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A question for LEOs and lawyers


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I was at the supermarket this morning in California, which is a no-open- carry state.  I got to wondering:   

 

Scenario:

What if somebody ran into the store with a semi-auto rifle in-hand with an extended magazine and "brandished" the gun in a manner that created panic in that part of the store  and appeared to me be to pose a threat. 

 

I'm right near the door paying for groceries and I have my legally (licensed) concealed carry gun available.  So here is the question:

 

Do I need to wait for him to actually fire a round before drawing my gun and neutralizing the threat?  It seems to me that if I draw down on him, before he has discharged a round, and direct him to freeze, he can lawfully shoot me in "self defense". 

If I actually fire at him before he discharges a round, he becomes a shooting victim and me the perpetrator.  Yet delaying even for seconds can enable serious loss of life.   

 

So how much brandishing constitutes  a clear lethal  threat, warranting lethal "responsive" force?  At what point does my reaction become "defensive"?

 

I realize this is a tough call to make because it depends on whether I actually "feared for my life or the life of others", and whether or not that fear was realistic.  But if you were the responding officer and the gunman was on the floor after being shot by me,  with all of his ammo still in the magazine, what would be your likely perception and immediate legal action? 

Edited by Dusty Devil Dale
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For various reasons, I have given this considerable thought.  If someone not in uniform, armed with a firearm runs into a place where I am checking out, I will drop behind the check stand, draw, and engage.  As to what happens next, I don't use cellphones so I'll ask someone to call 911, describe what happened and how I am dressed.  If the perp is down and not dead but incapacitated, I will disarm the person and render first aid. When the authorities arrive, I will raise my hands and comply with their instructions.  I will ask to have a lawyer present or any questioning. First rule, get home alive.

 

 

 

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I do some security at a school. Licensed by the State but NOT a peace officer. We are taught that when someone points a firearm they have shown their intent and we can shoot regardless of whether he has already fired or not. Every state will have different rules. In fact we have been told to be aware of the politics in every county we might be in, in our state. Different DAs=different likely hood of being charged.  Do the right thing. Don't be eager to oull the trigger but don't be frozen in i decision either.

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I am not LEO or a Lawyer. I do carry all the time. I would observer, possibly follow if the individual moves out of my site, possibly draw my pistol if the individual looks pretty sketchy. I would not engage unless the individual pointed the weapon at an unarmed person or me. I see no reason to shoot a person just because they are carrying a gun. If he gets off the first shot, so be it, this is not a war zone, although some describe some cities that way. As civilians we are totally defensive and need to wait for the aggressor to make the first threatening move. He may be a good guy pursuing a criminal who just shot his wife in the parking lot. Police have made this mistake without consequence, shooting a good guy who had disarmed an active shooter and because he was the only one armed at the scene, police shot him. Us as civilians will not get that benefit.

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I'm a lawyer; fully retired but still licensed. If a client posed this question to me, I wouln't directly advise him what to do in a specific hypothetical future scenario. I'd discuss the general applicable legal principles and perhaps refer him to some written material.

 

There is no way that a lawyer can give clear direction as to a future highly dynamic situation. "Reasonably necessary to protect oneself or another from death or grave injury." And be ready for the second guessing. But one won't be able to say: "My lawyer said it would be OK."

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1 hour ago, Dusty Devil Dale said:

I was at the supermarket this morning in California, which is a no-open- carry state.  I got to wondering:   

 

Scenario:

What if somebody ran into the store with a semi-auto rifle in-hand with an extended magazine and "brandished" the gun in a manner that created panic in that part of the store  and appeared to me be to pose a threat. 

 

I'm right near the door paying for groceries and I have my legally (licensed) concealed carry gun available.  So here is the question:

 

Do I need to wait for him to actually fire a round before drawing my gun and neutralizing the threat?  It seems to me that if I draw down on him, before he has discharged a round, and direct him to freeze, he can lawfully shoot me in "self defense". 

If I actually fire at him before he discharges a round, he becomes a shooting victim and me the perpetrator.  Yet delaying even for seconds can enable serious loss of life.   

 

So how much brandishing constitutes  a clear lethal  threat, warranting lethal "responsive" force?  At what point does my reaction become "defensive"?

 

I realize this is a tough call to make because it depends on whether I actually "feared for my life or the life of others", and whether or not that fear was realistic.  But if you were the responding officer and the gunman was on the floor after being shot by me,  with all of his ammo still in the magazine, what would be your likely perception and immediate legal action? 

 

Talk to CA criminal defense lawyer

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As a retired LEO, I had to change my mindset when it comes to using a firearm for defense.  I do not have qualified immunity or color of law behind me anymore.  I'm just an old guy with a gun who use to be a LEO.  I can legally carry nationwide under federal LEOSA law.  However, my deadly force will only be used for self preservation and that of someone with me.  I am no longer going to try and save the world.   Too many civil suits, activist DA's and media misinformation stories.  I hate that it's come to that but it's just not worth the risk.

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5 minutes ago, Badlands Bob #61228 said:

As a retired LEO, I had to change my mindset when it comes to using a firearm for defense.  I do not have qualified immunity or color of law behind me anymore.  I'm just an old guy with a gun who use to be a LEO.  I can legally carry nationwide under federal LEOSA law.  However, my deadly force will only be used for self preservation and that of someone with me.  I am no longer going to try and save the world.   Too many civil suits, activist DA's and media misinformation stories.  I hate that it's come to that but it's just not worth the risk.

 

I don't know you from Adam, but my suspicion is that if you REALLY found yourself in a situation where other people were in immediate jeopardy (and you were not), you'd take action - civil suits be damned.   A good man can't help but be a good man.

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1 minute ago, Bart Slade said:

 

I don't know you from Adam, but my suspicion is that if you REALLY found yourself in a situation where other people were in immediate jeopardy (and you were not), you'd take action - civil suits be damned.   A good man can't help but be a good man.

Like everything about this scenario, it depends on the situation. 

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2 hours ago, Dusty Devil Dale said:

I was at the supermarket this morning in California, which is a no-open- carry state.  I got to wondering:   

 

Scenario:

What if somebody ran into the store with a semi-auto rifle in-hand with an extended magazine and "brandished" the gun in a manner that created panic in that part of the store  and appeared to me be to pose a threat. 

 

I'm right near the door paying for groceries and I have my legally (licensed) concealed carry gun available.  So here is the question:

 

Do I need to wait for him to actually fire a round before drawing my gun and neutralizing the threat?  It seems to me that if I draw down on him, before he has discharged a round, and direct him to freeze, he can lawfully shoot me in "self defense". 

If I actually fire at him before he discharges a round, he becomes a shooting victim and me the perpetrator.  Yet delaying even for seconds can enable serious loss of life.   

 

So how much brandishing constitutes  a clear lethal  threat, warranting lethal "responsive" force?  At what point does my reaction become "defensive"?

 

I realize this is a tough call to make because it depends on whether I actually "feared for my life or the life of others", and whether or not that fear was realistic.  But if you were the responding officer and the gunman was on the floor after being shot by me,  with all of his ammo still in the magazine, what would be your likely perception and immediate legal action? 

Now a days with the police so hyped up on stopping "active shooters" it is quite likely they will shoot you. They will figure it out later, but you're already dead. This has already happened more than once. This is why my philosophy is I must be sure I am engaging a real bad guy that must be engaged now. You are risking your life, not just with the "bad guy" but the responding authorities (police).

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5 minutes ago, Ranger Dan said:

Now a days with the police so hyped up on stopping "active shooters" it is quite likely they will shoot you. They will figure it out later, but you're already dead. This has already happened more than once. This is why my philosophy is I must be sure I am engaging a real bad guy that must be engaged now. You are risking your life, not just with the "bad guy" but the responding authorities (police).

 

I have to agree with this.    The situation as initially presented is so hypothetical it's hard to answer, depends on a lot of variables....but my guess is that if you had to draw in a situation like this, you'd have to draw with the intent of firing (not threatening).   Hypothetically, I'd want to have the 'bad guy' put down so that I could put my OWN gun down by the time the authorities got there.   Would not want there to be any question I was not a threat.

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18 minutes ago, Bart Slade said:

 

I don't know you from Adam, but my suspicion is that if you REALLY found yourself in a situation where other people were in immediate jeopardy (and you were not), you'd take action - civil suits be damned.   A good man can't help but be a good man.

Have pondered the scenario myself. I agree, you will do what feels right at the instant. Deal with consequences afterwards. Better tried by 12 than carried by 6, I guess.

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13 hours ago, Eyesa Horg said:

Have pondered the scenario myself. I agree, you will do what feels right at the instant. Deal with consequences afterwards. Better tried by 12 than carried by 6, I guess.

It's better to stay out of the legal system all together.  You can certainly be a good witness if you choose.  Look what happened to Zimmerman and Rittenhouse.  Both perfectly justified shootings but because of activist D.A.'s, they were raked over the legal coals for several years. They now have a permanent entry on Wikipedia.  Do you really want to risk going through that and spend your life savings defending yourself to save strangers?

Edited by Badlands Bob #61228
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16 hours ago, Rip Snorter said:

If the perp is down and not dead but incapacitated, I will disarm the person and render first aid.

Not me man.

 

If I shoot somebody, it was because I was in fear for my life. If I'm so scared of Joe thug that I shot him, I am not going near him so that he could get another try at me.

 

There's poor Joe thug lying on the ground bleeding from a bullet hole. So I go over to render first aid. While I am trying to stop him from bleeding to death, and am therefore concentrating on my great medical abilities, Joe pulls his other gun, or maybe it's his knife, or maybe he even grabs my gun. And now we're both lying on the floor bleeding.

 

If I am enough scared of him that I shot him, there is not no way in hell I am getting within arm's reach.

 

 

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When I was in the USCG they told us I was not allowed to fire on someone pointing a gun at me, but I was allowed to fire if I thought someone else's life was threatened.

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Keep in mind that what you state in writing here, or anywhere else on the internet, is public record. Don't think for a second that if something like what is described in the OP's post happened and you took action that resulted in serious injury or fatalities, that law enforcement/DA/SA won't scour the internet for your activity.

 

For this reason, I think that I will keep what I would do, or not do, to myself.

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I would take cover and call 911, if the bad guy came at me I would definitely shoot and deal with the consequences later. When the cops came and the threat was diminished I would have my hands HIGH up in the air!

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 Unless one finds himself in a seriously blue anti gun state I'm thinking, and this is just 100% hyperbole, that if someone runs in to a public place with an AK47 and acts threatening and someone with a concealed carry permit puts them down-ends said threat... out of fear for their life or can articulate they were preventing another mass shooting, given the media's proliferation of mass shooting coverage the general public is probably going to say thank you.

 

But I'm just a guy on the wire you don't know without a law degree. In your state talk to a pro 2A attorney and see what they have to say.

 

 I know what I would do. Cover and concealment and/ rapid zigzaggy movement would be part of my plan.

 

 

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I was taught in California as a private security officer, If you reasonably  believe based on the "totality" of the circumstances at that moment, your life or the life of another is in imminent danger lethal force may be used to stop the danger.

(Pic is me back in the day)

1121111913a(11).jpg

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14 hours ago, Alpo said:

Not me man.

 

If I shoot somebody, it was because I was in fear for my life. If I'm so scared of Joe thug that I shot him, I am not going near him so that he could get another try at me.

 

There's poor Joe thug lying on the ground bleeding from a bullet hole. So I go over to render first aid. While I am trying to stop him from bleeding to death, and am therefore concentrating on my great medical abilities, Joe pulls his other gun, or maybe it's his knife, or maybe he even grabs my gun. And now we're both lying on the floor bleeding.

 

If I am enough scared of him that I shot him, there is not no way in hell I am getting within arm's reach.

 

 

Heaven forbid I must shoot, but if I do, and in the unlikely event the individual is alive, I doubt they will be capable of much.  I believe I have adequate training and experience to risk a humane action.  Who knows, the stress might trigger a cardiac event, then no worries!

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All I am willing to share is be very aware that any use of deadly force is and will be a life changing event.  Should you choose to engage be prepared to be charged criminally and fully expect civil action against you.  This is a must read .....

 

In the Gravest Extreme: The Role of the Firearm in Personal Protection

Ayoob, Massad F.

ISBN 10: 0936279001 / ISBN 13: 9780936279008

 

image.jpeg.7a6de66c66d1fbd4a037999e93e85669.jpeg

Edited by Hashknife Cowboy
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