Firearm Self Defense

[tranquility]

What is the name of your state (only U.S. law)? MO

Many have seen a recent clip of a store clerk (who was also a veteran) foiling a robbery by displaying his own weapon. At http://legalinsurrection.com/2013/09/missouri-liquor-store-robber-almost-wins-darwin-award/ is a short discussion on the legal issues involved in such a situation. (As well as the clip if you haven't seen it.) Interestingly, the Massachusetts practicing attorney writing notes how MA law differs on what "use" of force would be regarding a firearm and one might conclude the clerk could have been convicted of a crime for acting how he did if the act had happened there.

 

[justalayman]

This statement, to me, is what allows the opinion such as it was related in your post:

Asked why he did not shoot the robber, Alexander says he held back from firing because the thief’s weapon was never pointed directly at him. “If I had seen the actual barrel of the gun,” he reportedly said, “I would have pulled the trigger. My life wasn’t threatened.”

The cashier clearly states his life was not threatened. Unless he is a total idiot, he understands that any time you get shot at, your life is threatened so, does that mean he did not believe the robber would actually use his weapon? If so, then I agree with the lawyers comments. You cannot use a weapon unless you can claim there is a threat of death or great bodily harm and since the cashier did not have such a belief, drawing his own weapon was illegal.

The facts of the situation though are that the robber had his weapon drawn which shows intent. He began to raise it which amounts to threatening. There is no doubt the cashier would have been allowed to use his weapon based on any laws I am aware, if he had actually fulfilled the requirement in many states of being in fear of great bodily harm or death.

 

[tranquility]

The main legal point of the article is self defense is both an objective and subjective test. What you are discussing as the facts only deals with the objective test. Arguing the guy would have to be an idiot if he didn't think he needed to defend himself is not going to help in the subjective.

 

[justalayman]

The main legal point of the article is self defense is both an objective and subjective test. What you are discussing as the facts only deals with the objective test. Arguing the guy would have to be an idiot if he didn't think he needed to defend himself is not going to help in the subjective.

The guys statement is the subjective test. He said his life was not threatened. I know several states where what he did would be illegal because he did not have fear of death or great bodily harm. Heck, my state allows me to shoot people in several situations, if there is a fear of death or great bodily harm., Since he expressed no such concern, he removed that right under the law.


Personally, I believe his statement was simple bravado and hyperbole but taking him at his word, it made his actions illegal in many states.

 

[swalsh411]

Which all leads back to why you shouldn't talk to the police without your attorney present.

 

[tranquility]

Which all leads back to why you shouldn't talk to the police without your attorney present.

Could there be a better example of an innocent person getting into trouble from a little bravado?

 

[TigerD]

Could there be a better example of an innocent person getting into trouble from a little bravado?

George Zimmerman?

 

[HighwayMan]

Since he expressed no such concern, he removed that right under the law.

Well, often it is what a reasonable person would believe, not what the subject actually believed.

 

[tranquility]

Well, often it is what a reasonable person would believe, not what the subject actually believed.

It is both what a reasonable person believed (Objective test) AND what the person actually believed (Subjective test).

 

[justalayman]

Well, often it is what a reasonable person would believe, not what the subject actually believed.

that is not in my state so this is not controlling but I do know that people in my state have been prosecuted, and convicted, when they stated they did not have a fear of great bodily harm or death.

In fact, the most recent version of our laws are very specific of that it is the person doing the shooting that they had such fear:

(1) Except as provided in subsection (2), it is a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under section 2 of the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:

Therefore, there is actually no objective test to pass but if your claim does not pass what would be a objective test, you best be able to defend your subjective determination to the juries acceptance.

just to clarify; that is when offering a defense under our castle doctrine law. If using a self defense defense, there is a duty to withdraw prior to using lethal defenses.

 

[swalsh411]

If using a self defense defense, there is a duty to withdraw prior to using lethal defenses.

Yes, with exceptions.

In States without a "stand your ground" law, there is generally a duty to attempt retreat if reasonably possible without putting yourself or others in further danger. For example if you an able bodied person on a walk with a handicapped person and somebody pulls a knife on you, you do not need to run away leaving your handicapped companion to fend for herself. Furthermore if your retreat avenue is even more dangerous than facing your attacker, you do not need to retreat. So for example if your only avenue of retreat would be jumping out a third story window or climbing a barbed wire fence, you don't need to do that.

It's also worth nothing that even in States where there is no formal "castle doctrine" law, you never under any circumstances have to retreat from your own home.

 

[justalayman]

Actually, in my state, you have two different defenses in the situation we are speaking of:

Castle doctrine laws and self defense laws. Is the castle doctrine law is applicable, there is absolutely no requirement to withdraw what-so-ever. If the conditions are applicable, you can pull the trigger, period.

If the situation does not invoke our castle doctrine laws, it becomes a matter of self defense. Our self defense laws are written such that there is always a duty to retreat if possible and in this law, you do have objective and subjective tests to make that determination.

 

[swalsh411]

"If possible", meaning not puting others whom you have a duty to protect in danger and not having your retreat avenue be more dangerous than facing your attacker. There is always a reasonableness standard which would be applied.

 

[justalayman]

Where do you find one has a duty to protect anybody? There may be a right to be able to protect but those to whom you have a duty to protect is an extremely small list and that duty is not going to obligate yourself to stand in harms way to protect them.

I think you meant right and not duty. Your situation does not describe one where there is a legal duty but maybe a right and likely a personally determined obligation but definitely not a legal duty.

 

[swalsh411]

An example would be a parent with their child. If the child is too small to run fast, and too heavy to carry, the parent would not be expected to abandon their child and retreat from an attacker.

In my other example, where a person in a wheelchair was walking with their able-bodied friend, the able-bodied person would not be expected to run away from an attacker leaving their companion to fend for themselves. The duty to retreat would be removed.