Not sure what to do after

[stevie_d_64]

I believe "fear" could be used against you by a clever DA...

"Fear" could be misconstrued as your not being able to reasonably determine (think clearly) a proper course of action in response to a perceived threat...

It may be a stretch, but I like to think outside the box from time to time...

"I was gravely concerned that the threat to me, my family and the public was so violent and deadly, that I could not see any other way to remove ourselves from the area, or difuse the situation, other than to "stop" the threat/attack from continuing with the use of deadly force..."

"No, I was not in fear, but I was deeply concerned for my safety and the safety of others around me at the time..."

(All of this of course, after consulting an attorney, and having one present at the time of the investigation.)

Just my opinion, and something for y'all to ponder...

[CaptDave]

You need to show that you had a reasonable belief that using deadly force was immediately necessary to protect yourself from his use or attempted use of unlawful deadly force against you.


I Agree. In court you need to show that.

And, I'll admit that in my effort to get my point across that shooting someone over a cell phone would be pretty stupid I did not use chapter 9 legalese in order to get the main point across that YOU DON'T SHOOT SOMEONE FOR STEALING YOUR CELL PHONE.

But, I am pretty sure that when I am in court after the shooting and they ask if I was in fear for my life and I said "no" - I don't think that'd go over too well either.

"When you shot the deceased were you in fear for your life?"

"Nope, I just really liked that cell phone..."

Yes, being in fear for your life is not technically in chapter 9 and I agree 100% that you should not use fear as your only defense in court.

However, to the jury you may need to have been "in fear" that the bad guys use of attempted deadly force against you might cause you to become dead and you reacted appropriately. (Or that you were gravely concerned.., thank you Stevie. But oops, gravely concerned is not in Chapter 9 either.) How about "I HAD A REASONABLE BELIEF THAT HE WAS GOING TO HIT ME IF HE KEPT SHOOTING AT ME." Yea, that works for me too.

How things are decided in court is going to be a lot different than how they are decided on the street. As stated earlier, everything is a "defense to prosecution". After the fact, you are going to explain your actions and they will have plenty of time to be gone over and looked at by attorneys, juries and judges with the proverbial "fine toothed comb".

During the confrontation you are not going to have time to hold a lengthy discussion with yourself to determine if deadly force is necessary or not and weigh all the facts while you're being shot at. (Once again, the reason to learn the color code and to also go through "what if'" scenario's in your mind as a dry run in case a "what if" turns into a "did happen").

All of this discussion does reiterate my point that after solving problem one, you still have the very real issue of solving problem two.

[txinvestigator]

CaptDave,

I already wrote that you may have been in fear of your life. That may accurately described you emotion. But it ain't enough.

And, I'll admit that in my effort to get my point across that shooting someone over a cell phone would be pretty stupid I did not use chapter 9 legalese in order to get the main point across that YOU DON'T SHOOT SOMEONE FOR STEALING YOUR CELL PHONE.

How about ROBBING you of your cell phone? From your own post;

(B) to prevent the other's imminent commission of aggravated
kidnapping, murder, sexual assault, aggravated sexual assault,
robbery, or aggravated robbery

A person holds a knife out and orders you to turn over your cell phone. You do not have to believe that he was going to kill you, or that "you were in fear of your life", or even in fear of serious bodily injury. You only have to show that you reasonably believed that deadly force was immediately necessary to prevent the imminent commission of the aggravated robbery.

How about a use of DF to protect property, as under PC 9.41? No requirement to show fear of your life there, either.

I understand how this myth has been beaten into our heads for years, and I am not being critical of you. It just ain't true. ;)

[CaptDave]

Wow txi-

CaptDave,

I already wrote that you may have been in fear of your life. That may accurately described you emotion. But it ain't enough.

I already said it wasn't enough in and of itself right here:

Yes, being in fear for your life is not technically in chapter 9 and I agree 100% that you should not use fear as your only defense in court.

I'm not sure I understand why you're continuing this, since I thought we were in agreement, but since I have nothing else to do tonight I'll try to address your concerns.

How about ROBBING you of your cell phone?

Well "how about....???" Or "what if....???

We can "what if" each other all night:

A person holds a knife out and orders you to turn over your cell phone. You do not have to believe that he was going to kill you, or that "you were in fear of your life", or even in fear of serious bodily injury. You only have to show that you reasonably believed that deadly force was immediately necessary to prevent the imminent commission of the aggravated robbery.

Hmmm, now he has a knife, Yep I agree with you, smoke him.

From your own post;
Quote:
(B) to prevent the other's imminent commission of aggravated
kidnapping, murder, sexual assault, aggravated sexual assault,
robbery, or aggravated robbery

Still agree with you, that was from my own post.

How about a use of DF to protect property, as under PC 9.41? No requirement to show fear of your life there, either.

You are correct again. No requirement to show fear/imminent danger to you or others. Double tap him right there for stealing your ten-speed bike. You're protecting your property. In fact, forget double tap, shoot to slide lock. Or if they hook up to your trailered boat and start driving off with it. Sniper time. Yea, sure, the Insurance company would have covered your loss but then you wouldn't have gotten to drop the hammer on a scumbag.

Hey, since we're "what ifing": How about:
PC 9.31
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or
person acting at his direction) uses or attempts to use greater force
than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the
force is immediately necessary to protect himself against the peace officer's
(or other person's) use or attempted use of greater force than
necessary.


You're doing nothing wrong, driving home after winning the IDPA Nationals. After a late dinner, back on the road, driving home to Texas and get pulled over by a young, overzealous newly minted sheriff's deputy who figures if you're out at this late hour you're either up to no good or drunk. You pull over, offer no resistance, in fact, you're polite and have your window down. He orders you out of the car and you get slammed against the hood for no apparent reason and/or have a taser or night stick pointed at you. Maybe his hand is on his firearm - a deadly force threat in anybodies book. Sounds to me that the officer is using - or is attempting to use greater force than necessary. Looks like use of force on your part is justified per PC 9.32 (c).

BUT, Since 9.32 (c) says you CAN do it, That doesn't mean you should do it. Maybe a better idea is to try to defuse/de-escalate the situation.

You know something, anything, even "whoa son, that thing may be loaded, let's talk".

That would be much better than mozambiqing Barney.

My point was that just because you CAN shoot per the PC doesn't mean you SHOULD in and of itself.

The responsibility that comes with a CHL includes not only knowing when to shoot, but also knowing when NOT to shoot.

Just because you have a hammer doesn't make everything a nail.

The issue - IMO is determining the nature of the threat. Plain and simple, if you feel your life or the life of another is in imminent danger of death or great bodily harm, you can use deadly force to protect yourself or others.

The aftermath of a shooting can be scarier than the shooting itself for a number of reasons. Psychologically, Financially, Emotionally...

Learning avoidance and when NOT to shoot is every bit as important as being able to determine when TO shoot - and being able to stop the threat from doing what you started shooting it for in the first place.

[carlson1]

CaptDave the "BAD TRAFFIC" stop was something that happened in Florida several years ago. Many may remember. . .
Deputy Richard Mankewich is best remembered for his controversial 1997 turnpike confrontation with now-retired Miami-Dade police Maj. Aaron Campbell.

Mankewich stopped Campbell, who is black, for having an obscured license plate and not using a turn signal. Campbell thought he was being harassed and singled out because of his race. After a confrontation, he was arrested and charged with assault and resisting arrest.

A judge ruled the traffic stop was illegal, yet eventually sentenced Campbell to probation on a single misdemeanor charge of resisting arrest without violence.

Campbell sued the Sheriff's Office, alleging racial profiling, and settled out of court for $10,500.

On Monday, Campbell recalled thinking that Mankewich would get in trouble again because the Sheriff's Office has rewarded his behavior with promotions and awards.

"I knew this guy would be in the limelight again," said Campbell, a vice mayor in Miami Gardens. "It's just the way he is ... . I don't understand that. How could they put him back on the street? That reinforces his behavior."

[txinvestigator]

Wow txi-

CaptDave,

I already wrote that you may have been in fear of your life. That may accurately described you emotion. But it ain't enough.

I already said it wasn't enough in and of itself right here:

Yes, being in fear for your life is not technically in chapter 9 and I agree 100% that you should not use fear as your only defense in court.

I'm not sure I understand why you're continuing this, since I thought we were in agreement, but since I have nothing else to do tonight I'll try to address your concerns.

How about ROBBING you of your cell phone?

Well "how about....???" Or "what if....???

We can "what if" each other all night:

A person holds a knife out and orders you to turn over your cell phone. You do not have to believe that he was going to kill you, or that "you were in fear of your life", or even in fear of serious bodily injury. You only have to show that you reasonably believed that deadly force was immediately necessary to prevent the imminent commission of the aggravated robbery.

Hmmm, now he has a knife, Yep I agree with you, smoke him.

From your own post;
Quote:
(B) to prevent the other's imminent commission of aggravated
kidnapping, murder, sexual assault, aggravated sexual assault,
robbery, or aggravated robbery

Still agree with you, that was from my own post.

How about a use of DF to protect property, as under PC 9.41? No requirement to show fear of your life there, either.

You are correct again. No requirement to show fear/imminent danger to you or others. Double tap him right there for stealing your ten-speed bike. You're protecting your property. In fact, forget double tap, shoot to slide lock. Or if they hook up to your trailered boat and start driving off with it. Sniper time. Yea, sure, the Insurance company would have covered your loss but then you wouldn't have gotten to drop the hammer on a scumbag.

Hey, since we're "what ifing": How about:
PC 9.31
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or
person acting at his direction) uses or attempts to use greater force
than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the
force is immediately necessary to protect himself against the peace officer's
(or other person's) use or attempted use of greater force than
necessary.


You're doing nothing wrong, driving home after winning the IDPA Nationals. After a late dinner, back on the road, driving home to Texas and get pulled over by a young, overzealous newly minted sheriff's deputy who figures if you're out at this late hour you're either up to no good or drunk. You pull over, offer no resistance, in fact, you're polite and have your window down. He orders you out of the car and you get slammed against the hood for no apparent reason and/or have a taser or night stick pointed at you. Maybe his hand is on his firearm - a deadly force threat in anybodies book. Sounds to me that the officer is using - or is attempting to use greater force than necessary. Looks like use of force on your part is justified per PC 9.32 (c).

BUT, Since 9.32 (c) says you CAN do it, That doesn't mean you should do it. Maybe a better idea is to try to defuse/de-escalate the situation.

You know something, anything, even "whoa son, that thing may be loaded, let's talk".

That would be much better than mozambiqing Barney.

My point was that just because you CAN shoot per the PC doesn't mean you SHOULD in and of itself.

The responsibility that comes with a CHL includes not only knowing when to shoot, but also knowing when NOT to shoot.

Just because you have a hammer doesn't make everything a nail.

The issue - IMO is determining the nature of the threat. Plain and simple, if you feel your life or the life of another is in imminent danger of death or great bodily harm, you can use deadly force to protect yourself or others.

The aftermath of a shooting can be scarier than the shooting itself for a number of reasons. Psychologically, Financially, Emotionally...

Learning avoidance and when NOT to shoot is every bit as important as being able to determine when TO shoot - and being able to stop the threat from doing what you started shooting it for in the first place.

I just refuse to respond to inane posts, other than to state so.

[CaptDave]

CaptDave the "BAD TRAFFIC" stop was something that happened in Florida several years ago. Many may remember. . .
Deputy Richard Mankewich is best remembered for his controversial 1997 turnpike confrontation with now-retired Miami-Dade police Maj. Aaron Campbell.

Mankewich stopped Campbell, who is black, for having an obscured license plate and not using a turn signal. Campbell thought he was being harassed and singled out because of his race. After a confrontation, he was arrested and charged with assault and resisting arrest.

A judge ruled the traffic stop was illegal, yet eventually sentenced Campbell to probation on a single misdemeanor charge of resisting arrest without violence.

Campbell sued the Sheriff's Office, alleging racial profiling, and settled out of court for $10,500.

On Monday, Campbell recalled thinking that Mankewich would get in trouble again because the Sheriff's Office has rewarded his behavior with promotions and awards.

"I knew this guy would be in the limelight again," said Campbell, a vice mayor in Miami Gardens. "It's just the way he is ... . I don't understand that. How could they put him back on the street? That reinforces his behavior."

Hey Carl:

I found the article that you are referring to. Interesting!

Florida cop who killed un-armed man is suspended with pay
by Pedro Ruz Gutierrez, Orlando Sentinel

Jan. 27, 2004

Orange County Sheriff Kevin Beary on Monday overruled a decision that had allowed a veteran sergeant back on street patrol only eight days after he shot and killed an unarmed black motorist.

"Community concerns," worry about the deputy's safety and media scrutiny of the case contributed to the reversal, Beary said.

Sgt. Richard Mankewich, a controversial deputy sheriff who withstood national scrutiny after arresting an off-duty black Miami police major in 1997, worked throughout the weekend. About a week earlier, on Jan. 15, he killed 26-year-old Marvin Williams after the sheriff's felony squad mistook Williams for a murder suspect.

On Monday, Beary and Undersheriff Malone Stewart -- the agency's top officers -- overruled a lower-ranking commander and ordered that Mankewich be kept on administrative duties pending the outcome of several investigations into the shooting.

In an unusual memo to the sheriff's staff Monday, Beary stated, "While I have total confidence in the shooting investigation process ... I must confess the recent criticism of Sergeant Mankewich has caused me great concern ... . Again, this move is NOT punitive ... . Please do not misinterpret the intent of these most recent decisions."

Stewart, the highest-ranking black officer, said he and Beary discussed Mankewich's move back to patrol and decided immediately to reverse Chief Deputy Matt Weathersby's order.

"We made the decision because it's not fair," Stewart said. "We also want the general public to have confidence in us."

Having Mankewich on patrol in areas with large black populations, Stewart said, did not make sense.

The shooting death sparked anger in the largely black community where it happened and led to a disturbance Saturday night in Williams' old neighborhood east of Orange Blossom Trail after his funeral.

County Commissioner Homer Hartage said he is deeply worried about the community's anger and thinks Beary's actions Monday were not enough.

"This case has the potential to become very volatile," said Hartage, who is asking Beary to suspend Mankewich with pay immediately. "We need to do everything in our power to assure the community that we are objective and fair. He used poor judgment by putting the deputy back on the streets. And he made another poor decision by placing him on administrative duties."

Hartage, who is black, said he will deliver a letter to Beary today asking the sheriff to move the case from Orange-Osceola State Attorney Lawson Lamar's circuit.

Lamar, a former Orange sheriff, and Beary "are longtime associates and have worked together for many years," Hartage said.

Lamar replied that the sheriff is not the focus of the investigation. If Beary were, he said, "I'd ask the governor to assign another state attorney, but I feel that I can be ... totally objective, with this case and this deputy."

Lamar's office will review separate investigations into the shooting by the Sheriff's Office and the Florida Department of Law Enforcement.

Those inquiries, which are continuing, will include testimony that a fellow deputy radioed to Mankewich during a high-speed pursuit that Williams was a "possible" murder suspect. The suspect, Mankewich was told, had killed someone with a gun.

However, Williams was not that suspect. He was unarmed. He ran from authorities, his girlfriend said, only because he was afraid he would be sent back to jail for driving without a license.

It won't be the first time Mankewich has been under the microscope.

The Boston native is described by peers as one of the agency's most aggressive officers.

He arrested and detained police officers, tourists and drug traffickers alike while he patrolled Florida's Turnpike.

Some of them later criticized his patrol and arrest practices and contacted the agency's internal-affairs division. Although he was cleared and has never been disciplined, Mankewich has been accused of being rude, making racial comments and harassing a female deputy in his squad.

There have been about a dozen complaints filed against him since 1998, and all of them were judged to be unfounded by sheriff's investigators.

Sheriff's officials say it's not uncommon for a deputy who works in specialized traffic and drug units to receive complaints because he is constantly interacting with the public. And in Mankewich's case, they say, he goes after "the bad guys."

"He's always in the middle of action," said Chief Deputy Ernie Scott, who as a former captain supervised Mankewich on the turnpike's now-disbanded criminal- patrol unit. "He's an honest, aggressive cop. I never had any indication that he distorted, embellished or did anything that would cause me to question his integrity."

Mankewich once admitted in court testimony that he frequently reached into suspects' pants to seize drugs during pat-downs. "All I had to do was pull his pants out. I didn't take his pants off him. Reach down and pulled it out," he testified about a 1996 arrest.

His bosses and peers praise him as a diligent supervisor and planner who passes on his knowledge about "aggressive, innovative techniques being utilized to catch offenders."

Mankewich is best remembered for his controversial 1997 turnpike confrontation with now-retired Miami-Dade police Maj. Aaron Campbell.

Mankewich stopped Campbell, who is black, for having an obscured license plate and not using a turn signal. Campbell thought he was being harassed and singled out because of his race. After a confrontation, he was arrested and charged with assault and resisting arrest.

A judge ruled the traffic stop was illegal, yet eventually sentenced Campbell to probation on a single misdemeanor charge of resisting arrest without violence.

Campbell sued the Sheriff's Office, alleging racial profiling, and settled out of court for $10,500.

On Monday, Campbell recalled thinking that Mankewich would get in trouble again because the Sheriff's Office has rewarded his behavior with promotions and awards.

"I knew this guy would be in the limelight again," said Campbell, a vice mayor in Miami Gardens. "It's just the way he is ... . I don't understand that. How could they put him back on the street? That reinforces his behavior."

Pamela J. Johnson of the Sentinel staff contributed to this report.


Published by
Orlando Sentinel

[carlson1]

That is the one! The best I remember the off duty deputy became agressive, he was sprayed with OC, fought, and ended up being tackled and arrested. He cleared himself, but it sure cost him A LOT OF $$$$$$ He should have just been quite and he would have probably drove off without anything, but . . . it has been said over and over again, but some do not get it - "the street is no place to try to stand for your rights, wait until court!"

[CaptDave]

That is the one! The best I remember the off duty deputy became agressive, he was sprayed with OC, fought, and ended up being tackled and arrested. He cleared himself, but it sure cost him A LOT OF $$$$$$ He should have just been quite and he would have probably drove off without anything, but . . . it has been said over and over again, but some do not get it - "the street is no place to try to stand for your rights, wait until court!"

I Agree

[carlson1]

CaptDave I know I am talking to the choir here, but. . . we all have an "EGO" some more than others. I learned the hard way years ago the "EGO" has to be checked when you strap on your pistol Men worse than women.

[TEXASGIANT]

WOW! Thanks gang. It is obvious I need to spend a lot more time around here. I don't want to embarrass Tom by showing my ignorance but I did train with him. I must have drifted off to the range just about the time he covered that. I do remember him saying "right or wrong you just spent a bunch of money"
Thanks for all the clarification.

[austin]

I would like to remind you that shooting someone is aggravated assault; if they die it is a homicide. You MAY be justified in doing so under Texas law; however, using force is a defense to prosecution/ That is a legal term that means you have to be able to prove your actions were justified.

Leaving the scene will get you tossed in jail and make it very difficult for the authorities to believe your story. I will go out on a limb and say there is a 99% chance of your being tried and convicted if you just leave the scene.

Leaving the scene and not reporting it. Yup. That is what landed those border agents in Jail. A DA will have no choice but to indict you.