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  • vincelli
    replied
    I feel a rash of resurrected threads coming on; and a headache.

    -V

    Leave a comment:


  • Monty Ealerman
    replied
    Originally posted by Lawdawg45
    I'm not sure where your coming from, since your bio is intentionally vague on your career, training and certification, but you seem to be confusing LE and civilians.
    The laws of physics apply to everyone. The appropriateness of application of force is a recursive function of balancing the interests of the individual against those of everyone. The goals of LE persons may differ from those of non-LE persons in that apprehension, as distinguished from immediate defense, may be more of a priority for the former than for the latter.

    Are you suggesting that civilians carry other non lethal options such as Tasers and ASP batons?
    I'm not against that.

    How many LEO's carry these items off duty?
    I don't know how many but I know some do. I like to keep a collapsible steel baton in my waistband. I've never used an electronic incapaciation device.

    As to your comment on the Pepper spray and the beer bottle, did you have a duty to intervene in the situation?

    LD45
    Legally, just a right, not a duty.
    Last edited by Monty Ealerman; 06-09-2011, 10:05 AM.

    Leave a comment:


  • jannino
    replied
    Been there, done that. Wasn't even an issue. Bad guy had a weapon.

    Leave a comment:


  • Nessmuk
    replied
    You are absolutely correct in that since (here) there is no requirement that a citizen be trained prior to obtaining a colcealed carry permit - and needs no permit at all to open carry or own a firearm or any other weapon - there is no standard fixed in law or rule to apply such as there is for law enforcement, which is required to be trained & re-certified annually in the concept & application of the force continuum.

    That's where I think my explanation might be confusing, and now I see your point. I was referring to the fact that the non-LE use of force is most definitely held to a standard of appropriate use for the threat, even though it would be far less specific than it would be for the use of force in law enforcement. No, there is no (here, again) way to say that the citizen should have used soft hand versus hard, or OC versus baton. However, if the citizen uses any level of force not exempted by the law, they will indeed be judged as to whether or not that force was appropriate for the circumstances. The citizen may not have ever heard of a force continuum as we know it, but they will be held to a similar standard as far as the concept of varying levels of appropriate force are concerned. If deadly force is not authorized and they use it, they will not be told that they should have used OC (or whatever lesser level of force) but they will be told that they shouldn't have used deadly force.

    The law here for citizens: http://www.gencourt.state.nh.us/rsa/.../627/627-4.htm

    The law here for LE: http://www.gencourt.state.nh.us/rsa/.../627/627-5.htm

    For defense of property, use of force is in a different law: http://www.gencourt.state.nh.us/rsa/.../627/627-7.htm (not being a 'castle doctrine' state, the only permissible use of deadly force in defense of property is against the imminent threat of arson)

    Both 'use of force' statutes here are very similar, and certainly far simpler than I've seen in other states. The retreat requirement for non-LE only applies to deadly force, not any other level of force. The 'Effective Jan 1' of this year change to 627:4 is due to the incarceration & subsequent pardon of Mr. Ward Bird that I had alluded to earlier. At the time, merely displaying a firearm (which he did) in a non-deadly -force situation was considered a threat of deadly force and completely inappropriate for the circumstances with which he was faced. The 'victim' in the original situation had some issues come to light about her side of the story after he was imprisoned, there was a subsequent governor & council pardon for Mr. Bird, and our currently quite libertarian legislature changed 627:4 as it now reads. The point being: a citizen is most definitely going to be judged on how much force they can use; however, it will not be in the very detailed way that an officer is judged. But, they most certainly will be judged if & when they use force, deadly or otherwise, as to whether or not the level of force they used was appropriate compared to the perceived threat. LE or citizen, here, the permissible use of force can only be appropriate according to the specific threat.

    In the OP, here, regardless of if the citizen had OC, taser, baton, or whatever other level of less-lethal force, they should not have used the deadly force unless the threat was appropriate for a deadly force response. If they are only carrying a firearm, then they can only respond to a lethal-force threat (excepting the new changes to our law). If they are carrying OC and use deadly force when they shouldn't have, by all means they will be in big trouble and deep, but not because they didn't use the OC - rather, because they used lethal force when they were not justified in doing so.

    I didn't take offense at your questions or comments at all. If I'm still confusing and we need to keep at this some more, I'm fine trying to help others understand the laws here in the Granite State.
    Last edited by Nessmuk; 05-26-2011, 09:19 PM. Reason: gnilleps

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  • Nessmuk
    replied
    Originally posted by Lawdawg45
    These two sentences contradict one another in most scenarios. The Force Continuum has no provision for retreat (at least ours anyway), hence the different levels of graduated force. If the civilian has a duty to retreat, then retreat or deadly force are the two options. I'm not aware of any court case suggesting civilians carry non lethal items and a graduated use of those items. What I am familiar with are several cases here locally where Tasers or pepper spray were used inappropriately and the users were charged with Battery.

    LD45
    If the appropriate option in response to a threat of force is to use deadly force, then for the civilian they must attempt to retreat first.

    All other provisions remain the same - use of force by anyone must be contingent upon the threat; i.e., it would be inappropriate for a citizen to OC someone who is complying with verbal commands, just as it would be inaapropriate for me to OC someone who is being fully compliant with officer pressence/verbal commands. "Well, I'm sorry your honor, but even though he was fully compliant I just felt like spraying him anyway." That won't sell, regardless if you are an officer or not.

    The issue is that citizens are still held to a standard of practicability related to the concept of a force continuum. I know that in some states persons are rquired to attend some sort of firearms class in order to get a permit to carry; that is not the case in our state, so unlike an officer who must be educated in & recertified annually in knowledge of the force continuum, there is no such requirement for citizens here. And, no, there is no requirement for a citizen to carry various intermediate weapons, either. However, if they do carry a stun gun, baton, or taser - all legal here (and I know not so in all places) - if they use such things they will indeed be judged on whether or not the use of such a tool was appropriate given the level of threat they were facing. The most publicized example of what was then charged as inappropriate use of force was in the past year when a citizen named Ward Bird brandished a firearm in response to a non-deadly threat...and his incarceration & eventual governor's pardon resulted in a legal change to our RSA 627:4 this year. Here, anyway, the civilian use of force - deadly or otherwise - is not only currently well publicized but discussed quite a lot among LE firearms instructors. And exactly as you not4ed in your state, if a citizen inappropriately uses a defense tool of any kind, they will most certainly face the criminal & civil consequences. In Ward Bird's case, he went to prison, was pardoned, and got the law changed after the fact.

    So, no, I do not think those two sentences contradict each other when the only 'retreat' provision for the non-LE use of force relates to use of deadly force, not all other uses of force.

    Leave a comment:


  • Nessmuk
    replied
    Currently in our state, a citizen has a duty to retreat if they can; officers have no such obligation. A citizen carrying both OC and a firearm would merely have to articulate that they were threatened with deadly force or serious bodily injury - or a third person near them was so threatened - and that they had no reasonable means of avoiding the threat, so they responded with deadly force. The only permissible use of deadly force to prevent a property crime is to prevent imminent acts of arson.

    Other than that, the force continuum does indeed legally apply to citizens as well as officer, yet only officers are required to be trained in the use & application of the force continuum.

    BTW, the force continuum we learn & teach is not linear - it is circular. There is no "top" or "bottom", just lesser or greater levels of force, which do not need to be applied in a linear fashion. You start your use of force with whatever is most approrpiate for the circumstances.

    Sources: NH RSA's 627:4, 627:5, and 627:7; US Supreme Court Tennessee v. Garner & Graham v. Connnor.

    In this NH legislative session several bills have passed our state house chambers - now being considered by our state senate - to seriously revise and/or revoke many of the citizen requirements. Two most prominent here are to make the state a 'constitutional carry' state (we currently allow 'open carry') and to allow 'castle doctrine' as with the 'retreat' requirement in 627:4 (which applies even in your own home) we are not a 'castle doctrine' state.

    Leave a comment:


  • hobbsie711
    replied
    I have my gun, my knife and a cell phone on me. The knife isn't even there as a weapon so much as it is a tool. Takes pretty much a life and death situation for me to get involved off duty. I call on duty officers otherwise. If I have to kill someone I have no doubt the family will be on the news within the hour telling everyone how he/she was a good boy/girl and how I was not justified. I doubt the presence of OC in my back pocket will change much.

    Leave a comment:


  • Michigan
    replied
    Originally posted by ateamer View Post
    You use deadly force against a deadly threat. I don't think that any state requires that someone use pain compliance to counter deadly force.
    +1

    Leave a comment:


  • SgtScott31
    replied
    Originally posted by careerchange#2 View Post
    I'm not a lawyer, but it could actually prove beneficial. The reason I say that is in the past (can't find the case law) officers have been jacked because they were off-duty and were involved in a use of their weapon. The defense argued that since they weren't carrying handcuffs they had no intention of taking prisoners and therefore murdered and/or planned to shoot whoever they confronted.

    Having a less lethal option on you may help show that you utilized your firearm only as a last resort and/or when faced with a lethal force encounter, and they you were prepared with a lower level of force to address non-life threatening situations.
    I highly doubt that was a defense that was successful. Maybe in the 1960s. If one is in fear of serious bodily harm or death, lethal force is justifiable, no matter what your occupation is. Obviously it's never that clear-cut, but rather very fact based in every case that enters the courtroom. I don't care if I have a taser, pepper spray, and baton around my blue jeans, if I feel that I am going to be seriously hurt or killed at the time in question, the firearm is coming out first. It wouldn't be any different if I was on duty than off. Remember the force continuum is never automated, moving from the bottom up to the top. You can go straight to the top based on the circumstances in front of you. The courts will always (or should always) apply a reasonable person standard in these cases.
    Last edited by SgtScott31; 05-25-2011, 02:54 PM.

    Leave a comment:


  • BigW
    replied
    Can't speak for VA but here it was if it was ruled a justified shooting then end of story......

    You don't bring OC to a gun fight so to speak.

    Leave a comment:


  • Till
    replied
    Originally posted by JonB View Post
    The only way to accurately answer this would be to cite case law for the particular state in which your hypothetical took place. Most decisions to prosecute and most judge's rulings are decided on the basis of previous similar cases preferably from the same state.
    Great responses, thank you. At one time, I did carry both, but now I do not, and haven't for probably about a year, because I expected some of the responses in this thread.

    And we'll just say this took place in Virginia.

    Leave a comment:


  • JonB
    replied
    Originally posted by Till View Post
    More of a hypothetical.

    A civilian, who is carrying concealed, and for whatever reason is forced to use his/her weapon. The shoot ends with the bad guy dead, and is ruled justified by law enforcement.

    It then comes to light that the civilian had OC spray on their person, but it wasn't used.

    Could this pose a problem, either civilly or criminally? Could the question later be asked why the CCWer didn't just use the pepper spray, a less lethal alternative, to subdue the threat?

    (That question is completely stupid if deadly force was justified and articulated, I know)

    If someone is carrying concealed, should that firearm be the only level of force they have available?
    The only way to accurately answer this would be to cite case law for the particular state in which your hypothetical took place. Most decisions to prosecute and most judge's rulings are decided on the basis of previous similar cases preferably from the same state.

    Leave a comment:


  • Monty Ealerman
    replied
    Originally posted by Lawdawg45
    In some areas yes, in others no. It varies just as the Continuum does by department. One simple statement is usually the key......"I feared for my life".

    LD45
    That's substantially more stringent than "the only thing a civilian needs to meet for deadly force is a substantial threat to their safety".

    And what about the part of the law that requires that you use lesser force if it will do?

    Why, given a choice, would you deliberately carry only a lethal use of force option, and forgo an option that is often best?

    I sprayed a guy who was about to use a beer bottle to hit someone and the spray worked fine. I'd have been hard pressed to defend shooting anyone in that situation. "Oh I left my pepper spray at home on purpose so I'd have to resort to my gun if a situation came up and well there you go."

    Please imagine this in the interview room:

    "I shot him in the head because he was about to cut me off in traffic again and that was a substantial threat to my safety". "Oh yeah and I feared for my life." "Besides he had it coming"

    "Couldn't you maybe have just braked and let the asswad ride on?"

    "Well maybe but who knows?"

    Do you shoot every dog that barks at you?

    Having pepper spray on you does not restrict you from applying deadly force in a real deadly force situation.

    You make it seem as if you would choose to apply deadly force simply as a matter of preference.

    Leave a comment:


  • Murf425
    replied
    Also, I agree with HDEP; the only time I'd carry OC would be if, for some reason, I couldn't carry a firearm. If I have the option to carry both, I'm only carrying the latter.

    Leave a comment:


  • Monty Ealerman
    replied
    Originally posted by Lawdawg45
    Till,

    The Force Continuum is for law enforcement, not civilians. Graduated force is something determined and taught by each local department, and the only thing a civilian needs to meet for deadly force is a substantial threat to their safety. Your hypothetical person is silly for carrying both.

    LD45
    (emphasis added)

    The standard for deadly force is considerably more stringent than that.

    Leave a comment:

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