You shot an unarmed suspect?

[wisco]

Someone attacking me, as opposed to trying to get away or not be cuffed, has placed themselves in a deadly force scenario.

Yep. If I get scared enough, I'm not going to sweat legal technicalities. I'll worry about those later.

I like the saying: "I'd rather be judged by 12 than carried by 6."


Of course, in WI, we still have the "duty to retreat" nonsense... although I haven't heard of any significant case where it held water.

[Silver Fox]

Overall, decent article. 2 things though, IMO should not have used the word "mistakes" in paragraph 6 - makes it sound like a shooting in those circumstances was wrong/erroneous (which is not necessarily so); and last sentence of paragraph 11, delete "necessary" - per graham vs connor, we don't use necessary any more - "objectively reasonable" instead.

+-10...Great job of observation Sam I was too busy reading the article than searching for typos and errors..How stupid of me.

[Samuel]

+-10...Great job of observation Sam I was too busy reading the article than searching for typos and errors..How stupid of me.

Are you being sarcastic? I wouldn't call what caught my eye a "typo" or a (simple) "error". I DID Read the article too...

[retdetsgt]

Fn awesome!

More like fn stupid. Sometimes my life is like a Daffy Duck cartoon.

[BJJVad]

More like fn stupid. Sometimes my life is like a Daffy Duck cartoon.

Sometimes fn stupid, is a fn good idea. Possessing a backbone is not a bad thing.

You cannot argue that it's a doors fault for blocking a path.

[txinvestigator1]

I don't think you meant it the way it reads, but someone attempting to disarm you of your firearm certainly would classify as deadly force justified.

While I don't disagree, OUR penal code does not mention someone taking your gun as a justification. You know the law in your jurisdiction, and you know how to verbalize your thought process.

And, going home to my wife qualifies as wanting to live. Wanting to live means something is occurring that jeopardizes that and deadly force is justified.

On that I disagree. Would you tell a grand jury, "I shot the man because he was doing something to keep me from going home to my wife", or would you say, "the suspect attempted to slice my head off with a hatchet, and in order to stop his unlawful and deadly assault I shot him."?

I am more likely now, than ever before in my younger years, to shoot someone who is unarmed if they are attacking me and/or attempting to disarm me.

Me too. I am not near as quick or in as good a shape.

It all boils down to articulation as far as I am concerned. All I have to do is convince a jury I was in fear of my life or the life of a third person.

In my state being in fear of your life is not a justification, either. As an example, if you ever ride in the car with my sister, you WILL be in fear of your life. However, you do not have a justification to shoot her.

Our code is specific. You are justified when and to the degree you reasonably believe it is immediately to prevent the other's use or attempted use of unlawful deadly force.

You must be able to show that your belief was reasonable, that using DF was IMMEDIATELY necessary, and the other was using or attempting to use unlawful deadly force against you. It is not nearly as simple as being "in fear of your life". It is a given that you might be in fear of your life when being faced with deadly force, but it is not a justification or a requirement.

[txinvestigator1]

I like the saying: "I'd rather be judged by 12 than carried by 6."

That is a stupid, old and worn out cliche. It implies those are the only too options and does not make one sound like a tough guy.

[Cat_Doc]

While I don't disagree, OUR penal code does not mention someone taking your gun as a justification. You know the law in your jurisdiction, and you know how to verbalize your thought process.

These are our state statutes regarding use of force/deadly force, both citizen and law enforcement;

13-404. Justification; self-defenseA. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force.
B. The threat or use of physical force against another is not justified:
1. In response to verbal provocation alone; or
2. To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or
3. If the person provoked the other's use or attempted use of unlawful physical force, unless:
(a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and
(b) The other nevertheless continues or attempts to use unlawful physical force against the person.


13-405. Justification; use of deadly physical forceA person is justified in threatening or using deadly physical force against another:
1. If such person would be justified in threatening or using physical force against the other under section 13-404, and
2. When and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.

13-410. Justification; use of deadly physical force in law enforcement
A. The threatened use of deadly physical force by a person against another is justified pursuant to section 13-409 only if a reasonable person effecting the arrest or preventing the escape would believe the suspect or escapee is:
1. Actually resisting the discharge of a legal duty with deadly physical force or with the apparent capacity to use deadly physical force; or
2. A felon who has escaped from lawful confinement; or
3. A felon who is fleeing from justice or resisting arrest with physical force.
B. The use of deadly physical force by a person other than a peace officer against another is justified pursuant to section 13-409 only if a reasonable person effecting the arrest or preventing the escape would believe the suspect or escapee is actually resisting the discharge of a legal duty with physical force or with the apparent capacity to use deadly physical force.
C. The use of deadly force by a peace officer against another is justified pursuant to section 13-409 only when the peace officer reasonably believes that it is necessary:
1. To defend himself or a third person from what the peace officer reasonably believes to be the use or imminent use of deadly physical force.
2. To effect an arrest or prevent the escape from custody of a person whom the peace officer reasonably believes:
(a) Has committed, attempted to commit, is committing or is attempting to commit a felony involving the use or a threatened use of a deadly weapon.
(b) Is attempting to escape by use of a deadly weapon.
(c) Through past or present conduct of the person which is known by the peace officer that the person is likely to endanger human life or inflict serious bodily injury to another unless apprehended without delay.
(d) Is necessary to lawfully suppress a riot if the person or another person participating in the riot is armed with a deadly weapon.
D. Notwithstanding any other provisions of this chapter, a peace officer is justified in threatening to use deadly physical force when and to the extent a reasonable officer believes it necessary to protect himself against another's potential use of physical force or deadly physical force.

On that I disagree. Would you tell a grand jury, "I shot the man because he was doing something to keep me from going home to my wife", or would you say, "the suspect attempted to slice my head off with a hatchet, and in order to stop his unlawful and deadly assault I shot him."?

Actually, Tex, neither I or anyone else who utilized deadly force would be "testifying" in front of a Grand Jury. The "state" testifies seeking a "True Bill" indictment, not the defendant.

I have no intent at all at being pugnacious, but I wonder how many Superior Court Jury Trials you have testified at or acted as the "State's Investigator" being excluded from "The Rule" and sitting with the prosecution from jury selection through verdict?

I strongly disagree with your example, because I know exactly what I would do if I was sitting up on the witness stand defending my actions. I would turn in the chair and look directly at the jury. I would speak directly to the jury because I know they are the trier of fact and are the most important people in that courtroom. I would tell them that I felt I was going to die...that I was not going to see my wife, my children or my grandchildren again. I would tell them that I did not want to die, that I wanted to live and go home to them and that I felt the only option available to me was to shoot the man/woman who was trying to kill me.

I think you are getting too tied up in legalese instead of taking into account the impact of how a jury is going to react to your testimony or facts presented in your defense.

It is very nearly an insult to compare your sister's terrible driving habits to someone attacking you or trying to take your sidearm away.

By the way, speaking of differences in state law, Arizona just placed this one into effect which allows a defense to the display of a firearm by our good citizens.

13-421. Justification; defensive display of a firearm; definition
A. The defensive display of a firearm by a person against another is justified when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force.
B. This section does not apply to a person who:
1. Intentionally provokes another person to use or attempt to use unlawful physical force.
2. Uses a firearm during the commission of a serious offense as defined in section 13-706 or violent crime as defined in section 13-901.03.
C. This section does not require the defensive display of a firearm before the use of physical force or the threat of physical force by a person who is otherwise justified in the use or threatened use of physical force.
D. For the purposes of this section, "defensive display of a firearm" includes:
1. Verbally informing another person that the person possesses or has available a firearm.
2. Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect the person against another's use or attempted use of unlawful physical force or deadly physical force.
3. Placing the person's hand on a firearm while the firearm is contained in a pocket, purse or other means of containment or transport.

I believe in the right to bear arms and I believe in the right to defend yourself and I love the State of Arizona!

[wisco]

That is a stupid, old and worn out cliche. It implies those are the only too options and does not make one sound like a tough guy.

To each his own, but believe me if I'm ever in a battle for my life I will do whatever it takes to stay alive. I'll do my best to keep my child from growing up fatherless. And I too love my family and want to go home to them at night.

I'm actually surprised to hear that disposition from someone in Texas, I was under the impression that your state was very gun/defense friendly. Remember Joe Horn?

Either way you may charge me accordingly, but as Cat Doc pointed out the jury is the determining factor. If even one of the jurors has a family, I can't imagine a conviction.

[retdetsgt]

That is a stupid, old and worn out cliche. It implies those are the only too options and does not make one sound like a tough guy.

Maybe you've been out of the business too long.

I don't see any tough guy attitude in it at all. If you are afraid for your life, you better make a decision to save it rather than worry about some penal code.

When I was investigating police shootings, the first thing I always told the officer(s) involved was, "You know in your heart if this was a righteous shooting. If it was, tell me everything that happened and what you were thinking when you pulled the trigger. If you aren't sure it was, tell me to stuff it and ask for a lawyer."

It really has nothing to do with returning to my wife or anything like that, I'm not willing to die yet, period. If I think someone is trying to kill me, I will do whatever I have to do to protect myself. If my response is reasonable, I'm not concerned if a penal code doesn't specifically spell out that I can defend my gun from someone taking it or anything else. I would suspect there are a number of dead cops who had that concern as a last thought.

Frankly, I have no idea if Oregon has specific statutes about when you can shoot someone or not other than defending your or someone else's life. I've investigated probably enough shootings to reach triple digits and that was the only thing I or the court system cared about.

[RockemSockem]

Great article and great followup discussion.

To stay on topic, but add another dimension ... when I was in the academy, someone asked a firearms instructor what an appropriate course of action would be against a suspect who is holding a weapon, perhaps pointed downward, and is not obeying commands. So the person is a threat, but they are not going to harm you. Your gun is trained on them. They do not drop the weapon as commanded. But they don't come closer or point it at you either. They ignore you. What do you do? Our instructor said after several commands, you shoot. He said "You aren't going to stand there all day and night, it has to end sometime." Later, the discussion came up with another instructor. This second instructor says "I don't know what to say about that, but I think if you did that you might end up in prison." His point was that SWAT teams will stand there for hours with someone in a standoff. He said that if after multiple commands they are just standing there, SWAT should be called in, but you don't just shoot.

Who's right and who's wrong? I thank God I never was placed in that situation to find out.

[retdetsgt]

If someone has a gun in their hand, they only reason they haven't shot you yet is that they haven't made that decision so far. It takes a split second to bring that gun up, point it at you and kill you. Much less time than you probably have to react even if you have your gun on them. They've made the decision, you haven't yet and the time it will take you to do so can leave you dead.

A SWAT member is undercover and not in imminent danger himself. If you are in front of someone with a gun, like I said, all they have to do to shoot you is decide.

That being said, if I shot everyone I would have been legally justified in during my career, the number would be in the teens. Every situation is different, but when I didn't shoot, I was using my gut instincts, not remembering some statute. But I'm not saying shoot just because you can. Unfortunately, the last few years I worked, I investigated a couple of police shootings that were more legally justified than morally, IMO.

[Silver Fox]

Are you being sarcastic? I wouldn't call what caught my eye a "typo" or a (simple) "error". I DID Read the article too...

Just kidding good buddy... actually it was a compliment All joking aside...being good at observation and being able to detect and spot minor details in a document, subject, crime scene, Etc. is one of the best talents a LEO can have.

[Darin]

While I don't disagree, OUR penal code does not mention someone taking your gun as a justification.

That is crazy. That should be changed forthwith considering that in your state you can shoot a burglar that isn't even burglarizing or even in your own home.

[Samuel]

Just kidding good buddy... actually it was a compliment All joking aside...being good at observation and being able to detect and spot minor details in a document, subject, crime scene, Etc. is one of the best talents a LEO can have.

Now you're calling me anal retentive ???
















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