in serious danger.

[strickj]

I'm pretty sure it says grevious bodly injury.

You are showing typical response to having only a hammer as a tool, every problem must be a nail. What you need is a greater tool selection. Learn to use an impact weapon, OC spray, and/or a good method of H2H.

This gives you the honest statement - I tried everything I could before I shot him.

Yeah,I left out "severe" or whatever it is.

But,what I'm saying is that I'm,as in me,and me alone,am not going to fight back with punches because I'm not expected to because of my disadvantage....

[houndawg75]

WOW! This discussion has gotten pretty intense. As others have said I think it all depends on the situation, and perception of the situation to responding officers, the DA, the judge and the jury. I think probably the best option is to use your Miranda rights until your attorney is present. Don't volunteer any information to anyone, and don't speak to anyone until your attorney is present. There are very few clear disproportionate responses. Using a sledghammer to drive a finish nail, a shotgun to kill a fly are a couple of examples. Unfortunately, you may not always have time to properly asess a self defense situation. That is a fact that you should definately exploit if you find yourself in that predicament. You have to react with the best information you have available at the given time.

[DaveTN]

As others have said I think it all depends on the situation, and perception of the situation to responding officers, the DA, the judge and the jury.

I think probably the best option is to use your Miranda rights until your attorney is present. Don't volunteer any information to anyone, and don't speak to anyone until your attorney is present.

Depending on the circumstances that may be one option; it is up to you to know if it is the best option or not. If your shoot is questionable or you aren't sure it might be your best choice.

[ngoeser59]

In my permit class it was presented to me like this...... If a man has a baseball bat and threatens to knock your head off your shoulders with it and you are on one side of a car and the bad guy is on the other side of the car.....you CANNOT draw your weapon until your life is actually in danger. In other words, the bad guy would have to walk around to the same side of the car that you are on before you can draw & fire. If you draw and fire while he is on the other side of the car it equals murder. If he comes over to your side...it is self defense.

[Guest jwb68]

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

So what does this mean.

"Where great bodily violence is being inflicted, or threatened, upon a person, by one much stronger and heavier, with such determined energy that the person assaulted may reasonably apprehend death or great bodily injury, he is justifiable in using a deadly weapon upon his assailant. It makes no difference whether the bodily violence is being, or about to be, inflicted with a club, or a rock, or with the fists of an overpowering adversary of superior strength and size."

Bitner v. State 130 Tenn. 144, 169 S.W. 565

[TGO David]

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.

This is not good advice and the issue is not black and white at all. Your firearm is your last resort.

[canadienmike]

In my permit class it was presented to me like this...... If a man has a baseball bat and threatens to knock your head off your shoulders with it and you are on one side of a car and the bad guy is on the other side of the car.....you CANNOT draw your weapon until your life is actually in danger. In other words, the bad guy would have to walk around to the same side of the car that you are on before you can draw & fire. If you draw and fire while he is on the other side of the car it equals murder. If he comes over to your side...it is self defense.

I wouldn't quite agree with all of that. I think if I was in that situation I would definately draw and be prepared to fire if he came around after me. It wouldn't take someone long to get to the other side of a car and get a good swing in which might not give you time to draw and fire. I think if someone is threatening you with a baseball bat, you would be justified in drawing the weapon.

[Guest HexHead]

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.

But if the 300 lb body builder is coming after you, you could make a reasonable argument that you were in fear of grave bodily injury.

And that was exactly the example given in my HCP class.

[Punisher84]

But if the 300 lb body builder is coming after you, you could make a reasonable argument that you were in fear of grave bodily injury.

And that was exactly the example given in my HCP class.

Heck yea. I go to the gym with that guy lol He eats toddlers for protein I'm certain of it.

[Superman]

I wouldn't quite agree with all of that. I think if I was in that situation I would definately draw and be prepared to fire if he came around after me. It wouldn't take someone long to get to the other side of a car and get a good swing in which might not give you time to draw and fire. I think if someone is threatening you with a baseball bat, you would be justified in drawing the weapon.

Todd@CIS did a demonstration similiar to this in the class I took. He stood about 20 feet away from one of the other participants and he could cover the 20 feet in about the same time the guy could draw a gun. So depending on how fast the threat is and how fast you can draw your weapon you may or may not be able to defend yourself. If someone is threatening me and a car is between us or not, I will atleast have a grip on my gun and be ready to draw.

[Guest Britestar]

Well, there is some great discussion here. I have mentioned before, I am a former gun shop owner that was LE sales and service for Smith and Wesson as well as a CCW instructor in Fl. there are some difference in the laws in Fl and Tn. In fla a couple of years ago they enacted the no retreat law, however in any situation if you use a gun in defending yourself against a fist fight you will in ALL probabilities go to jail. You can rationalize anything you want but when the prosecutor lays out before a jury that you used a gun against fists, unless there are some extrodainary circumstances you will probably be in alot of trouble. Also I have seen a number of posts both here and other topics and people will say "the law enforcement personel I know interpert it" this way or that generally in favor of what that person believes. Take this as a fact, that all seems to change when they are facing the reality of an actual incident, enforcing the letter of the law (their job) testifying as a LE officer (under the direction of the prosecuting attorney) and answering to their commanding officers. Maybe sad but true.