This is a discussion on Situation over the past weekend (was I wrong?) within the Carry & Defensive Scenarios forums, part of the Defensive Carry Discussions category; My final bit of advice is to ask your attorney if he/she has had experience defending firearm cases. If not, seek another. (I stayed at ...
My final bit of advice is to ask your attorney if he/she has had experience defending firearm cases. If not, seek another.
(I stayed at a Holiday inn Express)
In my opinion, you were well within your rights to confront a scumbag trying to steal your bike. VA is open carry, so there should be no problem there.
+1 to taking your attorney.
Good luck. This is the kind of crap that stupid laws create.
He is no fool who gives what he cannot keep to gain what he cannot lose. - Jim Elliott
The world is a dangerous place to live; not because of the people who are evil, but because of the people who don't do anything about it.
Lawyer up! It appears as if you might be screwed:
Virginia Case Law on Firearms and the Use of Deadly Force
Note from that page:
Actually placing your hand on the gun could be seen as threatening, which, according to the Commonwealth of Virginia, you do not have the right to do to protect your property. Should have stopped at showing the gun, vice putting your hand on it. IMHO, IANAL, but I would get one and not say a word to the police without a lawyer. Notice that Eustler actually approached the defendant in a seemingly menancing manner and the defendent still had no basis, according to the court, for a show of deadly force (and the gun was even unloaded!)Although Eustler agreed to permit the defendant to retrieve the items, Eustler "jacked up" the vehicle as the defendant was partially in the front seat. Eustler approached the defendant in a belligerent manner, and demanded the keys to the vehicle. Feeling threatened, the defendant entered his house and emerged with the keys as well as an unloaded rifle which he placed in a flower bed that was close to the vehicle. When Eustler again approached in a belligerent manner, the defendant retrieved the rifle and held it at his side. The defendant felt compelled to raise the rifle to his shoulder when he thought that Eustler was going to assault him. However, the defendant did not point the gun at Eustler until Eustler kept coming at him, at which time, Eustler "finally backed off." Eustler later called the police.
We need not resolve the defendant's claim that Eustler's actions were "unwarranted and illegal . . . in attempting, by other than peaceful means, to unlawfully take [defendant's] personal property." Even if Eutsler's actions were unwarranted or illegal, the defendant, as an owner of personal property, did not have the right to assert or defend his possessory rights thereto by the use of deadly force.
Who is telling you that you might be charged ? The DA ? Sounds like B.S. to me. You never pulled the gun, all you have to do is deny that you showed it,it's your word against a bike thief's....
Isn't that the same as a 'citizen's arrest'? Does that exist anymore?
A lot of the replies have focused on the potential brandishing aspect of this, but I think the real mistake here was trying to detain the guy. Unless you are a cop, catching criminals is not part of your job description. Whether or not the law in your state allows for citizens arrests in this circumstance, trying to detain someone by threat of force is extremely dangerous.
The longer you are in proximity to the criminal, the more dangerous it is. What happens if he decides he's not going to jail and jumps you? You don't know what other weapons he might have. If you get distracted for a moment by a bystander or calling 911 he can get the drop on you and that may cost you your life. You are also trying to compel someone's behavior through the threat of force. Are you actually going to use that force? Would you shoot this guy to keep him from fleeing? Are you willing to risk jail time to keep him from getting away? Tens of thousands of dollars in legal bills and civil judgments? On the other hand, if you're not going to shoot him if he tries to flee maybe he'll decide you were bluffing, that you don't really have a gun or aren't willing to shoot and he'll come back intending to do you harm.
Consider the amount of satisfaction that seeing this guy get busted for attempted auto theft (which will probably get plea bargained down to a misdemeanor). Is that satisfaction worth dying for? Worth getting maimed for? Worth going to jail for? Worth wrecking your finances?
For me, it isn't. If I am in a confrontation with a criminal that doesn't end with him being shot, I want him out of my life as quickly as possible. No telling him to sit on the curb, just "Get the hell out of here." Once he's gone I can find a secure location and call 911 and tell them someone tried to steal my bike but he ran off. If the police can catch him, great, but it's not worth the risk to my life, limb, freedom, and finances to try to hold him for the law.
I didn't feel I was trying to detain him; I told him "get off my bike" and did so, then gave me one of those shoulder shrugs (not the kind ones) and said "now what?"
I had no idea what to say ... I just said the first thing that came to mind. There was a curb nearby, and someone sitting in that position is a lot less able to get the drop on me, so I said "sit down over there" or something like that. I'd always been taught to put myself in the position of the greatest tactical advantage, so I guess I figured that him sitting on a 6" high curb beat the heck out of him possibly milling about between the parked cars in the lot where I couldn't see him while I tried to get on my bike to leave.
As I said before, I was not ready to kill over this, hence why I did not draw my weapon. I was not ready to detain someone by force, as I said, he could have turned and walked and there was nothing I could do about it.
It began as a "what the heck are you doing on my bike" mindset for me, angry and upset. But, once he got upright, I saw that he was a good 6'4" and ~300+, and looked at me with that "what now" shrug / stare, it was an "Ohh God what did I get myself into" mindset.
There was no way I was drawing, or even unsnapping the thumb-catch on my holster unless he came at me with that screwdriver. That's why I said "sit down" and stayed a good 20ft+ away.
For all the training / whatever I've done with IPSC, IDPA, and USPSA / military, I was still kinda freaked out / more than a little scared.
He could have had the motorcycle for all I really cared (I want a new one anyway!) But hindsight is 20/20, and that's what this is now. I did what I did and I'll report as requested to accept whatever the consequences are.
Last edited by novcdtshotz; March 9th, 2009 at 05:03 PM. Reason: Grammar
No offense meant, but as my Daddy once told me, "It's time to stop being stupid and call a lawyer."I did what I did and I'll report as requested to accept whatever the consequences are.
The consequences may be graver than you imagine. Now I'm done with this thread, as I've said all I'm going to say.
I hear you man; and I've already contacted a lawyer and appraised him of the situation. He'll be coming with me on Thursday.
EDIT - Lying to the police is not an option.
OK, so it wasn't my final post....
Good man. 1) For having trained with your firearm; safer to yourself AND others that way. 2) For being scared. Situational Awareness & some fear will keep you alive. You realize your pistol isn't a magic shield, nor a fall-back for every situation.For all the training / whatever I've done with IPSC, IDPA, and USPSA / military, I was still kinda freaked out / more than a little scared.
I checked back in because I wanted to mention the oft-quoted test showing that a knife-wielding attacker can almost always cross 7 yards (from a standstill) and stab an opponent before said opponent can draw & fire. Screwdriver = knife. In case your attorney wasn't aware.
I would approach your next meeting assuming that the other guy has also retained counsel, and perhaps intends to sue/file charges. Why do you carry a firearm? To be prepared. Why do you hire an attorney? To be prepared. If the detective shakes your hand and thanks you for you civic duty, all the better. Again, make sure your lawyer understands what happened & is "good to go" on your behalf.
Cheers. CYA, and all should be good, my friend.
As for having no idea what to say, you need to think about this sort of thing ahead of time. Decide what you're going to do in certain situations and practice it. Don't just try to make these decisions on the fly. John Farnam teaches the concept of "tape loops": short commands that you've rehearsed ahead of time and can use in a stressful situation. This is no time to improvise!
John Farnam's Defensive Handgunning book does a good job covering pre-gunfight interactions with criminals and post-gunfight interaction with law enforcement. I highly recommend it. Even better would be to take one of Farnam's defensive pistol classes. Gabe Suarez does something similar in his Close Range Gunfighting class with his "Three Phases of a Gunfight" lecture. This sort of training is vital for anyone who carries a gun for self defense.
I'll be looking into the class options. I've had plenty of CQB training, but as it's always been military, it's primarily offensive related.
I have Farnam's DH; and have been through multiple times.
This is the first time I've ever been put in a potential draw situation; and it's really exposed to me the differences in training-types that I've been exposed to vs. "real world" aka, not-in-uniform scenarios.
I've always been a fan of the "never stop learning" approach; I'll give the courses a look see and see what I can do.
Thanks for the advice.
"Get out of here" wasn't an option for me. There were too many unknowns in that parking lot. The place was packed, and he would have disappeared from sight after 2+ cars. The last thing I needed was to take a screwdriver to the neck 2 minutes later as I tried to put my helmet on, then be shot with my own weapon... He could have easily jumped me while I was gearing up / starting the bike / backing out of the spot / pulling away. At that point I think I'da been toast.
I don't understand how they can charge you with anything, plus the fact that you had two witnesses come forward to confirm your story. It makes no sense to me that they would charge you for simply doing what any other rational person would have done. I think you handled it very well and I hope all turns out well for you. Keep us informed with what is going on.