Would you respond with deadly force to an attack like this?

[Swampman]

Okay, you'd draw. Now you have to worry about brandishing and I'll tell you why. Because all these kids want is to take one person down and then run like the cowards they are. In these situations bystanders are not in danger, so if you draw, you are brandishing and will likely end up in court and possibly in jail. Even worse, you might lose your CHP. Now, if the cowards are emboldened and one or more of them started advancing on me? I'd have mine drawn, with the argument to the judge being, "After what I saw, I feared for my safety and life."

[Remek]

^^^ This. But, I do not think you can shoot if he/she is not harming anyone any more. If it happened in VA, you could arrest them however.

[gunderwood]

That said, if I were being attacked in a situation like this and was able to react, my first instinct would be to respond with deadly force if I was carrying.

I'm curious as to whether other people would feel justified in using a gun in such a circumstance? Why or why not?

Absolutely. The key would be to make it past the first punch due to the surprise, which is all about being aware of your surroundings and keeping your distance (is the President surprised with behavior like this that people cross the street to avoid large groups of black kids?). At that point they definitely assaulted/attempted an assault. Given that a non-inconsiderable number of these end in the death of the victim, you could easily argue that it's attempted murder IMHO.

Following the Ability, Opportunity, and Intent (AOI), they check all three boxes. Remember, at the time of the attack you don't know if they were merely going to hit you once, rob you, rape you, murder you, etc.

If I make it past the first punch (remember I don't know if it's just one punch or what at that point), in 1-2 seconds my gun is going to be half empty as I'm usually good for ~3-4rnd/sec of aimed center of mass fire at such a close distance (IDPA as my benchmark…add a second for drawing and maybe another half-second-plus depending on how many threat transitions). For anyone trained in the use of a firearm there is a good chance you're going to nearly empty it before it becomes obvious that the attack is continuing or was stopped. Then again, most of us will avoid it in the first place.

[gunderwood]

^^^ This. But, I do not think you can shoot if he/she is not harming anyone any more. If it happened in VA, you could arrest them however.

You don't know that at the time of the attack. If a group of people (age, size, and skin color agnostic) takes a swing at you and don't succeed in knocking you out, it won't be obvious they have stopped the attack for at least several seconds. After the punch they take a step back, but that doesn't mean the attack is over, it may merely be them regaining their footing to launch a second attack. It's also not clear what the others in the group are doing. I'd wager to guess that there is a reasonable use of deadly force for 3-5secs after the first punch is completed.

As always, NEVER draw unless you've already made the decision to use it and believe you are justified in doing so. AOI BEFORE you even grab it. After AOI is legally met, front sight press until you're 100% certain the threat has stopped.

[Remek]

^^^ This. But, I do not think you can shoot if he/she is not harming anyone any more. If it happened in VA, you could arrest them however.

You don't know that at the time of the attack. If a group of people (age, size, and skin color agnostic) takes a swing at you and don't succeed in knocking you out, it won't be obvious they have stopped the attack for at least several seconds. After the punch they take a step back, but that doesn't mean the attack is over, it may merely be them regaining their footing to launch a second attack. It's also not clear what the others in the group are doing. I'd wager to guess that there is a reasonable use of deadly force for 3-5secs after the first punch is completed.

As always, NEVER draw unless you've already made the decision to use it and believe you are justified in doing so. AOI BEFORE you even grab it. After AOI is legally met, front sight press until you're 100% certain the threat has stopped.

You may judge it that way, but the video I see, the guys gets in there, throws the punch and is quickly walking away and laughing before the 3-5 seconds you are stating. At that point, you are shooting them in the back. While in my utopia, that'd be okay, as a lesson to others needs to be taught, there's no way in hell the government who wants to persecute us as much as possible, will let you get away with that.

[gunderwood]

^^^ This. But, I do not think you can shoot if he/she is not harming anyone any more. If it happened in VA, you could arrest them however.

You don't know that at the time of the attack. If a group of people (age, size, and skin color agnostic) takes a swing at you and don't succeed in knocking you out, it won't be obvious they have stopped the attack for at least several seconds. After the punch they take a step back, but that doesn't mean the attack is over, it may merely be them regaining their footing to launch a second attack. It's also not clear what the others in the group are doing. I'd wager to guess that there is a reasonable use of deadly force for 3-5secs after the first punch is completed.

As always, NEVER draw unless you've already made the decision to use it and believe you are justified in doing so. AOI BEFORE you even grab it. After AOI is legally met, front sight press until you're 100% certain the threat has stopped.

You may judge it that way, but the video I see, the guys gets in there, throws the punch and is quickly walking away and laughing before the 3-5 seconds you are stating. At that point, you are shooting them in the back. While in my utopia, that'd be okay, as a lesson to others needs to be taught, there's no way in hell the government who wants to persecute us as much as possible, will let you get away with that.

The law in VA is quite clear on these points and you should have nothing to fear.

The victim (i.e. you) has to believe they are in fear of death or grave bodily harm. That fear must be judged valid in what it typically rolled up into Ability (yes, the group as well as the individual have the ability), Opportunity (as long as they are within ~21ft, I know general rule, but it's what it discussed), Intent (they just attacked you). In this case, that's very easy to assertion, deadly force would be reasonable for about 3-5sec after the punch.

You are judging based on what happens after the attack from an uninvolved third party view, also the victim could not respond. The law in VA does not, and rightfully so, take the stand of an uninvolved third party. The law in VA considers what I wrote above and what the victim at the time of attack is aware of. Deadly force has been justified in cases where uninvolved third parties, technology or not, could reasonably determine that there was no fear of death or grave bodily harm, but to the victim it was reasonable to fear.

If the victim has reasonable fear, AOI are met, then deadly force is justified until AOI are not met. Ability never changed in that video. Opportunity was met for at least 3-5sec after the attack based purely on proximity (not until the teens left the ally did they exceed the general rule of ~21ft). Intent is very difficult to judge in the seconds after getting punched or nearly punched (or stabbed or whatever). Merely because the teen is now 5ft away vice right on top of you does not mean that the threat is "walking away."

The biggest risk you would face in this instance is there being public outcry from the thug community to charge you with something because most prosecutors won't touch that with a 10ft pole; it's almost a guaranteed loss. E.g. Zimmerman trial.

That being said, using deadly force should not be taking lightly. However, if AOI are met and I'm fearful for my life, I'm already committed to using deadly force before my gun ever clears the holster. It will take several seconds to verify that the threat has stopped and in that time I will get half-a-dozen shots off, probably with some good hits. Killing the threat is not my intent, saving my life is and until I'm certain it's safe, remember after being attacked 100%, I'm going to keep fighting back.

That's not just legal, it's ethical as well.

[gunderwood]

People get in trouble with brandishing because they draw the gun BEFORE AOI are met and they are fearful for their life. The law considers drawing a firearm to intimidate, even a threat, to be brandishing because it's a defacto admission that you don't fear for your life. If someone is trying to kill you or cause grave bodily harm and then you draw, you're going to be shooting immediately. If you have time to threaten them or otherwise intimidate them, the law views that as a confrontation whereby you are part of the problem. You're not in fear of death or grave bodily harm if you're pointing a gun at someone and "warning" them.

Same goes for warning shots. You don't fire a warning shot if someone is actually trying to kill you. By definition you're trying to warn them against an action vice defend against an action they are already doing. Therefore, if you fire a warning shot you are admitting to not fearing for your life and wanting to intimidate the other person with your firearm. The law will punish you harshly for this and rightfully so.

[Remek]

Have any court decisions that I can read myself? I can see your argument, but its hard to swallow, because shooting someone in the back is like rear ending someone with your car: a very strong prima facie case is made that it's your fault, and the criminal was not threatening you any longer. What is the level of scrutiny the court takes in such a case to overturn the prima facie case?

All of that said, if my family was with me, I'd swallow the consequences and shoot the agressor(s). Better that they live and are unharmed.

With regard to warning shots, I understand the point, but I also think it needs to be changed somehow. The guy in norfolk a few months ago who had an aggressor breaking down his door, and he gave a warning shot. It is certainly brandishing under the strict definition of brandishing, but the guy was trying to save the criminal's life, rather than kill him. That, to me, counts for something big, and shows responsibility, rather than irresponsible behavior.

[gunderwood]

Have any court decisions that I can read myself? I can see your argument, but its hard to swallow, because shooting someone in the back is like rear ending someone with your car: a very strong prima facie case is made that it's your fault, and the criminal was not threatening you any longer. What is the level of scrutiny the court takes in such a case to overturn the prima facie case?

user on here had a huge list of court cases (I have a copy somewhere) about the common law and SD, HD, castle law, etc.

The fact that a round enters the threats back is not prima facie evidence for anything. There are lots of reasonable circumstances whereby a valid SD shooting my incur shots in the back of the threat. Granted, they are much less likely than shots to the front, but you made that up. AOI is well established, your back theory is not. Examples:

1. A threat may be trying to actively kill you and hiding behind concealment (not cover), not being stupid you shoot the threat through the concealment. Many people who have no training put their backs to the barrier when not immediately shooting just like the movies. It's almost always tactically wrong, but they do it regardless.

2. Your threat is trying to kill someone else and you happen to be behind them.

3. Your threat is picking put a dropped weapon, getting another from a friend, etc.

4. Your threat is the Karate Kid and is about to roundhouse your face.

5. Your engaging the threat and due to your engagement they turn around (for who knows what), but since you're a good shot you're shooting several rounds a second center of mass and there is at least 0.5-1sec of delay from the time the threat disengages until you realize they've disengaged and stop. Allowing time for 1-4 rounds to hit the threat in the back.

I could go on, but in real fights weird things happen. The fact that a round entered the threats back is not prima facie anything and if you're going to claim so please find a court case where the shooting would otherwise have been justified, but wasn't solely because of the shot in the back. The only cases I'm aware of were those where AOI were not met and then there was a shot in the back. As a matter for form, I claimed that as long as AOI are met you're justified. You claimed that if the shot ends up in the back it's prime facie evidence that you're not justified, implying that it even if AOI were met at the time of the back shot that it doesn't matter. Strictly speaking, I don't have to find evidence to support or counter your claim, just mine.

The car is not the same as justified use of deadly force. For the car, which is a civil not criminal matter, VA operates under a contributory negligence model rather than the much more common comparative negligence model. In comparative you try to evaluate how much you contributed and adjust the outcome, but under VA's contributory negligence model if you contributed to the incident at all, even 1%, you're at fault and must cover your own losses. Your example actually just happened to a co-worker in VA recently. He rear-ended someone else, but the officer at the scene determine from witnesses and the damage that the other driver contributed to the accident and they both had to pay for their own damage. Despite the fact that my co-worker rear-ended the other car, it was not prime facie evidence that he caused the accident and should pay for the other car. Part of the reason VA operates as a contributory negligence state is to avoid trying to figure out what "percentage" of the bill either driver should pay. It's much simpler this way, but it's contrary to how people assume it works.

With regard to warning shots, I understand the point, but I also think it needs to be changed somehow. The guy in norfolk a few months ago who had an aggressor breaking down his door, and he gave a warning shot. It is certainly brandishing under the strict definition of brandishing, but the guy was trying to save the criminal's life, rather than kill him. That, to me, counts for something big, and shows responsibility, rather than irresponsible behavior.

I disagree. Just like the contributory vs. comparative negligence models, while the current standard is harsh it also allows for the least amount of injustice to occur. If you're not justified in using deadly force you shouldn't be allowed to warn of future deadly force with a warning shot. Making the law determine what was a "warning shot" or a miss will only allow some criminals go free and/or punish an otherwise justified shooting. No, anything that muddies the middle ground and allows for bias/opinion to enter into the decision about justified use of deadly force should be avoided.

[Swampman]

What Gunderwood said! +1

[lawofselfdefense]

But it's a macho thing. You stick to that story bud, cause it's all you have.

Don't see any way to react to something like that. If I have to waste my time watching everyone I pass until they are well past me then I just won't go there. These kids are in Hoboken, Paterson, Jersey City, Newark, etc. Just don't go there. If you do, wear an "I Voted for Obama" t-shirt.

^^^^This^^^^

--Andrew, @LawSelfDefense

[lawofselfdefense]

Have any court decisions that I can read myself? I can see your argument, but its hard to swallow, because shooting someone in the back is like rear ending someone with your car: a very strong prima facie case is made that it's your fault, and the criminal was not threatening you any longer. What is the level of scrutiny the court takes in such a case to overturn the prima facie case?

user on here had a huge list of court cases (I have a copy somewhere) about the common law and SD, HD, castle law, etc.

The fact that a round enters the threats back is not prima facie evidence for anything. There are lots of reasonable circumstances whereby a valid SD shooting my incur shots in the back of the threat. Granted, they are much less likely than shots to the front, but you made that up. AOI is well established, your back theory is not. Examples:

1. A threat may be trying to actively kill you and hiding behind concealment (not cover), not being stupid you shoot the threat through the concealment. Many people who have no training put their backs to the barrier when not immediately shooting just like the movies. It's almost always tactically wrong, but they do it regardless.

2. Your threat is trying to kill someone else and you happen to be behind them.

3. Your threat is picking put a dropped weapon, getting another from a friend, etc.

4. Your threat is the Karate Kid and is about to roundhouse your face.

5. Your engaging the threat and due to your engagement they turn around (for who knows what), but since you're a good shot you're shooting several rounds a second center of mass and there is at least 0.5-1sec of delay from the time the threat disengages until you realize they've disengaged and stop. Allowing time for 1-4 rounds to hit the threat in the back.

I could go on, but in real fights weird things happen. The fact that a round entered the threats back is not prima facie anything and if you're going to claim so please find a court case where the shooting would otherwise have been justified, but wasn't solely because of the shot in the back. The only cases I'm aware of were those where AOI were not met and then there was a shot in the back. As a matter for form, I claimed that as long as AOI are met you're justified. You claimed that if the shot ends up in the back it's prime facie evidence that you're not justified, implying that it even if AOI were met at the time of the back shot that it doesn't matter. Strictly speaking, I don't have to find evidence to support or counter your claim, just mine.

The car is not the same as justified use of deadly force. For the car, which is a civil not criminal matter, VA operates under a contributory negligence model rather than the much more common comparative negligence model. In comparative you try to evaluate how much you contributed and adjust the outcome, but under VA's contributory negligence model if you contributed to the incident at all, even 1%, you're at fault and must cover your own losses. Your example actually just happened to a co-worker in VA recently. He rear-ended someone else, but the officer at the scene determine from witnesses and the damage that the other driver contributed to the accident and they both had to pay for their own damage. Despite the fact that my co-worker rear-ended the other car, it was not prime facie evidence that he caused the accident and should pay for the other car. Part of the reason VA operates as a contributory negligence state is to avoid trying to figure out what "percentage" of the bill either driver should pay. It's much simpler this way, but it's contrary to how people assume it works.

With regard to warning shots, I understand the point, but I also think it needs to be changed somehow. The guy in norfolk a few months ago who had an aggressor breaking down his door, and he gave a warning shot. It is certainly brandishing under the strict definition of brandishing, but the guy was trying to save the criminal's life, rather than kill him. That, to me, counts for something big, and shows responsibility, rather than irresponsible behavior.

I disagree. Just like the contributory vs. comparative negligence models, while the current standard is harsh it also allows for the least amount of injustice to occur. If you're not justified in using deadly force you shouldn't be allowed to warn of future deadly force with a warning shot. Making the law determine what was a "warning shot" or a miss will only allow some criminals go free and/or punish an otherwise justified shooting. No, anything that muddies the middle ground and allows for bias/opinion to enter into the decision about justified use of deadly force should be avoided.

This is bad advice. It makes a HUGE difference if the person you shot has an entry wound in the front or the back of his body. While there ARE legitimate reasons why you may have ended up shooting somebody in the back--many of them cited above--to say it simply doesn't matter is ridiculous. You'd better have a DAMNED good explanation for the jury. And a defensive force expert (paid a ton of money) to come in and explain it to them.

--Andrew, @LawSelfDefense

[lawofselfdefense]

The law in VA is quite clear on these points and you should have nothing to fear.

This is utter nonsense.

ANY TIME YOU USE DEADLY FORCE, INDEED ANY FORCE, AGAINST ANOTHER PEROSN YOU HAVE PLENTY TO FEAR.

PLENTY.

Someone whose conduct is 150% consistent with the law is STILL in PLENTY of peril.

Even if you WIN the trial, you're still out hundreds of thousands in legal fees (and if not quite brought to trial still tens of thousands in legal fees). THAT'S something to fear, I think.

(And good luck getting that money back from any of these "self-defense insurance" companies I keep seeing people send money off to.)

Who do you think is judging your conduct? Gunsite graduates? It's investigators, prosecutors, judges, jurors NONE OF WHOM WHERE THERE, NONE OF WHOM KNOW YOU, NONE OF WHOM KNOW MUCH ABOUT GUNS OR SELF-DEFENSE OR PHYSICAL VIOLENCE.

If you use deadly force against another person you must ALWAYS assume you're going to be thrown into the unforgiving gears of the criminal justice system. You're lucky if you get out alive (e.g., not spending a good part of the rest of your life in jail getting occasionally raped).

I say that as a private citizen who CCWs every day,and has for more than 20 years. I consider myself reasonably capable with my pistol--I shoot Master class with it in IDPA. I utterly believe it is a fundamental human right AND DUTY to protect ourselves from attack.

But to suggest that there are ANY circumstances in which you can use force against another person and not have to fear any consequence--that's simply naive.

I take it, gunderwood, that you are not a lawyer with much experience defending self-defense cases. Is that correct?

--Andrew, @LawSelfDefense

[lawofselfdefense]

If I make it past the first punch (remember I don't know if it's just one punch or what at that point), in 1-2 seconds my gun is going to be half empty as I'm usually good for ~3-4rnd/sec of aimed center of mass fire at such a close distance

That's awesome. Your defense attorney is going to have a grand old time explaining to a jury why it was "reasonable" for you to pump 4-8 rounds into an unarmed attacker.

Good luck with that, dude.

(And, yes, I can also empty a 1911 at that rate at the range. That doesn't make it legally defensible against an unarmed attacker.)

--Andrew, @LawSelfDefense

[lawofselfdefense]

Let's add a twist to it. Suppose you were not the victim, but you were a close bystander and saw it happen from the start. Would you draw?

You bet I would. As I said when I posed the question, if the blow comes as it's supposed to, I don't think you can defend. That is, they won't go for it unless you're not paying attention. Likewise, I'd be surprised if it happened with bystanders around. But, if it did, my gun would be out.

Your gun would be out for your own protection, or that of the person struck?

Very personal decision, whatever you decide is cool with me, but the legal standards, risks, and potential consequences are VERY different.

Might want that story straight in your head before hand.

--Andrew, @LawSelfDefense

[lawofselfdefense]

The biggest risk you would face in this instance is there being public outcry from the thug community to charge you with something because most prosecutors won't touch that with a 10ft pole; it's almost a guaranteed loss. E.g. Zimmerman trial.

Dear God.

Prosecutors LIVE for those kinds of cases. The only reason Zimmerman was acquitted was because his actions, from a legal (NOT tactical) perspective, were essentially PERFECT. Very few self-defense cases have that level of perfection. There's almost always considerable grey, not just black-and-white.

And even in Zimmerman's "perfect" fact pattern, he was STILL forced to expend between $500,000 and $1,000,000 in a legal defense (at least that's what it cost--obviously O'Mara and West will never be paid what they earned).

The Zimmerman prosecutorial team lost that case--and what did it cost them? NOTHING. They all still have their jobs, exactly like they did before the case. I've been keeping a close eye indeed on the well-deserved sanction action against them . . . silence.

On the other hand, what if they'd won? THEY'D BE HUGE PROGRESSIVE STARS, LEFTY LEGAL SUPER-HEROES.

It's a no-lose lottery game for these politically-motivated prosecutors. They dream for a racially-charged case like personal injury lawyers dream of watching a city bus crushed by a train right before their eyes.

Can I ask, gunderwood, what your background is to lead you to the legal insights you share here? Because they're considerably different than my own, and I've been deeply engaged in the law of self-defense, covering all 50 states, for going on 20 years now.

--Andrew, @LawSelfDefense

[OakRidgeStars]

Good discussion tonight, guys

[lawofselfdefense]

Good discussion tonight, guys

Assuming part of that was directed at me, thanks!

--Andrew, @LawSelfDefense

[Remek]

Well, Gunderwood, it seems you are very clear on the law, but I for one understand from my law school experience that what is reasonable is what is the law one way or the other. I am not so sure if I had been attacked, then the assailant ran away, or walked away for that matter, still gives me enough to say that "I was in fear of my life or great bodily harm". Granted, there are reasons when you may shoot another in the back, but I was not talking about those instances, I was talking about a guy who hit you, then ceased aggression and was receding from the area.

Assuming that is the case, i.e., that the person was exiting the area with his back to me, at what point does it become clear that he is no longer putting me in reasonable "fear of my life or great bodily harm"? 1 second of exit time? 2? 5? 10? 30? Heck, I could say I feared he was going to his car to get a bat to finish the job, that does not seem reasonable here. 1 second, yes, I'd think it was ok. 2 seconds? maybe. 3-5 seconds are really pushing it. I would have to now have reassessed the threat by the perspective of the jury.

However, I am again willing to see the court decision that provides the light for this scenario. Even if it doesn't fit, many court decisions are quite entertaining to say the least.

Meanwhile, I stand with Mr. Branca on this. Its just plain stupid to put yourself in that position of going bankrupt forever in legal fees, much less losing the case and being in jail and/or owing your earnings for the rest of your life to another's family. I'd urge you to avoid shooting anyone in the back unless you do really reasonably believe they are a threat to your body/life. I'd really urge that in any case, but here because you seem to be pretty confident on something I see no reason to be so confident about.

[lawofselfdefense]

[Y]ou seem to be pretty confident on something I see no reason to be so confident about.

Well, I clearly expended far too many words and several posts on what Mr. Remek managed to communicate in a sentence.

Thank you, sir. I bow to your conciseness.

--Andrew, @LawSelfDefense