Shooting when someone is fleeing

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MrDanner
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Shooting when someone is fleeing

Post by MrDanner »

I hope this is the right forum for this post. This is a real life encounter, but not *my* encounter.

http://toprightnews.com/?p=7987

At that link is a story I see now and then about a CHL holder protecting himself, family and strangers, with one thing that I wonder if it's an issue. Here's the relevant text for those that don't want to read the entire article:

"The customer, also armed, held one of the would-be robbers at gunpoint until the police arrived. He fired at the other suspect as he fled, grazing him, and hitting the front windows of the store."

Now, I thought it was no longer "self defense" if the criminal is fleeing, as did one of the commenters. A reply to that comment, though, was this, "I wouldn't get so hasty on it, since the text did say that both were armed, he might have been pointing a weapon at him. Without knowing the details a little more certainly, i wouldn't fault him for it." followed up immediately by this "I thought about that, too. Here's the conclusion(s) I came to: The bad guy still had a gun. The bad guy was still armed and a danger to the public at large. The bad guy didn't run fast enough."

I can't imagine it's true that you can fire at a fleeing criminal, regardless of his armed status. But being new to self defense with a deadly weapon, I'm not sure.

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Re: Shooting when someone is fleeing

Post by pirateguy191 »

If bad dude is running away while firing back at me, If I can't take cover to avoid his bullets, I will shoot at him.
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Re: Shooting when someone is fleeing

Post by carmen fovozzo »

Fleeing where ? Taking cover..Going back out to his car to get a Bazooka..if he still has a gun in hand he is a threat...

I wouldn't leave the store....the door would be as far as I go...
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DontTreadOnMe
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Re: Shooting when someone is fleeing

Post by DontTreadOnMe »

MrDanner wrote:I can't imagine it's true that you can fire at a fleeing criminal, regardless of his armed status. But being new to self defense with a deadly weapon, I'm not sure.
It's not true in Ohio (the linked story is from Texas).

Best advice I've heard was this: Shoot if you *must*, not just because you think you can.

In context, if he's firing while running away he's still a deadly threat. If he's just running, he's a *former* deadly threat. I'd fire if I felt I had to to protect me & mine. I wouldn't fire if he's just running away.
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Re: Shooting when someone is fleeing

Post by Werz »

DontTreadOnMe wrote:
MrDanner wrote:I can't imagine it's true that you can fire at a fleeing criminal, regardless of his armed status. But being new to self defense with a deadly weapon, I'm not sure.
It's not true in Ohio (the linked story is from Texas).

Best advice I've heard was this: Shoot if you *must*, not just because you think you can.

In context, if he's firing while running away he's still a deadly threat. If he's just running, he's a *former* deadly threat. I'd fire if I felt I had to to protect me & mine. I wouldn't fire if he's just running away.
That's pretty much it in a nutshell.
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Re: Shooting when someone is fleeing

Post by TSiWRX »

DontTreadOnMe's view is how I see it as well.

Here's some food for thought:

http://www.forcescience.org/articles/shotback.pdf" onclick="window.open(this.href);return false;

Things really start to get interesting by number 5.

After having read that article, I've never viewed any mass-media's report of "suspect was shot in the back" in the same way. I now never take those words at face value.
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Re: Shooting when someone is fleeing

Post by curmudgeon3 »

carmen fovozzo wrote:Fleeing where ? Taking cover..Going back out to his car to get a Bazooka..if he still has a gun in hand he is a threat...

I wouldn't leave the store....the door would be as far as I go...
It would be against the ORCs for him to have a rocket already loaded into the bazooka, so by the time he gets it loaded and wired up for firing, you would have time to set up your belt-fed gun on its tripod in your doorway.
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Re: Shooting when someone is fleeing

Post by BobK »

DontTreadOnMe wrote:... If he's just running, he's a *former* deadly threat. ...
No, if he has a gun in his hand, he is still a deadly threat.

TSiWRX linked the same article I was going to refer to. You could have a person in your sights with your finger on the trigger, and they can still fire back at you while running away faster than you can react to shoot first. Never, ever, fall prey to the belief that they are no longer a threat, or a "former" deadly threat, just because they are running away.

As far as the news story, that is clearly a good shoot under Texas law, even if the robbers were unarmed. Robbery is one of the crimes here where it is "presumed reasonable" that use of deadly force is "immediately necessary".
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Re: Shooting when someone is fleeing

Post by Bama.45 »

BobK wrote:
DontTreadOnMe wrote:... If he's just running, he's a *former* deadly threat. ...
No, if he has a gun in his hand, he is still a deadly threat.

TSiWRX linked the same article I was going to refer to. You could have a person in your sights with your finger on the trigger, and they can still fire back at you while running away faster than you can react to shoot first. Never, ever, fall prey to the belief that they are no longer a threat, or a "former" deadly threat, just because they are running away.

As far as the news story, that is clearly a good shoot under Texas law, even if the robbers were unarmed. Robbery is one of the crimes here where it is "presumed reasonable" that use of deadly force is "immediately necessary".
As it should be.
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Re: Shooting when someone is fleeing

Post by DontTreadOnMe »

BobK wrote:
DontTreadOnMe wrote:... If he's just running, he's a *former* deadly threat. ...
No, if he has a gun in his hand, he is still a deadly threat.

TSiWRX linked the same article I was going to refer to. You could have a person in your sights with your finger on the trigger, and they can still fire back at you while running away faster than you can react to shoot first.
That may be true, but you don't get to legally use deadly force against someone for what they might do, or for what they've stopped doing. It's one thing to shoot someone in the back because he was firing at you a moment before and turned just as you returned fire, it's another to shoot someone who has abandoned the fight and is running away. That's why the first jury found Michael Dunn (FL "loud murder" trial) guilty on three counts of attempted murder. Whether or not there was a shotgun, the threat was legally over as the van started to speed away. His continued shots into the van at that point were not justifiable as self defense even if they believed him about the shotgun.

If you think you're going to be able to explain away the latter as the former, maybe, unless security video or somebody's iPhone video shows up. It shows the guy in full flight, you can expect a long prison sentence. You might get lucky and get off, or not get charged at all, but by the law you're guilty.
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Re: Shooting when someone is fleeing

Post by MrDanner »

This is fascinating to read. I'm amazed at how the same situation can be interpreted in different ways.

It seems that self-defense is so full of variables and technicalities. Do you think it makes a difference if say after the fact, an investigation finds that you were *not* in danger of death or serious bodily injury, but at the time (because of fear and/or adrenaline and/or even inexperience) you truly honestly *believed* you were? I would imagine there's some discretion in whether or not you are charged with a crime and the police/prosecutor/jury could still be convinced that you truly believed you were in mortal danger even though the after-the-fact evidence shows that you technically were not.

Either way, I'd rather not find out and hope I never have to.
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Re: Shooting when someone is fleeing

Post by DontTreadOnMe »

MrDanner wrote:Do you think it makes a difference if say after the fact, an investigation finds that you were *not* in danger of death or serious bodily injury, but at the time (because of fear and/or adrenaline and/or even inexperience) you truly honestly *believed* you were? I would imagine there's some discretion in whether or not you are charged with a crime and the police/prosecutor/jury could still be convinced that you truly believed you were in mortal danger even though the after-the-fact evidence shows that you technically were not.
Great question, and yes there is. It's called the "reasonable man" (or, "reasonable person") doctrine. After the fact the police, prosecutor, and maybe (but hopefully not) a jury will review your actions in light of what a reasonable person would have done, in the same situation and knowing what you knew.

Example: A person points a gun at you and says "gimmie your dough". He's not smiling, he seems to be serious. Instead of reaching for your wallet you draw your gun and shoot him. Afterwards, the police discover his gun wasn't loaded. Unless there's evidence you knew that, your use of deadly force will be judged reasonable since you couldn't have known the gun was unloaded. That's a really obvious example but of course there are many others that are less black & white.

There are a lot of resources you can review to better understand the legal elements of justifiable use of deadly force in self defense, but here's a pretty good article that has the benefit of being free: Ability + Opportunity + Intent

Tip: There are a lot of good articles at that site.
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Re: Shooting when someone is fleeing

Post by BobK »

DontTreadOnMe wrote:That may be true, but you don't get to legally use deadly force against someone for what they might do, or for what they've stopped doing.
No. If there was a robbery and they are still armed and within range, they still present an imminent danger of death or serious bodily injury. I am not required to "guess" whether someone still intends to shoot or not. That is as ridiculous as saying someone pointing the gun at me requires me to "discern" whether he really means it or not. To use the terminology you introduced, an armed robber retreating still has obvious Ability and Opportunity, with the only remaining question being Intent. He expressed the Intent when he announced the robbery, and it is entirely unclear whether that Intent changes. However, instead of the word Intent, other discussions typically use the words Jeopardy or Motive. Many robbers are drug addicts or sociopaths making irrational decisions. I do not need to entrust whether or not I continue to live on their ability to make wise or rational choices, it is not my responsibility to be able to perfectly discern their Motive, especially when Intent can literally change in an instant. I reasonably assessed their Motive when they pointed a gun at me and demanded my money, and it can be reasonably concluded that so long as Ability and Opportunity still apply, then I am still in Jeopardy.
DontTreadOnMe wrote:... it's another to shoot someone who has abandoned the fight and is running away. That's why the first jury found Michael Dunn (FL "loud murder" trial) guilty on three counts of attempted murder. Whether or not there was a shotgun, the threat was legally over as the van started to speed away.
No, you are choosing a bad case to try to support your argument. From a jury perspective, there was an altercation in which he could have been construed as starting the argument, he shot at a fleeing car, he never reported it via 911, and he alleged they were pointing a shotgun. There was never any evidence of a shotgun.

Take a similar case in which he reports the crime, reports he was shooting at them because they were pointing a shotgun at him, and the timely reporting of the crime enables the police recover the vehicle with the shotgun in evidence, and you are talking a more reasonable scenario. I'll tell you right now, that a car with 4-5 thugs points a shotgun at me and sure as hell I am shooting at them.
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Re: Shooting when someone is fleeing

Post by DontTreadOnMe »

BobK wrote:I reasonably assessed their Motive when they pointed a gun at me and demanded my money, and it can be reasonably concluded that so long as Ability and Opportunity still apply, then I am still in Jeopardy.
The AOJ triad isn't a math equation. Just because Ability and Opportunity are present doesn't mean you're in Jeopardy. Just because you were in Jeopardy several seconds earlier doesn't mean you still are.

Yes situations are dynamic, and yes if it isn't absolutely clear the criminal has withdrawn then deadly force may still be reasonable even if the person is facing away from you. Also, even if your use of deadly force against a criminal is questionable, police and prosecutors are often sympathetic to the honest victim of a crime and may choose not to prosecute even if your actions, in the heat of the moment, were technically outside the "window" of jeopardy. Boiling that down to saying it's okay to shoot a fleeing criminal who still has a gun is overly simplistic and the kind of advice that can get a well-intentioned person a long prison sentence.
BobK wrote:
DontTreadOnMe wrote:... it's another to shoot someone who has abandoned the fight and is running away. That's why the first jury found Michael Dunn (FL "loud murder" trial) guilty on three counts of attempted murder. Whether or not there was a shotgun, the threat was legally over as the van started to speed away.
No, you are choosing a bad case to try to support your argument. From a jury perspective, there was an altercation in which he could have been construed as starting the argument, he shot at a fleeing car, he never reported it via 911, and he alleged they were pointing a shotgun. There was never any evidence of a shotgun.
If that jury didn't believe there was a shotgun then he'd have also have been found guilty of murder in that trial. He wasn't, so at least one juror believed him about the shotgun. Despite that, he was found guilty of 3 counts of attempted murder. Why, even though at least one juror believed him about the presence of the shotgun? Because as the van was speeding away he was no longer in Jeopardy and therefore those shots were not legal self defense.
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Re: Shooting when someone is fleeing

Post by OhioPaints »

MrDanner wrote:This is fascinating to read. I'm amazed at how the same situation can be interpreted in different ways.

It seems that self-defense is so full of variables and technicalities. Do you think it makes a difference if say after the fact, an investigation finds that you were *not* in danger of death or serious bodily injury, but at the time (because of fear and/or adrenaline and/or even inexperience) you truly honestly *believed* you were? I would imagine there's some discretion in whether or not you are charged with a crime and the police/prosecutor/jury could still be convinced that you truly believed you were in mortal danger even though the after-the-fact evidence shows that you technically were not.

Either way, I'd rather not find out and hope I never have to.
There is no clear, across the board answer. In reality, your legal exposure depends very much on the cops, prosecutor, judge and jury. What gets you sent to prison in one case in one county in Ohio might get you a pat on the back in another county. Your first "judge and jury" is the investigating cop. The second one is the local prosecutor. After that it's a dice roll how a jury will go. I was on a murder trial many years ago. The first comment I heard as we went into the deliberation room was "let's get this done, I want to watch the ball game this afternoon." The second comment was "if we are considering the death penalty, then I'm voting 'not guilty'".
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