View Full Version : Michigan Self Defense case with HUGE implications......
https://www.yahoo.com/news/michigan-court-case-shows-armed-201846122.html
Basically, the court holds that the mere display of a weapon- when it's intended to prevent an escalation of force being used illegally against you is NOT in and of itself Lethal Force. Legally this makes imminent sense, as the article points out- Police Officers ROUTINELY point weapons at people with no present intent of shooting them- merely hoping they will calm down and comply etc....Nobody believes in that case that they have committed Aggravated Assault- though it probably, technically fits the definition.....
Practical application- You are involved in a road rage incident. The other driver advances on you threatening to "kick your ass and murder you".....BUT, it doesn't appear that he really has the ability to do so- no weapons etc....You would not normally be justified in producing a weapon as he has done nothing to truly endanger you at that point. Under this ruling, you would be justified in pulling your weapon to prevent essentially an escalation. Now, the moment you actually PULL THE TRIGGER, it of course becomes Lethal Force and you would have to be able to articulate and justify why you fired in self defense.
I think this is probably a good ruling but I worry about it quite a bit. It relies really on the mindset of the person pulling the weapon- do they INTEND to shoot someone or are they just trying to prevent further escalation? If I'm the guy who sees the person pulling a weapon during a verbal altercation do I think "Oh, he's just bluffing and I need to calm down and check myself" OR do I think "Holy crap, that guy just pulled a gun and I'm behind in what is now a gunfight!"
Maybe the best way to look at it is it may benefit you if you are in the right. Plenty of morons always have and always will pull guns on people when there really was no reason to do so.
Maybe the best way to look at it is it may benefit you if you are in the right. Plenty of morons always have and always will pull guns on people when there really was no reason to do so.
That's true enough.....I just worry that a "Ya Ya" match might unnecessarily become a TWO WAY gunfight....Telling average people it's ok to pull out their gun just to prevent an escalation may end up creating real problems.
And please don't misunderstand, I like the ruling. I think it's absolutely a proper interpretation of the law and that it's a good thing for innocent defenders- not making them completely reactive only....but I can see problems too...Just an interesting exercise for legal wonks maybe.....
SomeOtherGuy
08-22-19, 09:35
From reading the article I'm not entirely sure this is a good rule. And the cheerleading from David French of National Review makes me hesitate even more.
EDIT: you can find the opinion in a zip file here:
https://courts.michigan.gov/Courts/COA/Opinions/Pages/ZipFiles.aspx
It's No. 343202 in the file. From a very quick read the court is stating that this simply affirms existing law. I'll have to review it in more depth to make up my own opinion.
Do you have a link to the actual opinion, or can you post one when it becomes available?
From reading the article I'm not entirely sure this is a good rule. And the cheerleading from David French of National Review makes me hesitate even more.
https://law.justia.com/cases/michigan/court-of-appeals-unpublished/2019/343202.html
You are right to always be suspect of David French. I'm a Kurt Schlichter guy myself- he hates those "establishment conservative" Buckleyites.....I'm pretty much on the same page with him on that.
California is going the opposite direction for police, changing the requirements for use of deadly force from “reasonable” to “necessary”. This is very dangerous but not totally unexpected from the loony Left.
https://video.foxnews.com/v/6074801247001/#sp=show-clips
Charles Murdock / Patrick Lavoie.
Murdock was never arrested and he went home with his weapon. That is how it is supposed to work, but you never heard of them because Murdock was black and Lavoie was white.
Lavoie never physically touched Murdock and Murdock fired from inside his vehicle because he reasonably feared Lavoie and for his own personal safety.
California is going the opposite direction for police, changing the requirements for use of deadly force from “reasonable” to “necessary”. This is very dangerous but not totally unexpected from the loony Left.
https://video.foxnews.com/v/6074801247001/#sp=show-clips
Well, I don't know. . . . Maybe the Government shouldn't be allowed to kill people unless it's necessary.
Less loony when you look at it that way, no?
SomeOtherGuy
08-22-19, 23:11
Key statements:
The SDA does not define “force” or “deadly force.” Our Supreme Court, however, 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, 436 Mich 414, 428 n
3; 461 NW2d 683 (1990). In People v Pace, 102 Mich App 522, 534; 302 NW2d 216 (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. Id. at 533-534.
***
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.”
The court opinion sounds like they are following existing Michigan precedent and also following general U.S. common-law principles on this issue. I am a bit puzzled as I have always heard that threatening someone with a deadly weapon was deadly force, not non-deadly force as held here. As far as I can tell the ruling is legally correct, but this seems like a problematic rule. So, from this, if someone threatens you with a gun, that threat is only non-deadly force? Or it may be either deadly force or non-deadly force depending on either the threat's subjective intent or your assessment of their intentions? You would generally fear for your life if someone is pointing a gun at you, so that would seem to justify deadly force in response, unless you actually know that the person cannot or will not carry out the threat. I'm having trouble seeing how this works in the real world.
Well, I don't know. . . . Maybe the Government shouldn't be allowed to kill people unless it's necessary.
Less loony when you look at it that way, no?
I think that is also a good way to view it.
The mention that has my interest is the death threat part. Is that only during an active altercation and one party does it in hopes of defusing the situation? Or is it a general blanket?
If the latter, how general is it? And if so is this a possible angle towards the red flag crap? Contrary to red flag support claims surrounding mass shooters, threats, and particularly death threats, are already a legal issue that land a lot of people issuing them in hot water albeit with an apparent eye brow raising exemption for many people that end up making good on it.
dwhitehorne
08-23-19, 08:52
Part of the issue with this case is the road rage label. Every time I see that I think oh great here we go again. Deadly Force and use of force are clearly defined by the Supreme Court for Law Enforcement. Not necessarily for private citizens. One thing the courts look at on a case by case is the “ability-opportunity-intent” portion of the case. If you are in your car with the windows up, the doors locked and with the ability to drive away when a driver jumps out and displays a knife and starts yelling doesn’t necessarily equal deadly force. So stopping your car, getting out and gun facing the other driver will probably not go well. Some will mention no duty to retreat. Being in your locked residence at night defending yourself and reacting to a road rage incident in a public place are two entirely different situations. If you can’t articulate your immediate danger pulling a gun is not going look well in the court room. David
Well, I don't know. . . . Maybe the Government shouldn't be allowed to kill people unless it's necessary.
Less loony when you look at it that way, no?
Well that is another way of looking at it (and on the surface sounds right). The danger in it is that taking away “would a reasonable person have used deadly force” and replacing it with “was it necessary to use deadly force” is that now there will be a government bureaucrat determining if it is “necessary” in the aftermath of a shooting. Well, since the law of the land says LE has no duty to protect then will it ever be “necessary” to use deadly force to protect someone else? And once this is fully established it will be applied to non-LE, too.
Well that is another way of looking at it (and on the surface sounds right). The danger in it is that taking away “would a reasonable person have used deadly force” and replacing it with “was it necessary to use deadly force” is that now there will be a government bureaucrat determining if it is “necessary” in the aftermath of a shooting. Well, since the law of the land says LE has no duty to protect then will it ever be “necessary” to use deadly force to protect someone else? And once this is fully established it will be applied to non-LE, too.
It isn't “would a reasonable person have *****”, but instead “would a reasonable officer have ****”
https://en.m.wikipedia.org/wiki/Graham_v._Connor
One of a plethora of issues where double standards and codified/in practice exemptions need to be deleted. We have plenty of societal issues that need to be addressed, but in my opinion having certain segments of society free to engage in a given action with no consequence while other segments face a myriad of punishments for the same action is part of our current problems. The double standard will manifest itself in increasing numbers of the population having utter contempt for that law and often others. Prohibition was an excellent example of this.
eightmillimeter
08-23-19, 10:32
In the everyday CCW world don’t ever draw a weapon unless you intend to use it. Don’t ever try to defuse anything with a weapon, the situation may indeed “defuse” but that would be only a welcome change of pace.
In the everyday CCW world don’t ever draw a weapon unless you intend to use it. Don’t ever try to defuse anything with a weapon, the situation may indeed “defuse” but that would be only a welcome change of pace.
That's almost always a good idea. What I am thinking of this maybe being a plus is some slight change in the situation after drawing, but before firing and the person doesn't. Perhaps this could prevent a legality screwing where the person would maybe be justified in shooting, but didn't, but still has their weapon out.
Key statements:
The court opinion sounds like they are following existing Michigan precedent and also following general U.S. common-law principles on this issue. I am a bit puzzled as I have always heard that threatening someone with a deadly weapon was deadly force, not non-deadly force as held here. As far as I can tell the ruling is legally correct, but this seems like a problematic rule. So, from this, if someone threatens you with a gun, that threat is only non-deadly force? Or it may be either deadly force or non-deadly force depending on either the threat's subjective intent or your assessment of their intentions? You would generally fear for your life if someone is pointing a gun at you, so that would seem to justify deadly force in response, unless you actually know that the person cannot or will not carry out the threat. I'm having trouble seeing how this works in the real world.
I think the problem here is nuance or the lack thereof. If you're open carrying are you threatening someone with a deadly weapon or deadly force? To a triggered snowflake yes, but they don't fall within a reasonable person standard. I believe if you draw or produce a concealed firearm during an escalating confrontation but DON'T point it at that person, you're signaling that you are prepared to defend yourself with deadly force if necessary. If you point a firearm at someone with the intent to shoot during a confrontation then you are threatening them with deadly force and justification comes into play. I can say without reservation that if I have a small child with me and you menace me with a moving vehicle (case in question), I'm drawing down on you as I move to protect the child. If you leave and I don't have to shoot you, great. If you further your threat then I'm going to assume deadly threat and dispatch you with a quickness.
In the everyday CCW world don’t ever draw a weapon unless you intend to use it. Don’t ever try to defuse anything with a weapon, the situation may indeed “defuse” but that would be only a welcome change of pace.
Again, I think nuance is important. You should never draw a weapon unless you're willing to use it. If the threat isn't escalating and doesn't meet the threshold, leave it where it is. If the threat is bodily harm and escalating, drawing may give you a much needed advantage and give the aggressor the option to deescalate their threat. If they continue after knowing you're heeled, then you know you're dealing with an irrational person and your safety is definitely at risk.
While I generally prefer to apply the speed, surprise and violence of action principles and retain surprise as an advantage, I don't think there are any absolutes in the real world. Therefore I don't believe that just because you draw you should shoot, nor do I believe you should always wait till the last second to draw when shooting is unavoidable. We don't need case law reinforcing that restriction on us either, so I think this is a good outcome even if it took a couple of years too long.
Yes. This was a critical consideration for us when training for CCW and advanced training because you could have an aggressor flip the story if you tipped your hand and even showed that you had a gun. Even if you didn't point it at them, they could lie and get the good guy for Agg Assault.
Yes. This was a critical consideration for us when training for CCW and advanced training because you could have an aggressor flip the story if you tipped your hand and even showed that you had a gun. Even if you didn't point it at them, they could lie and get the good guy for Agg Assault.
This is the problem I have with civilians and weapons mounted lights. If you pull your gun to use the light to "identify a threat"- the usual justification for having a weapons light (shooting accurately secondary) you have just committed aggravated assault in most places unless you actually HAVE a threat that 1. You damn well better be able to articulate 2. You better immediately call the police because smart bad guys WILL and say that you 1. have a gun (How do they know unless you pointed it at them?) and 2. That you menaced them with it.....
Not a big fan of weapons mounted lights for LTC carry.
This is the problem I have with civilians and weapons mounted lights. If you pull your gun to use the light to "identify a threat"- the usual justification for having a weapons light (shooting accurately secondary) you have just committed aggravated assault in most places unless you actually HAVE a threat that 1. You damn well better be able to articulate 2. You better immediately call the police because smart bad guys WILL and say that you 1. have a gun (How do they know unless you pointed it at them?) and 2. That you menaced them with it.....
Not a big fan of weapons mounted lights for LTC carry.
Yeah someone(s) should have chosen better wording than that on using the rail mounted lights.
This is the problem I have with civilians and weapons mounted lights. If you pull your gun to use the light to "identify a threat"- the usual justification for having a weapons light (shooting accurately secondary) you have just committed aggravated assault in most places unless you actually HAVE a threat that 1. You damn well better be able to articulate 2. You better immediately call the police because smart bad guys WILL and say that you 1. have a gun (How do they know unless you pointed it at them?) and 2. That you menaced them with it.....
Not a big fan of weapons mounted lights for LTC carry.
I agree.. No pistol I have has a light mounted. You need to be able to run your light without aiming at unknowns. Home D carbine is a different scenario... if you're in my house, etc. They charged a guy here in AZ for lighting up an LE officer with a rifle/light down near the border.
FromMyColdDeadHand
08-23-19, 18:02
In the everyday CCW world don’t ever draw a weapon unless you intend to use it. Don’t ever try to defuse anything with a weapon, the situation may indeed “defuse” but that would be only a welcome change of pace.
I agree, and that’s what my grandfather taught me. I would like the option that if someone is fixin’ thump me, if I draw and give commands, and they stop and retreat, that i’m Not in legal jeopardy.
I think the key is the conditionality. If someone is coming at you and threatening you, they are in the wrong and you should be in the right to defend yourself even through escalation of force. If a guy is threatening you with grave physical force, agreeing to meet that force isn’t a deterrent- it’s agreeing to his offer. Upping the ante literally gives him a chance to ‘check’ himself. If he wants to pull a gun, that’s his prerogative, but it is not a reaction to your defending itself - it is a continuation of his initial illegal act of unjustly threatening force. At that point he has raised the stakes and the defender should be clear to defend themselves to remove the threat.
As to lights, one on a gun is fine- but just like my EDC knife gets used for all kinds of non-knife stuff, it would be rude to use weapon light to read a menu, so I carry a pocket light. I have that in my hand when i’m walking to my car. 1000 lumens to the snout prophylacticly applied at distance to discourage bad behavior. Gun comes out later and use that light. That way home Home defense and CCW run the same way.
That’s my plan based. I frankly don’t think that most people get much of a chance before the attacker is on them. Sure, SA to try to keep gaps and distance, but it seems most attacks are ambushes or sucker punches.
I agree.. No pistol I have has a light mounted. You need to be able to run your light without aiming at unknowns. Home D carbine is a different scenario... if you're in my house, etc. They charged a guy here in AZ for lighting up an LE officer with a rifle/light down near the border.
Indoors - weapon light.
Outdoors - handheld light.
A big factor is that you probably already called the police. I don't want to run into local PD at night in my yard and sweep them with a handgun accidentally.
Indoors - weapon light.
Outdoors - handheld light.
A big factor is that you probably already called the police. I don't want to run into local PD at night in my yard and sweep them with a handgun accidentally.
You don't want to be seen inside your house with a gun by the local PD, either.
BoringGuy45
08-23-19, 20:22
I carry both a flashlight and a light on my HD/EDC pistol. I'd rather have it and not need it than need it and not have it. In terms of which light I would use, it depends on using common sense depending on the situation.
You don't want to be seen inside your house with a gun by the local PD, either.
A lot of that is zip code dependent. But yeah, it can go wrong and we've seen the YT videos where it has gone wrong. If every cop shot every armed homeowner he saw while responding to an alarm or prowler call, there would be 2 million YT videos.
While always wrong, especially in cases where it's even the wrong house, the instances are pretty low IMO and I'm not trying to excuse it, but I don't think a 100% success rate is possible. Obviously some are more conscientious than others. LAPD would probably shoot you most of the time. I still remember when they came off the rails during the whole Chris Dorner thing. By contrast during the Boston bomber manhunt Boston PD amazingly didn't shoot anyone during their forced "no warrant" house to house searches.
MountainRaven
08-23-19, 20:38
https://www.youtube.com/watch?v=gULhoaTLWLI
Putting a weapon light on your handgun doesn't mean that the handgun is now a flashlight. If you're using it that way, you're doing it wrong.
Deadly Force and use of force are clearly defined by the Supreme Court for Law Enforcement. Not necessarily for private citizens. One thing the courts look at on a case by case is the “ability-opportunity-intent” portion of the case.
That really isn't correct, the intent of the person doing/threatening the harm isn't at issue in most cases, rather it is the reasonableness of the other's perception of their jeopardy.
Absent an overt move to use force, it is difficult to establish a reasonable perception of jeopardy.
As an example, a person matching the description of a robbery suspect is told to stand with their hands in the air and not move. Suddenly they feel a sneeze coming on, without thinking they rapidly drop their hand to their rear pocket to get a handkerchief with the idea of stifling their sneeze. Their intent was clearly not to harm the other person, but in the totality of the circumstances is it possible such a move might be reasonably regarded as a move to harm the other person?
As in most of these cases it depends on whether you are buying or selling. The correct course to take is one that determines how another person, having the same knowledge would have viewed the events without going overboard one way or the other.
Well that is another way of looking at it (and on the surface sounds right). The danger in it is that taking away “would a reasonable person have used deadly force” and replacing it with “was it necessary to use deadly force” is that now there will be a government bureaucrat determining if it is “necessary” in the aftermath of a shooting. Well, since the law of the land says LE has no duty to protect then will it ever be “necessary” to use deadly force to protect someone else? And once this is fully established it will be applied to non-LE, too.
The net result will be litigation which, hopefully, quickly reaches the Supreme Court.
On the one hand, the language in Graham v. Connor regarding establishing reasonableness is completely correct: The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
On the other hand, there have been several cases which I think point to a trend of officers being trained to act early to mitigate any risk.
We have lost the perspective of an assumption of reasonable risk to ensure proper decision making. It has been sacrificed on the altar of 'I'm going home at the end of my shift, no matter what' dogma.
Belmont31R
08-23-19, 23:11
Different states have different definitions of battery and assault. I was listening to a podcast with a FL LEO and FL has pretty broad assault laws where just squaring up with someone in assault. Most states don't consider there to be a crime until you make contact with someone. Weapons are a different issue like a mugging and having a weapon present. So I think the crux is the intent if you present a weapon. In fear or personal or 3rd party harm = no crime. Pull a gun to intimidate or perpetuate another crime = crime. The biggest issue is the local DA and police whether they like people carrying or not or using self defense/3rd party defense. State law can clearly say A but local liberal DA says B. Means you get charged anyways because the Soros funded DA wants to scare people out of self defense situations and make up their own law.
Florida adjusted this a year or two ago.
Basically if you are justified in using deadly force, you are now also justified in threatening deadly force.
The result is fewer people getting shot and fewer people getting charged because they DIDN'T shoot.
Makes sense to me.
We have lost the perspective of an assumption of reasonable risk to ensure proper decision making. It has been sacrificed on the altar of 'I'm going home at the end of my shift, no matter what' dogma.
Are you suggesting that police officers accept a level of risk that is reflected in the rate of pay and benefits that they receive upon accepting the position, usually negotiated in the form of a contract with the local union? I agree with this. You might get shot, it’s part of the job. That risk doesn’t provide police with a get out of jail free card that allows them to get away with crap other civilians could not.
Far, far off topic, but it bothers me to no end that the term “law enforcement officer” persists. Cut that crap out. Go keep the peace and maintain order, don’t “enforce laws” unless you work for Customs. Obviously...to keep the peace, one must enforce laws. But that’s only one aspect of the job.
Are you suggesting that police officers accept a level of risk that is reflected in the rate of pay and benefits that they receive upon accepting the position, usually negotiated in the form of a contract with the local union? I agree with this. You might get shot, it’s part of the job. That risk doesn’t provide police with a get out of jail free card that allows them to get away with crap other civilians could not.
Generally, what you have posted aligns with what I believe.
However, when pursuing this line of thinking: That risk doesn’t provide police with a get out of jail free card that allows them to get away with crap other civilians could not we need to keep in mind that in order to keep the peace, governmental entities send officers into situations that non-officers should generally avoid.
Generally, what you have posted aligns with what I believe.
However, when pursuing this line of thinking: That risk doesn’t provide police with a get out of jail free card that allows them to get away with crap other civilians could not we need to keep in mind that in order to keep the peace, governmental entities send officers into situations that non-officers should generally avoid.
Frequently it isn't involving official duty incidents and as much as anything else points to corrupt prosecutors and judges. Same thing often happens with affluent members of the community who aren't police as well. I really do think the double standard nonsense is a large part of why things are in the current seemingly deteriorating state it is in.
Generally, what you have posted aligns with what I believe.
However, when pursuing this line of thinking: That risk doesn’t provide police with a get out of jail free card that allows them to get away with crap other civilians could not we need to keep in mind that in order to keep the peace, governmental entities send officers into situations that non-officers should generally avoid.
Certainly, that has to be considered, as well.
That also leads back to the role of police and overly intrusive regulation and administration, which isn’t something police themselves decide.
Certainly, that has to be considered, as well.
That also leads back to the role of police and overly intrusive regulation and administration, which isn’t something police themselves decide.
And there is that issue too. A great many things shouldn't be illegal in the first place which means no legit reason for interaction.
In other instances even when legal, such as open carriers being harrassed, we are back to multiple levels of corruption promoting and protecting wrong doing.
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