Have you searched him to insure he has no deadly weapons at hand? Police experience with a person with a knife can close a distance of 21 ft. or less and strike a fatal blow before you can stop him with gun fire from most handguns. That is why they shoot persons with knives who get too close. Even if he has no knife visible, can you be sure he doesn't have one he can access and attack you before you react or react with enough force to stop him.
Do you even know what your reaction time is to an attack -- you ought to try it and see, you'll be surprised. So, now I have to wonder whether the question is an legal one for dealing with the aftermath of some attack (and with time for due reflection) or whether it is a pragmatic one for a continuing conflict -- and the conflict is continuing unless the perp is totally submissive and responds to commands. If you've taken a gun away from an attacker, you should increase the distance between you for your safety (retreat also has a nice legal effect). I would guess that the issue of using deadly force at this moment would depend on whether you are not able to reach a safe distance. Phil > I think the crux of the question is that "4) He is not fleeing." is not enough info. > > If you shoot him immediately upon gaining control of the gun, while the struggle continues (i.e., before you have him completely at your mercy), then you could argue that the original threat was not nullified just because you and he were struggling over the gun. > > If you break off the physical struggle, and you have the gun, and you think you have him covered, but then he lunges at you, a reasonable person could fear he will take the gun and kill you. I'm pretty sure what would happen if a cop has drawn down on me and I lunge at him. > > If he just stands there, glaring at you, refusing commands to lay down, etc., then I don't see how deadly force is justified. > > > >>> "Raymond Kessler" <[EMAIL PROTECTED]> 9/20/2007 10:20 AM >>> > Interesting hypo! Let's look at it from the 4th Amend. perspective. Some > would argue that Tenn. v. Garner would apply, but I would argue that Tenn. > v. Garner is a fleeing suspect case and that if the suspect is not fleeing > anything else in Garner is dictum. If Garner doesn't apply then we have to > fall back to the balancing and objective reasonableness approach of Graham > v. Connor. Using this approach we have to ask what would a reasonably well > trained officer have thought/done when faced with the same circumstances. > Because the test is objective, the fact that the officer still considers the > suspect dangerous (stipulation # 3) is irrelevant. There has to be > something in the scenario that would cause an objectively reasonable officer > to believe the suspect was still dangerous and deadly force is necessary. > Given that the officer successfully took the weapon from the suspect, in the > absence of additional facts, the use of deadly force would not appear to be > objectively reasonable. > > > > The basic problem is that the threat of deadly force does not appear to be > imminent. I would argue that in self-defense cases (as opposed to fleeing > felon cases) the Fourth Amendment requires that the threat be imminent. In > general, the law of civilian self-defense also requires that the force be > imminent. > > > > The fact that the suspect was immediately dangerous a few moments ago but > then now no longer has the gun (and the officer successfully took it) does > not substitute for (or constitute) a reasonable perception of an imminent > threat. The fact that the suspect does not retreat arguably would suggest > to a reasonable officer that the suspect is submitting. In the absence of > additional facts, it would be hard to argue that submitting would create a > reasonable perception of an imminent threat. > > > > Obviously, more facts could change the result, (e.g., suspect continues to > approach the officer after being ordered to stop, suspect refuses to put > hands up and reaches in jacket, suspect is close enough to possibly > overpower officer without gun and get gun in officer's possession) but I > agree that shooting the suspect with the suspect or the officer's weapon > would not be justified at this point. > > > > I would be interested in seeing how some of the rest of you would analyze > this situation. > > > > > > > > > > > > _____ > > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Guy Smith > Sent: Monday, September 17, 2007 10:17 PM > To: 'List Firearms Reg' > Subject: [BULK] Disarm and shoot legalities > Importance: Low > > > > After a recent martial arts class where we were learning how to take a gun > away from an attacker, an interesting question came up and I was unsure of > the answer. Stipulated: > > > > 1) A mugger had pointed a gun at you and you were in reasonable fear > of your life. > > 2) You successfully take the gun from him. > > 3) You still consider him dangerous though you do not see him holding > another weapon. > > 4) He is not fleeing. > > > > Can you shoot him with his own gun? My gut instinct is that you would be > charged with aggravated assault at very least. But does the mugger's > immediately previous action and lack of retreat constitute a continuing > threat, justifying lethal force? > > > > Yours in Liberty > > Guy Smith > > Author, Gun Facts > > [EMAIL PROTECTED] > > www.GunFacts.info > > > > _______________________________________________ > To post, send message to Firearmsregprof@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof > > Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. > > -- The Art of war is simple enough. Find out where your enemy is. Get at him as soon as you can. Strike at him as hard as you can and as often as you can, and keep moving on. -- Ulysses S. Grant _______________________________________________ To post, send message to Firearmsregprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
