Clarification needed on law

Clarification needed on law

This is a discussion on Clarification needed on law within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Obviously, I know it's a criminal charge if you shoot an assailant/criminal running from you. Is it also illegal to draw on that same criminal ...

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Thread: Clarification needed on law

  1. #1
    Member Array alyehoud's Avatar
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    Clarification needed on law

    Obviously, I know it's a criminal charge if you shoot an assailant/criminal running from you. Is it also illegal to draw on that same criminal (without firing, though) in an attempt to stop them from running? I would assume the answer is the same in most states, but Florida is technically where I care most about.

    Just one of the many technical questions of have...

    Thanks.


  2. #2
    Senior Member Array Herknav's Avatar
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    My dos centavos,

    1) Don't draw unless you're willing to shoot.

    2) Don't shoot unless your life's in danger.

    3) You're not a cop, so it's not your job to stop him/her. Call the cops and give a good discription.

    Henceforth, in your example, I would NOT shoot because he/she is not being a danger to me or my loved ones any more. He is now somebody else's problem. To re-emphasize, if you have shown your gun, call the cops and give them your side of the story. Otherwise, he/she gets to play honest citizen when they call in the grazy guy with a gun complaint.

    Disclaimer: I'm not a professional, but that's how I'd do it.

    Cheers,
    Herk

  3. #3
    Member Array joffe's Avatar
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    http://www.constitution.org/grossack/arrest.htm

    Of course, this stuff varies from state to state, but here's one end of the argument:

    Kentucky law holds that a person witnessing a felony must take affirmative steps to prevent it, if possible. (See Gill v. Commonwealth, 235 KY 351 (1930.)

    Indeed, Kentucky citizens are permitted to kill fleeing felons while making a citizen's arrest (Kentucky Criminal Code 37; S 43, 44.)
    You should go rummaging through Florida's regulations on the matter. While most would advocate being a good witness, not only because anything else would be either illegal or frowned upon, but also due to civil lawsuit concerns afterwards, in Kentucky it appears you could be breaking the law if you were carrying a gun and considered it enough to be a good witness.

    I'm not a lawyer but that's what it looks like to me.

  4. #4
    VIP Member Array Redneck Repairs's Avatar
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    I am not a Lawyer or a Judge . However my take on it is that presenting a weapon " Menaces " a person and this is only justified if at the time of the " menace " deadly force would be appropriate and legal . So basically my take is dont draw unless you have a legal right to shoot , but once drawn the VCA's actions may change so you need not shoot . At that point you are under no requirement to re holster until LE arrives , but if you dont have the original legal right to use deadly force you will be committing a crime . If someone is running well let them go , YOU are not police , nor should you ever effect and arrest . If you tell them to drop the gun and get down and they do fine , protect yourself and others possibly by keeping your gun out , if they choose to run that is fine too let them go . Its not your job or duty to detain them , and you almost certainly can get yourself in hot water if you try .
    Make sure you get full value out of today , Do something worthwhile, because what you do today will cost you one day off the rest of your life .
    We only begin to understand folks after we stop and think .

    Criminals are looking for victims, not opponents.

  5. #5
    Member Array alyehoud's Avatar
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    Thank you for the responses. That was what I would have guessed. Florida law doesn't require someone to stop a crime if they are a witness. Whether that's good or bad I don't know. I'de probably rather have the option.

    Thanks again :)

  6. #6
    Member Array GHFLRLTD's Avatar
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    Florida Law

    http://www.flsenate.gov/statutes/ind...776/ch0776.htm

    Rules - Florida Castle Doctrine Full Law

    CHAPTER 776

    JUSTIFIABLE USE OF FORCE

    776.012 Use of force in defense of person.

    776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.

    776.031 Use of force in defense of others.

    776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

    776.041 Use of force by aggressor.

    776.08 Forcible felony.

    776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.

    776.012 Use of force in defense of person.--A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

    (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

    (2) Under those circumstances permitted pursuant to s. 776.013.

    History.--s. 13, ch. 74-383; s. 1188, ch. 97-102; s. 2, ch. 2005-27.

    776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.--

    (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

    (a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

    (b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

    (2) The presumption set forth in subsection (1) does not apply if:

    (a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

    (b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

    (c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

    (d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

    (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

    (4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

    (5) As used in this section, the term:

    (a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

    (b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

    (c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

    History.--s. 1, ch. 2005-27.

    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.

    History.--s. 13, ch. 74-383; s. 1189, ch. 97-102; s. 3, ch. 2005-27.

    776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--

    (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

    (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

    (3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

    History.--s. 4, ch. 2005-27.

    776.041 Use of force by aggressor.--The justification described in the preceding sections of this chapter is not available to a person who:

    (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

    (2) Initially provokes the use of force against himself or herself, unless:

    (a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

    (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

    History.--s. 13, ch. 74-383; s. 1190, ch. 97-102.

    776.08 Forcible felony.--"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

    History.--s. 13, ch. 74-383; s. 4, ch. 75-298; s. 289, ch. 79-400; s. 5, ch. 93-212; s. 10, ch. 95-195.

    776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.--

    (1) It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony. The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence.

    (2) For the purposes of this section, the term "forcible felony" shall have the same meaning as in s. 776.08.

    (3) Any civil action in which the defense recognized by this section is raised shall be stayed by the court on the motion of the civil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a conviction in the criminal action would not form a valid defense under this section.

    (4) In any civil action where a party prevails based on the defense created by this section:

    (a) The losing party, if convicted of and incarcerated for the crime or attempted crime, shall, as determined by the court, lose any privileges provided by the correctional facility, including, but not limited to:

    1. Canteen purchases;

    2. Telephone access;

    3. Outdoor exercise;

    4. Use of the library; and

    5. Visitation.

    (b) The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney; however, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the losing party is incarcerated for the crime or attempted crime and has insufficient assets to cover payment of the costs of the action and the award of fees pursuant to this paragraph, the party shall, as determined by the court, be required to pay by deduction from any payments the prisoner receives while incarcerated.

    (c) If the losing party is incarcerated for the crime or attempted crime, the court shall issue a written order containing its findings and ruling pursuant to paragraphs (a) and (b) and shall direct that a certified copy be forwarded to the appropriate correctional institution or facility.

    History.--s. 1, ch. 87-187; s. 72, ch. 96-388.
    Stripped of legalize, it works like this:

    1. It establishes, in law, the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, therefore a person may use any manner of force, including deadly force, against that person.
    2. It removes the "duty to retreat" if you are attacked in any place you have a right to be. You no longer have to turn your back on a criminal and try to run when attacked. Instead, you may stand your ground and fight back, meeting force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or others.
    3. It provides that persons using force authorized by law shall not be prosecuted for using such force.
    4. It also prohibits criminals and their families from suing victims for injuring or killing the criminals who have attacked them; to be sued you must be first convicted of criminal behavior steming from the event. Any attempt to sue without that conviction requires the person filing the suit to pay your legal expenses.
    George H. Foster
    Orlando, Florida

  7. #7
    Senior Member Array rljohns's Avatar
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    In Colorado the law says:

    18-1-704 Use Of Physical Force In Defense Of A Person
    1. Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force
    upon another person in order to defend himself or a third person from what he reasonably believes to be the use
    or imminent use of unlawful physical force by that other person, and he may use a degree of force which he
    reasonably believes to be necessary for that purpose.
    2. Deadly physical force may be used only if a person reasonably believes a lesser degree of force is
    inadequate and:
    a) The actor has reasonable grounds to believe, and does believe, that he or another person is in imminent
    danger of being killed or of receiving great bodily injury; or
    b) The other person is using or reasonably appears about to use physical force against an occupant of a
    dwelling or business establishment while committing or attempting to commit burglary as defined in sections
    18-4-202 to 184-204; or
    c) The other person is committing or reasonably appears about to commit kidnapping as defined in section
    18-3-301 or 18-3-302, robbery as defined in section 184-301 or 184-302, sexual assault as set forth in section
    18-3-402 or 18-3-403, or assault as defined in sections 18-3-202 or 18-3-203.
    3. Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical
    force if:
    a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical
    force by that other person; or
    b) He is the initial aggressor, except that his use of physical force upon another person under the
    circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other
    person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force;
    or
    c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
    18-1-704.5 Use Of Deadly Physical Force Against An Intruder (“Make My Day law”)
    1. The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety
    within their own homes.
    2. Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any
    degree of physical force, including deadly physical force, against another person when that other person has
    made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person
    has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit
    a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably
    believes that such other person might use any physical force, no matter how slight, against any occupant.
    12
    3. Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the
    provisions or subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
    4. Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the
    provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death
    resulting from the use of such force.
    18-1-705 Use Of Physical Force In Defense Of Premises
    A person in possession or control of any building, realty, or other premises, or a person who is licensed or
    privileged to be thereon, is justified in using reasonable and appropriate physical force upon another person
    when and to the extent that it is reasonably necessary to prevent or terminate what he reasonably believes to be
    the commission or attempted commission of an unlawful trespass by the other person in or upon the building,
    realty, or premises. However, he may use deadly force only in defense of himself or another as described in
    section 18-1-704, or when he reasonably believes it necessary to prevent what he reasonably believes to be an
    attempt by the trespasser to commit first degree arson.
    18-1-706 Use of Physical Force in Defense of Property
    A person is justified in using reasonably and appropriate physical force upon another person when and to the
    extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the
    other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use
    deadly physical force under these circumstances only in defense of himself or another as described in section
    18-1-704.
    18-1-707 Use Of Physical Force In Making An Arrest Or In Preventing An Escape
    1. Except as provided in subsection (2) of this section, a peace officer is justified in using reasonable and
    appropriate physical force upon another person when and to the extent that he reasonably believes it necessary:
    a) To effect an arrest or to prevent the escape from custody of an arrested person unless he knows that the
    arrest is unauthorized; or
    b) To defend himself or a third person from what he reasonably believes to be the use or imminent use of
    physical force while effecting or attempting to effect such an arrest or while preventing or attempting to prevent
    such an escape.
    2. A peace officer is justified in using deadly physical force upon another person for a purpose specified in
    subsection (1) of this section only when he reasonably believes that it is necessary:
    a) To defend himself or a third person from what he reasonably believes to be the use or imminent use of
    deadly physical force; or
    b) To effect an arrest, or to prevent the escape from custody, of a person whom he reasonably believes:
    13
    i) Has committed or attempted to commit a felony involving the use or threatened use of a deadly weapon; or
    ii) Is attempting to escape by the use of a deadly weapon; or
    iii) Otherwise indicates, except through a motor vehicle violation, that he is likely to endanger human life or to
    inflict serious bodily injury to another unless apprehended without delay.
    3. Nothing in subsection (2)(b) of this section shall be deemed to constitute justification for reckless or
    criminally negligent conduct by a peace officer amounting to an offense against or with respect to innocent
    persons whom he is not seeking to arrest or retain in custody.
    4. For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable
    belief in facts or circumstances, which if true would in law constitute an offense. If the believed facts or
    circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law
    is otherwise does not render justifiable the use of force to make an arrest or to prevent an escape from custody.
    A peace officer who is effecting an arrest pursuant to a warrant is justified in using the physical force
    prescribed in subsections (1) and (2) of this section unless the warrant is invalid and is known by the officer to
    be invalid.
    5. Except as provided in subsection (6) of this section, a person who has been directed by a peace officer to
    assist him to effect an arrest or to prevent an escape from custody is justified in using reasonable and
    appropriate physical force when and to the extent that he reasonably believes that force to be necessary to carry
    out the peace officer’s direction, unless he knows that the arrest or prospective arrest is not authorized.
    6. A person who has been directed to assist a peace officer under circumstances specified in subsection (5) of
    this section may use deadly physical force to effect an arrest or to prevent an escape only when:
    a) He reasonably believes that force to be necessary to defend himself or a third person from what he
    reasonably believes to be the use or imminent use of deadly physical force; or
    b) He is directed or authorized by the peace officer to use deadly physical force and does not know, if that
    happens to be the case, that the peace officer himself is not authorized to use deadly physical force under the
    circumstances.
    7. A private person acting on his own account is justified in using reasonable and appropriate physical force
    upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to
    prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is
    justified in using deadly physical force for the purpose only when he reasonably believes it necessary to defend
    himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical
    force.
    8. A guard or peace officer employed in a detention facility is justified:
    a) In using deadly physical force when he reasonably believes it necessary to prevent the escape of a prisoner
    convicted of, charged with, or held for a felony, or confined under the maximum security rules of any detention
    facility as such facility is defined in subsection (9) of this section.
    14
    b) In using reasonable and appropriate physical force, but not deadly physical force, in all other circumstances
    when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be the
    escape of a prisoner from a detention facility.
    9. “Detention facility” as used in subsection (8) of this section means any place maintained for the
    confinement, pursuant to law, of persons charged with or convicted of an offense, held pursuant to“Colorado Children’s Code,” held for extradition, or otherwise confined pursuant to an order of a court.


    This is from the Douglas Co Sheriff website CCW info packet

  8. #8
    Senior Member Array Musketeer's Avatar
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    and in English: If you shoot someone in the back who was clearly running away and not a threat (ie, not diving for cover or such to continue the fight) you are going to be looking at an uphill battle to get the shoot judged justifiable.

  9. #9
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    I see no reason you could not draw with the justification that you worried that the attacker may turn back and continue fighting

    YMMV
    Mark

    "The world is filled with violence. Because criminals carry guns, we decent law-abiding citizens should also have guns. Otherwise they will win and the decent people will lose."

    -James Earl Jones

  10. #10
    Ex Member Array TC_FLA's Avatar
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    "I am not a Lawyer or a Judge" But I stayed at a Holiday Inn Express last night. Lol... Sorry, had to say it.

    Go to the web site www.myflorida.com and they will have the answers.

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