NetNews Usenet Archive 1992 #27/NN_1992_27.iso/spool/rec/guns/16374

Internet Message Format | 1992-11-20 | 14.1 KB

Path: sparky!uunet!haven.umd.edu!mimsy!
From: [e-mail] (Andrew Ford @ AGCS, Phoenix, Arizona)
Newsgroups: rec.guns
Subject: Re: Bad tactical position ( was Psychology in Defense)
Message-ID: <[e-mail]>
Date: 20 Nov 92 13:46:16 GMT
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In article <[e-mail]>, [e-mail] (Alan Watt) writes:
#
# In article <[e-mail]>, [e-mail] (James P. Callison) writes:
# |> In article <[e-mail]> [e-mail] (Alan Watt) writes:
# |> #
# |> #In article <[e-mail]>, scylax![e-mail] writes:
# |> #
[...]
# |> Here's an interesting question...according to some news report or another,
# |> there's been a rise in burglaries (or, I guess, technically, robberies)
# |> committed while the residents were at home--and they were purposefully
# |> committed while there was someone there. These perps were doing it for
# |> feeling of power, and they were bent on harm, and posed a clear and
# |> present danger. Question: If you catch one of these, and he tries
# |> to leave, do you shoot him? He poses a clear and present danger, and

No, he poses a clear and *future* danger, unless you see him approach
another house and try to enter it.

Have you noticed that these types of crimes seem to occur most frequently
in places where the victims don't have guns (laws, poverty, or creed)?

# |> will likely try it again (according to the report), if not with you
# |> as the target, then with someone else...
# |> I know the FBI's position is that a Special Agent who witnesses a
# |> a robbery is bound to try and apprehend the subject, even though it
# |> is technically not under FBI jurisdiction; do we, as "a well
# |> regulated militia," do the same? (I think the answer is to shoot, under
# |> Arizona's laws, but I'm not certain what any other laws are. I think

BZZZZZT!  Under Arizona laws :

A person can make an arrest.

[ARS 13-408]
A person can use physical force in making and arrest or stopping
a fleeing felon if:
    The suspect/convict uses physical force,
   and
    The reasonable person would believe use of such force ,
    immediately necessary to detain the suspect/felon,
   and
    The arresting person makes known the the suspect/felon,
    is being arrested unless this is not possible,
   and
    A resonable person would believe the arrest to be lawful.

[ARS 13-409]
A person can use deadly physical force in detaining a suspect or
escaped felon if:
    All of the conditions for use of physical force are met,
   and a resonable person would believe:
    The suspect/felon is resisting the "discharge of a legal duty"[1]
    with deadly physical force or apparent capacity to use deadly
    physical force
   or
    The suspect is a prison escapee
   or
    A felon is fleeing from justice or resisting arrest with
    physical force.

Also, a peace officer (as opposed to a person) is justified in
threatening deadly physical force when a resonable officer would
believe it necessary to protect himself.

[1] I would guess this to exclude arresting a burglar unless
you reasonably believe he has physically resisted arrest.

That's the law.  Now for the facts.  Police don't get real
happy about uninvited assistance unless it's obviously
impossible to ask.  On the other hand, I've heard of clearly
illegal shootings where the shooter had his gun returned and
the police said "Now, now.. you shouldn't do that ..." (A case
of a business owner shooting at fleeing armed robbers -- of
course, the "wrong" type of person trying this would be
arrested.)

#From what I know, you'll be given more leeway in your home or
place of business and you'll be hard pressed to justify shooting
in the back.  The reasonable person standard is also varied based
on who you are: a 6'4" 265lb body builder has a higher standard for
being immediately threatened than does a 5'2" 105lb anorexic woman.

# |> that, under Colorado and Oklahoma law, the moment he enters my
# |> house, he's at my mercy, no matter what he does, so I'd shoot, no
# |> question. What would _you_ do?)
#
# This comes under the "fleeing felon" doctrine.  Many states grant
# statutory authority to use deadly force to halt a "fleeing felon".

Only when a resonable person would find it *immediately* necessary
to use deadly physical force (at least in AZ).

# Current standard doctrine for all police agencies I'm aware of severely
# restricts use of deadly force in this circumstance, statutory authority
# notwithstanding.  If the police are prohibited or discouraged from shooting
# in this circumstance, the civilian would be well-advised to hold fire also.

I agree, the only exception would be a multi-murderer on the loose.

# The only circumstance in which you could justify shooting would be if
# the felon were *known to you* to present an unacceptable risk to innocent

"Present", as in immediate, is a very important part of this!  A serial
murderer who has killed 1 person a night *might* fit that definition
(more because of political pressure than the law) whereas a serial killer
who killed once a month probably wouldn't.

# life if allowed to remain at large.  I can concoct some hypothetical
# cases which would fall under this category, but the typical homeowner
# is unlikely to encounter one.  Basically, you as a civilian have no
# duty to protect your neighbors or your community.  This means you have
# no duty (and therefore no authority) to perform an arrest.  You can

You just pushed my button -- this is the whole reason I am responding.
You most certainly do have a civic duty to effect the arrest of a
known felon.

As to legal authority to make an arrest, speak for only what you know,
in Arizona, you do have the rights as (lengthily) illustrated below
(I skipped the ones where every citizen has a duty to follow the
"command" of the sheriff or a peace officer to assist in arrest):

Arizona Revised Statutes, Title 13 :

13-3884 Arrest by private person
  A private person may make an arrest:
  1.  When the person to be arrested has in his presence committed a
      misdemeanor amounting to a breach of the peace, or a felony.
  2.  When a felony has been in fact committed and he has reasonable
      ground to believe that the person to be arrested has committed it.

13-3889 Method of arrest by private person
  A private person, when making an arrest shall inform the person to
  be arrested of the intention to arrest him and the cause of the arrest,
  unless he is then engaged in the commission of an offense, or is pursued
  immediately after its commission or after an escape, or flees or forcibly
  resists before the person making the arrest has opportunity so to inform
  him, or when the giving of such information will imperil the arrest

13-3892 Right of private person to break into a building
  A private person, in order to make an arrest whree a felony was
  committed in his presence, as authorized in section 13-3884, may break
  open a door or window of any buiding in which the person to be arrested
  is or is reasonably believed to be, if he is refused admittance after he
  has announced his purpose.


13-3893 Right to break door or window to effect release
  When an officer or private person has entered a building in
  accordance with the provisions of section 13-3891 or 13-3892, he may
  break open a door or window of the building, if detained therein, when
  necessary for the purpose of liberating himself.

13-3894 Right to break into building in order to effect release
          of person making arrest detained therein
  A peace officer or a private person may break open a door or window
  of any building when necessary for the purpose of liberating a person who
  entered the building in accordance with the provisions of section
  13-3891 or 13-3892 and is detained therein.

13-3900 Duty of private person after making arrest
  A private person who has made an arrest shall without unnecessary
  delay take the person arrested before the nearest or most accessible
  magistrate in the county in which the arrest was made, or deliver him to
  a peace officer, who shall without unnecessary delay take him before such
  magistrate.  The private person or officer so taking the person arrested
  before the magistrate shall make before the magistrate a complaint,
  which shall set forth the facts showing the offense for which the person
  was arrested.  If however, the officer cannot make the complaint, the
  private person who delivered the person arrested to the officer shall
  accompany the officer before the magistrate and shall make to the
  magistrate the complaint against the preson arrested.

# certainly order an intruder to halt, lie on the floor, and be a good
# boy until the police arrive and be perfectly justified.  But if the felon
# attempts to flee, shooting would rarely be justified for police, even
# more rarely for civilians.  I don't think there is any jursidiction
# in the country where either the police or civilians can shoot someone
# because it will "probably" prevent another break-in.

Right, however, ARS 13-411 provides justification for use of deadly
physical force to prevent burglary 1st or 2nd (1st == aremd, 2nd ==
unarmed, residential, 3rd = unarmed, commercial structure), arson of
an occupied structure, kidnapping, manslaughter, 1st or 2nd murder,
sexual conduct with a minor, sexual assault, child molestation,
armed robbery or aggravated assault IF A REAONABLE PERSON WOULD
BELIEVE IT IMMEDIATELY NECESSARY TO PREVENT OR STOP THE CRIME.
[Note that each of these crimes carry specific definitions which may
differ from what you think or your state laws define.]

# |> #Someone who has unlawfully entered you home armed with a firearm
# |> #has etablished both hostile intent and lethal capabilities.  You can shoot
# |> #him even if his back is turned to you.  For ethical reasons, and to

Around here, and IMHO in most jurisdiction, is is only IF A REAONABLE
PERSON WOULD BELIEVE IT IMMEDIATELY NECESSARY TO PREVENT OR STOP THE
CRIME.  That is a very big IF that most people simply drop.

# |> #avoid any possible legal difficulties, you may want to give this intruder
# |> #the chance to retreat from confrontation, but you need not if doing so
# |> #would place you or other innocent lives at greater risk.

In other words, do so only if it is immediately necessary.

# |> I realize that this could get a little bit off the charter, but I'm
# |> actually more interested in what you can _legally_ do around the
# |> country, given the above circumstances, and come out of it with your
# |> freedom intact.
# |> (Moderator, feel free to send this one to the funny farm (t.p.g) if
# |> you feel that's it's too far off the charter. I really do want more
# |> of the informational side of this, but it could get rather political...)
#
# In all of my posts, I have assumed that you were a head-of-household
# or other responsible adult
# facing an invasion of your occupied dwelling.  This circumstance is
# most favorable towards civilian use of deadly force.  Even so, there
# is a wide disparity in the statues of the different states.  I have
# also assumed that you are in legal possession of your firearm or other
# deadly weapon.  Some states have (or used to have) an unconditional
# *duty to retreat* from deadly confrontation for the civilian, even
# in the home.
# Massachussetts had such a provision, but it was removed after a
# particularly absurd conviction.  Most states which have a general
# duty to retreat make an exception for an occupied dwelling.

Arizona has no "duty to retreat" clause and even has a specific
"no duty to retreat" clause in the stopping of the crimes listed
above.  However, I have heard of a case where a man was convicted
because he was on a bicycle in public and the shooting was found
not justified because his ability to retreat combined with the
distance between the two showed (to the jury) that deadly physical
force was not *immediately* necessary.  (IE: retreat could have
been easily accomplished with placing any lives at risk.)

So I guess that "immediately necessary" implies the need to consider
retreat if it reasonable to do so without placing lives at risk.

# Some states go even further and relax the "equality of force" requirement
# which otherwise applies to meeting assaults [this is the doctrine that
# you may respond to an assault only with equal or slightly greater
# force than is directed against you].  The press, ever scrupulous
# in its reporting standards, have dubbed these "make my day" laws.
# The basic idea behind these laws is if you are in your dwelling,
# and someone forcibly enters and uses or threatens to use *any*
# force, you are justified in responding with *any* level of force,
# including deadly force.  Further, some states exempt from any
# civil liability someone who justifiably uses force to terminate
# an unlawful home entry.  I believe Colorado passed the first of these.

Better yet, AZ exempts from civil liability anyone who justifiably
uses physical force or deadly physical force.

# Regardless of the statutory provisions and the prevailing case law
# in your jurisdiction, you don't *WANT* to shoot anyone if you can
# possibly avoid it.  Even assuming no criminal or civil legal complications
# (your attorney probably defines a "complication" as costing more
# that $10,000 to defend), most of your friends and acquaintances
# will suddenly become a little uneasy around you.  If you are a decent
# person, you will likely become more than a little uneasy around yourself.
#
# I firmly believe that if I act within the legal and tactical boundaries
# I've been taught, I will eventually come to terms with myself and
# be able to deal with the reaction of the community around me.  This
# doesn't mean I expect to find that process either cheap or easy.

Agreed.
--
"25 States allow anyone to buy a gun, strap it on, and walk down the street with
no permit of any kind: some say it's crazy.  However, 4 out of 5 US murders are
committed in the other half of the country: so who is crazy?"   -  Andrew Ford
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