armaborealis
Well-Known Fanatic
- Joined
- Dec 27, 2011
- Messages
- 575
I suggest reading Massad Ayoob's "in the gravest extreme" as an intro to your legal rights when it comes to use of force.
In a nutshell in SC you need a few things to use deadly force:
1) Must be blameless in bringing on the confrontation.
2) Must actually be in fear of death/serious bodily injury
3) A reasonable person would agree that you're in imminent danger of death/SBI
4) Deadly force is a last resort, and you have a duty to retreat unless you are in a place where you are lawfully allowed to be (pretty broad!)
All criteria are important but in your scenario #3 is probably most relevant. The elements of "ability, opportunity, and jeopardy/intent" may be used to determine if your actions were reasonable.
- Ability: Does the bad guy have a disparity of force which allows him to cause death or SBI? In your scenario, you would need to demonstrate that before you pulled the trigger this was the case. A knife, club, or gun could meet this element. A furtive movement towards a hidden weapon could as well. Or, if the guy is a 300 lb line backer or a trained martial artist, and you're a 150 lb repair guy, then that might satisfy the criteria. Finally, if you get into a regular ol' fist fight and are losing to the point where he can inflict death/SBI, then you'd meet this requirement even without presence of a weapon or size disparity.
- Opportunity: Is the bad guy in a position to employ his weapon? If he has a firearm then yeah, 40' away = opportunity for sure. If he's within 21 feet then you can probably establish a credible threat from melee weapons, unless there is some sort of intervening obstacle or barricade. FOr example if you're inside your armored ATM truck behind thick bulletproof glass and steel grating and he's outside with a stick then there may be no opportunity for him to employ that weapon.
- Intent/Jeopardy: Does he intend to use the weapon to inflict death/SBI? This may not be the case. For example, maybe the guy is a plain clothes cop -- he certainly has ability (a sidearm) and opportunity (approaching you) but hopefully no intent to cause death or SBI.
In your scenario I think the key would be determining the intent of the bad guy right away; given low light it is difficult to rule out presence of a weapon (ability) and once he hits 21' away in an open parking lot you've established opportunity. "Stop right there!" is an effective verbal challenge and if they continue to advance or quicken their advance you've just determined some degree of hostile intent, allowing you to determine the crucial "intent" piece of the criteria above.
I'm not aware of relevant state law regarding brandishing but most localities have some sort of brandishing law. In general you only want to draw the firearm under circumstances where you'd be legally justified in shooting. In your scenario I'd probably issue a verbal command when the guy was 21-30 feet away, mentally go to condition orange if I wasn't there already, and put my hand on the weapon, getting ready for a draw. I'd then draw to guard/low ready and go to condition red mentally if he presses in closer... But at that point I'd have all elements met and could lawfully employ deadly force so there should be no issue "brandishing." From guard it is a very quick transition to point in and put rounds on target. Tactially it'd be a smart idea to scan for his buddies and move to cover/concealment or back to your vehicle. This is a not-so-bad tactical problem which allows the luxury of drawing to guard; there's good line of sight, there's a fair amount of distance which means time. If he's gotten in closer then you may not have the luxury of drawing to guard and it may be time to take a flash sight picture and press.
Obviously you can't shout "STOP!" at everyone that gets within a 30' bubble of you. But at night, in a lonely parking lot, at an ATM, I think it'd probably be reasonable. Under other conditions you obviously need a different strategy.
Say you draw and the guy decides he has somewhere else to be. I'd immediately call the cops. You want to be the first call to establish your aggrieved defender status with the authorities immediately. Don't let him call you in and say some whackjob at the ATM threatened him with a handgun.
You really need a CWP though. If you don't have a CWP then there may be question about elements like, "did you actually have a lawful right to be where you were?" Arguably if you're carrying a handgun without a CWP in SC then you don't have a right to be there, and thus element #4 above would be called into question, and thus your entire claim of self-defense might be shot down.
In a nutshell in SC you need a few things to use deadly force:
1) Must be blameless in bringing on the confrontation.
2) Must actually be in fear of death/serious bodily injury
3) A reasonable person would agree that you're in imminent danger of death/SBI
4) Deadly force is a last resort, and you have a duty to retreat unless you are in a place where you are lawfully allowed to be (pretty broad!)
All criteria are important but in your scenario #3 is probably most relevant. The elements of "ability, opportunity, and jeopardy/intent" may be used to determine if your actions were reasonable.
- Ability: Does the bad guy have a disparity of force which allows him to cause death or SBI? In your scenario, you would need to demonstrate that before you pulled the trigger this was the case. A knife, club, or gun could meet this element. A furtive movement towards a hidden weapon could as well. Or, if the guy is a 300 lb line backer or a trained martial artist, and you're a 150 lb repair guy, then that might satisfy the criteria. Finally, if you get into a regular ol' fist fight and are losing to the point where he can inflict death/SBI, then you'd meet this requirement even without presence of a weapon or size disparity.
- Opportunity: Is the bad guy in a position to employ his weapon? If he has a firearm then yeah, 40' away = opportunity for sure. If he's within 21 feet then you can probably establish a credible threat from melee weapons, unless there is some sort of intervening obstacle or barricade. FOr example if you're inside your armored ATM truck behind thick bulletproof glass and steel grating and he's outside with a stick then there may be no opportunity for him to employ that weapon.
- Intent/Jeopardy: Does he intend to use the weapon to inflict death/SBI? This may not be the case. For example, maybe the guy is a plain clothes cop -- he certainly has ability (a sidearm) and opportunity (approaching you) but hopefully no intent to cause death or SBI.
In your scenario I think the key would be determining the intent of the bad guy right away; given low light it is difficult to rule out presence of a weapon (ability) and once he hits 21' away in an open parking lot you've established opportunity. "Stop right there!" is an effective verbal challenge and if they continue to advance or quicken their advance you've just determined some degree of hostile intent, allowing you to determine the crucial "intent" piece of the criteria above.
I'm not aware of relevant state law regarding brandishing but most localities have some sort of brandishing law. In general you only want to draw the firearm under circumstances where you'd be legally justified in shooting. In your scenario I'd probably issue a verbal command when the guy was 21-30 feet away, mentally go to condition orange if I wasn't there already, and put my hand on the weapon, getting ready for a draw. I'd then draw to guard/low ready and go to condition red mentally if he presses in closer... But at that point I'd have all elements met and could lawfully employ deadly force so there should be no issue "brandishing." From guard it is a very quick transition to point in and put rounds on target. Tactially it'd be a smart idea to scan for his buddies and move to cover/concealment or back to your vehicle. This is a not-so-bad tactical problem which allows the luxury of drawing to guard; there's good line of sight, there's a fair amount of distance which means time. If he's gotten in closer then you may not have the luxury of drawing to guard and it may be time to take a flash sight picture and press.
Obviously you can't shout "STOP!" at everyone that gets within a 30' bubble of you. But at night, in a lonely parking lot, at an ATM, I think it'd probably be reasonable. Under other conditions you obviously need a different strategy.
Say you draw and the guy decides he has somewhere else to be. I'd immediately call the cops. You want to be the first call to establish your aggrieved defender status with the authorities immediately. Don't let him call you in and say some whackjob at the ATM threatened him with a handgun.
You really need a CWP though. If you don't have a CWP then there may be question about elements like, "did you actually have a lawful right to be where you were?" Arguably if you're carrying a handgun without a CWP in SC then you don't have a right to be there, and thus element #4 above would be called into question, and thus your entire claim of self-defense might be shot down.
