Defense loads and the law

[Palmach]

Originally Posted by Dhaught

You hope the defense attorney will have pictures like that to show and work that angle. How good of an attorney can you afford? Maybe a really good one, maybe a mediocre one, maybe none.
Maybe he didn't have a gun. The guy in the case that was shot with a 10mm didn't have a weapon, or at least he didn't wield the screwdriver he was found to have in his back pocket. The defendant in the case claims the guy was charging him and acting insane saying he was going to kill him and that he had no good retreat path because he was on a mountain trail. No other witnesses.

I wish someone would chime in that remembers that case, I read about it a month ago but I can't find it now.

I think the defendant was a teacher, at the least he was a family man and well regarded. The other guy was a loner and lived in his car or in the mountains or something like that but the prosecutor brought in all these character witnesses saying how nice the guy was and that he volunteered at the local animal shelter and all that. I'm trying to find a link to that article.

I just think it would be slightly wreckless to not consider many possible angles in the court case that most likely will follow even a totally justified self defense shooting and to prepare yourself in the best way possible. In a perfect world you get attacked, you shoot in self defense, it's seen as totally justified, you go home and live a normal life. We don't live in a perfect world, and innocent people go to jail or lose all their posessions in court cases quite often. Just take those things into consideration when choosing a firearm and defensive methods. Crazy big caliber guns can look just as bad in court as you downing the BG with two center mass and one to the head. It has a strong possibility of looking bad in court.

I am just pointing out that whenever an argument is made it leaves out certain possibilities or speculates as to what could have happened.

In your scenario above what I see missing is a reason for justifiable use of deadly force. To repeat, I am not saying use of defensive force, but use of justifiable deadly force.

Bottom line, a guy running at me with no weapon and screaming that he is going to kill me is not a reason for deadly force where I live.

My point from the beginning has never been to dispute the carrying of big guns, as most people cannot comfortably carry them.

My point from the beginning has been proper mindset and training, so that when justifiable use of deadly force is used, there will be little dispute over whether you acted properly.

[Glock Fan]

Originally Posted by Palmach

Bottom line, a guy running at me with no weapon and screaming that he is going to kill me is not a reason for deadly force where I live.

My point from the beginning has been proper mindset and training, so that when justifiable use of deadly force is used, there will be little dispute over whether you acted properly.

Now this is debateable. I stand 5'6" and weigh around 180lbs. Let's say this guy running at me screaming is 6'7" and in the neighborhood of 275lbs. I'm in an enclosed room on the third floor of a residential apartment building. Perhaps the guy is some known MMA (Mixed Martial Arts) champion. In either case, it's very likely that a solid justifiable self defense case can be made. I am not an attorney, but in both cases, I'm sure that any reasonable person would use their defensive firearm to defend themself.

Each case is different and should be evaluated individually. Thing to keep in mind is to take measures to protect yourself and at the same time consider how the prosecution could possibly use your choices against you should you ever need to use your firearm to defend yourself or the life or others.


gf

[Palmach]

Originally Posted by Glock Fan

Now this is debateable. I stand 5'6" and weigh around 180lbs. Let's say this guy running at me screaming is 6'7" and in the neighborhood of 275lbs. I'm in an enclosed room on the third floor of a residential apartment building. Perhaps the guy is some known MMA (Mixed Martial Arts) champion. In either case, it's very likely that a solid justifiable self defense case can be made. I am not an attorney, but in both cases, I'm sure that any reasonable person would use their defensive firearm to defend themself.

Each case is different and should be evaluated individually. Thing to keep in mind is to take measures to protect yourself and at the same time consider how the prosecution could possibly use your choices against you should you ever need to use your firearm to defend yourself or the life or others.


gf

You are making my point by presenting speculative scenarios. This is not the case in the scenario presented. WE do not know the size of the individuals, and we do not know anything but what is presented by the one who is still standing. If I remember correctly, the 10mm incident was on a trail, assuming that this trail was outdoors and not in a third floor apartment of a residential building, then I find it hard to believe that there is no retreat available, even from a 6' 7" mixed martial arts champ that weighs 275lbs.

You say each case, but yet nobody has really presented the details of any case in which a legitimate case of justifiable use of deadly force was successfully civilly prosecuted. This is my point. All we have are scenarios.

Finally, there is the issue of disparity of force. In your example there is one component missing. The alleged attacker does not have a weapon, other than his supposed training. You, on the other hand, possess a deadly weapon. You don't need to be an attorney to understand that you are going to face both criminal charges and likely a civil suit.

Change the scenario slightly and things change. Place a knife, or tire iron, or pipe, or axe, or screwdriver, or even a stick or branch and the story completely changes. Each one of those items while in and of themselves are not considered deadly weapons, except for the knife, they still have the ability to inflict deadly force. You have a much better chance of surviving both criminal charges and civil liability if your attacker is armed.

Shoot an unarmed person who is merely threatening and you have unleashed a storm of legal battles that you could very likely lose. This is the position of most of the pro gun 2nd Amendment attorneys that I have either spoken to or read opinions from.

[Dhaught]

some valid points, some not entirely valid. In the end I guess it is all just personal preference and deciding to carry whatever it is that makes you feel safe. I personally think that going to the extreme end of the weapon spectrum for self defense can and most likely will make you more vulnerable to prosecution but that is just my opinion. I would also definitely consider a bare handed man charging me with death threats to be a deadly threat and worthy of deadly force. I am not a large and powerful person and have no hand to hand combat skills or any desire to let someone get a hold of me to test out my hand to hand prowess. Certainly people have been killed with bare hands before so the unarmed man sceneraio is really impossible if you consider hands and feet to be deadly weapons.
Many of us will have different opinions on these issues so no need to get a 50 page argument going.
That case on the trail happened in the mountains though and I have definitely hiked mountain trails which could be considered as no reasonable means of retreat when confronted by a charging threat. I would not choose to run down a mountain trail or dive over the edge of a hill side if someone was charging me and I had a weapon for self defense.
In the end all you can count on is yourself and your credibility so protect both at all costs and hope you never have to be on the bad end of a DA or civil case PA.

[Glock Fan]

Originally Posted by Palmach

Finally, there is the issue of disparity of force. In your example there is one component missing. The alleged attacker does not have a weapon, other than his supposed training. You, on the other hand, possess a deadly weapon. You don't need to be an attorney to understand that you are going to face both criminal charges and likely a civil suit.

Change the scenario slightly and things change. Place a knife, or tire iron, or pipe, or axe, or screwdriver, or even a stick or branch and the story completely changes. Each one of those items while in and of themselves are not considered deadly weapons, except for the knife, they still have the ability to inflict deadly force. You have a much better chance of surviving both criminal charges and civil liability if your attacker is armed.

Shoot an unarmed person who is merely threatening and you have unleashed a storm of legal battles that you could very likely lose. This is the position of most of the pro gun 2nd Amendment attorneys that I have either spoken to or read opinions from.

Under FL law:

776.031 Use of force in defense of others.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.


The guy doesn't need a weapon to commit a "forcible felony". If the guy is around my size or larger, rushing me and being extremely irrational (as in coming at me full force for no apparent reason), I would do my best to defend myself. At this point I would think that the guy is either 1) mentally disturbed 2) on some type of pharmicuticle (legal or otherwise) or 3) a combination of 1 & 2. In any case, I would do what it takes to defend myself first using "non-deadly" force and escalating to "deadly force" if necessary. Florida law allows for the use of "deadly force" if there are no other options in stopping the attack. (Supreme Court of Florida No. SC06-2436 In Re: Standard Jury Instructions in Criminal Cases 2006-3)

Some guy beating on you while you're on a mountain trail would considered both assault and battery. These are both felonies. Defending yourself would be permissible under applicable laws.

Now that we're way off of the initial thread topic, can we get back on track?



gf

[Palmach]

Originally Posted by Glock Fan

Under FL law:

776.031 Use of force in defense of others.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.


The guy doesn't need a weapon to commit a "forcible felony". If the guy is around my size or larger, rushing me and being extremely irrational (as in coming at me full force for no apparent reason), I would do my best to defend myself. At this point I would think that the guy is either 1) mentally disturbed 2) on some type of pharmicuticle (legal or otherwise) or 3) a combination of 1 & 2. In any case, I would do what it takes to defend myself first using "non-deadly" force and escalating to "deadly force" if necessary. Florida law allows for the use of "deadly force" if there are no other options in stopping the attack. (Supreme Court of Florida No. SC06-2436 In Re: Standard Jury Instructions in Criminal Cases 2006-3)

Some guy beating on you while you're on a mountain trail would considered both assault and battery. These are both felonies. Defending yourself would be permissible under applicable laws.

Now that we're way off of the initial thread topic, can we get back on track?



gf

I do not disagree with anything you have said, as a matter of fact, you hit it on the head. You speak about non deadlly force being used before escalating to deadly force. However, in all of the scenarios offered there is no attack, only a threat and the threat described does not fit the charge of forcible felony.

Since everyone is using scenarios, I will offer one as well. Jon Gutmacher is considered to be one of the finest 2nd Amendment attorneys in Florida. He is also the author of "Florida Firearms: Law, Use, and Ownership" In this book he deals with this subject in detail. The scenario is offered that you are surrounded by three men and they say they are going to beat you up. The question is asked whether this would be considered a time that you can use deadly force, and his answer is no. See, there are too many variables left out here. What happens if you were just to display your weapon and this stopped the attack? The point is that not only must the threat be imminent, but you must reasonably believe(This means that a jury, DA, and Judge would reasonably believe the same) that either great bodily harm or death would result from the attack.

Anyway, I believe these discussions are relevant to the question of what should and should not be carried. If the concern is stopping an attack, which it seems is the subject of many of the last discussion, then the issue of what caliber or load to carry is significant. All you need to do is read the many stories of attackers continuing as an aggressor after having already been shot.

My main point has always been that if you follow the law, and use your best judgment in the use of deadly force, you are much less likely to deal with the potential for civil liability, In almost all cases of civil liability and criminal prosecution, the caliber was a secondary issue. Civil liability was not pursued because the defender used too large a caliber firearm or too hot a load. They had to deal with the civil liability because there were questions as to excessive use of force as it relates to the law.

[wuzfuz]

I am very glad to see that Florida puts out a book on Florida Firearms Law. Arizona has a similar book that I received when I took my CCW course. It is entitled 'Arizona Gun Owner's Guide.' I would love to see every state that allows concealed carry to authorize the publishing of a book like this one, that discusses in extreme depth all of the ins and outs of carrying a deadly weapon

[tattedupboy]

Thank God I live in a Castle Doctrine State with no civil liability and don't have to concern myself with anything Palmach has said when making the decision to defend myself or my family!

[Palmach]

Originally Posted by tattedupboy

Thank God I live in a Castle Doctrine State with no civil liability and don't have to concern myself with anything Palmach has said when making the decision to defend myself or my family!

I think you have me confused with someone else here, as I have consistently maintained that one need not concern themselves with the details of caliber when using legitimate deadly force.

[festus]

Originally Posted by Palmach

I think you have me confused with someone else here, as I have consistently maintained that one need not concern themselves with the details of caliber when using legitimate deadly force.

You are better off if there is only one side of the story (dead Perp). This is a lot easier to deal with legally than lawsuit after lawsuit for injury and disability because some knucklehead did not successfully rob your house and rape your wife/daughter or kill your dog for a drug fix or for kicks and grins.

Bottom line...defend yourself adequately to STOP the threat and make sure you never use verbage stating anything other than stopping the threat. Carry as big as you are confortable with that will get the job done. Use the same ammo as the local LEO's and pray you never ever have to use what you have been training for because it will cost you a lot in court costs.

Then there is the recurring image of what has happened...it will need to be addressed.

Make sure you are sure. Don't hesitate to act. Stop the threat. Deal with the fallout.