Pro-Tip: Shooting Fleeing Women in the Back is NOT Self-Defense
Absent an imminent threat–and especially after aggressor withdraws from fight and communicates withdrawal–continued use of force is NOT justified.
One of the conditions of using deadly force in self-defense is that one be facing an imminent threat of death or grave bodily harm. That definition of imminence is well captured by Black’s Law Dictionary:
Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law . . . Such an appearance of threatened and impending injury as would put a reasonable and prudent person to his instant defense.
In other words, the threat is about to happen right now.
When do defendant’s lose their claim of self-defense on the element of imminence? When the threat is to occur in the future and has not yet ripened, or when the threat has already passed. In either circumstance there is no currently existing imminent threat that must be necessarily neutralized by defensive force.
Imminence arose starkly in a recent “defensive” shooting by Tom Greer, an 80-year-old California man whose home had been invaded and he himself seriously injured by a pair of twenty-year-old ne’er-do-wells: 26-year-old Gus Adams and 28-year-old Andrea Miller. (Usual caveat: the facts as described are drawn from a “news” story reported in the Daily News. Also, a grateful h/t to Charles C.W.Cooke of National Review Online for being the first to bring this to my attention.)
Although there were many points during the course of the physical fight in which Greer would have had a robust self-defense argument for his use of deadly force against Adams and Miller, his actual use of such force appears to have occurred well after the imminence “window” had closed.
Andrea Miller
Further, his post-shooting statements suggest not a reasonably understood use of unnecessary force driven by the heat of the moment, but a deliberate and malicious use of force against a victim fleeing the conflict and begging for mercy.
There appears to be no serious question that Greer was faced with two serious criminals who caused him grave bodily harm. Adams and Miller unlawfully breached and proceeded to ransack Greer’s home. When confronted by Greer they physically attacked him, resulting in Greer suffering a broken collar bone—more than sufficient injury to qualify as the grave bodily harm necessary to justify the use of deadly force in self-defense.
Gus Adams
Greer did, in fact, retrieve a concealed .22-caliber Smith & Wesson pistol for just this purpose. And up to this point there seems little question that Greer would have been legally justified in using that pistol in deadly force defense of himself against Adams’ and Miller’s attack.
As often happens when miscreants suddenly find themselves facing a good guy’s gun, however, upon sight of Greer’s pistol Adams and Miller immediately high-tailed it from Greer’s home, and ran for the hills. Greer would later report to local media that as Miller ran she shouted back “Don’t shoot me! I’m pregnant, I’m going to have a baby!” Greer follows this recounting by stating flatly: “I shot her anyway.”
Indeed, he did. Twice. In the back. Killing her. (Her autopsy is being conducted today, from which it can be determined whether she was, in fact, pregnant. UPDATE: Coroner: Burglary suspect shot dead by homeowner in Long Beach, Calif., was not pregnant, as claimed – @latimes) Greer stated that a key reason it was Miller shot twice in the back, and not Adams, is Miller’s relatively poor foot-speed: “The lady didn’t run as fast as the man, so I shot her in the back twice.”
As already mentioned, the use of deadly force in purported “self-defense” after the threat has already passed simply fails the imminence element of self-defense, and thus eradicates self-defense entirely.
But in the context of the facts of this case, it gets even worse for any hopes Greer might have for claiming self-defense.
An aggressor can not normally justify their use of physical force on the grounds of self-defense, for the obvious reason that self-defense is intended to allow the innocent to defend themselves from aggression, not the reverse.
There are, however, means by which a person who was the original aggressor in a fight (or, importantly, who can be made to look as if they were the original aggressor in a fight) can “regain their innocence.” The most common means of “regaining innocence” is by the aggressor withdrawing from the fight in good faith, and communicating their intent to withdraw to the other party.
Once this is done, if the other party then continues to use force, that force is no longer defensive in nature but aggressive. That is, the law sees the continued use of force as the initiation of a second fight, in which the other party is now the aggressor.
Furthermore, the person who was the aggressor in the first fight has now become the defender in the second fight—and they can justify as self-defense their own use of force in resistance against the other party’s continued use of force against them.
In this instance, when Miller withdrew from the first fight and communicated her intent to do so, the first fight—as far as her role was concerned—ended.
When Greer nevertheless continued to use deadly force against her, he effectively became the aggressor in a second fight, and as the aggressor would be ineligible to claim self-defense for his use of force at that point.
Indeed, had Miller been in a position to use force against Greer at that point, she would likely have been able to justify her use of that force as lawful self-defense.
It is true that in many such cases the State elects not to parse the timeline of defensive force with the precision of a scalpel. It is rare to see cases where, say, three shots fired in rapid succession result in the State arguing that the first two shots were OK, but then the threat was neutralized removing imminence, and therefore the third shot cannot be justified as self-defense.
The law has long realized that such precise step-wise examination of a deadly-force fight does not realistically take into account the natural and enormous stresses that occur when one is fighting for one’s life. As the Supreme Court put it almost a century ago:
“Detached reflection cannot be demanded in the presence of an uplifted knife.”
Brown v. United States, 256 U.S. 335 (1921)
Any hope Greer might have had for making such a “reasonable under the heat of the circumstances” argument, however, is substantively damaged by his own recounting of the deliberate nature of his use of deadly force against a fleeing, and pleading, target.
In closing, “self-defense” is not a license for seeking retribution or exorcising even the most genuine and understandable outrage against a person who may previously have but no longer actually does represent an imminent threat of harm.
Nobody “deserves” to have their home violated and ransacked, nor their bones broken, and at least in the latter case a deadly-force defense is lawfully permissible to prevent or stop such an attack from continuing.
But the window for using such deadly force closes once the threat has stopped being imminent. Any use of “defensive” force beyond that point, whatever it might be, is simply not self-defense as a matter of law.
–-Andrew, @LawSelfDefense
P.S. The newest Law of Self Defense University Video/Podcast has just been released: “#004: The Intersection of Tactics and Law.” Enjoy!
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.
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Comments
People really do need to read your book Andrew!
It would probably save them from making such a grave and irreversible mistake such as this.
I think there can be some moral leeway for shooting in the back where it seems more likely than not the retreat is a tactical move to obtain shelter from where the plan is to commence a renewed assault. For example, if the fleeing intruder doesn’t drop his weapon upon retreat or heads to another part of the property where there is more cover, it might give such an inference. But that is not the case here, it seems, since she communicated her withdrawal and ran away from the property as fast as she could.
Probably not. Even if the perp performs a tactical retreat, you can’t shoot him because you think he might attack you again sometime in the future. That’s a preemptive strike, and while it may be sound strategy it’s not self defense.
Given that these were repeat burglars, does the guy have any chance on the “battered woman” criteria of self defense? That is, even as they retreated, they were an “imminent” threat for their next robbery and assault…?
These EXACT two cretins repeatedly burglarized this SPECIFIC 80yo?
–Andrew, @LawSelfDefense
He does say in an interview that the same people had burglarized him before, that they knew he had money in his gun safe, but that this time he moved the keys so they couldn’t just open it but had to pry it partway open to reach in to gab the cash.
they were an “imminent” threat for their next robbery and assault
“The next robbery” is definitely what “imminent” does not mean.
“5 Things To Know About ‘Stand Your Ground’ In California” located at http://blogs.kqed.org/newsfix/2013/07/22/5-things-to-know-about-stand-your-ground-in-california/ says: “So in California, not only could you stay and fight, you can even chase your attacker if it will neutralize the threat to your life.”
This was the third B&E and Mr. Greer had good reason to believe they would return.
So how about a claim of PTSD leading to temporay insanity? This man does not deserve to go to jail.
<“5 Things To Know About ‘Stand Your Ground’ In California” located at http://blogs.kqed.org/newsfix/2013/07/22/5-things-to-know-about-stand-your-ground-in-california/ says: “So in California, not only could you stay and fight, you can even chase your attacker if it will neutralize the threat to your life.” This was the third B&E and Mr. Greer had good reason to believe they would return.>
Need I even suggest the hazards of following the legal advice of a pamphlet, without also reading the actual underlying law.
Because that is NOT what CA law says.
Here is the relevant CA jury instruction CALCRIM 505, quoted:
“A defendant . . . is entitled . . . if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury) has passed.”
NOT to proactively “neutralize a threat to your life” that may or may not arise some time in the future (again, speculation has no place in a legal defense), but merely to pursue, if necessary, until the immediate danger being dealt with has passed.
An example would be where the initial aggressor in retreating screams back NOT “Please don’t shoot me,” but “Oh, yeah, just wait until I get MY gun out of my car over there, old man.”
When by your own testimony the initial aggressor is fleeing and begging for her life, and you shoot her twice in the back, her specifically over her male companion because she couldn’t run as fast as him, I suggest it’s going to be a difficult sell to the jury that the danger had not already passed.
By the way, the caution I apply to the cited pamphlet I apply equally as strongly to everything my own legal work product–that’s why EVERY statute, jury instruction, and court case I reference is available in full-length on my blog. So folks can read the actual law, not merely Andrew Branca’s–or some pamphlet writer’s–summary of the law.
–Andrew, @LawSelfDefense
Oofah, sorry for the typos, folks, sick as a dog today. All the substantive info is correct.
–Andrew, @LawSelfDefense
@Andrew Branca
Hope you feel better soonest. Best wishes on a speedy recovery!
Tom you are a fool. Of this there is no doubt. Let’s look at “the next robbery”.
People like you always invoke a steadfast formula relying on how do you know there will be a next event – that is how does a victim know the attack is over.
Utter rubbish and so obviously so to be contemptible.
How do you know there will not be? And if you believe there will be an end not an to it and if on that basis a person applies force, who is to say they are either wrong or unreasonable? Other than you that is!
Because they cannot prove there will likely be a next event? This is way too much.
Here is the rule. The assailant has to show they are no longer an assailant. And if they cannot show it, or if they do not show it, their life is i the balance and when they lose it then self defense rules.
You want an assailant protected if under YOUR LIGHTS no more threat entails. But no longer a threat entails under whose LIGHTS? Yours? Obama’s? ISIS? Me?
Whose? How many deaths of wives occurred because on night one the husband did not like his dinner? And he beat her for it? So he decided to stone her to death and the next night her brought – unannounced – his wife’s father and brother? And after hale and hearty greetings they grabbed her, hit her, buried her in the ground and stoned her to death.
How many like this? Thousands? Hundred Thousands? And you think you standards for self defense include a safety for these women who wound up dead
You know this? You are sure? BS!
Sound strategy indeed since this has been the case all to often when the perps escaped.
Low-level criminals like this are after easy marks, not games of Bullet Dodgeball. Once they’re shot at, they’re not likely to come back.
Organized crime would be another story.
Probably? No likely certainty?
I don’t think anyone cares to parse the series of events. the law is different in different states, so whats controversial in CA may not be in Texas, invading someone’s home and attacking its occupants can fill the occupants with murderous rage. It would be assumed risk that even if you tried to flee when seeing you were the one to die instead of your intended victim that your victim might still be killed. I see no reason to send a man to jail for dispatching villainous scum in the course of their crime. If anything he deserves a medal. He may not have been their first victim, but he was surely their last.
Sadly, he admitted killed her without any justification.
” I see no reason to send a man to jail for dispatching villainous scum in the course of their crime. If anything he deserves a medal.”
You are, of course, entitled to your opinion. I have no doubt it’s an opinion shared by many.
It is not, however, the law.
–Andrew, @LawSelfDefense
Pity that it’s not.
advocatus diaboli, if that’s how you spell that, what about ‘hot pursuit’, or use of deadly force to stop (arrest) a fleeing felon?
“use of deadly force to stop (arrest) a fleeing felon?”
Even the police can’t generally do that anymore, absent an existing imminent threat of death or grave bodily harm to innocents.
Some exceptions for use of deadly force against prisoners attempting to flee a prison. But just an on-the-street shooting of a fleeing felon who represents no actual physical threat?
Huge legal liability, both criminal and civil.
–Andrew, @LawSelfDefense
Me the A.D.: “use of deadly force to stop (arrest) a fleeing felon?”
AB: Even the police can’t generally do that anymore …
Pity that.
—A.D.
“And Draco himself, they say, being asked why he made death the penalty for most offences, replied that in his opinion the lesser ones deserved it, and for the greater ones no heavier penalty could be found.”
Tennessee vs Garder, 15 year old tried to escape from police ( Turned out he was a petty thief ) by trying to climb a fence. Police shot and killed him. The father sued, in the end the SCOTUS ( Reagan Era ) sided with the father.
No more shooting at fleeing people.
Foxnews quotes a local law professor:
“It is not, however, the law.”
That true, however, the law is failing citizens in many ways and can no longer be relied upon to ensure justice.
While this man broke the law and will undoubtedly pay the price for his actions, he did, however, extract his due.
Bravo! And a CASH REWARD…. Say $100,000….
I wonder what would have happened if Greer has said something like: “They were running away, but I was in great pain and feeling woozy. I was scared that I was going to pass out and they would return to finish the job if I didn’t incapacitate them.”
Consider the nature of the attack. These two people in their 20s against an 80 year old man. He couldn’t have stopped them from doing whatever they broke into the house for. The only reason to attack him was to silence a witness.
Too bad the guy had to go shooting his mouth off.
Yep. That was the shot that nailed him, although two holes in the perp’s back are pretty strong evidence.
Well, for one thing, he forgot rule # 1 after a shooting – STFU !!!!
Especially if you find yourself tempted, for some strange reason, to tell a local media outlet the dead person said “Don’t shoot me! I’m pregnant, I’m going to have a baby!” And then follow up with “Greer follows this recounting by stating flatly: “I shot her anyway.”
If he had just STFU, there might not have been enough evidence to charge him, or to convict.
Yeah I’m with you on that one. My statement would be “I’ve shot an intruder and this is the gun I used” and nothing more w/out my attorney.
If you’ve read On Combat, it’s clear that you should not trust even your own recount of the incident because of what the body naturally does in condition red/black. You likely won’t even be able to accurately say how many shots you fired. Cops should know this, but that may not prevent a prosecutor from using your words against you
It really takes about 24+ hrs to start to be able to piece it back together, and even then you may not be able to.
Oh, the cops DO know all that. They are trained in it, they are
graded on it, they study it at advanced levels for promotion.
Exactly NONE of which is in your favor.
They are not there to help you ! They are there to take evidence about a possible crime ! If they did not think there was a possible crime there, they would be somewhere else !
The longer they’ve been cops, the higher their rank, the more yeas they’ve spent studying ‘how to get people to make self-incriminating statements’.
They take classes in it, read books on it, get tested on it.
‘Joe Citizen’, on the other hand, besides being in a personally traumatic situation, and having NO legal training, has NO training in these things. None.
So – STFU !
Hmmmm.
Got some titles?
Its a harry one for the prosecutor…
Do you want to put a guy who was otherwise minding his own business in jail? He didn’t wake up that morning and decide he was going to cap a meth head. These events were put in motion by the perps. Sad for them, but the escalation and response was something they controlled more than the old guy.
I’m not a prosecutor, so I haven’t thought this through fully. However, I would get a conviction on the record. Sad, but there needs to be some deterrent value and/or finding of guilt. Under the circumstances, I would favor house arrest, and leave the rest to any tort claims that the state might find sufficient.
Well it is commie California. So the message the will try and send is the low life always will have the upper hand. Guns = evil.
“Its a harry one for the prosecutor… ”
Not if he wants to keep his job, it’s not.
Do you want to put a guy who was otherwise minding his own business in jail?
I can’t picture a prosecutor having the slightest difficulty with this.
He was minding his own business …… until he shot some lady that was running away from him in the back and killed her. That is how the law sees it.
^^^ This. ^^^
–Andrew, @LawSelfDefense
Ok, this case was giving me fits.
There was another case similar to it (and I can’t remember now which it was) where a homeowner shot a fleeing suspect in their home and was acquitted. At the time I thought as @imfine does that the attacker may just be regrouping, and group of my peers would see it that way. Andrew you however, present a compelling point about how a group of jurors will most likely view this and especially through the lens of the law. Also, and much more importantly how I will view the situation after the fight in hindsight, and how this gentlemen solved it would have lost the most important fight, the fight with my own conscience.
Not wanting to be in a gun fight and lose the most important battle (that of morality), I have read and re-read this story trying to find the underlying truth. The truth came to me … why draw the revolver if you had no intention of shooting? Why wait until the attacker is fleeing to shoot, when moments before the attacker was savaging you? How would you know that merely brandishing the firearm would stop the attack?
I know now what I would have done and why.
I am not sure where I picked this up but the Samurai would not unsheathe their weapons were to return to the sheathe with blood on it. This dovetails into my grandfathers advice about guns when I was very young:
Don’t point your gun unless you intend to pull the trigger.
Don’t pull the trigger of your gun unless you intend to shoot.
Don’t shoot your gun unless you intend to kill.
Now I get it.
“The Samurai would not unsheathe their weapons were to return to the sheathe with blood on it.”
As an old kenjitsu student, that is a myth.
Hmmmm … noted.
Think of it for a second. They didn’t pull out their swords to sharpen them and then go cut down peasant “bob” just because it was sharpening day, lol.
I think that “myth” actually comes from some old “b” rate martial arts film. (Which by the way I love those films.)
And you get it all wrong.
A) We are not Samurai.
B) We do not live in Feudal Japan.
C) Displaying or pointing a gun can often remove a danger from you or your family. It did in this case, for example. Before it was shot, that is.
D) The ‘most important battle’ in a gunfight is ‘being alive at the end of it’.
E) You do not ‘know’ that brandishing a gun will stop an attack. You HOPE it does so.
F) You are PREPARED to shoot if you have to, you do not INTEND to shoot. Do you put on a seat belt when you drive ? Why, do you INTEND to get into an accident ?
G) If you DO shoot, you do not ‘intend to kill’, you INTEND to stop an immediate deadly threat against you or your family etc.
Outside of that, you got everything else wrong, too.
I did?
A) We are not Samurai. (But some of us carry weapons, that are the equivalent of swords in ancient Japan, are you that dishonest that you can not understand the intent of what I said?)
B) We do not live in Feudal Japan. (Fucking really, we don’t, somehow I thought we did!)
C) Displaying or pointing a gun can often remove a danger from you or your family. It did in this case, for example. Before it was shot, that is. (Really if the threat is so great that you fear for your life then why wouldn’t you use the gun when you produced it … unless of course you really don’t fear for your life. You are the same kind of tool that thinks that chambering a round in a shotgun will scare the bad guys away, it is all about power for you.)
D) The ‘most important battle’ in a gunfight is ‘being alive at the end of it’. (And when does the gun fight end? When you blow your head off because you did something stupid that got someone killed. Just because you survived the gun fight and were acquitted in court doesn’t mean that you won.)
E) You do not ‘know’ that brandishing a gun will stop an attack. You HOPE it does so. (Fucking really … HOPE … maybe you would like some CHANGE with that too. When my or my loved ones life is on the line I am not going to HOPE I am going to take the measures that have the greatest chance of success. I really HOPE you don’t own a firearm.)
F) You are PREPARED to shoot if you have to, you do not INTEND to shoot. Do you put on a seat belt when you drive ? Why, do you INTEND to get into an accident ? (WTF these are the words of a coward. If you are not shooting to kill then your life is not in danger, leave the gun holstered. And FFS I am not going to unbuckle my seatbelt in the middle of an accident because I think I won’t need it.)
G) If you DO shoot, you do not ‘intend to kill’, you INTEND to stop an immediate deadly threat against you or your family etc. (Then WTF are you shooting for if you don’t intend to kill? Are you going to shoot them in the legs? How about a couple of warning shots? If the situation is dangerous enough to produce a gun then situation is dangerous enough to kill.)
I pray that for your sake you do not own a firearm, because one day what you have just said will have to be put into action, and I don’t think that you will like the outcome.
You are an utterly clueless little putz, and not worth trying to teach. Nor capable of the learning.
So you are saying that if you produce a weapon, you MUST use it? What if the production of the weapon changes the situation, removing the threat, as it appears to have done in the instant case? Do you still kill the perp because he once threatened you? You have a painfully short time to make that decision, but you do have time, and make it you must. The tim,e it takes to present the weapon and get the sights on target is all the time you have, but it is all the time you need.
You hope you are going to have to kill someone? I am prepared to kill someone. I hope I never have to. To think otherwise, is to be a psychopath. If I draw on someone, I hope I don’t have to shoot them, even as I am pressing the round home. The perp still has a chance, a bloody short chance, to convince me he is harmless. I may proceed with the assumption that I will fire, but there is still a chance it is not necessary.
If those are the words of a coward, then yours are those of a psychopath. Frankly, the life or death of a deadly attacker are not my concern. My concern is ending the fight. That would probably be accomplished by putting several rounds into his chest, and possibly giving him a third eye. Sorry ’bout that, Perp; nothging personal, just business.
WTF are you shooting for if you don’t intend to kill? Are you going to shoot them in the legs? How about a couple of warning shots? If the situation is dangerous enough to produce a gun then situation is dangerous enough to kill.
See above. Delivering shots to the chest and head is the most efficient way to neutralize the threat. The fact that it kills him is irrelevant during the gunfight. Now, after the gunfight, I may wish he had died, because that takes his story off the table, but that is tangential to gunfighting. It is an important tangent, but a tangent nonetheless. If you are dead, you don’t have to worry about getting sued.
If you “Intend to kill,” then what are you going to do if you only wound the perp and he’s lying, helkpless, on your living room floor? Put one in his head to finish him off?
I sincerely hope you never get into a gunfight, as your words are likely to convict you. Train as you fight, fight as you train applies to the aftermath of the shooting, too. The cops know this. They are trained to know what to say before it happens. Part of that training is in how you think, how you wargame your potential fights.
To borrow from Andrew –
^^^this^^^ 🙂
If it is a life or death situation are you going to wait those precious seconds to determine whether or not the attacker is done? REALLY? You’re going to waste precious OODA loop cycles to do this? What if it doesn’t cause the attacker to flee? Now you have lost precious time that could cost you your life? You really think this is a good thing to do? You should have made your decision to shoot before you ever produced the gun.
This is the problem for you, you are not prepared to kill someone. You fall into the same fallacy of someone that has never really faced their own demise. You assume that you are going to emerge victorious. You have sanitized all situations in your mind where you emerge dead, or in jail. When life or death situations happen they are never clean and they NEVER allow you to think about your next move. When YOU produce a gun, in your mind you are now the one in power, you are now the one in control. This is utter fantasy. What if your attacker(s) has the skill to disarm you while you are waiting to determine your righteousness? Or what if they just take the one hesitant no kill bullet that your gun fires and turn the gun on you?
A psychopath wouldn’t bother to leave a gun holstered. You are maliciously trying to NOT understand that a gun is used to kill, and when you produce it, then you are going to try to kill.
And this is the statement of your cowardice. If you just wanted to end the fight then shoot him in the leg, the arm the shoulder. Not the chest or head.
Giving him a “third eye” is tough talk for I am a bad ass don’t mess with me. You go to the range and you tell yourself like so many others … ohhhh look I shot him in the head that will be bad day for him. Try IDPA and see if you can still give that baddie a “third eye”. Better yet have a verbal altercation with someone just before your turn on the IDPA course and see how that works for you.
The best cure the for what ails you is a Force on Force class. I highly suggest it.
So it is fine too kill him during the gun fight but not just before? The problem you have is that you think that a gun fight is some well defined set of circumstances that lead to you pulling your gun and shooting (and of course emerging victorious with a really cool background sound track). You are going die in a gun fight. Why? Because by the time YOU realize that are in a gun fight it is over, and by your thinking, you’re dead. You need to be prepared to kill BEFORE the gun fight starts, as in right before you pull your gun. Anything less means your odds of survival decrease dramatically.
This is the disingenuous of a cowardly mind. Once again you set the situation up to favor your victorious emergence. If he can’t get up and walk or run away is he helpless? Yes If he still has his gun in his hand is he dangerous? And why on Earth would I walk up to someone that I can’t reliably tell whether or not they are still dangerous? See in your mind your great Talisman has vanquished the baddie in a red mist and now because you are so awesome it is safe to approach him and take pity on him. This is so fucking dangerous that in RL you would never do it. No what you would do is what any person that just had a fight for their life would do, and that is GTFO. Your delusion is going to get you killed.
Knowledge without understanding is the hallowed ground of the imbecile.
Lol, you reminded me of a great quote from the movie “Collateral”
(Max = Jamie Fox and Vincent = Tom Cruise)
Max: Hey.
[stuttering]
Max: He, he, he fell on the cab. He fell, he fell from up there on the m*****f*****g cab. S**t. I think he’s dead.
Vincent: Good guess.
Max: You killed him?
Vincent: No, I shot him. The bullets and the fall killed him.
Love that exchange and the expressions by Fox and Cruise just make it awesome.
Dude, find a chill pill, you are gonna bust something important if you keep letting you blood pressure go up like that. Also, just a reminder that it is considered “very bad form” to drop “f” bombs here. Please, lets keep it civil.
He should have kept his mouth shut. That’s why they call lawyers “mouthpieces.”
Andrew has in the past given examples of exceptions to this rule – for instance in a SD case in the street, point out to the cops where the perp may have tossed his weapon, where he was standing so his shell casings can be found, etc. – to ensure evidence which could help you is not lost.
—
But that doesn’t change the rule itself: taking to the police is a very bad idea. You can’t talk or explain yourself out of charges, you can only hurt yourself.
http://youtu.be/6wXkI4t7nuc
Exactly correct.
“He should have kept his mouth shut. That’s why they call lawyers ‘mouthpieces.’
Andrew has in the past given examples of exceptions to this rule–”
Yes, I suggest there are important advantages that can be gained by not being literally mute when the police show up. I do, however, consider such an “advanced technique” for the “professional CCW” who have mentally prepared themselves beforehand. For this group saying the right things and not saying the wrong things can help build a powerful foundation for self-defense.
That is NOT to advocate that ANYONE get logorrhea. I suggest speaking to only a very, very limited number of issues, then assert right to silence, and right to counsel.
And NEVER, EVER talk to investigators (detectives) without legal counsel present. Ever.
If we’re honest, even the people who claim to hold a position of “say nothing,” don’t literally mean “say nothing.” At the very least they inevitably concede to “I want my lawyer” at the very least. 🙂
–Andrew, @LawSelfDefense
I like this recommendation by Massad Ayoob.
https://www.youtube.com/watch?v=pCZXZMYyRl4
These guys also do a great job of highlighting the aftermath of a defensive shooting, though I doubt most cops are going to be a understanding as their stand in cop seems to be, lol.
https://www.youtube.com/watch?v=Ycrh8g3hPR4
A innocent person will call 911 and report that he was attacked. He will probably speak briefly with the police and describe how he was attacked and why his was in fear of his life. Then it can get tricky. The police may want to formally question you. They may even read you Miranda rights.
Andrew, after these preliminaries do you recommend that a person involved in a self-defense shooting invoke his right to speak with an attorney before being questioned in detail by police? If no, do you recommend giving a statement even if read Miranda rights?
Calling 911 to report a crime – OK. ‘This is an emergency, I need police at this location in regards to a shooting’
Making ad hoc statements to the 911 24/7 tape recorder – stupid shit. Most ESPECIALLY in the most heated moment of all – your 911 call.
You DO NOT attempt to ‘plead not guilty’ or ‘justify your behaviour’ etc at that time, or to that person / tape recorder !!!
I know what Andrew will say to your questions, but I’ll let him speak for himself.
“A innocent person will call 911 and report that he was attacked. He will probably speak briefly with the police and describe how he was attacked and why his was in fear of his life.”
The above, then identify relevant witnesses/evidence, then request medical care. All that ONLY with first responders (patrol), NOT DETECTIVES (who typically come later).
Then:
ASSERT RIGHT TO SILENCE. ASSERT RIGHT TO COUNSEL.
And do NOT let them goad you into talking. If YOU START TALKING, that’s on YOU, not on them.
AND DO NOT SPEAK TO INVESTIGATORS/DETECTIVES WITHOUT COUNSEL PRESENT. EVER. You’re no match. I’M no match, after life-threatening SD encounter.
Or just assert right to silence/counsel, period. But if you limit yourself to that, could be losing valuable–even absolutely essential–evidentiary foundation.
–Andrew, @LawSelfDefense
Thanks for the tips.
Last week, was in a CCW class, and the instructor, a 30+ year LEO, told us similarly. He asked us what we should do after shooting someone in self defense (or, really, just discharging a firearm in self defense). My answer was holster the firearm and call 911. Wrong. For example, the perp may have been taking part in a gang initiation, and gang members would likely be close, and liable to retaliate. You just don’t know, in a lot of cases. So, don’t let down your defenses. So, his suggestion was to retreat to a position of safety, and then call 911, telling them only that you were attacked, and shot someone (or not) in defense. He also pointed out that he, and other LEOs, are paid to deal with this sort of thing, and often the worst thing that you can do tactically is go to the shooting victim to see if you can save his life (hard on the ER doc sitting next to me).
Oh – one more thing, alluded to above. The goal is to stop the assailant(s), not kill them. I think that if you have that in mind, you are less likely to make mistakes – one of which is falling into the situation this guy did. The two perps were fleeing, and didn’t need to be stopped. Another is when you talk to the police. Nothing wrong with stopping assailants who threaten you (or others) with death or great bodily injury. But there is something wrong with trying to kill them.
I do esp. appreciate Andrew pointing out that you really need to shut up when the investigators and detectives show up. Their job is not to control the situation (where your knowledge might be helpful), but to potentially put a case together against someone, and we have seen, time and again, that someone being the person shooting someone in self-defense.
Yes of course and its very much a nice thing to say that “The goal is to stop the assailant(s), not kill them.” But most people probably couldn’t stop an assailant except by killing them.
And if they are running away, they will not run back? And you know this?
In my neighborhood a female cop was chasing an assailant who was running for his life ahead of her and she holstered her gun so it wouldn’t discharge. The assailant suddenly stopped, turned around and shot her dead.
I have a principle I believe in. If an assailant is involved with me in any way and all hell breaks lose that’s too bad. The only principal is that if the person weren’t an assailant bad sh*t won’t happen to him.
That’s about it.
The difference is that as a civilian you really have no right to chase someone who is running away, the police officer does have a duty to pursue them, you don’t.
And if they are running away, they will not run back? And you know this?
If they’re running away, they don’t pose an immediate deadly threat. Forceful self defense is unjustified (i.e., you can’t shoot them).
If they stop running away and then run back and renew their attack, that’s another matter.
“Yes of course and its very much a nice thing to say that “The goal is to stop the assailant(s), not kill them.” But most people probably couldn’t stop an assailant except by killing them.”
Saying ‘My intent was to defend myself and stop the threat I was facing’ is not the same as saying ‘…Unless the bad guy might die, in which case I will stop defending myself first’.
You do what you have to to protect yourself (and perhaps others). That is your goal. Whether the bad guy lives or dies is not your concern at that moment. Whether YOU live or die IS.
If YOU (and whoever you are protecting, if any) are unhurt, then you did good (assuming the threat was real, and justified your actions). Whether the bad guy lives or dies is not your problem. Whether YOU live or die is.
Although you should prefer, given the choice, that he lives, you are not given that choice, so do what you have to do to meet YOUR goal.
This may set the tone of the initial investigation if you are credible. That is important, but that is as far as the help goes. It is not admissible as evidence at trial, as the cop’s recounting of it is hearsay.
Now if you say something that can be used against you, “I shot the bastard. He deserved it.” that can be used as evidence against you. Statement against penal interest is an exception to the hearsay rule.
So talking to the cops can only be used against you. It can do very little to help you. So keep it zipped and talk to your lawyer before you convict yourself.
Correct (or close enough).
Many people do not understand ‘Miranda warnings’, etc.
First, it REMINDS you of your pre-existing rights, that you were born with. It does NOT ‘bring into effect some new right you didn’t have 5 minutes ago’.
Second ‘Anything you say …. may be used against you in court’. Correct.
Who decides ‘what to use against you’ ? The DA. Not you, your lawyer, or even the judge.
Anything you say that the DA thinks is not AGAINST YOU, will not be allowed in court. Not because it is ‘hearsay’ exactly (unless you were saying what someone else said to you), but because it is a ‘Statement in Self Interest’, which the law assumes you are lying to protect yourself.
So – anything you say not only ‘may be’ used against you in court (at the DA’s discretion), but anything you say IN YOUR FAVOR is in fact not legally admissible. The DA will object if you try it, and the judge will rule for the DA every single time.
If you think ANYTHING you say will serve you at court – WRONG!!!!! It will never come in, unless the DA says ‘OK’.
Which he will do ONLY if it works against you.
So – STFU !!!! You can only give the police / DA ammunition to use AGAINST you, you literally can not, by law, help yourself.
If I remember correctly in the past some iterations of the Miranda actually said something to the effect;
“Anything you say can and will be used against you in court”
or at least I have heard it that way somewhere.
I keep flashing back to when I was a kid and this jerk kept bugging me. I’d pound on him a bit and get the upper hand, he’d start saying “I give up, I give up”. I quit, he’d say “Just kidding” and resume the fight. We went around like that twice. Third time he “gave up” I called BS and kept pounding.
Technically, I suppose, I became the aggressor at that point.
“Technically, I suppose, I became the aggressor at that point.”
No. the other’s withdrawal has to have been in good faith. If in the course of a single encounter the other twice purports to withdraw in good faith only to return to the fight, even a defense counsel in a coma could sell the jury that the third time wasn’t in good faith, either.
–Andrew, @LawSelfDefense
Would that be the “Lucy holding the football for Charlie Brown” defense? 🙂
Yes. The attack was not ended by his professed surrender. It is not his bad faith, though, it is that the crime was still in progress his professed withdrawal being irrelevant and changed nothing.
Which brings us back to reports that these two had previously robbed the guy twice.
Andrew, can you not make a case for the man feeling a future threat from this?
“Which brings us back to reports that these two had previously robbed the guy twice.”
If these EXACT two people, the same individuals (or, if they were part of an organized group, other members of the organized group) had previously threatened or used FORCE against Greer, that COULD justify an EARLIER and GREATER use of defensive force.
But I don’t see that being relevant here after the case–you get those benefits of a doubt WHILE you are facing a repeat threat or use of force. AFTER the threat has passed, there’s still no justification for use of force.
An example where this benefit might have applied is if he simply found the two of them standing in his house, and they did not attack him or commit any other felony in the house–maybe because they hadn’t had a chance to start yet–which would normally create a situation where actually shooting them might well not be warranted. If they’d previously attacked him, however, he might well be legally justified in going to the gun sooner than would otherwise be the case.
Again, however, that’s not the scenario here. When Greer went to the gun he was clearly authorized in doing so–they’d broken his collar bone, and at least prior to his drawing his pistol they’d given no indication they were going to cease their attack. Deadly force self-defense, clear and simple.
The trouble, of course, is that he shot them after (arguably) the immediate threat had been resolved and they outside of his house, fleeing–and that’s NOT self-defense.
–Andrew, @LawSelfDefense
So if I’m reading you correctly, his use of force, given the repeated robberies and threats of violence from these exact two people several times before, could possibly be seen as “earlier” self defense against the next robbery?
Analogy – man beats wife for the third time. Man heads to the car to hit the bar for a beer. Wife gets gun, chases man, shoots him twice in the back as he pleads, “don’t shoot, I’m just going to the bar to cool off!” The immediate imminent threat is over, but the future threat of another beating later still looms.
First of all, don’t throw spousal abuse situations into the mix, it opens up a whole other can of worms that simply don’t apply here.
Second, what the law allows for in the cases of prior acts of violence (not merely property theft or damage) by the SAME people can serve to accelerate the speed at which the defender escalates up the force continuum, relative to a novel victim not previously exposed to these SAME attackers. In other words, when facing a given threat, he can use more force, sooner, than might otherwise be permissible because of the past violent attacks upon him by these same people.
It doesn’t do anything to change the imminence requirement, per se–if there’s no existing imminent threat (e.g., either it has not become ripe or it has already passed) there is no justification for the use of defensive force.
The problem for Greer is NOT that he used force TOO SOON, which is what the scenario I described is intended to cover, but rather, he used force TOO LATE after the threat had passed.
–Andrew, @LawSelfDefense
–Andrew, @LawSelfDefense
Re “Technically, I suppose, I became the aggressor at that point.”
Lets discuss. In my view if a criminal attack is extant the imitator of the criminal activity remains the bad aggressor until the crime incident is over.
Lets take a case where you are robbed, the robber turns away, you take out your gun and he surrenders. The crime he started wasn’t over until you threatened him. The crime was ongoing and ended after you drew your weapon.
You never became the “aggressor”.
Spectacularly wrong.
Me? Never!
While you probably did become the “aggressor” at the point where you drew the gun, it really doesn’t matter because all you did was stop a crime. Presumably you didn’t go on to shoot the robber after he surrendered, I hope.
Yes, of course. What I was trying to say – perhaps badly – is that drawing a gun per see which might greatly and hopefully change the odds in the incident does not invalidate a claim of self defense in any way.
In all cases of self defense shooting the attacker gratuitously invalidates self defense as it was not necessary.
In a prior post I also argued that I believed that the whole time in which a crime incident is ongoing the person attacked is – should be – covered by self defense in pretty much whatever they do except, of course, if said victim resorts to gratuitous violence.
Requiring that there be an incident where there is an immediate threat of bodily harm that must be attended to now is good and well as far as it goes. But to say there must be an immediate threat of bodily harm rules outside of valid self defense crimes such as captivity in which a victim might have to use lethal force to avoid detection to escape even if the potential destector was obviously not going to phycally harm the captive.
Theremay well be, and I know there are, cases of preemtive lethal violence that we would want to consider self defense but events of immediate body harm is absent – eg what is immediate?
Chasing after them was not “self-defense”. It was anger and revenge. The guy needs to go to prison.
Similar case in Pasadena Tx a few years ago. I believe he was no-billed.
But in any case, this is an instance when jury nullification should be explained by the defense.
“”this is an instance when jury nullification should be explained by the defense.
In the courts with which I’m familiar–certainly MA–any mention of jury nullification inside a court room will result in vigorous disciplinary action against the attorney. Did I say “vigorous”? I meant “vicious.”
Judges wield power. Like most who wield power, they do not take kindly to those who would strip them of that power. Which is precisely what jury nullification does.
Want to get out of jury duty? Show up with a jury nullification book, and hold it prominently while reading.
–Andrew, @LawSelfDefense
I got out of jury duty once on ‘jury nullification ‘ theory, but I was DAMN careful not to use those words doing it.
Your Honor, I don’t know how I’m supposed to vote against my beliefs and my conscience if I believe the verdict should be ‘X’, and the law says it must be ‘Y’.
The judge was mightily pissed even with that. He asked ‘Are you telling me that you will defy me and the law here in this courtroom ?’.
I calmly didn’t answer his question, and repeated my statement instead.
He was all red in the face when he dismissed me.
But, I think that that is also one reason that in the jurisdictions that I have lived in, Attorneys are routinely excused from jury duty in criminal trials. I know that if I had questions about the guilt of a defendant as a juror, I would try to sell the rest of the jury on jury nullification, and then throw in some history, such as how common it was right before our Revolution, when the citizenry would often refuse to convict on what were fairly clear violations of British law.
True, but a usurpation of the jury’s duty as a check and balance against overreaching government and bad law.
Judges should be impeached for this.
I don’t think Mr. Greer has much of a self defense case. Not only did he shoot Ms. Miller as she was running away he also stated that Mr. Adams should ponder why Ms. Miller is now dead which hints at revenge to me.
Speaking of Mr. Adams, could he also be charged with the murder because it happened in the process of a felony that he was committing? I believe some states have these sorts of laws but I’m not sure if California is one of them.
“Speaking of Mr. Adams, could he also be charged with the murder because it happened in the process of a felony that he was committing? I believe some states have these sorts of laws but I’m not sure if California is one of them.”
Absolutely.
–Andrew, @LawSelfDefense
He is charged with 1st degree murder as I understood it.
Awesome, that is the best news I have heard in this case.
Texas excepted, I suppose the most you could do legally is hope they trip over a garden rake you left out, and hurt themselves really, really badly. Gloating afterwards might be uncharitable, though.
In Durham, NC, in ’93 (I think Nifong was the DA then), a white man shot at 4 black yutes who had entered his house to steal a motorcycle. He hit one of them in the back, on his property line, as the soon-to-be-deceased perp was running away. Useless POS died from a .22 LR – never discount the lethality of even the smallest of projectiles.
The shooter never did any time for that shooting, but it cost him $100,000 to defend himself.
So it is possible to get away with murder, but it is not cheap or easy.
“a white man shot at 4 black yutes? ”
How come it doesn’t read ” a wite man shot at 4 black yutes?”
I’m feeling a little micro aggressed here. All of your thinly veiled referrals to crypto racism really need to come with a trigger warning.
Thanks ever so! 🙂
I would think that his serious injury and excited mental state, both caused by the invaders, should reduce any reasonable charge to voluntary manslaughter.
“”I would think that his serious injury and excited mental state, both caused by the invaders, should reduce any reasonable charge to voluntary manslaughter.
Sure. Which is good for 15.
He’s in his 80s, he won’t survive that.
Those of us in our 40s wouldn’t survive that–at least, not as the people we went in as.
I would suggest it’s pretty much a catastrophically life changing event for anyone.
When he COULD have just held his trigger. Or his mouth. Or both.
–Andrew, @LawSelfDefense
Hell yes.
I am thinking his best defense would be “temporary insanity” brought on my the attack combined with age. But heck for all I know that might not even be a real defense.
I do not know if the specific events in this case remove it from any consideration of self defense per see, but I can say that the definition given for imminent threat is inadequate IMO.
Problem “Immediate danger, such as must be instantly met”.
Discussion: There is really no such thing, or no such discernible thing, as instantly met. There are too many situations where one cannot distinguish actual threat that needs to be instantly met with, well almost instantly met.
The only real and valid condition that clearly meets the standard of a situation that requires to be instantly met is one where the attack is going on.
It leaves no room for those cases where if one did not apply lethal force, that the attack would not have occurred anyway or actually. For if it wouldn’t have occurred anyway or actually it really cannot be said to have been needed to be instantly met.
Instantly met disallows situations where an attack has not occurred yet but seems very likely to, and where if it does occur it would overwhelm the person who would be then helpless when it does occur.
An example of this is a person whose house is being scouted by someone who looks like they are trying to gain entry or find a place to gain entry. If they did gain entry, and if they wanted to, they could easily physically abuse the homeowner and their family.
For me the application of deadly force in such situations is justified – in fact I would think it a failure of responsibility not to apply lethal force.
Also the discussion does not explicitly say if there are differences when self defense without lethal force is valid and different conditions for when self defense with lethal force is valid and at the same time the discussion seems to imply there is one.
Of course the problem would be this. If a situation validates non lethal force, why not lethal force then?
Almost the last a missing part of the discussion for both sets of issues is this – what can I do if I am alone and there is a criminal seemingly involving himself, or trying to involve himself with me in some way.
And the last issue. Could the man have used lethal force if they were in his home? If so, why not outside. Distinction without a difference.
You really need to take a course on self defense and Read Andrews Book. Go to his seminar, because I can tell you right now your view of what constitutes self defense would probably get you convicted of murder.
This is a discussion board and the fact that my defense gets me convicted or murder doesn’t mean I am wrong.
Yes, it is a discussion board.
If you’re happy with a ‘theory of law’ that gets you convicted of murder, this board is not going to change it.
Nor, most likely, will the 20 years of thinking about it in your own private Idaho that you will get (not ‘private’, really – you’ll have a celly)
This is a discussion board
It is indeed; one of interest to those trying to understand the practical aspects of self defense law in these united States, via examination of actual developing cases.
It’s not really a board for fans of fantasy fiction.
Tom, have I mentioned lately that I just love how wonderfully and politely abrasive you can be at times, lol? If I haven’t let me correct that error.
Well at least it is not a board for my “fantasy fiction” just a board for your fantasy fiction. Indeed it is. By the way, you beliefs concerning self defense exclude most applications of force in situations of captivity, situations where preemptive action is claimed valid self defense, and domestic situations where parties conceal their intentions of killing a wife and where when the threat becomes obvious it is too late and the woman is killed.
This last case type probably dwarfs in numbers all of your cases multiplied by ten thousand.
As I wrote I think your discussions of self defense are fine as far as they go. But only as far as they go.
Call me crazy, but if I had to choose between being right and getting convicted, or being wrong and getting acquitted, I’d choose the latter.
“An example of this is a person whose house is being scouted by someone who looks like they are trying to gain entry or find a place to gain entry. If they did gain entry, and if they wanted to, they could easily physically abuse the homeowner and their family.”
That actually happened to me last week. Slow cruising car on this short dead end street, black lady checking my house out, etc.
However, instead of shooting her, I decided to tell her the pizza she was carrying was for next door, not me.
Could have shot her, but it seemed a shame to waste a good pizza.
“For me the application of deadly force in such situations is justified – in fact I would think it a failure of responsibility not to apply lethal force. ”
You think that if someone ‘seems to be scouting your house’, your best bet is to shoot them, ‘just in case’ ? Wowsers.
This is one of the most apt (and deadpan) replies I’ve ever read on a blog post. The icing on the cake was your line Could have shot her, but it seemed a shame to waste a good pizza.
I’ll look forward to discussing your trial on LegalInsurrection.com.
Simply too many errors–legal, conceptual, and logical–in one lengthy post for me to trouble fixing on a busy morning.
If you’d care to learn the actual law of self-defense you might spent $10 on a Kindle book or go hog wild and attend a seminar. Or not. Up to you.
Best of luck.
–Andrew, @LawSelfDefense
Coroner: Burglary suspect shot dead by homeowner in Long Beach, Calif., was not pregnant, as claimed – @latimes
read more on latimes.com
Thanks for that! 🙂
–Andrew, @LawSelfDefense
That might help, albeit slightly. It could transform “woman shot while trying to escape from gunman” into “petty criminal deceptive and treacherous to the end”.
If I am running away from a guy with a gun, hell, I’m gonna tell him ‘Don’t shoot, I’m pregnant’, too.
And I’m a guy.
DAMN!via http://www.breakingnews.com/
No prob, paisan
The “no preemptive strikes” rule seems to be invalid, so long as you’re female. In addition, if you did shoot a pregnant woman in self-defense that would create enormous problems for you, because there would be big political pressure to prosecute anyway. Actually, self-defense cases in general are problematic if the alleged perp is female and the defender male, due to the aforementioned political issues.
While you may be correct about the socio-political will to prosecute. A pregnant woman with a gun or knife is still a deadly threat.
In previous posts I argue that the restrictive standards concerning our rights to use lethal force rest on foundations that are not as strong or clear as may be supposed.
For example – The more or less clear restrictions on when lethal force is justified or what has had to happen for lethal force to be justified in the case of the stoning of a woman to death who cooked lentils for diner instead of goat.
I rest my case.
I think that’s quite a good idea, all things considered. Bless your heart.
Not exactly sure what your point is. I will only point out the phase “all things considered” is actually a cliche.
I will be more specific. Here is a type incident that happens hundreds of thousands of time the world over without exaggeration.
A man owned a radio station and his wife filed for divorce. While she was sleeping he bludgeoned her so she was unconscious and then he beheaded her.
Here is another. A women cooked lentils for dinner and her husband was angry about it because he asked her to cook goat. The next night the husband brought home with him for dinner her father and brother.
After dinner they approached her, grabbed her, put her in a whole they dug in the ground, covered her up to her neck with dirt, and stoned her to death.
Now I know all you critics know that under your restrictions on self defense there would be in both examples ample time as the each series of events unfolded for the women to apply force – lethal or otherwise – that would both save her life as pass the test of a clearly imminent threat that has to be death with now.
My point is that when said type of event happens in these kinds of situations it is too late for force to effect anything and the woman – or person – dies. As such self defense is actually defeated.
With the diner the only event which would save the woman’s life would be somewhere between the time the three men walked into her house, or sometime at dinner. No event within that window could be shown to be a clear and imminent threat of death or bodily harm.
With the other event we face equally ambiguous situations. That is whether you agree or not, there are thousands of situations involving captivity or preemptive where the victim’s claim of self defense is very iffy and the victim is in jeopardy.
Why you people are hostile to this presentation of situations I have no real idea.
Proof positive that wisdom does not always come with age.
“Don’t shoot me! I’m pregnant, I’m going to have a baby!”
Who would anyone volunteer this information? I am not suggesting one should lie about what the female perp may have said as if it were ethical, or as strategy I would use.
Bu you couldn’t have gotten away with murder after saying, “I shot her anyway” in front of witnesses in Tombstone back in the 1880s.
Seriously. Billy Claiborne briefly sided with the McLaurys and the Clantons against the Earps at the shootout at the O.K. Corral. Claiborne ran away. A year or so later Claiborne was apparently overcompensating, trying to live that down, and piked a fight with he wrong guy, Buckskin Frank Leslie, who killed Claiborne.
Point being, when Claiborne asked Leslie to stop shooting after he’d had been shot, and as he was already as good as dead, Leslie stopped shooting. Not wanting to further anger a God already angry that would sit in judgement of him.
Or rather not wanting to further anger a jury.
Everyone would be scared if their home was invaded. You wouldn’t know how many there were, necessarily, and anything they said you would be a fool to believe. It would be frightening enough if you were home alone in a place where help would not be coming soon, but if you had kids etc at home, you have to protect. If you are alone and scared, well, you are not going to think like anyone here sitting at a pc safe and sound. If you are with other and kids, there is a protection thing you have to do. You can argue what the logical thing to have done is, but unless you are in the situation, you don’t know how you would react.
“Everyone would be scared if their home was invaded . . . . if you had kids etc at home,”
In this case there was neither a home invasion nor kids at home.
So I guess I fail to see the point.
–Andrew, @LawSelfDefense
Beg to differ. There WAS a home invasion. And you’re allowd to shoot the mofo’s during a home invasion.
The key word here being ‘was’ as in ‘used to be’. At the time he shot, the invasoin was passed, done deal.
You’re allowed to shoot them during a home invasion, but not AFTER one so as to punish them for it. You can do the defending, but you’re supposed to let the law do the punishing after the fact.
But IS the threat really over? By the man’s own testimony, these two had already robbed him twice. Seems to me the threat is totally ongoing.
Yes, it is over, for right now, in self defense terms.
You can not shoot people based on ‘what you think they may do tomorrow’.
I think he shot her based not only on the threat of what they might do tomorrow but on the reality of what they did yesterday.
Yes, I realize this comes close to an “I, the Jury” scenario. How many repeat crimes must one subject themselves to before they’re justified in stopping the threat permanently?
And commenters here are entirely correct. He should have STFU.
Nasty case. I’d hate to be on that jury.
Me too. (hate to be on the jury)
Because I would have to send that poor old guy to prison for the rest of his life. No matter HOW much I sympathized with his actions, and even agreed (morally, not legally) with him.
Jurors are supposed to be guided by The Law (‘as given to them by the judge’), not their own personal morals (if any).
That is our system, for good or bad.
How many repeat crimes must one subject themselves to before they’re justified in stopping the threat permanently?
All of them, like it or not. There is just no legal way for you to terminate such a feud by killing somebody.
The consensus seems to be: Call 911 and tell them I was attacked, and that in self defense I shot the attacker.
Maybe, but maybe not.
If I am attacked away from my home or business, and successfully defend myself, what if I simply police my brass and leave? Have I committed any crime by doing so? Doesn’t the Fifth Amendment allow me to NOT call 911 and report the incident? And policing my brass is compliance with the littering laws — I wouldn’t want to litter.
If I do not report it, and if the police somehow track it to me, well, it will make my self-defense claim much less plausible, perhaps, but might it be a better tactical decision? Isn’t this worth thinking about?
Are you sure some CCTV didn’t catch the action?
Are you sure that driving away you don’t get caught on some red light camera?
If you do leave I suggest you call a lawyer at the earliest possible moment. If they do catch you, you can at leqast claim that you were afraid to stay and wanted to contact your lawyer first.
And more importantly do you really think that you will be able to live with yourself after you have done all of this?
According to “The Psychopath Next Door,” by Martha Stout, about 4% of the population are psychopaths. Psychopaths have no conscience, and feel no remorse, no matter what they’ve done. They are only concerned about getting caught.
First of all, you have tampered with the evidence, a crime. Second, by fleeing the scene, you have given evidence that you had a guilty mind. You knew you had done something wrong. After the murder, you committed a second crime, and then fled the scene. You are making the prosecutor’s case for him.
Well put, and exactly correct.
Do that, spend 20 years trying to extract your own foot from your own ass.
Ask Michael Dunn.
It wouldn’t; “make my self-defense claim much less plausible”‘ it would pretty much ensure that you weren’t allowed to claim self defense at all. There is so much in that cycle of events that would hang you it isn’t even funny.
“If I do not report it, and if the police somehow track it to me, well, it will make my self-defense claim much less plausible, perhaps, but might it be a better tactical decision? Isn’t this worth thinking about?”
Sure, think about it.
Might want to keep my number handy, too.
Just to be on the safe side.
Because when the police have to track you down–and are successful in doing so–you’re in for a very interesting ride, indeed. 🙂
I wonder how Michael Dunn is doing these days? Romantically, I mean.
–Andrew, @LawSelfDefense
I hear he moved in with someone. 🙁
The sad part is that I bet you have heard of events even stranger that described above.
Andrew: If Mr. Greer is charged, what reasonable argument would his defense use? Not being a lawyer, I would like to know your thoughts. Also, Mr. Greer’s interview seems very problematic with regards to self defense. His own words can be used against him. He may have stoked the fire even more.
After his voluntary video-recorded ‘She was running away begging me not to shoot her, so I shot her in the back twice anyway’, his best legal argument is called a ‘plea bargain’.
Or just a Guilty Plea and begging for the “mercy of the court”.
Yes, beg the court for mercy.
“Don’t convict me! I’m pregnant!”
“The most common means of ‘regaining innocence’ is by the aggressor withdrawing from the fight in good faith, and communicating their intent to withdraw to the other party.”
Aggressors can lie about their intent to withdraw just so that they can escape a momentary disadvantage while still intending to fight. An attacker who, when faced with resistance, tries to get behind cover, for instance, is certainly still in the fight. The idea that a person who was just been attacked should be required to find anything that his attacker does to be “in good faith” seems absurd, and so too in this case. The female attacker was lying about being pregnant. Some “good faith.”
Massad Ayoob, who writes for Handgunner Magazine and often serves as an expert witness on armed defense, once recounted a case where a homeowner found an armed person climbing in a window and, as the invader tried to scramble back out, shot him dead. The court agreed in that case(I don’t think it was a jury trial but I am not sure), that the homeowner did not have to let the invader reach a secure position from which he could re-attack.
Maybe that homeowner just got lucky but the logic of it seems correct. I’m for the castle doctrine on this one. People should not be called upon to artfully judge whether a retreating attacker is out of the fight or is just trying to get out of the line of fire. If they are clearly there to do harm, as is undoubted in this example, shoot em before they can get to cover, and that obviously means in many such instances shooting them in the back. It’s ridiculous to think that in a real fight it won’t be necessary to someone in the back.
Does the castle doctrine, in those places where it is the law, protect a homeowner from being second guessed about whether a shooting is necessary? If somebody comes into your house and attacks you I’d say a good general rule is that they should not be considered out of the fight until they are thoroughly incapacitated.
When they have left your house, and are running away from you screaming ‘please don’t shoot me!’, you will have a hard time convincing anyone the fight wasn’t over.
True, but I can’t help a little feeling of satisfaction that those were her last words.
If only we could get that message across to the rest of the thugs in this world.
The female attacker was lying about being pregnant. Some “good faith.”
That’s not what “good faith” means in this context. It means good faith about the withdrawal from the attack on Greer. It does not mean that anyone would have confidence that the lowlife had suddenly turned into a model citizen.
If Greer could see that she was running toward, say, a pile of guns, he might very justifiably conclude that she wasn’t withdrawing from the fight at all; even if she claimed that she was, there would be no good reason to believe it, even though it might be true.
But that wasn’t what happened here.
Does the castle doctrine … protect a homeowner from being second guessed about whether a shooting is necessary?
Not really.
As AB has noted here before, Castle Doctrine removes the “duty to retreat”. That’s it. That basically just means that you are not required to abandon your home if menaced by an intruder. Nothing else is changed. Before exerting deadly force in self defense you still have to be facing what a “reasonable man” would consider immediate threat of death or serious bodily harm, just as you would outside of the “castle”.
The Castle Doctrine is an area of some confusion because while every state has some version of the Castle Doctrine, some add on additional “benefits” when one is defending in one’s home–such as presumptions of reasonableness, or a presumption that the intruder intends to cause death or grave bodily harm to the occupants of the home if the intrusion is made in a “tumultuous” manner.
But other states’ Castle Doctrine DO NOT include such provisions.
Thus it’s common on internet forums, where people are writing from different states, that they begin talking at cross-purposes when they appear to be using the identical term, Castle Doctrine.
So, for purposes of conceptual clarity the definition of Castle Doctrine I prefer to use is the original one, and the only one that is DEFINITELY present in all 50 states, and that’s the elimination of any otherwise existing duty to retreat from an intruder.
Then we can treat the “add-ons” distinctly as appropriate to local law.
Avoids confusion that way. 🙂
–Andrew, @LawSelfDefense
On the question of what the law SHOULD be, whatever lines the law draws will open up some opportunities for homeowners to get away with shooting people they don’t actually need to shoot and some likelihood that homeowners will be prosecuted for shooting people they did need to shoot. The objective of legislators should be to minimize these combined harms, while not neglecting to take into account how the law itself will alter behavior. But in calculating these harms it is important that legislators do not weigh the lives of invaders and the lives of the invaded equally.
This is the whole idea behind the legality of self-defense. The attacker’s life is considered properly forfeit if necessary to protect the life of his would-be victim. This should apply generally, so that in cases where it can be established that an invader has created a threat situation, errors on the side of the victim shooting someone he really didn’t need to should be weighed as far less costly than errors on the side of prosecuting the victim for shooting someone he did have to shoot.
The concept of “regained innocence” seems to violate this fundamental idea.
Do California Courts recognize a plea of imperfect self-defense?
Isn’t there a “Some people just need killing” defense?
Yes.
It is not known to have ever worked, though.
The so called “Texas Exception to First Degree Murder.” A person was actually acquitted, in Illinois of all places, when he used that defense after killing a major gang banger. I wouldn’t count on it, though.
Illinois also took a different ‘major gang banger’ (Black Panthers in this case) and convicted felon, and sent him to Congress.
Oddly enough, he’s the only person ever to have beaten Barack Obama in an election, too.
His name is Bobby Rush.
IIRC, “Ripley’s Believe it or Not” decades ago had an item about a man in Scotland on trial for murder. The jury found him innocent of the murder, but returned a verdict that he should be hung anyway, because they believed that he (the defendant) deserved to be hung.
In an age when John Roberts makes stuff up, when an issue is decided by which course hears which case–I really don’t give a damn what the law is or what lawyers say.
You know you don’t get to pick your own celly(s), right ?
What you mean no room swaps like in collage?
this is where the law fails us.
if they had caused his death (heart attack, falling and hitting head, etc) during the felony in progress they would get charged with the murder.
yet during their felony the law protects them from being exterminated as needed. cowardly lawmakers enabled this.
the law does not equal justice that’s for damn sure.
when your old or, like me, very disabled the threat is not over while they are still in the house.she just as easily could have turned back if he didn’t shoot her.
these two deserved killing, sadly one is still alive.
hope the jury decides to not give a damn here if it goes to jury trial.
Umm… they were NOT still in the house. They were in the yard, running away.
The law says you can’t shoot them then.
You may disagree with the law. And the officers who take you to your new home.
Is this justice ? Judgement call.
Are you under the impression that we ahve a system of JUSTICE ??? Really ? Wrong. We have a system of LAWS.
“these two deserved killing, sadly one is still alive.”
The law says ‘You and I do not get to decide ‘who needs killing’ and be judge, jury, and executioner on the spot’.
You do not have to like the law, or agree with it. But if you value your freedom, you WILL learn it and follow it.
I meant too write in house/on property, not sure why I failed to write that.
and I know you are a sheep, no need to keep proving it.
the law is wrong.it needs to be changed.the whole criminal justice system is a damned farce and a failure.
So sorry you’re too stupid to write what you meant, so sorry you think the law is wrong. Maybe I even agree on some points.
BTW, I meant to write ‘too’ as I did, you meant to write ‘to’. Not that you would know.
Bite me with that ‘sheep’ stuff, asshole. I checked with my CCW permit and my gun collection and my awards from some local shooting competitions, including the State Games, and they all tell me ‘this guy is…’ then they use some rude words I’ll refrain from repeating here.
However, I’m pretty damn sure the law still applies to both of us.
And I’m even MORE sure that if you don’t like it, you can stick it ….. well, I’ll refrain from naming places.
the whole criminal justice system is a damned farce and a failure.
So what? It’s a farce and a failure which can lock you up in a steel cage if you screw up.
And you can’t opt out of the game just because you don’t like it.
Some people are willing to deal with this reality. They are not called “sheep”, they are called “adults”.
This goes back to Old English Common Law, not a particularly criminal friendly tradition, that basically that you can defend yourself as long as it is actually defense. Shooting a fleeing perp in the back is seldom a form of defense. Couple that with the fact that a jury will likely look upon that as cowardly, and with the fact that he shot off his mouth, and he had better hope for a lot of mercy while he’s packing his toothbrush.
Yep.
‘She was running away screaming, so I shot her twice in the back and killed her anyway, damn I wish I could have gotten her friend too but he was too damn fast running away from me while I shot’ is probably not the first line of defense most attorneys would choose for a client.
a jury will likely look upon that as cowardly
I doubt that will figure into it.
The salient point is that it’s illegal to go around shooting people no matter how good you think your justification is. That said, there are a very few exceptions when it is not illegal. The jury just has to realize that this case isn’t one of them.
Also realize that the same laws that keep you from shooting someone who is retreating; also in theory keep the police from using the same tactics.
she just as easily could have turned back if he didn’t shoot her.
So, shoot her when she does turn back.
It’s not like Greer would have to find another dime to put in his gun because he’d reached a time limit waiting for her to make up her mind.
Shoot ’em when they’re attacking, don’t shoot ’em when they’re not. It’s really not that mysterious.
I’m really sick of all this concern for scumbags. The possible consequence of burglarizing, beating, mugging, etc. is and should be that you might get shot, period. I wish it were that you PROBABLY WILL get shot, period.
I know you are focusing on the legal ramifications here and what will probably happen, but as long as we’re shredding the Constitution in every other possible way, I really wish we could get rid of this protection for people who were physically caught in the act of committing a crime.
Asshole.
One easy step legislators could take is to say that the worst crime a person who has been criminally assaulted can be convicted of for their response is manslaughter, or 1/2 manslaughter. Even if there is evidence of “malice aforethought,” responsibility for it could be considered the responsibility of the attacker, similar to the rationale for “felony murder,” where the initial decision to commit a felony makes an attacker responsibility for any deaths that ensue, even the deaths of his abettors. Responsibility for creating the dangerous situation has to be taken into account and “reclaimed innocence” fails to do that.
1/2 manslaughter sounds about right. It leaves plenty of incentive for defenders not to shoot attackers who they no longer clearly need to shoot while properly weighing the harm from this kind of mistake as far smaller than the harm from punishing a defender who did need to shoot. Once an attack has occurred, all gray areas should go to the defender, and that decreases the incentives to attack. All good.
Could you please do us a small favor? Ask the last attorney who cashed a retainer check from you to look up the statute in your state defining “1/2 manslaughter.” Many of us would like to learn more about that offense.
The old “assumption of risk” canard, eh?
Why didn’t some cop pull him aside and tell him the facts of life?
Look mister, you are an eighty year old man who just broke a bone. People are not going to want to send you to jail. If you don’t say stupid things, you won’t be in trouble. So just, I was scared they were going to kill me so I shot them. OK?
That might have been nice. But cops are not there to be nice, or to advise you to committ perjury.
Not if they want to remain employed.
“People are not going to want to send you to jail. If you don’t say stupid things, you won’t be in trouble. So just, I was scared they were going to kill me so I shot them. OK?”
Yes I’m sure cops are eager to invite perjury charges against themselves. That’s a strong career move.
Is that perjury?
The advice that I am suggesting the cop should give, is not that he should tell to the guy to say “I was scared for my life, I shot them.” It is to say no more than that.
Point, that much is not perjury, but it will not help him.
The forensics are going to be irrefutable, she was shot in the back, in the yard.
Also, the cop will STILL be in the same depth of shit if he gets caught saying what you said.
A) Interfering with an investigation by encouraging a witness / actor to withold the truth
B) Perjury if he says ‘That’s all the guy told me’ or ‘it’s all I know’ etc.
Outside of TV shows, I think maybe most cops do not put their livelyhoods on the line for perps like that.
Of course, when the perp has said it on tape to the local TV station …..
Actually, the cops probably did something similar to what you are suggesting. I am betting that at least one of them told the guy; “You have the right to remain silent.”
To me, near the bottom of the list of human refuse are women who lie about being pregnant to avoid the consequences of their illegal/illicit/immoral actions.
So telling the police she was screaming that she’s pregnant, might not have been so dumb. He probably should have left off the “I shot her anyway.” part though.
“He probably should have left off the ‘I shot her anyway.’ part though.”
Which is really my point. To the degree a non-lawyer can have one on a law blog.
AlecRawls mentioned Massad Ayoob. You’ll have to take my word for this as it was years ago and I haven’t found the article online. But I recall him writing about one case in which he provided expert testimony for the defense. In that case, the guy had an iron clad defense of self-defense. But the old guy was a hot head.
On the stand prosecutor baited him into saying he shot a guy for breaking a table in his house.
Dude had broken a table. But he had done a lot or than that. Still the prosecutor convinced the jury that was all it was about. Just a table. Hot head obliged by running his mouth.
Point being, shut up.
“On the stand prosecutor baited him into saying he shot a guy for breaking a table in his house.”
Yes, Prosecutors are good at that. Why I don’t like putting even “white as snow” defendants on the witness stand. If the Prosecutor can goad an outburst, undermines the very heart of reasonable self-defense.
Of course, sometimes there’s no choice (see: Dunn, Michael).
–Andrew, @LawSelfDefense
You think ‘she said she was pregnant before I killed her’ would have improved his legal situation ?
Well obviously the baby would have grown into a criminal and threatened him someday, so that’s self defense, too.
Point 🙂
The fictitious baby. She lied about being pregnant. If there is one sure to make an unsympathetic female “victim” look even more unsympathetic, it is for her to lie about a pregnancy.
Pretty sure she don’t care right now.
Guilt isn’t the problem here. Sentencing is.
Yep.
A ‘normal sentence’ means ‘he dies in prison’.
Hard call.
Interesting that the perp who got away is DEFINITELY guilty of murder (felony murder). Similarly the woman would be charged with of murdering herself if she weren’t already dead.
Okay, I was willing to give this guy all kinds of benefits of the doubt, but this is the nail in his coffin:
“But when Greer produced a .22-caliber handgun, they fled, Greer told KNBC, adding that he chased the pair and shot Miller twice in the back in an alley, and then pulled her body back onto his lot.” http://www.latimes.com/local/la-me-0726-long-beach-20140726-story.html
Moving the body back onto the lot is definitely not the reaction of a non-aggressor. It’s almost as if he was going to tell a different story of self-defense, and then forgot to and told the truth instead.
Hmmm. 80 year old with a broken collar bone.
OK, maybe this guy DOES have a defense – insanity.
To parrot some others, here, when involved in a shooting, STFU and ask for a lawyer! But now that he shot his mouth off, he’d better ask for a jury trial and hope for one or more people like me as jurors. Can one really expect an 80-year-old man, physically attacked, in pain with a broken collarbone, to behave rationally and mercifully? In fact, couldn’t temporary insanity be a potential defense, attorneys?
Shame he wasn’t in Texas. Here, you can use deadly force on someone that is fleeing with your property.
Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
The “property” in question would be the money they stole.
And seeing as he dragged the body back from the alley, in Texas he could avoid a ticket for ‘public littering’,
too 🙂
I love the fact that is only applies “at nighttime”, lol.