great question I dont know the answer to
This is a discussion on great question I dont know the answer to within the Carry & Defensive Scenarios forums, part of the Defensive Carry Discussions category; Sitting around with friends talking about local shooting a few towns over.
The question was posed: if you are at gun point, somehow wrestle the ...
January 8th, 2013 12:31 AM
great question I dont know the answer to
Sitting around with friends talking about local shooting a few towns over.
The question was posed: if you are at gun point, somehow wrestle the gun away. Removing disparity of force. Are you still justified to fire?
My opinion is simple. I know the situation i was unwillingly put in by the assailant. Anything i need to do to stop the threat is justified in my mind.
Legally i am not sure that's the case.
January 8th, 2013 12:42 AM
well think about this, if someone breaks into your home and you come at them with a gun and they have a gun but, they are running away trying to get out of your house, knocking things over trying to escape, breaking things in the process, you cannot shoot them, because your life is no longer in danger. if you shoot them in the back, in your house and evidence shows that they tried to escape, you would probably be in a world of trouble. I think your case would be the same. if your life becomes in danger again, then you can shoot, like if they run at you saying "i'm going to kill you" then yes you have the right to protect your life. I hope this helps, or adds or you discussion
January 8th, 2013 01:08 AM
Still requires the actions of the defender to be reasonable. Will partly depend on the state statutes, partly on the rationality and reasonableness of the DA.
Originally Posted by daffyduc
Seems clear to me, too. A violent felon threatening your murder is in your face and you've (at least temporarily) gotten control of that weapon. Short of that violent person going limp and compliant immediately after loss of the weapon, I'd have no qualms over immediately halting the threat that still existed.
So long as the basic AOJ (ability, opportunity, jeopardy) aspects still exist then there should be every expectation of your state's statutes supporting your right to eliminate the still-existing threat. But check 'em to be sure, and check with a competent attorney in your state who is well-versed in the use-of-force statutes as it relates to self-defense cases.
Though, as with any situation involving, say, "shooting an unarmed person," the investigation is likely to get a bit stickier and the questions about reasonableness harder to justify. Depends on your state statutes, the blind obedience of your county DA to going after "attackers of the unarmed," and the specifics of the situation (proximity, continued violent attempts by the felon to harm you, continuing reasonable fear for loss of your life, etc).
January 8th, 2013 01:17 AM
You won't know for sure until you've been charged and your case is before a grand or petit jury.
But consider the concept of "ability, opportunity, jeopardy" or AOJ 'triangle.'
First - does the assailant have the ability to cause you (or your loved ones, or those under the mantle of your protection) grievous bodily harm? Is he armed, is he bigger, does he have others with him who are equally threatening and physically able to harm you? A threatening email or "I'm gonna kill you" yelled across a parking lot won't qualify, but a guy with a knife or a gun or a bat certainly can. The question of ability boils down to whether the assailant has the power to harm you.
Second - opportunity. If the assailant has the power to inflict harm on you, can he do so immediately? If he's swinging a machete but he's outside and you're in your house, no, he doesn't (yet) have the ability to hurt you. If he's outside, you're inside, and he's getting ready to throw a Molotov cocktail at you or he's pointing an AR at you, the reasonable man would agree he has the immediate ability to hurt you.
Third - jeopardy. In your own home you have challenged an intruder at gun point, yet he charges you. You have to assume by his actions that he knows how to disarm you and use the gun against you. Similarly, if you're at home with lights on, car in the driveway, and all obvious signs point to people being home, and someone breaks down your door and charges in, the reasonable man has to assume that someone entering the house so forcefully is by definition a vicious attacker, thus you and your home's occupants are in jeopardy.
If the elements of ability, opportunity and jeopardy are all present, yes, you are justified in employing deadly force to stop the attack.
These concepts are presented in far more detail in Mas Ayoob's LFI/MAG courses, which I recommend highly.
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January 8th, 2013 01:17 AM
Since you have removed the disparity of force issue then the general answer would be know. If he is no longer armed and is not posing a direct immediate threat to you deadly force would not be authorized.
"A first rate man with a third rate gun is far better than the other way around". The gun is a tool, you are the craftsman that makes it work. There are those who say "if I had to do it, I could" yet they never go out and train to do it. Don't let stupid be your mindset. Harryball 2013
January 8th, 2013 01:46 AM
In my opinion if he is continuing the assault he has the ability to remove the firearm from your possession the same way you just did. I feel the aoj requirements are met even if he is temporarily unarmed.
I am glad to see you guys are just as torn as we were. It's a great question however you are correct. It's all going to come down to opinions when charged.
January 8th, 2013 01:53 AM
I'm certainly not "torn" on the idea that I'm fully justified to defend against an ongoing, active threat that has strong chance of loss of life or crippling injury, irrespective of whether the violent assailant has just a moment before been deprived of that weapon.
Originally Posted by daffyduc
The totality of circumstances matters. And the mere fact that the weapon is for the moment no longer in the assailant's control says zero about proximity, continuing levels of aggression, continuing attempts to regain control of the weapon, whether the assailant's threats were credible beyond merely having a weapon on his person, etc.
In that sense, AOJ and the basic criteria of reasonableness still applies, armed or not, at least as a basic standard. The state statutes should lay it all out. If the threat is legitimate and active and is still a justifiable threat to you, it's little difference whether the assailant has momentarily lost control of the weapon. The only real difference is going to be the comparative willingness of an unthinking automaton DA to go with the flow merely because "unarmed" was a single aspect of the situation.
Last edited by ccw9mm; January 8th, 2013 at 09:36 AM.
Reason: reformatting / clarity
January 8th, 2013 02:07 AM
The simple answer is one can only use as much force necessary to subdue an attacker.
Your scenario states: "....somehow wrestle the gun away. Removing disparity of force. Are you still justified to fire?" Again, simple answer would be probably not if not flat out no.
"One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation."
--Thomas B. Reed, American AttorneySecond Amendment -- Established December 15, 1791
and slowly eroded ever since What happened to "..... shall not be infringed."
January 8th, 2013 08:04 AM
You scenario is not true in South Carolina at night. Title 17-Criminal Procedures: Sections 17-13-10/17-13-20. Paraphrasing the Sections, "a citizen my arrest a person in the nightime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken, when the person has committed a felony, has forcibly entered a dwelling house without permission, has in his possession stolen property, or circumstances which raise just suspicion of his design to steal or to commit a felony.
Originally Posted by soserius
In simple language, at night in SC the Code of Laws and ample case law upholds a citizen's right to attempt an arrest on a BG and if he turns and runs, thus trying to evade the arrest, you can shoot him in the back to prevent his escape. When and why this is in the law, I have never researched--sounds like it comes from civil war times or maybe earlier--but it is the law. Being a BG in SC and doing your business at night can be a very dangerous and deadly occupation.
BTW, in answer to the scenario--if I am at gunpoint, I am not doing any "wrestling away" so the scenario becomes moot as far as I am concerned and I would think most clear thinking forum members, particularly if they leave their testosterone alone. In SC, if this happened at night, I can shoot him in the back. I would think this is fairly unique and probably not the case in most if not all other states. Shooting someone in the back when you are not in imminent danger is just plain murder, regardless of what they did or are doing. For some reason in SC, nighttime brings into play a very different conclusion.
January 8th, 2013 08:14 AM
In that situation you have not removed disparity of force only transfered it. If I understand you correctly, you now have the gun and you are pointing it at an unarmed bad guy. Is there now an immiment threat to your life or his. Disparity of force still exsist, but now in your favor. If you choose to shoot an unarmed person that is not an imminent threat, you probably will have a problem.
Let your plans be dark and impenetrable as night, and when you move, fall like a thunder bolt...... Sun Tzu.
The supreme art of war is to defeat the enemy without fighting........ Sun Tzu.
January 8th, 2013 08:21 AM
It depends...is BG still using deadly force? Compliant? Fleeing or fighting?Just having the firearm does not necessarily end a fight.Whatever happens, you had better be able to articulate it well ...
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January 8th, 2013 08:28 AM
I'm sure what you intended to ask is how to explain that while disarming the deceased the gun discharged repeatedly into his face.... right?
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January 8th, 2013 08:38 AM
I believe the statute that the current law is based on was first legal code in 1896. Other than that, I dont know any other history of it.
Originally Posted by kelcarry
January 8th, 2013 08:39 AM
Well, if he turns to run, wave g'bye at him. Threat stopped.
If he turns to fight, he's ALREADY established that he's out for your blood (he had a lethal weapon on you a moment ago) - your lawyer will need to point that out. But you still need the other parts of the puzzle.
My hope and prayer would be that he would leave.
I note that you're from Tennessee. Your results may vary from, say, Washington DC. But check with a lawyer, not with us. And practice your Krav Maga.
January 8th, 2013 08:55 AM
I try to avoid shooting folks. If the assialiant allows me to avoid shooting him by complying with my directions rather than attempting to regian control of his firearm I would not shoot.
Good people do not need laws to tell them to act responsibly, while bad people will find a way around laws. Plato
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