Is this illegal?

[jonks]

Originally posted by: Zenmervolt

Originally posted by: jonks

Originally posted by: Zenmervolt

Originally posted by: jonks
the law isn't likely to punish a person if a guy with a knife starts chasing you and you then turn around and fire at him.

Jonks, note that the statue phrases the duty to retreat thusly, "Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating". It does not say "reasonable" safety, it says "complete" safety. There's a world of difference.

I don't know about you, but I sure as hell do not consider running away from an armed assailant to be "complete" safety. My unguarded back makes an excellent target, even to a drunk.

I agree, as stated above, regarding the typical knife wielding assailant. Per the staggering drunk, that's usually the textbook example of the guy you are not allowed to kill. Don't overread "complete" too much, there's no such thing as "perfect" safety. Complete will generally be interpreted to mean you have an avenue of escape. A prosecutor would ask you, "all witnesses say the deceased was staggering around drunk and could barely walk. You are telling me you couldn't have backed away or run?" NY case law is strongly against unnecessary killings.

Check this out:
http://findarticles.com/p/arti..._20050405/ai_n14590221

Cliffs:
P1 and P2 (neighbors w/long history of antagonism) are arguing in the apt building they live in.
P1 walks up nose to nose to P2, who is standing in his own doorway holding a metal pipe.
P1 puts his hand in his own pocket and says "I'm going to kill you."
P2 swings the pipe and kills P1.
P2 found guilty because he didn't retreat into his apartment, upheld on appeal to the state's highest court.

NY high ct opinion: http://www.law.cornell.edu/nyctap/I05_0039.htm

If the drunk can barely stand and is clearly not capable of locomotion, then I'll agree. I was thinking of someone who was clearly drunk, but also clearly still able to move about well. The kind of "witnesses describe the drunken man throwing a table through the plate-glass window before pulling a knife and threatening you" drunk.

The case you cite is interesting, but not fully an example of the type of situation I'm envisioning (which may be my own fault for not placing proper constraints around my hypothetical situations).

1) P1 and P2 have a history of mutually aggressive behaviour. (Therefore, there is no clear "aggressor" necessary to have precipitated any later incident, which clouds the issue.)
2) P2 clearly escalated the altercation by having the pipe. (It's certainly something that a reasonable person would assume would provoke P1 given the history.) There was no need for P2 to have come to the doorway either. In essence, the opportunity to retreat occurred several times prior to the threat from P1.
3) P2 seems to have attempted, from the beginning, to bait P1 into coming into his apartment with the intent of claiming that, per the applicable NY statute, he had no duty to retreat because he was in his home.

The case is interesting, but I really think that they key is the fact that P2 chose repeatedly to escalate the situation rather than taking any of the multiple retreat opportunities that occurred well before the actual verbal threat. P2 could have avoided the verbal threat entirely had he simply left the door closed and remained in his own apartment. The telling part is that P2 came to the door several times before seeing P1 in the hallway. Clearly, P2 was actively seeking to continue the altercation.

I think that the case you site would have had a significantly different outcome if:

1) P1 and P2 had no history of mutual animosity.
2) P1 and P2 had not been shouting at each other through the apartment wall prior to the confrontation.
3) P2 had not come to the door with the pipe multiple times seeking an opportunity to continue the altercation with P1
4) P2 had not, upon seeing P1 in the hallway, continued the altercation.

While the case bears some superficial resemblance to a spontaneous assault in a public place, closer scrutiny reveals that the situation is not analogous and does not necessarily have bearing in such cases.

All of the points you raise about escalation are accounted for in the law and thus were not raised by the court. The only point in time that matters here is after the imminent threat of deadly force arises, i.e. the verbal threat made by the victim. You lose the protection of justified self-defense if you are the provoker (35.15.1a) or the initial aggressor (1b). That issue was not raised here either by the defendant or the court. The case here, and its appeal, is about whether the Def had a duty to retreat before using deadly force. They found that he did.

If this case isn't exactly on point to our discussion it is probably because the focus of the appeal was the 'castle doctrine' and whether standing in the open doorway of your home puts you, legally, 'within your dwelling.' The court found that it did not.

I did find a pretty good summary of NY duty to retreat:

"Still, even in jurisdictions that mandate it, retreat is required in few circumstances. For instance, it is recommended only where the actor can attempt escape without increasing her own peril. This subjective standard focuses on what a person knew in fact at the time, rather than ?whether defendant ?could have retreated? with complete safety? looking at the totality of circumstances in hindsight. One need not calmly evaluate exit strategies when faced with pressing danger, for ?[d]etached reflection cannot be demanded in the presence of an uplifted knife.? Nor is fleeing ever required when threatened with a firearm. New York, moreover, construes necessity liberally, with the result that deadly force may be justified more readily without retreat than in other states. Additionally, fleeing is often the province of those who have played some active role in escalating matters. In sum, these facts paint retreat as a tool of conflict avoidance rather than one of improvised escape. Retreat?s role in the self-defense context is more theoretical than practical."

IOW, the court isn't going to ask whether you could have outrun a knife wielding assailant.

 

[Dari]

Originally posted by: Zenmervolt

Originally posted by: TheVrolok
Now, I'm wondering, does the OP plan to go jogging with his wallet? (dumb idea) And how is he going to carry this firearm (might be tough to conceal wearing gym clothes and a tshirt while running) - personally, I don't want to see some dude running around with a handgun on his hip. It just seems like he's playing with fire more than not - why not get a teadmill or join a gym, or shit, just man up and jog?



Disclaimer: I have absolutely no problems with CCPs and handguns. I plan on getting my CCP now that I'm moved back into this area and settled. ZV has posted in this thread numerous times and I think it's great that he carries (based on his posts), the OP, however, is an entirely different story.

I choose to believe that the OP is simply choosing his words poorly, not anticipating the visceral response to the idea of shooting someone in the head. Additionally, I think that the OP probably needs to spend time at a firearms range to understand that shooting someone in the head is not a viable option and the attempt represents an unacceptable risk to bystanders given that a miss is probable.

People who are only beginning to get acquainted with firearms are often unaware of the difficulty of hitting an extremity during a confrontation. This is seen on both sides of the aisle. Rabid pro-gunners will say to just shoot someone in the head as though it's that simple. Rabid anti-gunners will assume that people should aim for legs and arms instead, not realising that it's not easy to hit someone in the arm or leg. This isn't a case of stupidity, merely one of unfamiliarity.

I don't think the OP is a lost cause, and I doubt he really wants to be a vigilante. I do think he likely has little experience with firearms though, and I think he would benefit from training before he comes back to considering a CPL (Concealed Pistol License, or whatever the NY term is). The core question he asked is legitimate, but the post was poorly phrased and the examples are not realistic. IMO, every person with a CPL absolutely should be aware of his state's self-defense laws, but in general a better way to ask the question would have been something like, "In what circumstances does NY law permit the use of deadly force in self-defense?".

ZV

EDIT: Dari, you're not helping me dig you out of this hole here.

I really like NY, but I can't imagine staying here long if the law is so pro-criminal. You have no idea how many times these thugs violently assault the students here and get away with it, only to face these dumb laws if somebody decided to fight back. It's absolute bullshit. I may move to NJ, Conn., or move back to Texas where the law between a man and a crminal is clear-cut.

 

[Zenmervolt]

Originally posted by: jonks
All of the points you raise about escalation are accounted for in the law and thus were not raised by the court. The only point in time that matters here is after the imminent threat of deadly force arises, i.e. the verbal threat made by the victim. You lose the protection of justified self-defense if you are the provoker (35.15.1a) or the initial aggressor (1b). That issue was not raised here either by the defendant or the court. The case here, and its appeal, is about whether the Def had a duty to retreat before using deadly force. They found that he did.

If this case isn't exactly on point to our discussion it is probably because the focus of the appeal was the 'castle doctrine' and whether standing in the open doorway of your home puts you, legally, 'within your dwelling.' The court found that it did not.

I did find a pretty good summary of NY duty to retreat:

"Still, even in jurisdictions that mandate it, retreat is required in few circumstances. For instance, it is recommended only where the actor can attempt escape without increasing her own peril. This subjective standard focuses on what a person knew in fact at the time, rather than ?whether defendant ?could have retreated? with complete safety? looking at the totality of circumstances in hindsight. One need not calmly evaluate exit strategies when faced with pressing danger, for ?[d]etached reflection cannot be demanded in the presence of an uplifted knife.? Nor is fleeing ever required when threatened with a firearm. New York, moreover, construes necessity liberally, with the result that deadly force may be justified more readily without retreat than in other states. Additionally, fleeing is often the province of those who have played some active role in escalating matters. In sum, these facts paint retreat as a tool of conflict avoidance rather than one of improvised escape. Retreat?s role in the self-defense context is more theoretical than practical."

IOW, the court isn't going to ask whether you could have outrun a knife wielding assailant.

Agreed completely with the summary. If I implied otherwise, I apologise.

I'm not fully sure that I agree with you regarding the point at which the duty to retreat occurred. However, we'll never really know how that would have gone because, as you pointed out, the court limited its review to considering whether the doorway of a house constituted being "withing one's dwelling" and not on the rest of the case.

IMO, the defendant's attorney was quite wise to limit the scope the question of whether a doorway is "within one's dwelling" because I think it represented the only chance he had (and I think that the court ruled correctly on that part of the law).

Cheers, as always. I enjoy the thought-wrangling. :beer:

ZV

 

[AstroManLuca]

Originally posted by: Dari
I really like NY, but I can't imagine staying here long if the law is so pro-victim.

Do you mean pro-criminal?

 

[Dari]

Originally posted by: AstroManLuca

Originally posted by: Dari
I really like NY, but I can't imagine staying here long if the law is so pro-victim.

Do you mean pro-criminal?

Yep. I'll edit that.

 

[Darwin333]

Originally posted by: Eeezee

Originally posted by: Dari

Originally posted by: ElFenix
is the guy with a knife charging you and does he stop when you pull the gun?

Does it matter? If he pulls a knife and threatens me, isn't that enough justification to settle the matter? Honestly, I don't want to give him a second chance to do it to someone else, possibly hurting them.

It does, because you're shooting to kill. If you were aiming for any non-vital point and just incapacitated him until the police arrived, you'd have a MUCH easier time of not being punished. The family of the attacker will sue you one way or another, but you'll at least stand a much better chance in court if you just injure them (especially if the injury is not permanent). If you simply murder the attacker, you can be convicted for murder in a lot of places.

The laws change from state to state. In some states you can pretty much kill anyone at any time, so long as you are convinced that they are a threat. In other states, you can get put away for killing someone in defense (depending on the jury, good 'ole jury nullification)

You are not shooting to kill and you are not shooting to wound. You are shooting to STOP the attacker. Shooting to "wound" is a damn fine way of getting yourself killed.

Its better to be judged by 12 than to be carried by 6.

 

[jonks]

Originally posted by: AstroManLuca
Do you mean pro-criminal?

Not that I agree the law is pro criminal as much as it's anti-killing, but it also seems to be very pro-police so maybe it evens out.

 

[thepd7]

Originally posted by: jonks

If someone pulls a knife and you can reasonably get away, you can't shoot them. But the law isn't likely to punish a person if a guy with a knife starts chasing you and you then turn around and fire at him. Retreat provisions are generally there to discourage needless killing, i.e. a drunk guy staggering outside a bar approaches you with a knife and slurs "hey...gimme your wallet". You might have a reasonable belief that the drunk intends deadly force against you, but you can easily avoid his staggering around. You don't get to kill him....in NY. Several other states are more forgiving and have no requirement to retreat at all.

Yup, states like mine...love it. Not that I am out to kill people but I do not want to have to worry about whether I can safely retreat or not when I feel like my life is in danger.

Originally posted by: Feneant2
I didn't read the thread, but I've wondered.

Guy pulls a gun on you, you pull your own out and kill him. How will the police know who pulled our the weapon first? What if you pull a gun on someone to rob him and he pulls our his own gun and you kill him. Couldn't you tell the police you were fearing for your life? Next thing you know, you are a hero even though your intention was to rob the guy.

Witnesses and/or history is all they have to go on. To be honest with you they would probably have to prove you had motive.