Guns

Threatening with a Gun vs. Shooting at Someone

There are different legal standards for the two actions, the Michigan Court of Appeals correctly concludes (in the Siwatu-Salama Ra case).

|The Volokh Conspiracy |

American law generally has different rules for use of deadly force in self-defense than for use of non-deadly force:

  1. By and large, you can use deadly force to defend yourself only if you're being threatened with death, serious bodily injury, rape, kidnapping, or, in many states, robbery (and, in some, burglary).
  2. You can generally use nondeadly force, though, to defend yourself against any unlawful attack, and also to defend your property against theft or unlawful damage.

So you can hit someone to prevent them from punching you—but you can't shoot them, unless you're trying to prevent something much worse than just punching. (There are various twists on all this, but I'll omit them for now.)

But what if you threaten to shoot them? Is that deadly force, which can't be used unless you're trying to prevent very grave harm, or nondeadly force? In Monday's People v. Ra decision (nonprecedential), the Michigan Court of Appeals held that such threats are nondeadly force:

Our Supreme Court … has applied the term "deadly force" as defined as force used in a circumstance in which the natural, probable, and foreseeable consequence of the act is death. People v Couch (Mich. 1990). In People v Pace (Mich. App. 1980), this Court determined that a defendant's mere display of a knife during a fight, while implying a threat of violence, does not constitute deadly force…. [W]ithin the context of self-defense, "[m]erely displaying a knife implies a threat of violence, but, without more, it does not constitute deadly force."

This holding, that a threat of deadly force is itself nondeadly force, is consistent with Black's Law Dictionary (11th ed), which defines nondeadly force as "1. Force that is neither intended nor likely to cause death or serious bodily harm; force intended to cause only minor bodily harm. 2. A threat of deadly force, such as displaying a knife." Similarly, the treatise LaFave & Scott, Criminal Law (2d ed), § 5.7, pp 455, states in relevant part, that "merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified pulling the trigger."

That's correct, I think, and also consistent with the way other courts treat this, to my knowledge. For more on the case, which has been quite controversial, read this David French article at National Review Online.

UPDATE: Reader Noscitur a sociis notes:

For in illustration of the other position on this issue, Alaska's statutory definition of deadly force provides that "'deadly force' includes intentionally discharging or pointing a firearm in the direction of another person or in the direction in which another person is believed to be and intentionally placing another person in fear of imminent serious physical injury by means of a dangerous instrument." Alaska Stat. § 11.81.900(b)(16). The legislative commentary explains,

"During the legislature's consideration of the justifiable use of force, the issue whether deadly force could be threatened in situations when its actual use would be improper was frequently discussed. Because of the possibility that such threats could tragically escalate a conflict, the legislature concluded that only peace officers making an arrest should have the authority to threaten deadly force in situations where the actual use of deadly force was not justified."

Commentary and Sectional Analysis for the 1980 Amendments to Alaska's Revised Criminal Code, Senate Journal Supp. No. 44 at 20, 1980 Senate Journal 1436.

(Likewise, "Oklahoma law has long recognized that, absent a threat of felonious activity, the defense of property encompasses only the right to resist trespassers with reasonable non-deadly force and, thus, does not allow a landowner to threaten them with firearms.") I much appreciate the pointer, though the Michigan view seems to be the majority view. See also Model Penal Code § 3.11(2):

A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.

For another case that takes the same view as Michigan, see State v. Williams (Me. 1981) ("'Intentionally or recklessly discharging a firearm in the direction of another person or at a moving vehicle constitutes deadly force.' Obviously, the threat of firing a gun in the direction of another person without actually doing so cannot be equated with the actual discharge of that weapon.").

NEXT: A major decision on the FTC and equitable restitution

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  1. So when someone attacks me on the street and starts throwing punches, am I required to punch back tit for tat until he knocks me on the ground and starts kicking me in the head – and THEN use deadly force? If I can’t properly defend myself until it’s too late, then I may as well lie down and die.

    1. No, you’re also allowed to defend yourself against imminent unlawful force. (I.e. before it happens.)

      1. Or perhaps “Yes and No”: You are indeed allowed to defend yourself with deadly force if you reasonably fear that you’re going to get kicked in the head (since that’s likely to cause serious bodily injury) — but you also are limited to nondeadly force so long as your only reasonable fear is of mere punches.

        1. I’ve got a little problem with that “mere” in “mere punches”. If somebody’s fit, and knows what they’re doing, one good punch could leave me in no condition to go for that gun. Zimmerman was darned lucky to be able to pull his out while being beat like a pinata.

          OK, it’s got to be context dependent, if a 13 year old is throwing punches no way am I going to shoot him. But a physically fit guy? I’d certainly dispute the idea that I’m obligated to let him pummel me on the assumption he’s going to stop if it goes too far.

          1. ” Zimmerman was darned lucky to be able to pull his out while being beat like a pinata.”

            Mr. Zimmerman should have considered the possibility of losing a fistfight before he went looking for one. That sort of thing is WHY there used to be a duty to retreat, if possible, before using deadly force.

            1. Don’t you people ever get tired of lying about the Zimmerman case? Firstly, the duty to retreat never required doing everything possible to avoid the situation in the first place. It only required retreating, if you knew you were able, once the other party employed or threatened to employ imminent deadly force.

              Secondly, he didn’t go “looking for one.” He followed Thugvon on foot (and no, he was not ordered by the dispatcher to not follow Thugvon, so please don’t trot out that lie as well), and eventually turned back toward his truck. Thugvon, wanting to impress the girl he had on the phone, doubled back and sucker punched Zimmerman.

              At no point was Zimmerman looking for a fight, nor was he obligated to take a beating (and potentially, die) so that the “unarmed” 17-year-old “kid” could show off to his future baby momma.

              1. “Don’t you people ever get tired of lying about the Zimmerman case?”

                Don’t you ever get tired of sounding stupid?

                1. James,
                  Anyone who has an intellect where he/she finds the deliberate misspelling of “Thugvon” (or KKKlinton, etc etc) clever . . . well, don’t some questions answer themselves.?

                  1. The fact that he keeps on writing stupid stuff does not imply that he never gets tired of being treated as if he has written stupid stuff. This is, in fact, the point of treating people who say stupid stuff as if they keep saying stupid stuff.

                2. Even if he were, hypothetically, sounding stupid, you’d still be lying.

                  1. Liberals have no compunction about lying if it advances their goals. The new “Trump accused Jews of disloyalty to America” is just the latest.

                    1. Ah. You’re a liberal?

                  2. “you’d still be lying.”

                    You, um, forgot to identify any lies I made. Was this an oversight on your part?

                3. Are you looking in a mirror when typing that?

                  Zimmerman was on the phone with police and giving them Travon’s description. After he gave police his description, he started his return to his truck after police informed him they will come out and investigate. How is that looking for a fistfight?

                  1. They’ve created a hypothetical scenario where somehow Martin was innocent and Zimmerman murdered him, and flatly refuse to accept that it contradicts the evidence. The Zimmerman case is just one example of how our reality is bifurcating, and the left is starting to live in a world of their own making.

                    Which would be pathetic, but they keep insisting that everybody else has to live in it, too!

                    1. ” somehow Martin was innocent and Zimmerman murdered him, and flatly refuse to accept that it contradicts the evidence.”

                      Of what was Mr. Martin guilty before Mr. Zimmerman came onto the scene? Wearing a hoodie? Walking outside after dark?

                    2. Irrelevant what he was or wasn’t guilty of prior to that point. He was guilty the moment he began his unjustified assault on Zimmerman.

              2. The duty to retreat is idiotic. Faced with the threat or use of deadly force, “safe” retreat is NEVER possible.

                1. Nobody EVER got away from an active shooter?

                  1. – “Nobody EVER got away from an active shooter?”

                    “Nobody EVER drove while blind drunk with nothing adverse happening as a result?”

                    vs.

                    “Driving a motor vehicle while seriously intoxicated is never a safe option.”

                    Your accusations that others sound stupid gets more amusing with every post.

                    1. “Your accusations that others sound stupid gets more amusing with every post”

                      I’m glad your stupidity makes you easily amused, I guess?

                    2. Don’t let that loud ** WHOOOSH ** sound you just heard above your head frighten you.

                    3. Is that the sound your stupidity makes?

                      Don’t worry, I don’t find you frightening in the least. More pitiable, really.

                2. Or rather, being assured of safe retreat is never possible. That’s why the point is so academic. The left really hates the idea of self-defense in general. Whining about SYG is just more lying.

                  1. “Whining about SYG is just more lying.”

                    The main problem with SYG is when you have TWO idiots, each certain they’re properly defending themselves, while there are other people nearby to catch the bullets.

                    In the movies, the good guy pulls his weapon and uses it against the bad guys, and the good guy is unambiguously the Good Guy and the bad guys are all unambiguously Bad Guys. In the real world, however, people don’t have a script to check to see which role they’re playing.

                    1. If the force you’re confronted with is a gun, you never have a duty to retreat anyway. That’s why I said it’s academic.

                    2. Your legal advice is as good as your observational skills.

            2. Retreat? According to eyewitnesses, he was on his back with Martin on top of him.

              1. Yes. Hopefully the Drejka jury sees the truth and acquits him of dispatching the thug McGlockton.

              2. What eyewitnesses? My understanding is that there were no witnesses to that part of the confrontation other than Zimmerman himself.

                1. Are you suggesting that Zimmerman-the-witness might have been biased in favor of Zimmerman-the-triggerman?

                2. No, a neighbor saw it.

                3. – “My understanding is that there were no witnesses to that part of the confrontation other than Zimmerman himself.”

                  Incorrect. There was a single witness – Jonathon Good – who testified to having seen the altercation. In spite of being a witness for the prosecution, his testimony suggested that Martin was on top of Zimmerman (who was on the ground) during the struggle, and that he thought the man on the ground was calling for help.

                  1. Yes, the prosecution ‘lost’ the case based on their first witness’s testimony. The prosecution should never have gone forward, but their hand was forced due to political pressure. And to reiterate what past posts imply but do not state explicitly, SYG had absolutely nothing to do with the Zimmerman prosecution, but could have been used by Martin had the outcome were different and Martin was instead prosecuted for assault and battery. Leftists are too vested in the narrative to understand the legal context of the case.

          2. Zimmerman was darned lucky to be able to pull his out while being beat like a pinata.

            Is there a video of the incident? I mean, anywhere outside your head?

            1. There was a trial, with witnesses and evidence and the like.

              1. Only one of the two parties involved in the altercation appeared at the trial, however.

                1. The medical evidence both of Trayvon and Zimmerman’s injuries and the eyewitness all tell the same story as Zimmerman’s testimony.

                  The media narrative and the prosecution had a different perspective, but the jury went with the overwhelming evidence that was presented at the trial.

                  I certainly think Trayvon’s death was a tradgedy, and Zimmerman’s actions before the altercation were I’ll considered, but it he didn’t commit a crime when he defended himself.

                2. Look, you’re free to believe that Zimmerman threatened Martin with a gun, that Martin jumped the gun, beat Zimmerman bloody, and then Zimmerman fired the one solitary shot of the evening, killing Martin. You’re even free to believe Zimmerman started out by shooting Martin, who then beat him bloody with his dying breath.

                  But that is only to say you’re free to be an idiot.

                  1. “But that is only to say you’re free to be an idiot.”

                    So, you’ve thought up all the things I think (without consulting me), and then gone ahead decided that all those things you thought up are stupid. Since you’re the one who thought up all those stupid things, you are stupid. QED.

                    B’bye, Brett.

                3. But, there was substantial forensic evidence that Martin was the assailant, Zimmerman was his victim, and Martin was reasonably threatening death or great bodily injury to Zimmerman at the time he was shot. All of the forensic evidence supported Zimmerman’s story, and none effectively countered it. Martin was sitting on Zimmerman MMA style, leaning over him, when he was shot. That is the only way that the bullet hole in Martin’s hoodie lines up with the one in his torso (and explains the different amount of GSR on each), as well as Martin’s blood on Zimmerman. Zimmerman’s blood on the concrete, and his head wound corroborated his story about Martin beating his head into the concrete walk. Zimmerman had defensive wounds, while Martin had offensive wounds. Etc.

                4. And besides, what would Martin have said? That queer looked like he wanted to homo (bugger) me? According to Martin’s “girlfriend”, his seeking Zimmerman out and attacking him was probably in response to some pretty serious homophobia (not that uncommon in young males, and esp young black males, of Martin’s age).

        2. “You are indeed allowed to defend yourself with deadly force if you reasonably fear that you’re going to get kicked in the head…”

          Is it reasonable fear, or reasonable belief? The two seem to often get conflated, but they’re quite different. I notice that with respect to police shootings, people often talk about “reasonable fear”, but fearing that the black guy has a gun in his waistband, and believing that the black guy has a gun in his waistband are two very different things.

          1. The two seem to often get conflated, but they’re quite different.

            Perhaps I’m being obtuse, but I’m not appreciating the distinction. Could you elaborate?

            1. Sure. It’s possible to be in reasonable fear of harm even when harm is quite unlikely. Imagine a situation were someone might reasonably be afraid, say being accosted by a suspicious person late at night, or having a girlfriend’s husband come home unexpectedly. It’s sometimes quite normal to feel fear in such circumstances.

              Something like that strikes me a lower standard than a reasonably belief that you are in danger, such as if someone brandishes a weapon. Police responding to “furtive movements” for example, strike me as a situation where a cop might feel reasonable fear of imminent danger, but not a reasonable belief.

        3. From time to time, there are news reports of people being killed by a single punch. Often it is not the punch that kills the victim directly but the punch knocks them out (or nearly so) and they fall, without being able to break that fall, and strike their head on pavement and the secondary impact causes the fatal injury. Sometimes prosecutors charge these as a form of murder, sometimes as a lesser (even misdemeanor) crime – seemingly depending on if the prosecutor thinks that the suspect’s actions would reasonably be expected to cause death.

          It would seem that if someone who is aware of such instances is threatened with a blow to the head by an aggressor with the likely ability to deliver that blow with sufficient energy to cause the loss of consciousness, that threat should justify use of lethal force in defense. When threatened with a gun one does not need to wait until that gun is fired to use lethal force in defense, it would similarly seem that one needs not wait for a blow to be struck to the head before using lethal force in defense — in both cases, delaying could well eliminate the possibility of mounting any defense and result in the victim’s death.

          In the end I suppose it depends on how good your lawyer is and what sort of cultural biases jurors have…

          1. “In the end I suppose it depends on how good your lawyer is and what sort of cultural biases jurors have…”

            Plus the mood of your prosecutor when the case file hits their desk, and the degree of public furor surrounding your case.

        4. I think in most cases you aren’t required to wait and see how badly someone is going to beat you up with “mere punches” before using deadly force. Or defend yourself with punches and pretty much lose any chance of using a more lethal defense if it became necessary.

          But circumstances vary, a fit male may indeed be expected to counter punches with punches before pulling a gun, while a woman in reasonable fear of being punched by an adult male wouldn’t be expected to either fight him or wait and see if he’s only going to punch her once. A couple of years ago a few blocks from my workplace in Seattle a woman got into a verbal altercation on a bus with a young male. As I recall after he spit on her, then she got off at the next stop, when she saw he was following her still swearing at her, she turned and shot him point blank in the chest, fatally. The police took her gun pending an investigation and released her, then returned her gun the next day.

        5. Rules simple and memorable in the crux.

          The common law elements of the defense of self-defense are four: Be innocent of instigation. Be in reasonable fear of bodily harm. Use sufficient force only to deliver oneself from evil. Attempt to withdraw.

          In the instant hypothetical, kicks versus punches, I am 70 years old and many Septuagenarians are frail, fragile to a punch. That’s why I use no predicate with harm.

          1. “Attempt to withdraw.”

            With the exception, that most states have the castle doctrine; You aren’t obligated to attempt to withdraw if in your own home, sometimes property and place of work, too.

            And half the states are stand your ground states, where you have no obligation to withdraw if in a place you have a right to be in.

            “Duty to retreat” states are the decided minority, and always have been.

            1. “With the exception, that most states have the castle doctrine”

              Which is nice and all, but kind of irrelevant to the question of whether the person who starts a (non-deadly-force) altercation has a duty to at least try to retreat before escalating to deadly force because of running into slightly more fight than they expected to find.

              ““Duty to retreat” states are the decided minority, and always have been.”

              In the sense that the common law they all had included that “duty to retreat”, and the states that decided to change it had to pass “SYG” statutes to change it, sure. They’ve always been the minority… a minority that included all the states.

              1. You are nit picking. Yes, the common law had a duty to retreat. But most states have now abrogated the common law there through statute.

                One of the big reasons that the duty to retreat was abrogated in most states is that it was used by prosecutors to convict people who were obviously defending their lives through the use of deadly force. The prosecutors could spend months identifying avenues of retreat that were not visible to the defendants, who often had seconds to respond to a deadly threat. Plus, the sort of survival instincts that occur in this sort of situation typically causes extreme tunnel vision, where their entire concentration is on the threat, and not on possible escape routes. (Just as blood flow leaves the extremities, in preparation for fight, flight, or being injured).

                1. “One of the big reasons that the duty to retreat was abrogated in most states is that it was used by prosecutors to convict people who were obviously defending their lives through the use of deadly force.”

                  The main reason is that it can be very difficult to assess who was an instigator when you can only get one side of the story, because the dead guy isn’t telling his side.

                  “Plus, the sort of survival instincts that occur in this sort of situation typically causes extreme tunnel vision, where their entire concentration is on the threat, and not on possible escape routes”

                  It’s called “fight or flight” response, not “fight”. Adrenaline increases reflexes, strength, and stamina, but impedes higher-order analysis… of both sides of “fight or flight”. People with a high adrenaline load become poor at making decisions that involve any kind of thinking… they’ll ignore obvious weapons and attacks as well as obvious escape vectors, for the same reason… they didn’t think of it, because they were impaired. That’s why jobs that involve adrenaline have so much training, so that higher-order analysis isn’t required. You trained on what to do, and the training takes over.

                  The attempt to retreat requirement for aggressors is intended to achieve exactly the result you claim for its removal. Someone who goes looking for a fight, and finds more fight than they expected, can’t then claim “I was endangered!” as an excuse for using deadly force.

                  Scenario:
                  Joe the mugger accosts Sam Victim, demanding his valuables. Sam, however, despite his name, will not be victimized and strikes out, delivering several blows to Joe’s midsection and head, inflicting so much damage that Joe realizes he has selected the wrong person to try to rob. So Joe shoots Sam, claiming that Sam was severely beating him and he had no choice but to use his weapon to end the threat to his person. Sam, of course, does not object, choosing to remain eternally silent.
                  If Joe is the only witness, then he’s likely to win his murder trial, if he even gets one.

  2. “Ra was put on trial for assault with a dangerous weapon and possessing a firearm while committing a felony after she brandished her unloaded pistol at Harvey during a heated confrontation outside Ra’s mother’s house.”

    By way of perspective, it seems to me that brandishing an “unloaded pistol” is not much of an actual threat compared to, for example, brandishing a baseball bat. This case should not have gone to trial. Some prosecutors apparently don’t have enough to do.

    1. How would you propose the victim determine whether or not the pistol is loaded in these circumstances?

      1. What victim???

        1. Okay, I’ll try again.

          If you are in a stopped car and a person approaches you, points a gun at you, and orders you to drive away, how would you plan on evaluating whether or not the gun is loaded and thus how threatened you should feel?

          1. Not to worry, just drive away.

            1. You should have chosen an education, WJack.

              1. Arthur, if you have an “education” those who don’t are indeed lucky.

            2. Which is why carjackings never happen to people as smart as WJack.

              1. ?? Why wouldn’t carjackings happen to WJack? WJack is suggesting that the “victim” comply with the hypothetical gunperson’s demands.

              2. – “Which is why carjackings never happen to people as smart as WJack.”

                I’d say that someone who is being ordered to “drive away” isn’t in much danger of being carjacked.

            3. You can’t outrun a bullet. A 9mm bullet takes about 0.003 seconds to accelerate to 350㎧. A fast sports car can accelerate to 27㎧ in about 4 seconds.

              1. Might want to look up relevant.

                  1. Who said anything about out running a bullet?

                    1. It’s kind of implied in your advice to “just drive away” from a carjacker who threatens to shoot you.

                    2. – “It’s kind of implied in your advice to “just drive away” from a carjacker who threatens to shoot you.”

                      That you think pointing a gun at someone and ordering them to “drive away” describes a carjacking goes a long way toward explaining most of your posts here.

          2. Hypothetical poorly stated? Approaching pointing a gun, indeed, drive away.

            I was taught twenty years ago in personal defense, when the carjacker’s hand breaks the plane of the window, kill him.

            One is innocent of instigation, in reasonable fear (see vast news reports), the gun is the only effective tool at hand, unless one is trained to leave escape space in traffic withdrawal is not possible.

            Better tried by twelve men good and true than carried by six weeping and blue.

  3. Are there states that do not allow deadly force if reasonably necessary to terminate a robbery or burglary of an occupied building? I can’t recall ever seeing any.

    1. Robbery requires a threat of violence. Burglary does not. It is reasonable to assume that a robber is armed; it may or may not be reasonable to assume that a burglar is armed.
      Plus, of course, there are cases where the guy is in your house, but is not a burglar. Shooting him might get you in trouble, if it turns out that your kid is having a sleepover and you forgot.

      1. From New York Penal Law Sec. 35.20:

        “3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.”

        It only requires reasonable belief, not strict liability. If you reasonably the guy sleeping over was a burglar, you are justified in using deadly force.

        1. So, you quoted a statute that doesn’t actually address what I said, and think that the question is dispositively answered. Does that about sum it up?

          1. It actually does. Your comment implied that this type of statute doesn’t allow for a reasonable mistake. It does.

            1. It actually doesn’t.

              “Your comment implied that this type of statute doesn’t allow for a reasonable mistake. ”

              It what now?

      2. It’s always reasonable to assume that a burglar is armed, but regardless, you didn’t answer his question.

        1. He didn’t ask a question.

        2. “It’s always reasonable to assume that a burglar is armed”

          It’s possible that any burglar is armed in the same way it’s possible that any person, anywhere, is armed. It’s also possible that anyone who passes in front of my house is intending to return later, to rob me. Can I shoot them down on the street?

          1. – “It’s possible that any burglar is armed in the same way it’s possible that any person, anywhere, is armed. It’s also possible that anyone who passes in front of my house is intending to return later, to rob me. Can I shoot them down on the street?”

            You honestly don’t grasp the difference between the reasonable assumption that something is true vs the mere possibility that it’s true?

            1. “You honestly don’t grasp the difference between the reasonable assumption that something is true vs the mere possibility that it’s true?”

              You honestly don’t realize that my opinion is the opposite of what you’re complaining about?

              1. – “You honestly don’t realize that my opinion is the opposite of what you’re complaining about?”

                LOL! You really suck at this whole internet troll thing. Or are you actually so brain dead that you’re seriously claiming…with a virtual straight face…that the likelyhood of of someone committing a criminal invasion of a likely occupied home is even remotely equal to the likelyhood of a random individual walking down the sidewalk past your house not only being armed, but also intending to return later to rob you? AND that both situations and possibilities are even remotely similar when it comes to the justification of the application of deadly force?

                1. “that the likelyhood of of someone committing a criminal invasion of a likely occupied home”

                  …should have been…

                  “that the likelyhood of someone being armed while committing a criminal invasion of a likely occupied home”

                2. “You really suck at this whole internet troll thing”

                  You just suck, at the Internet troll thing AND everything else you’ve demonstrated.

                  Come back after you’ve mastered 5th-grade English.

      3. – “it may or may not be reasonable to assume that a burglar is armed”

        It is quite reasonable to assume that someone who is in the process of invading an inhabited dwelling in order to commit a crime is likely armed, unless you have good reason to believe the s/he is not. In fact it would be downright stupid to not make that assumption.

        1. It’s downright stupid to assume either way.

          I notice this didn’t stop you from picking a side.

  4. I’m not a fan of US gun laws, but this seems right. It also has the beneficial effect of preserving the incentive effect of having different punishment for threatening vs using deadly force. (I.e. the same reason as why you don’t want to have the death penalty for rape.)

  5. For in illustration of the other position on this issue, Alaska’s statutory definition of deadly force provides that “‘deadly force’ includes intentionally discharging or pointing a firearm in the direction of another person or in the direction in which another person is believed to be and intentionally placing another person in fear of imminent serious physical injury by means of a dangerous instrument”. Alaska Stat. § 11.81.900(b)(16). The legislative commentary explains,

    During the legislature’s consideration of the justifiable use of force, the issue whether deadly force could be threatened in situations when its actual use would be improper was frequently discussed. Because of the possibility that such threats could tragically escalate a conflict, the legislature concluded that only peace officers making an arrest should have the authority to threaten deadly force in situations where the actual use of deadly force was not justified.

    Commentary and Sectional Analysis for the 1980 Amendments to Alaska’s Revised Criminal Code, Senate Journal Supp. No. 44 at 20, 1980 Senate Journal 1436.

  6. She waves an unloaded gun around, threatening to shoot someone.

    Seems to me he could pull out an actual loaded gun and shoot her without liability since it would be a reasonable fear that he was in danger of being shot. Since you can only use deadly force to repel deadly force, her brandishing should be use of deadly force.

    1. Seems to me he could pull out an actual loaded gun and shoot her without liability since it would be a reasonable fear that he was in danger of being shot.

      I think you’re correct here (except that the victim in this case was a woman).

      Since you can only use deadly force to repel deadly force, her brandishing should be use of deadly force.

      I don’t think that necessarily follows, however. You can use deadly force to repel imminent deadly force: you don’t have to wait until the other person actually used it. So the fact that brandishing a gun might make it reasonable to infer that the other person is about to use deadly force against you doesn’t in and of itself prove that they’ve actually done so.

      You can use deadly force to repel imminent

      1. re: “except that the victim in this case was a woman”

        It’s probably also important to note that the “victim” in this case had already attempted to deliberately run over the defendant and her family members with a car. The facts (which are, as I recall, undisputed by both parties) are that the woman with the car attacked first and the other got her (empty) gun only in response to the vehicular attack.

        Both women complained to the police. The local police rules are that the first to complain is automatically the “victim” regardless of who actually started the fight. It’s so much easier than, you know, actually investigating the incident.

        1. Rossami: I should note that, though there were press accounts of such a first-to-complain policy, a National Review Online article reports that the police department has denied the existence of any such policy, https://www.nationalreview.com/corner/siwatu-salama-ras-self-defense-claims/ . I can’t speak to who’s correct on whether such a policy exists.

          1. ” a National Review Online article reports that the police department has denied the existence of any such policy”

            That just means that it isn’t MANAGEMENT’s policy. Doesn’t mean the officers in the street don’t have that policy, or something like it.

        2. The facts (which are, as I recall, undisputed by both parties) are that the woman with the car attacked first and the other got her (empty) gun only in response to the vehicular attack.

          As described in the opinion, your recollection is mistaken:

          Defendant told Harvey to leave, which appeared to anger Harvey more.

          At trial, conflicting testimony was presented regarding the sequence of events that followed….

          Harvey testified that she did not hit defendant’s car until after defendant pointed the gun at her, that she hit defendant’s car accidentally, and that after she hit the car defendant again pointed the gun at her.

          1. I messed up the HTML tags, but everything following the colon is quote from the opinion.

      2. “Since you can only use deadly force to repel deadly force, her brandishing should be use of deadly force.”

        Not true. You can use deadly or non deadly force to repel deadly force. What you can’t legally do is use deadly force to repel non deadly force.

        And keep in mind that the mere display of a handgun does not, without more, reasonably show an imminent threat of death or great bodily injury. Guns are shown or displayed, and even drawn, many more times every year than they are used in confrontations. Contrast showing a holstered gun, or a drawn gun held in a low ready position, to one pointed directly at you.

  7. It sounds to me like Alaska only considers it deadly force once pointed at someone: brandishing a firearm, without pointing it at the person, doesn’t sound like it would qualify.

    In comparison, I would expect brandishing to qualify as threatening, so in Oklahoma you aren’t allowed to brandish when someone is trespassing.

    Then again IANAL and could easily be wrong.

  8. When I was in my teens, my grandfather said: don’t pull a gun on someone unless you are going to shoot them. Now I wonder if he did.

    1. The rule is don’t point a gun at a person unless you intend to shoot them. (The idea being to avoid “oops, sorry about that”) Pulling a gun on someone does present some hazards (besides the fact that you might shoot them accidentally, you also run the risk that they are armed and you didn’t notice, that they have armed confederates, or that unknown third parties may arrive on scene and assume you are the bad guy, and they may shoot first and ask questions later.)
      The other rule is that the gun is ALWAYS loaded. Way too many people get shot because a jackass was sure the gun was unloaded and decided to ignore the other rule.

      1. The way I’ve heard the rule is, “Don’t point a gun at a person unless you’re willing to shoot them.” You’re not obligated to shoot them once you point the gun, if just pointing it gets the job done.

        1. It has been a long time since I have heard the Four Rules of Gun Safety.

          ALL guns are always loaded. Cover with the muzzle that only which will be destroyed. Keep your finger off the trigger. Keep YOUR finger off the trigger. Know your target and what’s beyond.

          LOADED, MUZZLE, TRIGGER, TARGET.

        2. “You’re not obligated to shoot them once you point the gun”

          Where did you see, hear, or read anyone say otherwise, Brett?

          1. – ““You’re not obligated to shoot them once you point the gun”

            Where did you see, hear, or read anyone say otherwise, Brett?”

            Has it occurred to you to try actually reading the posts you (and others) are responding to? For instance, this part:

            – “When I was in my teens, my grandfather said: don’t pull a gun on someone unless you are going to shoot them.”

            Not “unless you’re *willing* to shoot them”, but “unless you ARE going to shoot them”.

            1. Learn how nested quotes work, and then come on back, ‘K?

              1. Learn how to read…and stop being such a disingenuous coward. But you shouldn’t feel obligated to come back, even if you manage to accomplish both.

                1. Still not clear on the nested quotes? How long do you need?

      2. – “The rule is don’t point a gun at a person unless you intend to shoot them.”

        Says who? Not anyone who is reasonably bright or moral. Even if I draw my weapon AND point it at an aggressor, my intent is not to shoot them, but rather to use my weapon to prevent/end an attack. Actually discharging the weapon at my attacker might be required, or it might not…depending his his/her actions once my weapon has been deployed.

        Example:

        A stranger is a fair distance from me (reasonably beyond the so-called Tueller Drill distance). He appears agitated and is holding a large knife. For reason or reasons unbeknownst to me he points the knife in my direction, shouts, “I’m going to gut you like a fish!” and begins to take a step in my direction. In response I draw my handgun from it’s concealed location and point it at my would-be assailant. He immediately thinks better of his threat and, rather than advancing in my direction he turns away from me and begins to leave the area, ceasing to be an immediate threat. At this point I do no shoot, because the situation does not call for that action.

        When I drew my weapon and pointed it at the aggressor, my intent was not to shoot, but rather to give myself the ability to shoot if I needed to in order to end the imminent threat…or better still, end the threat by dissuading further pursuit of the attack.

        When it comes to self-defense, saying, “Don’t point your gun at someone unless you intend to shoot them” is as dumb as saying, “If you shoot, shoot to kill.” Hopefully I don’t need to explain why that is.

        1. “Says who? Not anyone who is reasonably bright or moral.”

          How would you know?

  9. It seems to me that “threatening with a gun” is ill-defined here. Does it require that the gun be pointed or brandished or is just yelling, “I’ve got a gun,” or displaying it holstered enough?

    In this case the gun was apparently unloaded, and the safety was on. So Ra was not using deadly force because the gun was not deadly in its actual state. But had the gun been loaded it’s a closer call, IMO.

    Of course pointing even a loaded gun is not “using deadly force,” but it’s more serious. All it takes is a moment of irrationality or a misjudgment and you are using force. Given the much greater risk of doing serious harm or killing someone I think the law ought to make some sort of distinction.

    And even pointing an unloaded gun is tricky business, especially in a situation like this one, where there were third parties around. It would surely be reasonable for the person being pointed at to think their life was in danger, and start shooting their gun. IOW, the act may well prove deadly to someone.

  10. Arizona 13-421, allows for the defensive display of a firearm to counter “unlawful physical force or deadly physical force.” If unlawful physical force is threatened, even if it doesn’t rise to a level that would justify the use of deadly physical force, a gun can be defensively displayed as part of a de-escalation attempt.

    Defensive display doesn’t mean pointing it at someone. Defensive display includes verbally informing the other person, exposing the firearm or placing a hand on the firearm. This is often characterized as “tell, show, touch.”

    The purpose was to prevent someone who was not justified in using deadly force from facing charges such as brandishing when attempting to use the knowledge that a gun could be used in self-defense.

    1. That seems to make sense.

      There is a big difference between that and actually having the gun in hand.

      1. Even having it in hand might not be a threatened use of deadly force. Imagine, say, a scene when someone finds trespassing hunters on their property. The hunters are armed, but use of deadly force to expel them might or might not be justified (depending on how well the hunters take the news that they are trespassing).
        So much depends on circumstance. If I’m showing someone that I have a firearm, it’s because I’ve determined that it might be necessary to shoot them. I think I’m a pretty reasonable guy, but I’ll concede that it is at least possible that I might reach that conclusion in error.

      2. – “There is a big difference between that and actually having the gun in hand.”

        There’s also a big difference between simply having the gun in hand and pointing it at someone. Otherwise going to a shooting range, or even a sporting goods store would be a lot more….interesting.

  11. I am surprised nobody mentioned the court decision in Kansas before their legislature changed the law which was covered here 10 years ago. Where does the time go?

    http://volokh.com/2009/10/23/defending-yourself-against-attack-by-threatening-force-is-a-crime-in-kansas/

  12. Resisting trespass or burglary without a weapon is much easier if you are a large male than if you lack either of those characteristics. Another win for the patriarchy! (Amazing how we keep pulling this off, and the libs help us. Proof of how much smarter we are.)

  13. Quote: “So you can hit someone to prevent them from punching you—but you can’t shoot them, unless you’re trying to prevent something much worse than just punching.”

    Yet “one punch” can kill someone. Just the other day a 63 year old in Texas involved in a road rage incident was killed with “one punch”.
    I would assume if someone is willing to assault me, they are trying to kill me.

    1. Yep, deadly force is (or ought to be in any civilized society) a lawful response to any credible threat of serious injury.

      1. All you did is kick the can down the street What, EXACTLY, is a “credible” threat, and how serious an injury does it have to be? “You hurt my feelings, so I had to shoot you”?

        1. – “and how serious an injury does it have to be? “You hurt my feelings, so I had to shoot you”?”

          “My days of not taking you seriously are definitely coming to a middle.”
          ~ Capt. Malcolm Reynolds

          1. Presumably, those days will return when you learn how to form an argument, or at least understand one.

            Just selecting randomly, I might suggest you start here:
            https://en.wikipedia.org/wiki/Reductio_ad_absurdum

        2. For those with limited trial exposure, take a look at pattern jury instructions. Possible factual scenarios are practically endless. “Credible” and “serious” are obviously fact dependent and consequently are questions for the trier of fact, not questions of law.

        3. The threat has to be both subjectively and objectively reasonable, from the point of view of the defendant claiming self defense.

          1. If the defendant is the only survivor of the encounter, there may not be any competing interpretations of events. That can help tremendously.

  14. Is there no difference legally between saying “I’m going to shoot you” versus “I’ll shoot if you come at me”? What I’m getting at is a difference between threatening versus warning that you will defend yourself if necessary. So for example, if I were walking at night to or from my car and one or more people follow me and continue to do so even as I try to move away, if I display a gun and say “Don’t come at me or I’ll shoot” does that constitute a threat or a proper warning? Depending on the distance, it could be just one second or less before a larger, younger, stronger person has me pinned.

    1. ” Depending on the distance, it could be just one second or less before a larger, younger, stronger person has me pinned.”

      On the other hand, if one of THEM is armed, and perceives that you are threatening him, and he shoots you dead right there next to your car, is he guilty of a crime?

      1. The fear of imminent death or great bodily has to be both objectively and subjectively reasonable (from the point of view of the person claiming self defense).

        1. “The fear of imminent death or great bodily has to be both objectively [reasonable]”

          True enough. But when only party survives to tell the story, the objective facts may be… difficult to establish, let’s say.

      2. In the scenario as I described it, I am moving away and they are following. I am giving a warning, not shooting. How could they be justified in concluding that I am a threat?Unless there is a video and audio recording of the entire encounter, in court there will always be some uncertainty regarding the facts, but my question is of principle. In principle, the gun makes possible effective self-defense by the physically weaker person. (At 5-7, 72 years of age, I think I qualify in many instances.) But if I have to wait until I’m pinned and unable to access the weapon before accessing the weapon, then self-defense is impossible. That is a dilemma. Is there a generally understood and accepted solution?

        1. “How could they be justified in concluding that I am a threat?”

          You told them you were prepared to shoot them Some people find that threatening.

          ” Is there a generally understood and accepted solution?”

          One solution is to not travel alone. I doubt it’s “generally understood and accepted”, except in a military context.

  15. It’s a distinction without a difference. With the “stand your ground” rule the VC supports, the survivor gun owner will always say his life was threatened and the victim will not be around to say otherwise.

    1. And how is that a function of “stand your ground” as opposed to self-defense generally? In every self-defense case, one party will not be around to contradict the one party who is around. What is your suggestion?

      1. It has nothing to do with SYD (better known as the Retreat Doctrine, that has over the last several years become a distinctly minority position among the states).

    2. And with a duty to retreat the survivor will always claim that they tried (or were otherwise unable) to retreat.

      It’s a distinction without a difference.

      For fun: I need both of my crutches to retreat, so if I’ve drawn I’m physically unable to retreat, does that mean I can always fire? Of course not, because my belief in the immanence of the attack must be reasonable based on the facts of the case, and the retreat is essentially immaterial, except to provide prosecutors an opportunity to persecute those whom they choose. That’s why we see police so rarely prosecuted even in jurisdictions with a duty to retreat, because the state always chooses to protect the powerful (note that’s a tautology).

      1. “And with a duty to retreat the survivor will always claim that they tried (or were otherwise unable) to retreat.
        It’s a distinction without a difference. ”

        If it’s part of an affirmative defense, then the defendant has the burden of proving it.

  16. For those with limited trial exposure, take a look at pattern jury instructions. Possible factual scenarios are practically endless. “Credible” and “serious” are obviously fact dependent and consequently are questions for the trier of fact, not questions of law.

  17. Supreme Despots..
    The Odious Fiction Destroying America – The Doctrine of the Lesser Magistrates..
    We now have social transformation without representation. And that is what the Supreme Court is in our day – despots.
    And they are not the final arbiters – as Jefferson states, “The Constitution has erected no such single tribunal.”
    They proffer Article 6, paragraph 2 of the U.S. Constitution – the ‘supremacy clause’ – for their notion of judicial supremacy. But when you read Article 6, paragraph 2, you realize that the Supreme Court isn’t even mentioned, nor are federal courts of any kind mentioned. Article 6, paragraph 2 – known as the supremacy clause actually gives supremacy to the Constitution!
    Wholly opposite of this view of ‘judicial supremacy’ was the view held by America’s founders. They viewed the judiciary as being the weakest branch of the government.
    At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous.”

  18. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

    1. ” The States still retain their rights to this day to defy the federal judiciary”

      But not the army. See, generally, 1861-1865.

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