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Thread: When you're REALLY in trouble...

  1. #1
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    When you're REALLY in trouble...

    (This has both Tactics and Legal elements, so I put it here).

    A couple of posts in Tactical, as well as the Harold Fish case, have left me wanting clarification, if it's available.

    Scenario: you're minding your own business, and a guy starts approaching you, seemingly angry: swearing, raised voice, getting steadily closer. You don't see a weapon. Let's further suppose your ability to retreat is limited by an obstacle, or that you have no duty to do so (you're in Florida, enjoying "Stand your Ground.")

    At what point do you draw your gun--or do you? At what point do you shoot?

    I note that in some states, if you're in YOUR HOME, and an intruder makes a "violent and tumultuous" entry--not allowing you time to be sure of his intent or his weaponry--you may use deadly force. I don't think I've found a correlating principle if you're out in public, however.

    I know you can always what-if yourself into a no-win situation. But this seems to be a foreseeable scenario where, if you don't draw, you could die; but if you shoot, you could--like Fish--end up convicted.

    (Good argument for pepper-spray?)

  2. #2
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    Well, first off, you yell at him to keep his distance. He may not be coming -for- you, just at you/your general direction. He could just be angry about a poker game he just lost, or maybe his wife/girlfriend kicked him out, and he'd be in his own world. Get his attention first, and if he doesn't respond or he keeps coming at you, then take more appropriate action.

    As in anything, you'd have to guage the situation when you're there. There are a lot of different interpretations of what you've said, and it's largely depend on the setting. Are you at a bar? Are you out in the woods? Are you at home? Are you at the mall? In an apartment complex or parking lot? Etc.

  3. #3
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    Fair questions.

    The scenario I had in mind was--as with Fish--deserted or near deserted (no one's going to come to your aid, and maybe no one else is even able to see what's happening): filling your car or walking down empty street, late at night. And things are happening fast.

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    If you're the only two around, I'd say hastily changing course and readying your weapon (maybe drawing it with it behind your back/weak side towards the approaching person so it's concealed) while making a verbal challenge would be a good initial course of action. Let him or her 'see' the firearm only as a last resort (ie it's evident that they're coming AT you).

  5. #5
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    Well, if it's clear that his anger is directed at me, I draw the gun and let him see it right away (and yell at him too). If he still comes, I aim it at him. If he still comes, I shoot.

    The point is, the farther away you can turn things around, the better. Waiting for the last second reduces your options and increases the threat not only to you, but to him.

    I'm not aware of what happened to "Fish". I'd rather deal with a brandishing charge than have a dead body on the ground.

    Disclaimer: I'm not a lawyer or someone well versed in tactics. It just makes sense to me.

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    If possible, you could get off HIS line of force, and see if he re-engages. Not a retreat as much as side stepping and seeing if he continues to follow. I realize this may not be possible, but trying to disengage before using deadly force would certainly look better. Wasn't it G.S. Patton that said,"Once is happenstance, twice is coincidence, three times is enemy action."
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  7. #7
    you get if you are lucky 2 seconds to decide and a lifetime to regret and be second guessed

  8. #8
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    How far away are they when they start approaching you? Starting at, say, 20 yards or so, if they're walking quickly they can cover that space in a pretty short time. So there may not be much time to worry about when to start taking defensive action.

    As far as him not obviously having a weapon, I've decided that for myself it doesn't matter. That's a personal, moral decision everyone would have to make for themselves, but any average sized male could pose a serious threat to me without any weapon other than himself. I'm not going to risk a fistfight with some thug - I will lose. For bigger people who could risk it, consider also how easily a variety of weapons can be concealed in a hand or pocket. Not seeing a weapon doesn't mean much at that moment.

    So as soon as I saw that he was coming toward me specifically, I think the logical escalation of force would be: verbal warning (possibly repeated if there's time) > draw and aim (in one motion - no sense letting him know I'm armed before I'm ready to use it) > fire (repeat as necessary), stopping at whatever step makes the threat go away. Hopefully that would be sooner rather than later, but it's really his decision.
    "Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place." - Frederic Bastiat, The Law

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    In my state, self defense is acknowledged if the defender feels that his life is threatened. As I get older I am expanding my parameters for when I would feel my life is threatened.

    There was a time when my plan was to not draw my concealed weapon until I saw a weapon or until an advancing adversary was almost within reach.

    However, I'm a 65-year-old guy now, and a bit slower than I once was. If accosted, I am spring-loaded to drawing my weapon and presenting the adversary with an immediate decision.

    I want to give early warning to any potential perp. And if the person persists with me, I will defend myself with my firearm at a distance much farther from me than I would have done when I was a young man.

  10. #10
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    I'm not aware of what happened to "Fish".
    Harold Fish is a cause célèbre. He claims he was attacked while out hiking alone by the owner of two dogs. The dogs were approaching too close, so he fired warning shots; he says that's when the owner rushed him, screaming at him, saying he was going to kill Fish.

    I use "He claims," etc. because we only have his side. His attacker is dead, shot by Fish. Even though the deceased was known as a "bad actor" locally, and had a weapon (screw-driver) in his back pocket, Fish was convicted. There are many theories as to why he was convicted (You can search THR for Harold Fish, or Google or Wiki him).
    For bigger people who could risk it, consider also how easily a variety of weapons can be concealed in a hand or pocket. Not seeing a weapon doesn't mean much at that moment.
    Couldn't agree more.

    I'm, I think, at the opposite end of the physical size scale from tigre. ('Course, it's not the size of the tigre in the fight...) But on a personal, moral (not legal) level, I have decided that any average Joe who's coming after ME either has a weapon or friends I haven't noticed yet, or is too d-mned drugged or crazy to be stopped by a punch--so why let him get that close?

    I fear this position puts me on shaky legal ground--which I know is better that being under 6 feet of shaky legal ground.

  11. #11
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    This is why I love winter (sometimes).

    I'd put my hand in my coat pocket, on my revolver, and point it at him.

  12. #12
    If I remember the whole scenerio, Fish really made the mistake of saying all the wrong things to the investigating officer when he should have spoken to his lawyer first. He really convicted himself when it became a political battleground and less of a court case. The AZ Gov is very anti gun.

    Where there is only your testimony, it doesn't matter what happened, it matters how your case is presented.

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    I was going to say the conviction of Fish made no sense (as the incident was recounted), but George's comment explains all. Never talk to police if you don't have to, but certainly not in a situation like this.

    http://www.garynorth.com/public/3821.cfm

  14. #14
    The information given at garynorth.com is substantially similar to that which was given to AZ CCW instructors by both AZ DPS and Mike Anthohy, a criminal defense attorney who has been instrumental in working with DPS to develop AZ CCW training.

    Three things came together to convict Mr. Fish. His statements to investigatiing officers, a quirk in AZ law at the time that required an accused to prove his innocence when using a certain justification defense (ARS 13-404, iirc) and an imperfectly competent defense team.

    The Coconino Cty attorney had initially declined to prosecute Mr. Fish, but caved to public pressure over the matter.

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    thanks for the video link..interesting and informative
    These criminals target specifically places where they know for sure that there will be no armed person to shoot back.
    The more such places we give them, the more tragic incidents we will see.


    I am a hard working man who supports his family and cares dearly about all his friends. I won't ever take scumbaggedness like this.

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    A few things before an incident, should you have one, can go a long ways.

    Can you "back off"? Even if its just a step back or an "excuse me"? What if the "charging" guy is not after you at all? It should help clarify the true intentions of an aggressor.

    Another, can you keep options open? Can your weapon be ready to use but out of sight?

    Being wrong (or unable to clearly show evidence of why you were right) carries a high price.

    Last, keep your mouth shut. Ever know someone who always confesses personal info to complete strangers, almost compulsively? Don't be that person.

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    If push ever comes to shove, and it becomes necessary to use lethal force, we were advised in CCW class to say to the police, "I felt that my life was in danger, and I'd like to speak to my lawyer". After that point, the police cannot legally question you further. Let the lawyer do the talking.

    In the instance presented I would try to move out of the assailant's way if possible. If not possible or if he tracks me when I move, I would tell him to stop, if he continued, draw and present my gun, fire as a last resort, but not when he's right on top of me. There are enough irrational, drug fueled people around that it's best not to risk one's life with one of them. I'm also a not terribly large, old guy, and a young assailant could tear me in two without a weapon other than his hands.

  18. #18
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    If he's yelling at me, I would draw and tell him to back off. If it's just a crazy, yelling at the sky, I would watch him as he passed. The gut usually serves well in those kind of situations.
    “When you understand the nature of a thing, you know what it is capable of.”
    -Miyamoto Musashi

    "Some of the worst things imaginable have been done with the best intentions."

  19. #19
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    Larry E just about summed it up for me, . . . I'm just too old to go H2H with some guy that just may be able to take me apart like a fresh burrito.

    Yeah, . . . brandishing is not good, . . . in Ohio, if I understand the law correctly, it could escalate to assault with a deadly weapon without pulling the trigger, . . . but I'm of the opinion that waiting to find out all the details I don't know about this dude at 20 feet, . . . may let him get so close that nothing I do will work.

    I've kinda got that 20 foot line as my "lets get her in hand" line, . . . and just let the law shake the bushes after that. It's always better to be judged by 12 rather than carried by 6.

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  20. #20
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    From footloose:
    In my state, self defense is acknowledged if the defender feels that his life is threatened. As I get older I am expanding my parameters for when I would feel my life is threatened.
    Sure about that? "Feels?" Sure it doesn't require a reasonable belief, supported by the elements of Opportunity, Ability, and Jeapardy? Better check that.

    You may find this worth bookmarking:

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    Larry E said it right for me I'm 66. I can't run far. One hit to face I'm down.

    If push ever comes to shove, and it becomes necessary to use lethal force, we were advised in CCW class to say to the police, "I felt that my life was in danger, and I'd like to speak to my lawyer". After that point, the police cannot legally question you further. Let the lawyer do the talking.

    In the instance presented I would try to move out of the assailant's way if possible. If not possible or if he tracks me when I move, I would tell him to stop, if he continued, draw and present my gun, fire as a last resort, but not when he's right on top of me. There are enough irrational, drug fueled people around that it's best not to risk one's life with one of them. I'm also a not terribly large, old guy, and a young assailant could tear me in two without a weapon other than his hands.
    A wise and frugal government, which shall leave men free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned - this is the sum of good government.
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  22. #22
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    It's always hard to get to a definitive conclusion when dealing with a hypothetical like this. Every real life situation unique, and the devil is in the details.

    For example, is the assailant obviously younger/bigger/stronger than you? Does he appear to be under the influence of something like speed or cocaine? Disparity of force (bigger, stronger attacked) or the strength enhancing effects of stimulants can help establish your attacker's ability (i. e., ability to deliver force sufficient to cause death or grave bodily harm).

    How "crazy" is he acting? There were Viking warriors who would work themselves into an uncontrollable rage or trance of fury and were said to be uncommonly fierce They were called berserkers (and that's were the word "berserk" comes from).

    Do you have reasonable options? You may not be under a duty to retreat, but if you can, it wouldn't be a bad idea (unless doing so would put a loved one in danger or if you're in your home). Can you sidestep or evade at all? Do you have ready access to a less lethal weapon -- pepper spray or some improvised impact weapon?

    I can imagine enough of these questions going in a way that would justify the use of lethal force. I can imagine the factors being present that would cause a reasonable and prudent person in a like situation, and knowing what you know, to conclude there is an immediate and otherwise unavoidable danger of death or grave bodily harm to an innocent. That is, of course, the standard for the use of lethal force (without considering the "castle doctrine" variations).

    So I'm 61, short, and not necessarily in the best of shape. So if the guy is 5'11", early 30s and a buff 190, I'm not going to fare well grappling with him. So if it looks to me like he's raging out of control, mad at the world, focused on me and if he appears to me to have manifest the intention to take me apart, I believe that I will be justified in using lethal force (assuming I can't retreat). I of course will subsequently need to articulate and authenticate those factors on which I based my decision. And if displaying my gun causes the assailant to back off, I won't shoot.

    But your description could also fit a perfectly regular guy indulging in a somewhat inappropriate public display of spleen because he just found out that his wife spent the $3,000 he was saving for a fly fishing trip to Idaho on some pink chintz curtains for the den. He's not attacking anyone. He's just doing a little, perhaps indecorous, public venting.

    Now from what I've heard about the Harold Fish case, he most likely properly responded with lethal force. His attacker was younger and heavy than he, and his attacker was charging downhill toward him. I can imagine Mr. Fish reasonably being in fear for his life. But from what I've also heard, his defense team did not deal with some of the prosecution's issues well. So in one sense the moral of Fish is to choose your defense lawyer carefully.

    Even some of the best criminal defense lawyer have very little experience handling a self defense case. The standard defense in a criminal case is some version of "I didn't do it." So defense lawyer become very good at dealing with alibis, mistaken identity and generally planting a reasonable doubt.

    But when you plead self defense, you are, in effect, saying."I did it, but I was justified." You must now demonstrate that you were justified. That's a very different sort of defense.
    Last edited by fiddletown; November 19th, 2008 at 12:28 AM.

  23. #23
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    Appreciate everyone's comments, and the care behind them. I understand that hypotheticals, when they're not downright annoying, leave a lot of details not filled in, details that are crucial.

    What I was trying to get at in the O.P. was the sense of a sudden, unanticipated rush--he IS coming at you, he hasn't responded to your calls to "STOP," he's yelling and angry, he's closing ground; you don't see a weapon, you don't know this guy from Adam--why's he coming at ME?--you're backpeddling but you're running out of room and time. Quick.

    (Legally speaking, we have jeopardy and opportunity--but we don't see the means. Yet.)

    As I mentioned above, I've personally decided that I'm not letting someone like this get into knife range without my gun drawn. I would reach back for the gun (and verbally challenge) when I first think he's coming at me, draw it--keeping concealed if possible--unless he stops right away, then bring it to bear with a final "STOP!"

    Then he doesn't stop. My gun pointed right at him, he won't stop. I still see no weapon, and he's madder than heck. And he's coming.

    I guess if I wait until he's within grabbing distance of MY gun, I can always say that he was within reach of a deadly weapon when I fired--but isn't that letting him get too close? Do you always see the knife coming? I know that bullets won't necessary stop a knife thrust that close--so why am I letting him close with me?

    I have a feeling that at some point in all this--based on other, ah, interesting experiences I've had--a light will go on in my head: "My G-d. He's really going to kill me. I believe it." And I will shoot.

    Is that going to seem reasonable to anyone who wasn't there? Is that justified?

    After the shooting, whether or not he "really" had a weapon probably doesn't matter, legally. Harold Fish's attacker actually did have a potential weapon. But since Fish never saw it, its presence was not allowed in as evidence at trial.

  24. #24
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    Quote Originally Posted by Loosedhorse
    ...What I was trying to get at in the O.P. was the sense of a sudden, unanticipated rush--he IS coming at you, he hasn't responded to your calls to "STOP," he's yelling and angry, he's closing ground; you don't see a weapon, you don't know this guy from Adam--why's he coming at ME?--you're backpeddling but you're running out of room and time. Quick....
    And when you put it that way, the possible use of lethal force is starting to look more appropriate. The wild card is still means (or ability). Is he a lethal threat? One doesn't necessarily need a weapon to be a lethal threat. Disparity of force -- someone younger/larger/stronger than you can kill you without a weapon. Someone under the influence of strength enhancing, or pain blocking, stimulants can kill you without a weapon. Someone in the throes of an uncontrolled psychotic rage can kill you without a weapon. Are there articulable signs that any of these factors may be present?

  25. #25
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    (I hate it when people make me think and explain what I mean! )

    The attacker is, say, physically "equal" to me--maybe I'm a bit bigger and heavier, but he's a little younger and faster. He's big enough to knock me down in a "fair fight."

    The problem is his anger and non-response. This is not some robber who'll leave once you produce the wallet. He has no known motive. I have no belief that, were he to knock me down, he'd then end his attack.

    To use an (awful--forgive me) analogy: unprovoked attacks by animals are a conventional sign that the animal (dog, skunk, etc.) may be "mad," that is, have rabies. Now, this attacker doesn't have rabies (no foaming at the mouth or other "articulable" signs of derangement, unless his anger, unprovoked attack and non-response to challenge constitute such), but there's that same sense of an especially dangerous threat from this sudden, unprovoked attack.

    And, in the back of my head, "I am a bit bigger in this guy--but he's attacking me. Does that mean he's got an advantage that I don't see? A weapon somewhere?"

    What's my leeway? As mentioned above, "violent and tumultuous entry" into the home allows the homeowner (in some states) leeway to use lethal force because some level of violence has been demonstrated and the rapid unfolding of the situation does not allow for the safe ascertainment of what the intruder's armament and intent are.

    No similar leeway for a "violent and tumultous" approach on the street?

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