Deadly force question

[FanTactical]

003 - thanks for the reference. Great article with lots of links to more detailed info. Unfortunately, I don't see much relating to an attacker outside the home shooting in.

There isn't a clear answer but it would be nice to know if any circumstances warrant such action.

Edit - corrected link here

[Eric B]

I understand the use of deadly force when some is inside someone's home, however, what if the assailant is outside. Is deadly force justified in the following cases:

1. someone is trespassing in your fenced-in backyard - you challenge them on why they are there and they attack
a. they are armed
b. they are not armed

2. someone is outside but shoots into your house (think drive-by or home invasion)? Can you shoot back?

For the purpose of this discussion - they make the first hostile move.

Thanks.

Cop here... If you shot someone on your property, you must have thought your life was in peril, right? Unless of course you're insane, which is another criminal defense altogether. DO NOT say a word, ask for an attorney. Flat out, ask for an attorney.

That being said, DO NOT make that challenge while pointing your gun at someone already. That opposing attorney, be it a civil suit or your criminal trial, will say that you went out there with the intent to kill already. Keep it handy (holstered/slung), but not pointed. Also, keep an eye out for multiple intruders. While you engage Turd #1, Turd #2 is making an end run to take you out.

DO NOT shoot at a suspected drive-by car.

[FanTactical]

Thanks, Eric B. Good advice. My natural inclination would be to cooperate with LE by explaining what happened, knowing that a report has to be filled out for the call and "assuming" that I had done nothing wrong. Given the legal minefield that I would be in, it makes sense to hold any details until a lawyer is present.

[Eric B]

Thanks, Eric B. Good advice. My natural inclination would be to cooperate with LE by explaining what happened, knowing that a report has to be filled out for the call and "assuming" that I had done nothing wrong. Given the legal minefield that I would be in, it makes sense to hold any details until a lawyer is present.

I always appreciate it when folks help me out, but this is another case.

Regardless of how it looks to police you'll more than likely be processed, if only for evidence. While you're answering innocuous sounding questions posed by investigators, its all being recorded. The police like the story and evidence, the DA like it too, so now you're not charged. Excellent.

Now John Burris shows up to sue you. Remember those innocuous questions you answered for the police? Remember the banter you had with them after they put you at ease? Well, you're not criminally liable anymore, but Mr Burris is about to ruin your life.

Everyone, just wait for an attorney.

[Warhawk014]

I understand the use of deadly force when some is inside someone's home, however, what if the assailant is outside. Is deadly force justified in the following cases:

1. someone is trespassing in your fenced-in backyard - you challenge them on why they are there and they attack

i dont think challenge is the word i would use. "i went out and asked them what they are doing there and asked them to leave." questioned would be a better choice of words.

a. they are armed
after asking them to leave, they attack you, you can defend yourself. you would still have to prove that your life was in immediate danger. and the attack would likely cause "GBI" great bodily injury or death. you said they are armed, what are they armed with. hammer, baseball bat, tire iron, knives, gun.

b. they are not armed
this is where it gets interesting, although the perp may not have a weapon in their hands. this does not mean that a person cannot inflict GBI with their hands and feet. repeatedly punching someone in the face will cause GBI. stomping on your head will cause GBI. there is really no correct answer for this one.
2. someone is outside but shoots into your house (think drive-by or home invasion)? Can you shoot back?

For the purpose of this discussion - they make the first hostile move.

Thanks.

not to be construed as legal advice, just my opinion on the scenarios that you presented.

[CBR_rider]

As an officer, I disagree with Eric B's advice to a point. Here's why:

During the above incident there is alot of yelling/screaming and suddenly several shots ring out. Before you can call the police your neighbors dial 9-1-1. Several units just happen to be down the street clearing a call and are arrived before you can even connect with 9-1-1. The police find a dead guy in the back yard and a homeowner who refuses to tell them ANYTHING other than his information. In this scenario, it's quite possible you will be at least spending the night in the pokey until you get a lawyer and things move along. Remember, at this point there are no witnesses alive other than you, someone is dead, and again, at this point law enforcement likely doesn't know why he was there and why he was shot.

MY personal alternative would be to say something like this to the police: My name is John Doe, I live here at this house. I went outside and this guy tried to attack me with ___(whatever it is). I feared for my life and shot him. Is an ambulance on the way for him? And I'm really shaken up and want to speak to my lawyer.

And in regards to someone ACTIVELY shooting at your house, I think it is possible that you could fire back provided they were still shooting your house when you shot and you had a clear shot (and were a good shot). Don't be this guy, who turned a lawful use/show of force into something potentially legally troubling for him.

[Auctioneer]

Ok here is a real situation. Three of us, myself and two young teenagers are at the Giants Parade. The two boys are sitting on the ground and a homeless person comes along and stabs my son in the head with a metal object. My son was wearing a hat so the object did not penetrate his head.

No apparent significant injury at this point - at the absolute moment of impact you were probably justified with a less than lethal option. Like O.C. spray.

A bystander starting yelling at the homeless person and got my attention. I followed the person and started to ask questions.

At this point by following her, you could have very well been considered the assailant as the threat had passed.

She held up an object that looked like a needle and threw it into the crowd. I called the police and while on the phone with 911 she punch me in the mouth. 911 advised me to move away from the person but she continued to pursue me. When I mentioned the police are on they way she ran. The police interviewed myself and my son. They ended up capturing her but at the same time they really couldn't do anything outside of a 5150.

I took the advice of the 911 operator and moved away from the person.

Now, here is the question. Would I have had just cause to defend myself and my family and in what type of manner?

The needle essentially means nothing because she threw it away (might be evidence if that object was used to "stab" your son).

The punch in the mouth, if a one time thing, doesn't merit a defensive response as the attack is no longer in progress and there is no immenent danger.

The only legitimate self defense, in this case IMHO and IANAL, would have been less than lethal i.e. O.C. spray or maybe Taser.

[CBR_rider]

Auctioneer, if I may ask, how do you come to your conclusions? While the scenario posed by P345 itself seems to rise and fall through a myriad of threat levels (and thus appropriate responses), if the poster could have used some kind of force at the EXACT instant he sees someone shoving a long, slender metal object into his son's head I am pretty sure deadly force would be authorized. And as for following and suddenly becoming the assailant, I am pretty sure he could make a fair case (assuming he wasn't being belligerent to the crazy lady) that he was following her because he was worried that her crazy behavior would cause someone else's child in such a crowded area would fall victim to her delusional and violent actions.

I'm no lawyer and I wasn't there, but at some point or another just about every force option could probably have been used on that lady. That being said, because lethal force probably wouldn't have been equipped/used (and apparently it wasn't) by time he realized what the lady had done and that his son was uninjured, I would agree with you and others that an ECD or pepper spray (I hate that stuff) could potentially have been viable options.

[Auctioneer]

Ok here is a real situation. Three of us, myself and two young teenagers are at the Giants Parade. The two boys are sitting on the ground and a homeless person comes along and stabs my son in the head with a metal object. My son was wearing a hat so the object did not penetrate his head. A bystander starting yelling at the homeless person and got my attention...........

While I believe that you are correct in that if P345 had acted at the exact moment of attack, deadly force may have been justifiable. However, the way that I read his post was that he did not notice the attack until after it had happened (via the bystander yelling). At that point the deadly threat had passed.

Auctioneer, if I may ask, how do you come to your conclusions? While the scenario posed by P345 itself seems to rise and fall through a myriad of threat levels (and thus appropriate responses), if the poster could have used some kind of force at the EXACT instant he sees someone shoving a long, slender metal object into his son's head I am pretty sure deadly force would be authorized. And as for following and suddenly becoming the assailant, I am pretty sure he could make a fair case (assuming he wasn't being belligerent to the crazy lady) that he was following her because he was worried that her crazy behavior would cause someone else's child in such a crowded area would fall victim to her delusional and violent actions.

I'm no lawyer and I wasn't there, but at some point or another just about every force option could probably have been used on that lady. That being said, because lethal force probably wouldn't have been equipped/used (and apparently it wasn't) by time he realized what the lady had done and that his son was uninjured, I would agree with you and others that an ECD or pepper spray (I hate that stuff) could potentially have been viable options.

We essentially are in agreement. I was dealing with the scenario as it was relayed by the OP.

Every defensive situation is dynamic by nature and may very well pass through different threat levels quite suddenly. We must always keep in mind that at any given time we need to be able to articulate our repsonses to any given level of force regardless of the situation.

Would I have used deadly force if I saw someone plunging a needle into my sons head? Absolutely.

Would I use deadly force if I reasonably believed that there would be a second strike, either to my child or another person? Absolutely?

I am also a firm believer in less than lethal options like pepper spray. Of course only used in less than lethal encounters or as a step in the escalation of force.

Without being critical of the OP in any way. The best solution would have been better situational awareness. Difficult at best in the atmosphere presented by the OP.

[epilepticninja]

As an officer, I disagree with Eric B's advice to a point.

Agreed. Standing there telling the responding officers/deputies that you are exercising your right to remain silent is a sure ticket to the pokey. Several experts including Ayoob will tell you that at the minimum give them your name, a BRIEF description of what happened, and point out any evidence or potential witnesses. And then follow it up with a statement saying you will fully cooperate after you speak to your attorney.

Standing there like a statue only allows others to formulate opinions on their own. If I'm the victim, I want everyone to know that I'm the victim. I don't want to sit there and "hope" that someone will see that I'm the victim and the dude laying on the ground is Joe the Bagman.

[P345]

Auctioneer-CBR,

It was a very interesting situation. I saw her walking towards my son, I saw something in her hand but I did not know what it was so my reaction time was not immediate. It was not until she had passed and the bystander starting yelling.. What did you just stab that kid in the head with.....that everything started to play out. I kept a distance between us as I did not want to appear as to be the assailant. I asked questions, and while I was asking the questions I also called 911. The whole thing is recorded or I assume it is. While on the phone she closed in on me and threw the punch. I told the operator what had just happened. This is when she started to instruct me to move away from the person. I was in the process of giving a description to the operator when this took place.

Her punch was weak and did not draw blood. My concern was more for my son then myself. Had I at the time had either the spray or the taser I most likely would have used it on her right from the first altercation. I had at least 50 witnesses at the scene. When I spoke to the officer, he told me this person has struck others before in area and because a minor was involved she would be spending sometime under the 5150.

So, in this case, what is considered a dangerous threat? At what point did I have just cause to react with deadly force?

Did I have every legal reasonable right to take her down and make a citizens arrest? Did I have the right to defend my family or myself? At what point do the police show up and I spend the night in Orange PJ's?

[Auctioneer]

[P345]

Auctioneer,

Thank you. I concur with you about the situational awareness as I did let my guard fail me. Since then, we as a family have been more proactive regarding our surroundings. I was upset with myself because I am usually the person that is more aware of things then the rest of the peeps in the family.

I did not assess the situation correctly as a lot was happening around us and I got sucked into the excitement of the parade. In most cases I would have put myself between the boys and her before she had gotten closer.

I do understand the level of lethal proportions need to be in check with the level of threat. For one; being in a crowd of that size I did not want to be in a position of being attacked by another person without having some type of backup.

I do see your point regarding the Zimmerman case. The difference "and please correct me" is that he was not under attack. I did comply with dispatch and let the professionals take it from that point.

I also concur with you on the citizens arrest. I have never been a fan of that but I had to ask.

I take it from your statements that when all is said and done it really comes down to intent. Could I or should I have been able to see the intent prior to; I could have thwarted the suspected threat. Since I was unable to see this it relies on witnesses and in today's world people do not want to get involved.

Thanks and I welcome your feedback.

[CBR_rider]

Auctioneer,
I see where you are coming from and think we do see it mostly the same.. I was just curious for more of your thoughts on it as opposed to thinking/accusing you of blowing smoke out of your you know what. I always enjoy wargaming random/weird scenarios (especially if they really happened!) and I always want to know WHY someone says they would do/not do something.

P345,
There is nothing wrong with making a citizen's arrest as Auctioneer mentioned, but I think along the same lines as you guys: Are they really worth it? There is nothing wrong with making the citizens arrest and delegating the actual arrest to law enforcement, but physically making one on your own seems in all but in the most unusual circumstances to invite random passerbys to intervene (maybe ones who now think YOU are the suspect), more risks to getting you injured, etc. The key thing is you and your family are okay.

[Tincon]

So, in this case, what is considered a dangerous threat?

It's difficult for me to imagine that someone trying to stab your kid in the head with a metal object would not qualify. To be honest, if I were in the same situation, legality would not be my chief concern.

At what point did I have just cause to react with deadly force?

As has been said, the test is would a reasonable person in your shoes be in fear of death or serious bodily harm. This applies to your child as well. Note that it's not the reasonable cop or lawyer, just the average person that would be sitting on your jury.

You really need to be able to figure out for yourself what is reasonable.

Did I have every legal reasonable right to take her down and make a citizens arrest?

It actually sounds like you didn't see what happened. Your impression of what happened is based on what this bystander saw. So I'm not sure. You really need to see it yourself, generally. If you saw someone stab your child, even if there was no injury, you would certainly have the right to arrest them. By the way, it's a private person's arrest, you don't need to be a citizen, or even a resident alien.

Of course, as has been pointed out, just because you can doesn't mean you should.