March 28th, 2009 10:19 AM
My thoughts Re the thread: Given potential jury make up today, anything is possible. What we might see as defensive action could go either way, for or against you. As a 70 YO guy I would defend myself however necessary.........I sure 'ain't gonna' exchange fist blows with anyone.
March 28th, 2009 10:49 AM
That's up to a jury of your peers and your state's laws on what constitutes "reasonable." The reasonable man standard is used in many states. Essentially, if it can be agreed that a reasonable person would have seen and done things much the same as you, then your actions may well be deemed reasonable. Big comfort, eh? Welcome to the wonderful world of concealed carry.
Originally Posted by Arkatect
Because it's open to interpretation, you'd better be darned sure that you're in dire need of using that degree of force. That's what it's for. And in a state that demands a fairly high degree of certainty that your actions have been reasonable, you should at least be aware of what it's going to take to get others around you to also see that your actions were reasonable. Meaning, do everything you can to be seen as the good guy, else you'll be the last one standing and presumed to be the bad guy. If a threatening person continues overt threats and comes inbound, loudly demand the person stay away, state that you don't want trouble, back up to maintain distance ... and, if need be, draw when it's clear your demands to be left unassaulted go unheeded. KNOW your state's statutes (aka, the standards by which you're going to be required to act, and by which you'll largely be judged).
In Oregon, it's up to the person who feels threatened with violence, essentially based on the reasonable man standard. If the defensive actions are deemed by others to have been unreasonable, though, it can result in charges of intimidation or menacing. A bit vague, and therein lies the power against you. But it's a balancing act between your community's empowerment of the individual and the ability of the community to be able to have a say as to what's reasonable on a case-by-case basis. Fair or not, that's the way it is in many states. Still, your goal is to survive a situation. Use the force you reasonably deem necessary to defend your life, or not. Them's the choices.
Your best weapon is your brain. Don't leave home without it.
self defense (A.O.J.).
How does disarming
the number of victims?
Reason over Force: The Gun is Civilization (Marko Kloos)
NRA, SAF, GOA, OFF, ACLDN.
March 28th, 2009 10:58 AM
Some states have a "stand your ground law" or other laws that say you do not have to "take a beating" and can meet force with force to include deadly force w/o retreat. Your state may have a different law. Just read your state laws to know when you can use deadly force.
"Anyone worth shooting, is probably worth shooting several times."
March 28th, 2009 11:00 AM
IMO, out in the world, when threatened in general, as a matter of course, it is prudent to always, take cover/ retreat to the furthest extent of one's abilities. At the same time, while doing so, advise the assailant that you "do not want any trouble and to back off/ cease", in a voice loud enough to be overheard by any potential witness or possible aide. Finally, respond with lethal force, only upon reaching the limit of one's ability to retreat, and having a reasonable belief that a threat, sufficent enough to cause serious injury or death is imminent. Of course, as previously stated, the variables of "retreat" will be different for a given individual.
"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government" - Thomas Jefferson
"The patriot volunteer, fighting for country and his rights, makes the most reliable soldier on earth." - Stonewall Jackson
March 28th, 2009 12:49 PM
Take another and _different_ class taught by a different and _better_ instructor.
You should not be having this question muchless doubt as a newly minted information still fresh in the brain student of such a course. Your question and scenario is a basic item of self defense, judgment, and law.
For clarity on the subject reference this posting I'd made in '07 which directly addresses your query as in regard to function and legality;
And very seriously seek out a second class on this subject matter as an investment in yourself.
The height, weight, strength, and whatever else of your attacker is not a hard rule toward whether or not you may defend yourself and to what degree.
Further going toe to toe with anyone regardless of their physical stature is taking a high risk. We've had post upon post in the crime and criminality news area ('Good, Bad, And Ugly') that demonstrate this real world.
A 350 lb. male victim being attacked by a 150 lb. male victimizer can be just as justified to defend himself with lethal force as if the scales of the tale were reversed. Further the victimizer does not have to have a weapon at all either to do you very serious injury and be an _imminent threat_ to your life and ability to live in a real way.
Do your self a huge favor and increase your degree of education, and thus understanding, on the subject by seeking out trained persons and instructors better than the one you recently graduated from.
"Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. " - Robert A. Levy
"A license to carry a concealed weapon does not make you a free-lance policeman." - Florida Div. of Licensing
March 28th, 2009 12:58 PM
The reality is that a self-defense claim is an affirmative defense.
Originally Posted by webhead
You admit you commit the act, which is criminal under most circumstances.
You must prove that it was not criminal, due to circumstances
You must show that you acted reasonably. Yes the prosecutor will work to show that you were unreasonable, but it is up to you to show you were reasonable despite their assertions.
"Wise people learn when they can; fools learn when they must." - The Duke of Wellington
March 28th, 2009 04:57 PM
Janq, thank you very much for the advice. I may have to take another class, the reason I wanted to clarify a lot of this is because the two instructors were very hesitant on what kind of advice to give. I think they were scared of a lawsuit themselves, but who knows. I will continue my education on this matter and again thanks for the advice.
Originally Posted by Janq
"When the people fear their Government there is Tyranny; When the Government fears its people there is Liberty"
March 29th, 2009 09:32 PM
This is where I have a hard time coming to terms with "duty to retreat" states.
Being in NC, the law basically implies [as I've been taught and interpret it] that unless confronted with a weapon, I have to retreat until I am engaged hand to hand to a point where I fear for my life.
In my opinion, I'm now disadvantaged against an unarmed aggressor while CC as I now have to defend my weapon and myself while engaged.
I'm basically forced to give the BG one opportunity to gain control of myself or my weapon before I can use lethal force.
That may be all the opportunity needed, and that concerns me a great deal. One well placed elbow while I'm defending my weapon rather than my melon and the story may not have a happy ending...
March 30th, 2009 06:09 PM
#1 Duty to retreat means that if you have an opportunity to withdraw from the situation with complete safety, you must do so; not that you must run at the cost of turning your back on an opponent.
It's practical effect on your tactics should be nil. If possible, you should be withdrawing from any engagement at the first onset. It's the safest thing you can do.
It's also the cheapest, because if the situation ends with a police report and the word "Firearm", "Knife" or weapon of any kind is associated with you, the cost is going to START at about a $5,000 retainer and go up from that point.
(As me how I know this...)
#2 For information on self defense and the legal requirements, see Criminal JI - Part 2: General Instructions and read section 2.8 in the entirety.
...before a defendant uses physical force upon another person to defend (himself/herself/a third person), (he/she) must have two "reasonable beliefs." The first is a reasonable belief that physical force is then being used or about to be used upon (him/her/a third person). The second is a reasonable belief that the degree of force (he/she) is using to defend (himself/herself/a third person) from what (he/she) believes to be an ongoing or imminent use of force is necessary for that purpose.
Once you have determined whether the defendant has used deadly or non-deadly force, you must then go on to consider whether the defendant justifiably acted in (self-defense / defense of others).
The test you are to apply is a subjective-objective test, meaning that it has some subjective aspects and some objective aspects. You must first consider the situation from the perspective of the defendant; that is, what did the defendant actually believe, as best as can be inferred from the evidence. This is the subjective aspect of the test. The statute requires, however, that the defendant's belief be reasonable, and not irrational or unreasonable under the circumstances; that is, would a reasonable person in the defendant's circumstances have reached that belief. This is the objective aspect of the test.]
Each of the reasonable belief requirements of the statute requires you to ask two questions. The first question you must ask is, simply, as a matter of fact, whether the defendant actually -- that is, honestly and sincerely -- entertained the belief in question when (he/she) acted as (he/she) did. The second question you must ask is whether the defendant's actual belief was reasonable, in the sense that a reasonable person in the defendant's circumstances at the time of (his/her) actions, viewing those circumstances from the defendant's point of view, would have shared that belief. A defendant cannot justifiably act on (his/her) actual belief, however honestly or sincerely (he/she) held it, if that belief would not have been shared by a reasonable person in (his/her) circumstances, viewing those circumstances from the defendant's point of view. Therefore, the defense of (self-defense / defense of others) has four elements:3
1. The defendant actually believed that someone else was using or about to use physical force against (him/her/a third person). If you have found that the force used by the defendant was deadly physical force, then this element requires that the defendant actually believed that the other person 1) was using or about to use deadly physical force against (him/her/a third person), or 2) was inflicting or about to inflict great bodily harm upon (him/her/a third person).
2. That belief was reasonable because a reasonable person in the defendant's circumstances, viewing those circumstances from the defendant's perspective, would have shared that belief.
3. The defendant actually believed that the degree of force (he/she) used was necessary to repel the attack. Again, if you have found that the force used by the defendant was deadly physical force, then this element requires that the defendant actually believed that deadly physical force was necessary to repel the attack.
4. That belief was reasonable because a reasonable person in the defendant's circumstances, viewing those circumstances from the defendant's perspective, would have shared that belief.
The defendant has no burden of proof regarding any of these elements. Instead, the state bears the sole and exclusive burden of proving beyond a reasonable doubt that the defendant did not act in (self-defense / the defense of others), a burden it can meet by disproving at least one of these elements beyond a reasonable doubt. I will go over each of these elements again in detail.
Element 1 - Actual belief regarding use of physical force by other person
The first element is that when the defendant used defensive force against <insert name of other person>, (he/she) actually -- that is, honestly and sincerely -- believed that the other person was using or about to use physical force against (him/her/<insert name of third person>). The word "using" has its ordinary meaning, that is, the other person has already begun to use force. The word "imminent" means that the person is about to use physical force at that time. It does not encompass the possibility that an act of physical force may take place at some unspecified future time.
If you have found that the force used by the defendant was deadly physical force, then you must find that the defendant actually believed that <insert name of other person> was not only using or about to use physical force upon (him/her/<insert name of third person>), but that the other person was either using or about to use deadly physical force against (him/her/<insert name of third person>), or inflicting or about to inflict great bodily harm upon (him/her/<insert name of third person>). "Great bodily harm" is not limited by the definition of serious physical injury and may encompass other acts such as sexual assault or the threat of sexual assault.4 The term "great" has its ordinary meaning and indicates a bodily harm that is substantially more than minor or inconsequential harm.
The act of <insert name of other person> leading to the defendant's use of defensive physical force need not be an actual threat or assault. The test is not what the other person actually intended, but what the other person's act caused the defendant to believe was the intention of the other. In other words, the danger to which the defendant was reacting need not have been actual or real. In judging the danger to (himself/herself/<insert name of third person>) the defendant is not required to act with infallible judgment. A person acting in (self-defense / the defense of others) is sometimes required to act instantly and without time to deliberate and investigate. Under such circumstances it is possible to perceive an actual threat when none in fact existed.
Element 2 - Reasonableness of that belief
The second element is that the defendant's actual belief about the force being used or about to be used against (him/her/<insert name of third person>) was a reasonable belief. This means that under the circumstances of the case, viewing those circumstances from the defendant's point of view, the defendant's actual belief that <insert name of other person> was using or about to use physical force or deadly physical force against (him/her/<insert name of third person>) was reasonable because a reasonable person in the defendant's situation at the time of (his/her) actions, viewing the circumstances from the defendant's point of view, would have shared that belief.
Element 3 - Actual belief regarding degree of force necessary
The third element is that when the defendant used physical force upon <insert name of other person> for the purpose of defending (himself/herself/<insert name of third person>), (he/she) actually -- that is, honestly and sincerely -- believed that the degree of force (he/she) used was necessary for that purpose. This applies whether you have found that the defendant used deadly physical force or not. The question is whether the defendant believed that it was necessary to use the degree of force that (he/she) used to defend (himself/herself/<insert name of third person>) from the attack.
Element 4 - Reasonableness of that belief
The fourth element is that the defendant's actual belief about the degree of force necessary to defend (himself/herself)/<insert name of third person> was a reasonable belief. This means that under the circumstances of the case, viewing those circumstances from the defendant's point of view, the defendant's actual belief that the degree of force used was necessary to defend (himself/ herself/ <insert name of third person>) was reasonable because a reasonable person in the defendant's circumstances at the time of (his/her) actions, viewing those circumstances from the defendant's point of view, would have shared that belief.
The general doctrine is usually the same state to state.
March 30th, 2009 08:21 PM
Actually, not. Once you declare an affirmative defense---that is, justifiable homicide in self defense---the burden of proof shifts to the defense. The defense must then convince the jury that the application of lethal force was reasonable and justifiable.
Originally Posted by webhead
To the OP, there is no line in the sand. Nowhere in any State of which I am aware is disparity of force spelled out in the law. There is case law, all the way up to the Supreme Court, that clearly puts some situations on the justifiable side of that line. An unarmed mob, your 350lb bruiser attacking a 100lb female, or an unarmed guy attacking somebody in a wheelchair. All these are pretty clear disparity of force situations.
Two adult men facing off in unarmed combat is always going to be the hardest case for the defendant to prove justification in resorting to lethal force. The DA would ask why you didn't just run away from the meat-slab, since you are so much smaller and faster (for example)...
“What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?” —Justice Antonin Scalia
SIG: P220R SS Elite SAO, P220R SAO, P220R Carry, P226R Navy, P226, P239/.40S&W, P2022/.40S&W; GSR 5", P6.
March 30th, 2009 08:31 PM
Correct, under affirmative defense ("yes, I shot the guy, but....") you would need to justify your actions.
Originally Posted by archer51
ETA: oops, missed the post by kazzaerexys above, which explains it better.
March 30th, 2009 08:48 PM
Depending on the scenario I think any Jury would be hard pressed to convict someone who was defending themself firearm or not (in the majority of cases).
Our laws in NZ are similar in regards to self defence and "reasonable force" and there have been some high profile cases in recent times where innocent people have had to resort to violent means (including firearms) to defend themselves. In 99% of these cases the innocent person had to go through the court system at great cost (personal and financial) but none were sentenced and charges were dropped.
Sure there may be legal costs and a lengthy case to go through, but at the end of the day youre alive and you cant put a price on that.
Its just a pity the criminals have as much if not more rights than the victim.
Evil prevails when good men stand by and do nothing
March 30th, 2009 08:56 PM
Originally Posted by 2edgesword
Actually 2edge is correct, Webhead; "defense of self or others" is what's called an "affirmative defense". While the prosecution has the burden of proof, the defendant has "the duty of going forward" with his defenses. The state is not required to disprove his defenses before he's offered them.
Originally Posted by webhead
And, generally, self-defense requires evidence that the defendant had a reasonable apprehension of an imminent serious bodily injury or death, based on objective facts. If one is placed in the position of having to defend himself against "serious bodily injury", we don't expect too much finesse in how he does it, and if the assailant dies in the attack, it's basically his own fault.
For those in Virginia, there's a seminar on such topics for April 11 in Linden (off Rt. 55 East of Front Royal). see:
Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com
Nothing I say as "user" should be taken as either advertising for attorney services or legal advice. Legal questions should be presented to a competent attorney licensed to practice in the relevant state.
March 30th, 2009 10:20 PM
I know I cannot fight worth a darn, never could. I never got into any fights as a kid, although I have had others try and provoke me into a fight, I even got bullied around often. The fact that I have a bad hip joint makes it even worse for me, and I am not a big person (5'9" 180 lbs). Getting into hand to hand defense increases the chances of you being disarmed in a scuffle.
I would retreat if I can, but if there is no other alternative, I will resort to deadly force to show I do not want to fight. I am not risking my safety and the retention of my handgun.
I do plan to buy a small canister of pepper spray to add to my carry system. I just haven't got around to it yet, I keep buying ammo instead LOL!
USMC rule # 23 of gunfighting: Be polite, be professional, but have a plan to kill everyone you meet.
I am the God fearing, gun toting, flag waving conservative you were warned about!
March 31st, 2009 06:26 PM
You can also make your own from rubbing alcohol and chillis. Pretty effective I hear and cheap to make.
I do plan to buy a small canister of pepper spray
Evil prevails when good men stand by and do nothing
By Medic218 in forum Off Topic & Humor Discussion
Last Post: December 30th, 2012, 05:31 PM
By MP45Man in forum The Second Amendment & Gun Legislation Discussion
Last Post: August 9th, 2010, 08:41 PM
By OPFOR in forum The Second Amendment & Gun Legislation Discussion
Last Post: March 19th, 2008, 02:20 PM
By ronwill in forum The Second Amendment & Gun Legislation Discussion
Last Post: January 25th, 2008, 04:17 AM
By David Blinder in forum Defensive Carry & Tactical Training
Last Post: March 21st, 2007, 09:00 AM
Search tags for this page
actual belief regarding use of physical force by other person
duty to retreat in oregon
new york - allows for the use of reasonable force
reasonable force acceptable scenario
reasonable force and virginia
reasonable force scenario
Click on a term to search for related topics.
» DefensiveCarry Sponsors