Robin
.577 Tyrannosaur.
Alway walk on the side of the road facing traffic.
Robin
Robin
Deadly force
- Thread starter Criticalt
- Start date
ProgSpear
.338 Win Mag
A presentation was given at the Oneida & Herkimer County Chapter of SCOPE meeting last night on this exact topic, by a local lawyer who is an avid shooter. He stressed situational awareness, keeping a cool head even when the adreneline might be high, and being mentally prepared. He stressed that the law is vague and contradictory, and that in NYS the burden of proof will be on you. He specifically noted that the cell phone video might be your best friend. Also your options are severely limited when out "in public". Note section 2. (a) . A threat of a beat-down IN PUBLIC obligates you to retreat if possible, and you need to be able to prove somehow that you did everything possible to avoid or de-escalate the situation.
New York Consolidated Laws, Penal Law - PEN § 35.15 | FindLaw
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. 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; except that the actor is under no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
New York Consolidated Laws, Penal Law - PEN § 35.15 | FindLaw
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. 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; except that the actor is under no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
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On a busy road yes.
This road gets maybe 6 cars an hour. We spend maybe 20 minutes on the road, so about 2 cars go by.
Usually you just stop and watch as the car passes at a safe distance.
We heard this guy coming so we stopped and turned towards him.
He was coming down the side of the road and as he approched, we stepped into the ditch. He just kept coming and drove exactly where we were standing.
Its one of those "you have to be there" things. You wander from side to side for the dog to sniff around.
Im pretty sure most people here would call this area extremely rural, I call it urban because my closest neigbor is 1 mile away. We were at my parents house.
Google West Ellicott NY.......its not exactly big city living.
Thats my new plan, to carry my phone with the camera open and ready.
Im sure this guy will just drive by next time, he was probably in a bad mood.
The balls in his court.
As I always do, I will mind my own business.
I talked to a high ranking local sheriff last night who is a long time family friend.
He has known me for 30 plus years and he said this.....
He said, during an encounter like this, if you feel your life is in danger, do what is necessary to be alive and in one piece.
Then he said, just have your GF video as you "whoop" his ass. If it gets out of hand, deal with it.
If a weapon comes out and you cant get away, order him to stop at gunpoint. If I have to shoot, he said call 911, and then call him.
He has known me for 30 plus years and he said this.....
He said, during an encounter like this, if you feel your life is in danger, do what is necessary to be alive and in one piece.
Then he said, just have your GF video as you "whoop" his ass. If it gets out of hand, deal with it.
If a weapon comes out and you cant get away, order him to stop at gunpoint. If I have to shoot, he said call 911, and then call him.
Marine Cpl
.577 Tyrannosaur.
I don't know. Nothing good can come out of a whoop ass. I wouldn't follow that advice.
You whoop his ass and be presses charges with visible marks as abrasions. Permit can be lost anyway.
You whoop his ass and he needs medical attention, your permit can still be lost.
He whoops your ass. You can die, end up in the hospital clinging for life, or have your gun used against you and your family who just witnessed your skull being crushed and the perp just wants to get away.
The only safe and legal way is to retreat and if he gives chase, stop him at gun point if he gets to within 15 ft. If he continues, you know your life is in jeopardy because who the hell would charge a a man holding a gun on him?
But never get into a fight. You could be the most bad assed motherfucker and still get laid out by a lucky punch from a guy weighing a buck fifty who doesn't give a fuck and now your family is there at his mercy.
You whoop his ass and be presses charges with visible marks as abrasions. Permit can be lost anyway.
You whoop his ass and he needs medical attention, your permit can still be lost.
He whoops your ass. You can die, end up in the hospital clinging for life, or have your gun used against you and your family who just witnessed your skull being crushed and the perp just wants to get away.
The only safe and legal way is to retreat and if he gives chase, stop him at gun point if he gets to within 15 ft. If he continues, you know your life is in jeopardy because who the hell would charge a a man holding a gun on him?
But never get into a fight. You could be the most bad assed motherfucker and still get laid out by a lucky punch from a guy weighing a buck fifty who doesn't give a fuck and now your family is there at his mercy.
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RDN
.357 mag
Agreed.
Unfortunately this is a "Duty to Retreat" state. Under the OP described circumstances, the guy appeared un-armed. You would be put in jail had you shot him. And even worst, the guy (if he lives) or his family can sue you in civil court. And the way this Liberal jackass state works you will be found liable.
Thats why he said to video it.
If anything happens its 100% on him, I have no ill will towards him.
Of course inference cannot come through online but...
When the sheriff told me this, he meant it like this is how things are done around here.
This guy would most likely have jumped in his truck and took off if I approched him.
Ive actually watched sheriffs stand and watch two guys punch each other for a few swings. After its broken up, they usually shake hands and walk away.
Its a tough call and I have more responsibility when carrying a gun than when im not.
All the shit going through your head you have to make the best choice and hope its the right one.
RDN
.357 mag
I'm not arguing your right to defend yourself or loved ones. I'm just stating the fucked up nature of the legal system in this state. Right or wrong, you most likely would've been put in jail and prosecuted (grand juries would indict a 'ham sandwich" if prosecutor asks). And civil court is another fucked up system.
The way it is in NY. You have to be in your "home" (and not have instigated the situation) to claim self defense. And even then there no guarantee against prosecution. - just saying
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Marine Cpl
.577 Tyrannosaur.
What do you guys think about body cameras? They have really small ones that you can clip on to yourself.
spat
.950 JDJ
You have a duty to retreat *only* if it can be done with complete safety.
In this case that much at least means back away, but don't turn your back whatever you do. If you're slowly backing up, that's as much retreating as you are required IMHO . If he's catching up, it won't be long before the retreat will have ended and you will need to make the shoot/don't shoot decision. But just taking a few steps backward can make a huge difference when it's all over IMHO.
Also, this would not be a state isdue
Its happened twice here in the last several years, neither cases were prosecuted.
We live in a very pro gun, pro self defense area.
Our local sheriff, judges and prosecutors are all conservative, pro gun guys.
Our sheriff was one that told his guys not to enforce the SafeAct. Our area is very, very pro Trump and pro law enforcement.
Our local judge does not ever put restrictions on permits and strongly encourages young people a women to get their pistol permits.
Our under sheriff is the one that does the pp investigations. No bullshit, if you dont have a state or federal prohibitor, you get your permit, very pro carry.
I know a guy with 2 DUIs, a possession of marijuana and a possession of stolen property on his record, he got a permit, no questions asked and didnt meet the judge for an interview.......and ive only heard of one guy losing his permit after a felony leaving the scene DWI and the judge apologized for revoking him.
Anyways, we here in Chautauqua are not like the eastern counties as far as law enforcement or citizenship.
I think this right is the main reason there are so many arguments on this forum. The state divided on guns it's unreal. If NYC was gone this state would probably be more like PA.
Bushmaster
.308 Win
I can tell ya the law with FORCE in NYS from years back as a trained fighter ONLY..... Not sure about today in NYS...... In NYS THEN.... You could match weapon to weapon..... But the gray area was if your like 80 years old against a young dude etc.... You could use a such weapon to defend yourself...... The area gets REAL GRAY !!!! IE: a 25 year old against a 90 year old whos life in DANGER can use a gun. IE: A 70 year old against a PRO TRAINED BOXER ETC.... A weapon can be used to even the match etc.... Take me long time to explain the GRAY AREA...... You NEED to PROVE the attackers intentions against you as a EVEN match if you THINK your life IS in DANGER... In ending, YOU do not need a gun pointed at you or used, shown to you in order to use a gun or weapon yourself...
Acer-m14
20×102mm Vulcan
i have one problem with that lawyer at SCOPE .. " and that in NYS the burden of proof will be on you" REALLY .. self incrimination and what else is there .... the burden is on the state or the FED's i believe .. subject dead .. the 5th .. you prove it ... not my job ..
spat
.950 JDJ
Self defense is whats known as an affirmative defense. In order to plead self defense, you have to admit to murder or manslaughter, then claim it was justified and explain why.
The prosecutor is under no obligation to prove it wasn't self defense. He only needs to prove you shot the guy. After that it is on *you* to prove that it was justified, and in order to do that you obviously have to admit you shot him, so the prosecutor doesn't need to do anything. .
wizrd
6.5 Creedmoor
If you are accosted by someone intent on giving you a beating - you are, in fact, justifiably in fear for your life - and deadly force may be used. Any Dr. will tell you that a blow to the head powerful enough to knock you out is also a blow that is powerful enough to kill you. Do not confuse real-life fights with what you see in media entertainment...just saying.
dwa12479
.338 Win Mag
Where are you guys hearing that you can only use a firearm in self defense if your attacker is also armed? That's ridiculous. I asked @spat for the legal codes earlier in this thread when he suggested the same, and we have none yet. It's non-sense. If your attacker has both the INTENT and ABILITY to do you serious physical harm, you reasonably believe that your life or well-being is in serious jeopardy, and you cannot retreat, then you absolutely have the right to use a firearm in self defense, in even the hell hole of New Yorkistan.
spat
.950 JDJ
He need not be armed, but in practice you need to be able to explain why you weren't evenly matched.
If you have some infirmity, or he is bigger, or something, then that is enough. But if you can't explain why you were out matched, then don't expect things to go your way in court.
In the end you shoot because the alternative (not shooting) is worse. Expect to get seriously jammed up if you ever make the decision to fire, no matter how justified, only fire if you think the alternative would be worse anyway.
If you're in a situation and you aren't willing to spend a couple years in prison as the price of pulling the trigger, then you probably *aren't* justified.
dwa12479
.338 Win Mag
This is what I'm curious about. Can you cite a source for this claim? Not just an opinion that things won't go your way in court. You specifically said "prohibited".
spat
.950 JDJ
Not all threats of physical force rise to the level of deadly physical force.
An evenly matched unarmed opponent is not generally considered to be a threat of deadly physical force. If you can explain why, in the particular circumstance you are in, they should be then you are in a better position.
There are many ways you could do that, but just "some people have died from one punch" is going to be a tough sell. Is the fight about to go down next to a busy highway ? Maybe that's enough. You on a high balcony ? Maybe.
Like everything else in NY law it is a giant blob of grey, and all you can hope for is to stack the deck in your favor.
dwa12479
.338 Win Mag
Says who? Where do you come to this conclusion? Case law? Written law? Who decides what evenly matched is? If a guy my exact size at 6'0" 210 was closing the distance on me and I truly believed he intended to attack me with his bare fists, then I satisfy the requirement of "an actor who reasonably believes that such other person is using or about to use deadly physical force" . I do not have to just take that beating because we're both the same size and he's unarmed.
My specific target is the assertion by you and some others here that an attacker must be armed for you to be justified using DPF to protect yourself, and that's nonsense.
spat
.950 JDJ
I have never said the attacker must be armed.
As for physical force vs deadly physical force, the answer is like everything else, whatever your lawyer can convince a jury it is.
But the bottom line is that NY law differentiates between physical force and deadly physical force, and you'd better be able to make a reasonable argument that the threat was the latter not the former if you shoot.
Every class I have taken, or legal advice I've heard hinges on a disparity of force being the key, armament is only one possible component.
spat
.950 JDJ
Disparity of Force - USCCA-Concealed Carry Self Defense Insurance & CCW Info
https://www.google.com/url?sa=t&sou...U_HIYfM1XnS9kwDgA&sig2=Jzl3R2okM_k33fzgU9VaKw
Disparity of Force: Five Real-Life Self-Defense Cases
A Lesson in Disparity of Force…
There really is a lot of material out there about this, and the overwhelming consensus is that an DPF against an unarmed evenly matched attacker is going to be a very hard sell to a jury.
RDN
.357 mag
If that's the case of how things go where you live. You must live beyond the circle of Liberal Assholes - and are blessed.
dwa12479
.338 Win Mag
I don't know, you seem pretty sure that an unarmed attacker is off limits to shoot in self defense. All that needs to be present is the ABILITY and INTENT to inflict serious harm. An unarmed man the exact same size and stature as me can do that with his bare hands.