Legal issues of self-defense

In My Humble Opinion
1

I know, you are not my lawyer, I am not your client, blah blah blah. I am imagining scenarios that haven’t happened to me and simply trying to think about the ramifications if they ever did

Here in Wisconsin a bill legalizing concealed carrying of handguns recently passed. Let’s say I follow all the rules, acquire a handgun and start carrying it. One day an armed robber appears and demands my wallet. He has a gun out and pointing at me.

  1. Would I be legally justified in pulling out my gun and shooting him without any other actions (warnings, attempts to escape, or something else)? I would hope that having a gun pointed at me is a valid reason for not attempting to escape.

Please note I’m not asking for opinions of how stupid this action might turn out to be, though I’m sure someone will tell me anyway.

In a slightly different scenario, I turn over my wallet, wait until the guy starts to leave, and then pull out my weapon. I’m guessing the question of whether I could actually shoot the guy gets a whole lot more complicated in a scenario like this.

  1. I assume I can’t just shoot him in the back as he walks away, right?

Let’s say I shout for him to stop, “don’t move. I have a gun”, etc., and I attempt a citizen’s arrest.

  1. If he turns back toward me with the gun in his hand, is that sufficient justification to shoot?

  2. If he advances toward me in a threatening fashion without a gun in his hand, is that sufficient justification to shoot?

  3. If he simply continues to walk or run away, is that sufficient justification to shoot?

  4. Let us say someone who looked bigger and stronger and scarier than me came up and demanded my wallet, without displaying a weapon. If I pulled my gun (and made sure he saw it) and ordered him to stop, could I shoot if he didn’t.

  5. Would it make any difference in the last scenario if the guy claimed to have a weapon, even if he never showed it?

2

Without knowing the specific laws of Wisconsin, and without going over each of your points separately…

If you can reasonably argue that you were in fear for your life, then you can defend against an attacker by using deadly force.

You’re obviously not supposed to shoot someone in the back while they are running away after the fact, but plenty of people have gotten away with it due to “the heat of the moment.”

It really depends on all the circumstances of the situation, it’s not as cut and dried as you might think.

3

General guiding principle(and one that can be a real legal trap) is “fear for your life”.

  1. yes
  2. no
  3. Attempting citizen’s arrest, don’t do it, be glad you’re alive.
    Most likely trying that and then shooting would get you in big trouble.
    4.Usually not, situational, turn and run if you can.
  4. no
  5. Generally yes.
  6. Even more yes. If he does something to simulate a weapon, yes.
    If he claims to have a gun but both hands are in view, gets tricky.

The amount of potential trouble will depend partly on how much of an asshole the local DA is, what you did and said and so on.

4

If you are in legitimate fear for your life, it is highly probable that this could be considered a “good shoot” (you followed the laws of Lethal Force defense), however, tactically, the perp already has the drop on you, you are already at gunpoint, going for your own weapon may cause him to fire

Not unless you particularly enjoy a stint at the Straight Bar Motel, lethal force should only be used when you are still under active threat of harm, if he has his back turned to you and is leaving, he is no longer a threat, if you fire now, you will be commiting murder

tricky… the general rule of armed self defense is you do not display the gun unless you are in fear for your life, displaying it to intimidate may be considered “brandishing” and in the eyes of the law, may make you the bad guy

Again, tricky, it depends on if the authorities feel that you have escalated the situation by your display of force, IOW, did you “force his hand” by pointing your handgun at him

Again, depends on the situation, if he is armed with a knife, and he is within the “21 foot rule” area then you might be justified, as long as you were not the one to escalate, also, you’d better make darned sure you felt under immediate dire threat to your life, no brandishing to scare away or threaten

No, once the immediate threat is over, the gun should be out of play

No, once again, you need to be under immediate threat to your own life, threatening the perp with a gun is considered brandishing and may escalate the situation

No, verbal threats are not sufficient reason for employment of lethal force

IANAL, just a sportsman with a nice gun collection (or at least I used to have one, curse that inevitable boating accident… :wink: ) and a passing knowledge of self-defence guidelines

5

I find the contradictory advice just as interesting as the agreed upon advice. I hope some more people show up to add theirs.

So it may be that if I act to stop the armed crime in progress, while I have the least risk legally I have the most risk physically. OTOH, if I allow my wallet to be taken, I’m essentially as powerless as an unarmed person so long as the criminal continues to depart the scene. And if I pull my gun after the crime, and the criminal comes back at me, it’s quite possible that I might end up in prison if I shoot.

6

Remember, the reason for carrying a gun is to keep your self from getting killed, nothing more. You have no police powers or duties.

Once the threat is over, your need for self defense is over.

7

I am also not your lawyer, and this does not of course account for the personal interests and intuitions of a particular DA.

In Wisconsin, if you kill someone (with intent), you would face 1st degree homicide charge. One defense to this charge is what can be described as self-defense.

With self-defense, there are two types: perfect and imperfect

If you have perfect self-defense, that means that you were able to demonstrate to the jury the following:

·Your belief was **actual **and reasonable
·You used necessary force
·The force was to prevent death or great bodily harm

So, if the jury finds perfect self-defense, you face no criminal legal consequences… beyond the trial and years of prosecution.

The other option, which seems far more in line with a lot of the scenarios listed above is imperfect self-defense.

Imperfect self defense is when you claim you had an actual belief that you were in danger and the force you used was necessary; however, you did not/ cannot demonstrate that either (1) you actually believed you were in danger of death or great bodily harm or (2) the level of force you used was necessary.

Imperfect self-defense is only a defense to 1st degree intentional homicide. If you demonstrate imperfect self-defense, you would then face a manslaughter charge.

8

I understand what people are saying, and here is what I’m trying to get at…

When is it useful to have a concealed weapon? By the time I realize my life is in danger, it is likely too late or too dangerous to draw my weapon. Even if I draw my weapon without firing it, I might face charges, though that would seem far less likely.

Perhaps I should be considering scenarios of the defense of others. If I witness an armed robbery, am I justified in using lethal force in defense of others, perhaps total strangers?

It seems as if the only scenario that I might both survive and not face prison is one in which a criminal has already started shooting, and I am not the original intended target. Like a bystander at a lunatic’s mass killing spree, perhaps.

Can anyone come up with other scenarios where it would be advantageous to have a weapon without much chance of legal blowback if I use it?

9

One question does has a somewhat factual (although it too varies) answer:

Most concealed carry/self defense courses stress “situational awareness.” You, as a potential defender, must attempt to be cognizant of your surroundings, the people around and about you, their posture, attitude, whether they are coming towards you, away from you, etc.

Some also stress that you must carry yourself in an alert, ready posture; must show that you are aware of your surrounding and the people around you, that you are ready, willing, and able to defend yourself. This is not always easy to do, especially for people who are not physically imposing in any way, shape, or form.

An attacker bent upon harming/robbing has the initiative in that they determine when, where, how, and if they are going to attack. There’s no way around that. The best you can do is to appear as much an uninviting/unprofitable target as possible.

But if you, like most people, are just beebopping through life blisfully unaware of what’s going on around you, then yes, a bad guy appearing suddenly in front of you with weapon in hand means it’s a bit late to go for your carry. If you’re lucky, he just gets your wallet and goes away, leaving you unharmed. And, as has been pointed out, since the threat to your life is now ended, shooting said criminal in the back just to get your wallet back is generally frowned upon. Mightily.

Another thing almost all concealed carry courses stress is for you to have the name/number of a good lawyer, as there is a very real possibility that, if you ever are in a self defense shooting, you may do everything 100% correct in the eyes of the law and self defense techniques, and still be arrested, charged, and tried because some anti-gun/anti-concelaed carry DA, in cooperation with local LEO administrators, wants to make an example out of you in furtherance of poilitcal motives and ambitions.

The rest of your questions really hinge upon Wisconsin state-specific laws, and the legal climate in your city, county, and state towards concealed carry, and the use of lethal force in self defense.

Frex: some form of concealed carry is acknowledged and legal in 49 states, yet Illinois perenially resists concealed carry very strongly with tired, anti-gun/anti-carry arguments that have been refuted for over a decade in parts of the country, and two decades in many others. Illinois is still dragging their feet/weaseling their way around Supreme Court rulings on the meaning of the 2nd. Ad.

Not to reignite a tired old debate, but to illustrate how state legislatures, and legal climate, will influence what goes and what doesn’t in concealed carry and the use of lethal force in defense of self, others, and property. This may even vary considerably within a state, from rural, suburban, and urban areas.

Anything beyond this and we’re beyond opinion (informed or otherwise) and into GD territory.

10

Usually the laws state that if you have the ability to rereat or withdraw from the threat, then that is what you must do. If you are within your own home you are not required to retreat from an armed attacker. This doesn’t mean you can shoot an unarmed attacker either. He has to be allowed to retreat too. Even if the attacker is armed and decides to leave you must let him do so.

You absolutely cannot shoot someone who is fleeing or otherwise leaving the threat area.

You cannot detain someone at gun point who is trying to leave the threat.

If someone is advancing toward you while carrying a gun and you feel in danger of your life you can shoot him. You can expect to get arrested while the incident is investigated, your weapon will certainly be seized.

Showing someone your gun in a threatening manner is usually a crime called brandishing. So the unarmed guy who asks for you wallet without showing a weapon is problematic.

Generally, you must be in absolute fear of your life, have no escape route available to you, and an advancing attacker who leaves you with no other option.

11

I’ve thought about this hypothetical on occasion. Would the situation be different if you didn’t have a gun, but they did ? If someone WAS threatening your life but appears to have stopped doing so for now and is walking away (but there is nothing to say he won’t have second thoughts at any moment). Are you within your rights to hit them over a head with a beer bottle?

12

Could be interpreted as use of lethal force in obtaining arrest, which I believe is a power afforded only to law enforcement officers. If you have the time and testicular fortitude to make such a statement, there is a decent chance someone is not going to believe you were in fear for your life (DA, Jury, etc)

13

I have thought of another set of scenarios where a concealed weapon would be useful, unlikely as it may be. Situations where I am put in the position of being a hostage or prisoner, that unfold over a period of time, and there will be sufficient time and distractions to draw my weapon and prepare to fire while the criminal is looking at something else. Something like a botched bank robbery that turns into a hostage situation.

14

All this is true whether you have a gun or not. Years ago I took a defense course not related to weapons and the story was the same – the best defense is to recognize a developing bad situation and turn and head the other direction while there is time to avoid it.

15
  1. Usually can be considered justified, but extenuating circumstances would come into play. For example, I worked Armored in downtown Minneapolis. I carried only the clip in my gun. Some of my co-workers hassled me because they would carry 40-60 rounds “just in case”. As I pointed out, if I fired more than once, I was very likely to hit a bystander, and beyond that, if the 15 in the gun didn’t get me out of it, no amount of ammo was going to save me.

Bottom line; Perhaps. But if you’re in a crowded area and start firing, you’re a fucking moron and you deserve to go to jail even assuming you don’t hit someone else.

  1. Nope, that cannot be justifed. Murder.

  2. Possibly. Hope you have good witnesses who will testify on your behalf.

  3. Probably. Again, have some good witnesses.

  4. Nope. He’s gone. Cops can shoot at him, you cannot.

  5. You’d better be backing away from him, but yes, almost certainly.

  6. Again the key is to have witnesses.

16

Even if you have a duty to retreat by state law you need only demonstrate that you could not retreat safely to justify your actions.

That’s not legal in any jurisdiction I can think of, even in places with a “stand your ground” law, UNLESS he’s still pointing a weapon at you, in which case nothing about your circumstances has changed.

If you do this you’re going to jail for a long time. If his back is turned to you the condition of imminent bodily harm and/or death is no longer satisfied for the use of deadly force.

You are not a police officer. If you draw your weapon and he surrenders, call the police. If he walks away you have to let him.

Yes. Once again, the condition of imminent bodily harm and/or death is satisfied.

No, but it is arguably the justification for drawing your weapon. I say arguably because your actions will be judged, and you may find that those actions are deemed impermissible. You have to use your best judgment and let the chips fall where they may.

No.

No, unless he makes a move that can result in bodily harm and/or death.

No. Unless he pulls it or attacks you you cannot shoot him.

The phrase “imminent bodily harm and/or death” has come up a lot in this post, for good reason. That is the military and police standard for using deadly force. Anything less than that and you have exceeded the “objective reasonableness” standard for self-defense. See page four of this PDF for what I’m talking about.

You’re clearly not responsible for some of the things on there. Nobody would expect you to be skilled in the art of compliance techniques, for instance, and you’re not a police officer anyway so it doesn’t apply. But the idea of a tiered scale for the reasonableness of your actions still applies, and you’d better be sure of your actions. Responding precipitously can result in the commission of a crime on your behalf. It is the responsibility of all people carrying a concealed weapon to act in accordance with these principles. If you can’t, leave your weapon at home.

17

The fun part is that each piece of contradictory advice may be and probably IS valid in some jurisdiction. This is an area of law which varies extraordinarily widely, not just by state, but by municipality. (There are supposed to be something like 30,000 separate ordinances across the US regarding firearms and firearm usage.)

18

Think again. It is most certainly legal here in Texas to kill someone who’s fleeing with your property. The situations are pretty narrowly defined, and I certainly wouldn’t advise it, but here’s the law’s take on it: [bolding mine]
*Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) **to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, **or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.*

Here’s the statute in its entirety, if the legal minds here want to analyze it.

19

I tip my cowboy hat to pullin and proffer a hearty, “Well done, sir!” :smiley:

I was reasonably (99%) sure, that what pullin, so succintly stated, was true here in the Great State of Texas.
My reticence in saying so was due to the fact, I was absolutely sure, that I would be called upon to provide a cite, and was fearful of my ability to do so. :frowning:

And FWIW… Damn! I’m glad I live in Texas!

20

Read up on “duty to retreat,” “stand your ground,” and “castle doctrine” laws.

Every state is different with respect to using deadly force to defend oneself. In general, most states are either a duty to retreat state - meaning you are not legally justified in using deadly force if there was a reasonable opportunity to flee. Or, there are stand your ground states where there is no expectation to flee because you have the right to “stand your ground” wherever you are otherwise legally allowed to be.

Castle doctrine applies to your home and generally differentiates between the justified use of lethal force on any intruder vs. an intruder who is armed vs. an intruder who presents an immediate lethal threat to you and/or anyone present in the home. Sometimes a castle doctrine may only apply to an actual residence or any privately owned building, and sometimes your car too.

Couple things that no one should EVER do:

  1. Use lethal force against an assailant who is fleeing.
  2. Give chase to an assailant who is fleeing.

One may place a violent suspect under “citizen’s” arrest in most jurisdictions, and attempt to hold them at gunpoint - depending on local gun laws - but never fire a shot or give chase if they attempt to flee. Even using physical force in an attempt to restrain someone from fleeing before the police arrive is a bad idea.