I completely agree. The point I was trying to make earlier was that if you draw, you should be in the process of preparing to shoot 100% of the time. It is possible, but EXTREMELY UNLIKELY that a deadly threat will become non-deadly in the space of about 1.5 to 2 seconds (average draw time), especially if they have a gun as well. It is MUCH MORE LIKELY that the attacker will start to flee after you fire once or twice and have registered that you are shooting at them. As always, keep appraising the situation as you engage and stop shooting when there is no longer a threat.
In Utah being the aggressor changes everything…
|(a)||An individual is not justified in using force under the circumstances specified in Subsection (2) if the individual:|
|(i)||initially provokes the use of force against another individual with the intent to use force as an excuse to inflict bodily harm upon the other individual;|
|(ii)||is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony , unless the use of force is a reasonable response to factors unrelated to the commission, attempted commission, or fleeing after the commission of that felony ; or|
|(iii)||was the aggressor or was engaged in a combat by agreement, unless the individual withdraws from the encounter and effectively communicates to the other individual the intent to withdraw from the encounter and, notwithstanding, the other individual continues or threatens to continue the use of unlawful force.|
I didn’t watch the trial or anything, but this is what the prosecutor probably argued against Drejka with. Most states probably have something similar to this, in that you don’t have justification for self defense if you provoked the use of force.
That gets murky too, though, in that, I don’t see any of those three things from Utah necessarily ruling out the use of force in self defense.
Wasn’t committing a felony, didn’t seem to engage in combat by agreement, and I don’t know how strong of an argument there is that he provoked the shove as an excuse to use his own force
Absolutely he shouldn’t have started the sequence of events and none of it should have happened, but, let’s say the now-deceased had pulled out a knife, said “I’m going to kill you”, and lunged with the knife…would we say that, legally per the law posted above, it would not have been justified to shoot even then? If not, why specifically, which one of those three bullet points would it be?
Is standing and talking to somebody who is in their car, provoking a use of force and you just have to take whatever comes your way??
Edit: My stance on the pure legality, and I am not a lawyer, is that the shot was completely unjustified as there was clearly not an imminent deadly threat at the time the decision to fire was made. And that it shouldn’t have happened in the first place. But, I’m not as certain that standing and talkign to somebody who is in their car means you completely lose any possible ability to lawfully defend yourself from force
BIg dude with aggressive posture pushing somebody on the ground is a deadly threat.
Do not stick to firearms only. Anything that makes you afraid of your life or bodily harm is a deadly threat.
Do not analyse that case so deep… The case just showed that “clearing leather” might be enough… exactly what we had been discussing for last 3 days.
If memory serves, there was a case of that around here. something like, there was a fight, it broke up, the aggressor backs off, the “victim” pulls a knife… I think, I’ll see if I can find it, they called that self defense since he had retreated before the guy pulled the knife.
@Mike164 …sounds like the agressor regained “innocence” when he backed off… but was it a rest break or a desire do end the fight!!!
I would argue that, since the only thing he did was push one time, and his steps back + turning away came right after seeing the gun, it was pretty likely a desire to do nothing else and to not get shot
“Michael Drejka steadies the firearm with both hands,” the detective wrote. “Markeis McGlockton immediately backs up when confronted with the firearm. As he backs up to his vehicle he begins to turn towards the front of the store and away from the shooter.”
Then Drejka fired one shot.
-Tampa Bay news
No it is not in all 50 states, and I would highly recommend that nobody respond to being pushed by shooting the person. The fact that Drejka lost his balance and fell after being pushed adds nothing to the threat. This is where you use a non-lethal device like pepper spray, or a defensive display of your firearm (if allowed in your state) like I mentioned earlier.
Why not? That is exactly what the prosecution will do to you. It’s also how we learn things.
I was replying to @Mike146.
Drekja was completely wrong, from start to finish.
And I was replying to your comment.
I would agree with “perhaps unlikely”, but I would not go so far as “extremely”. I think a lot of property and recreational criminals will cut short instantly when the game suddenly becomes high risk for them. Perhaps not if they continue to think they’re ahead of your play. Crazy or intoxicated assailants are less likely to act rationally.
Wow, that’s a nuance I think I’ve never heard about — a required response for an armed defender to a perceived deadly threat is to “display” but not unholster a weapon? Yikes! And then what?
In Oregon, there is no statutory distinction between pulling up your shirt to display a permitted CCW or pulling a gun from its holster. But display of any kind could lead a person into trouble, depending upon the circumstances. There is:
- pointing a firearm at another (ORS 166.190 — infraction);
- menacing (ORS 163.190 — Class A misdemeanor);
- unlawful use of a weapon (ORS 166.220 — Class C felony).
None of which would be a problem in response to a deadly threat. None of which should occur in the absence of such threat. Fortunately, I have no known obligation to notify an attacker in any manner of my ability to defend before I undertake my defense.
Absolutely - don’t ever forget this part.
A VERY wise move!!!
“Defensive Display” is not a requirement, it is an additional tool the self defender may use in the face of a non-deadly threat (like being simply pushed as Drejka was). In my state (AZ) a law was recently codified to allow the defender to do this when (non-deadly) physical force is justified:
Verbally informing another person that the person possesses or has available a firearm.
Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect the person against another’s use or attempted use of unlawful physical force or deadly physical force.
Placing the person’s hand on a firearm while the firearm is contained in a pocket, purse or other means of containment or transport.
That is an interesting spin. I suppose it’s intended to be a clarification.
In Oregon (maybe exclusive of some local ordinances), the display of a legally possessed firearm has no basis to be considered an offense of any kind. Unless “pointed at”, which seems self-explanatory. Or unless “menacing”, which does not need to involve a firearm or a weapon of any kind.
Those three points don’t seem to exclude unholstering a firearm as a “defensive display,” but maybe there are additional specifics off screen. I don’t know whether an offense like “menacing” would be allowed or disallowed by this statute. Seems like a person is still at risk of criminal charge or civil complaint, depending upon circumstance and evidence.
Or to put it as Tom Grieve often does (once past ‘check your local listings’), “It depends”
Kind of murky around here. If I put my hand on my “hip”, and have a concealed under my shirt, am I brandishing? If I open carry (I can open carry in Utah) on the same hip and I put my hand on said hip, on or near my open carried fire arm, am I brandishing?
|(b)||Threatening manner does not include:|
|(i)||the possession of a dangerous weapon, whether visible or concealed, without additional behavior which is threatening; or|
|(ii)||informing another of the actor’s possession of a deadly weapon to prevent what the actor reasonably perceives as a possible use of unlawful force by the other and the actor is not engaged in any activity described in Subsection 76-2-402(3)(a).|