Can someone explain "preclusion" to me?

This is a discussion on Can someone explain "preclusion" to me? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; I just got my ccw (CO), and I am trying to understand the general legal definition of "justifiable use of force". I am quoting from ...

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Thread: Can someone explain "preclusion" to me?

  1. #1
    Member Array libertyrules's Avatar
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    Question Can someone explain "preclusion" to me?

    I just got my ccw (CO), and I am trying to understand the general legal definition of "justifiable use of force". I am quoting from the website

    "Preclusion is not so much an individual consideration as it is an all-encompassing lens through which to view your actions. More complex than the others, it is nevertheless just as important. It is the idea that, whatever the situation, you are expected to use force only as a last resort—that is, only when the circumstances preclude all other options.

    "Does the Preclusion standard mean that an ultimatum like “give me your money or I’ll hurt you” requires you to, well, give him your money? Unless you honestly believe that he may hurt you anyway, yes. The law values “life and limb” above property. Or you can refuse, but you may not respond with a fist. He’s giving you a choice, which, by definition, means that you still have options other than force."

    Which I do not understand. If someone says that to me, and I'm carrying - I don't see me forking over my wallet. If I simply say, "No." then we have a new situation. Then if he makes good on his promise to hurt me, then it's no longer about my property, but my well-being that is at stake. No? Can someone provide some clarity here?
    "The right of self-defense is the first law of nature..."

    No Apology

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  3. #2
    Member Array Randy's Avatar
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    Preclusion is the last metric in the AOJP analysis. In short, if you can preclude one of the other three, you should do so, as long as the act of precluding (preventing) doesn't place you in further jeopardy.

    Example:
    Someone knocks on your door and you open it. The person outside then sticks a knife at your face and demands entry. Slamming the door in his face would be preclusion. You are precluding (preventing) his ability and opportunity.

    Now, if someone demands your wallet, I would suggest you give it to him. Your property is not defendable with deadly force in most states (check your laws) and the ramifications for using deadly force just aren't worth the contents of your wallet or your pride. Once you give him the wallet, if you think he is still going to harm you, you have a different situation and it must be evaluated as such.

    In short, there is no "right" answer for the situation you describe. There are too many details, which are important to the analysis of the situation, that aren't conveyed in the question. In other words, no one but you can know if you felt your life was in jeopardy at the time; usually a very important criterion in determining if deadly force was justified. Again, check your state statue and/or case law on the use of deadly force.

    Randy

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    Senior Member Array mulle46's Avatar
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    Question

    I just got my ccw (CO), and I am trying to understand the general legal definition of "justifiable use of force". I am quoting from the website

    "Preclusion is not so much an individual consideration as it is an all-encompassing lens through which to view your actions. More complex than the others, it is nevertheless just as important. It is the idea that, whatever the situation, you are expected to use force only as a last resort—that is, only when the circumstances preclude all other options".
    I fail to see how preclusion could ever be an all-encompassing lens and not an individual consideration. It is the individual experiencing the situation who has to determine if force is required. With that language though, it makes it harder to justify any use of force, but especially use of a firearm. OMO

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    VIP Member Array Sticks's Avatar
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    Quote Originally Posted by libertyrules View Post
    I just got my ccw (CO), and I am trying to understand the general legal definition of "justifiable use of force". I am quoting from the website

    "Preclusion is not so much an individual consideration as it is an all-encompassing lens through which to view your actions. More complex than the others, it is nevertheless just as important. It is the idea that, whatever the situation, you are expected to use force only as a last resort—that is, only when the circumstances preclude all other options.
    Where did you find this?

    Here is a link to all of Colorado's (state) laws. CRS (Colorado Revised Statutes) 18-12 They trump any and all city/county laws regarding CC. LexisNexis(TM)

    Quote Originally Posted by Randy View Post
    Now, if someone demands your wallet, I would suggest you give it to him. Your property is not defendable with deadly force in most states (check your laws) and the ramifications for using deadly force just aren't worth the contents of your wallet or your pride. Once you give him the wallet, if you think he is still going to harm you, you have a different situation and it must be evaluated as such.

    Randy
    Another reason to keep your mouth shut when the police arrive until you speak to a lawyer.

    Sorry, moral issue.
    Sticks

    Grasseater // Grass~eat~er noun, often attributive \ˈgras-ē-tər\
    A person who is incapable of independent thought; a person who is herd animal-like in behavior; one who cannot distinguish between right and wrong; a foolish person.
    See also Sheep

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    Member Array bigiceman's Avatar
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    I think the preclusion part would go to the fact that the demand for your wallet requires a response, but at that point not a use of deadly force. To draw and fire your weapon at that point would be a social service, but not a justifiable shooting. To use the threat of deadly force, to draw as you back away creating distance, would be a preclusion. It would then be the move of the assailant to determine if they were going to push you further, and any move toward a retreating person holding a firearm, I would have to consider life-threatening.
    But if you are authorized to carry a weapon, and you walk outside without it, just take a deep breath, and say this to yourself...
    "Baa."
    LTC(RET) Dave Grossman

    Revolutionary War Veterans Association Shooter Qualification: Cook

  7. #6
    Member Array libertarian5's Avatar
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    Congrats on getting the ccw.

    The wallet / robbery scenario would be judged differently if it occured at your house or away. Colorado law gives homeowners a lot of latitude in defending their home. (Make my Day) Not so much when you are away. There is a law in the legislature this session (HB1066) that would expand this to include your place of business. It would provide protection from lawsuits against those who use deadly force to stop a home or business robbery.

    http://www.leg.state.co.us/CLICS/CLI...le=1066_01.pdf

    The best collection of Colorado information I have found is the RMGO website: RMGO - Home

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    Member Array crankshop1000's Avatar
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    Preclusion,zero tolerance,predetermined reaction to a given threat...all nonsense in my book. Castle doctrine seems to be the real basis for self defense and whatever happens from there goes according to chance. Just make sure you base your self defense on your fear for your life and leave it at that. Don't get sucked into analyzing your decisions. You saw, you feared, you reacted,period.

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    Member Array Randy's Avatar
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    Sticks, I'm not sure where the OP got the material, but there's a copy of it at: UseofForce.us: AOJP

    What did you mean by "moral issue"? I totally agree that you should keep your mouth shut until you can speak to your lawyer, but perhaps for another reason. What did you mean here?

    Randy

    Quote Originally Posted by crankshop1000 View Post
    Preclusion,zero tolerance,predetermined reaction to a given threat...all nonsense in my book. Castle doctrine seems to be the real basis for self defense and whatever happens from there goes according to chance. Just make sure you base your self defense on your fear for your life and leave it at that. Don't get sucked into analyzing your decisions. You saw, you feared, you reacted,period.
    At the time, yes, you react. But you had better know what situations (and be able to recognize those very quickly) that would allow the use of deadly force as a reasonable response. Just because you are in fear isn't necessarily enough.

    Rest assured you will be "sucked in" to articulating your actions after the fact, quite possibly to a jury not of your peers, but to a jury of people too stupid to get out of jury duty. The time to think about this sort of thing is NOW, before you are in a situation.

    Randy

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    Member Array libertyrules's Avatar
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    Thanks, Randy - I did cite the source, but for some reason it didn't come through on the post. It is, as you said:
    UseofForce.us: AOJP

    Sticky issue, but I'd rather dig into it now, rather than have some defense lawyer explain it to me how I've just created a huge liability for myself. If a BG says "give me your wallet, or I'll hurt you", and I say "No, you can't have my wallet. Go away." - wouldn't his next action (to try to hurt me), create a new scenario (an attack on me)? - a situation in which I would be entitled to defend myself?

    The responses so far show me that it is a tough nut to crack, maybe impossible, except on an ad hoc basis. Dang.
    "The right of self-defense is the first law of nature..."

    No Apology

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    Member Array Randy's Avatar
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    If a BG says "give me your wallet, or I'll hurt you", and I say "No, you can't have my wallet. Go away." - wouldn't his next action (to try to hurt me), create a new scenario (an attack on me)? - a situation in which I would be entitled to defend myself?
    It just might very well do that. My question is why would you want to attempt to force the BG to escalate? That makes it sound like you are looking for a fight.

    I realize that giving up your wallet (you do carry a "drop" wallet, yes?) might not be the "manly" or macho thing to do. However if the loss of your wallet prevents you from having to physically fight for your life or even shoot someone, consider it an equitable trade.

    The absolute last thing you want to do is shoot someone. The legal, psychological, financial, and social aftermath from a self defense shooting can inflict serious damage and pain to you and your family for many years after you pull the trigger. Why would you want to risk that type of peril unnecessarily? Especially for something as easily sacrificed (and replaced) as a wallet?

    Randy

  12. #11
    Member Array libertarian5's Avatar
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    If you can't utilize a CCW to defend yourself in a armed robbery, then what good is it?

    The criteria in Colorado is whether it is a "armed" robbery or not. A person with a knife is an armed robber. In Colorado, you can legally shoot. If someone just wants to fight you, you can not. In Colorado you can shoot someone to stop an armed robbery or sexual assault of a third person as well.

  13. #12
    Member Array bigiceman's Avatar
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    Quote Originally Posted by Randy View Post
    I realize that giving up your wallet (you do carry a "drop" wallet, yes?) might not be the "manly" or macho thing to do. However if the loss of your wallet prevents you from having to physically fight for your life or even shoot someone, consider it an equitable trade.

    Randy
    Are you kidding here? If we are going to let people rob us and give away the control of our lives and our property why are we even carrying a firearm? I am not advocating picking fights or being macho, but being a victim an "equitable trade"? If someone says they are down on their luck can they have a couple bucks, then I give them something. When they say they will hurt me if I don't, then they have created a situation in which I have been physically threatened and they will not get a polite response. What are you talking about?
    But if you are authorized to carry a weapon, and you walk outside without it, just take a deep breath, and say this to yourself...
    "Baa."
    LTC(RET) Dave Grossman

    Revolutionary War Veterans Association Shooter Qualification: Cook

  14. #13
    Member Array libertyrules's Avatar
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    Randy, I know what you're saying is good advice. But, to answer you
    My question is why would you want to attempt to force the BG to escalate? That makes it sound like you are looking for a fight.
    Becoming a 'willing victim' would also create anger inside me. The BG is the one looking for a fight, I just want to go for a walk. I guess I'm having trouble with the law making it easy for the brutes of the world, and tough on peaceful citizens.

    I have been mugged exactly three times, all in NYC back in the 70's when I was a driving a cab. Back then, cabbies were just another easy mark - the cops were unable to help. We were getting mugged and even killed at an alarming rate. I can tell you, getting mugged leaves it's mark on you, too. But that's history.

    I agree that the last thing I want is to shoot someone, certainly not over a wallet. But neither do I want to decide to become a victim.
    "The right of self-defense is the first law of nature..."

    No Apology

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    Member Array Randy's Avatar
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    The handgun (or deadly force option) is used for the immediate defense of life (IDOL) only. If your life is in imminent and immediate jeopardy, use of the handgun may be justified.

    What are you talking about?
    I am talking about "personal protection". The totality of which includes much more than defending your wallet.

    Is your wallet really worth a $50k criminal trial or civil suit? Loss of your job? Being ostracized from your social community? Determined guilty by the court of public opinion? Having the phone ring at 3am in the morning and some nut-job on the other end whisper "baby killer"? What happens to your kids at their school? There's a lot more to consider than what you are taking into account.

    Look, if you think the guy is going to harm you, do what you need to do. I am not saying that you shouldn't defend yourself if the situation dictates such. What I am saying is that the aftermath of defending yourself isn't worth the contents of your wallet.

    Perhaps your prosecutor will give you a pat on the back for whacking a wallet-stealing BG. Or, perhaps your prosecutor will want to put you in jail for the rest of your life for defending yourself after someone has shot you. The political views of people filling this role vary greatly.

    Randy

    Becoming a 'willing victim' would also create anger inside me.
    Exactly. Now you've shot him with anger as your motive. That isn't going to fare well for your defense of "justifiable homicide" or whatever it is called in your state.

    If anger is the prevailing emotion, there's a real good chance you are not experiencing the "fear of death".

    All of this will come out in your trial.

    The BG is the one looking for a fight, I just want to go for a walk.
    No, the BG was looking for a wallet. If he were looking for a fight, he would have already been fighting. He was looking for something easy. You appeared to be an easy target, for whatever reason.

    I guess I'm having trouble with the law making it easy for the brutes of the world, and tough on peaceful citizens.
    I am coming at this from the perspective of "personal protection". In the long run, and be sure to take into account the aftermath of a self defense shooting, do you think you would be better "self protected" by shooting someone because they wanted to take your wallet, or by giving them your wallet and not shooting?

    I realize this is a tough position and, in the same situation, I would certainly *want* to protect my property too. However it isn't necessarily the most prudent course of action.

    Randy

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    VIP Member Array matiki's Avatar
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    I'm not aware of any state that requires you to actively comply with criminal demands.

    To the best of my knowledge, every state allows you to resist a crime against you.

    Everything else is a moral issue that can be debated but ultimately is a decision left for you to make on your own.

    The discussion of the legality of resisting crime startles me every time I see or hear it. IMNSHO it is absurd to think that a crime victim escalates crimes.

    I'd be interested in reading any case where preclusion was used to convict someone for matching force for force in resisting a crime.
    "Wise people learn when they can; fools learn when they must." - The Duke of Wellington

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