Gray areas in Self Defense

[depserv]

There are some areas I think are gray regarding whether or not the law would consider deadly force justified.  Does anyone have any ideas about which side of the line the following would be on?

1. I see someone about to set fire to my neighbor's house in the middle of the night; I don't know whether my neighbor is home or not.  Say the arsonist is pouring a large quantity of liquid fuel around so my neighbor, if he is home, might not be able to get out safely once a fire started, but I couldn't say for sure he couldn't get out.

2. Someone is about to throw a Molotov cocktail at my house.  If I shoot him to stop him, would I have to prove that I could not have escaped from the house after the fire started?

3. Out of town where police are maybe miles away, someone says he's going to go to his car and get his rifle and kill me with it.  I have a little pistol.  If I wait where I am and do nothing, once he gets his rifle I can't stop him with my little pistol.  Would it be considered justifiable for me to follow him to his pickup and shoot him as soon as he gets a hand on his rifle?

[Bucket]

There are some areas I think are gray regarding whether or not the law would consider deadly force justified.  Does anyone have any ideas about which side of the line the following would be on?

1. I see someone about to set fire to my neighbor's house in the middle of the night; I don't know whether my neighbor is home or not.  Say the arsonist is pouring a large quantity of liquid fuel around so my neighbor, if he is home, might not be able to get out safely once a fire started, but I couldn't say for sure he couldn't get out.

2. Someone is about to throw a Molotov cocktail at my house.  If I shoot him to stop him, would I have to prove that I could not have escaped from the house after the fire started?

3. Out of town where police are maybe miles away, someone says he's going to go to his car and get his rifle and kill me with it.  I have a little pistol.  If I wait where I am and do nothing, once he gets his rifle I can't stop him with my little pistol.  Would it be considered justifiable for me to follow him to his pickup and shoot him as soon as he gets a hand on his rifle?

1.  Good question.  I think I'd call 911, grab the weapon and head next door to make sure they got out, at least in the scenario you offer.  Response would depend on the reaction of the arsonist.
2.  My understanding is you have no requirement to retreat in your own home.  A molotov cocktail is a weapon that could harm you and your family, particularly if you were trapped in a burning house.  I'd think self defense is justified.

NE Statute 28-1409 is probably the applicable law:
(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

3.  I think you wouldn't be authorized.  Law indicates that "that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion."

Lawyers?

[RedDot]

2. Someone is about to throw a Molotov cocktail at my house.  If I shoot him to stop him, would I have to prove that I could not have escaped from the house after the fire started?

Aim for the bottle...

[Wymore Wrangler]

As it was explained to me, you cannot use deadly force to stop someone from stealing property, and arson is essentially stealing property from someone.  If you saw someone about to throw a cocktail, again, a crime hasn't happened until after he throws it.  And just the mere statement about getting a gun, I think you would spend a lot of time in jail on that one.  Your time in court would depend greatly where the trial in this state occurred, in rural Nebraska, folks tend to have more common sense on these matters...

[WallPhone]

> If you saw someone about to throw a cocktail, again, a crime hasn't happened until after he throws it.

IIRC, just constructing the cocktail, without obtaining the prior ATF "destructive device" permission and paying the tax is a crime.

I'm not going to ask a potential arsonist to show me his tax stamp before I decide to shoot.

[bullit]

My thoughts after taking about 80 hours of legal continuing education on the Use of Deadly Force/Justifiable Homicide over the past few years on my own dime  (Please note I am not an attorney, just want the background so these are MY OPINIONS)

1. I see someone about to set fire to my neighbor's house in the middle of the night; I don't know whether my neighbor is home or not.  Say the arsonist is pouring a large quantity of liquid fuel around so my neighbor, if he is home, might not be able to get out safely once a fire started, but I couldn't say for sure he couldn't get out.

Arson is a felony....you would be justified in using force (note I did not say "Deadly Force") to prevent the commission of said felony.  Please refer to the statute noted in a previous post above.  To use "deadly force", you will be adjudicated based upon 1) the "reasonable man theory" i.e. what would the reasonable and prudent approach be by someone else in a similar situation and 2) the "Totality of the Circumstances"

2. Someone is about to throw a Molotov cocktail at my house.  If I shoot him to stop him, would I have to prove that I could not have escaped from the house after the fire started?

This question and the next  one can be summed up with the acronym AOJ.  Ability, Opportunity, and Jeopardy.  1) Does the perp have the ABILITY to do you harm? Yes based upon your question i.e. he is attempting to throw a Molotov cocktail. 2) Is the OPPORTUNITY present?   Yes, based upon your question he is within throwing distance of your home.  3) Does the element of JEOPARDY i.e. are you or others in your home in "immediate and otherwise unavoidable risk of death or grave bodily harm".  If you can articulate that ALL THREE of these factors are in place (again the Totality of the Circumstances), the use of "Deadly Force" is justified.

3. Out of town where police are maybe miles away, someone says he's going to go to his car and get his rifle and kill me with it.  I have a little pistol.  If I wait where I am and do nothing, once he gets his rifle I can't stop him with my little pistol.  Would it be considered justifiable for me to follow him to his pickup and shoot him as soon as he gets a hand on his rifle?

Again, I would refer to AOJ.  1) Does perp have the ABILITY?  Yes, he is going to get his rifle.  2) Does he have the OPPORTUNITY?  Not quite yet until he has obtained said rifle and 3) Does the element of JEOPARDY exist at that time?  IMO....not yet as you are not in said JEOPARDY.  Finally, the last thing you would want to do is "follow him to his pickup" as your likely defense would go out the window.  I would think a prosecutor would be able to easily show you helped "escalate" the matter vice using the "NIKE Defense".

Please read my whole post even though it appears discombobulated in the blue box and my final thoughts outside the box

[depserv]

Thank you for your well thought out replies Bullit.  I would just add that in example 3, as I said, if I do not follow him to his pickup, once he gets his rifle he can kill me and there's nothing I can do to stop him, because by then he is out of range of my weapon, but I can't run fast enough to get out of range of his.  So if the law will not allow me to stay within range of my weapon by following him, the law is saying that I can not do what it takes to defend myself.

And that's why I came up with that example.  I think self defense laws tend to be slanted too much toward protecting the perpetrator of a crime. 

[Bucket]

Thank you for your well thought out replies Bullit.  I would just add that in example 3, as I said, if I do not follow him to his pickup, once he gets his rifle he can kill me and there's nothing I can do to stop him, because by then he is out of range of my weapon, but I can't run fast enough to get out of range of his.  So if the law will not allow me to stay within range of my weapon by following him, the law is saying that I can not do what it takes to defend myself.

And that's why I came up with that example.  I think self defense laws tend to be slanted too much toward protecting the perpetrator of a crime. 

I would argue that self-defense laws are slanted toward putting a high standard on the use of deadly force.  That may well protect criminals, but it also protects many others who would otherwise find themselves shot over misunderstanding and misperceptions. 

I don't know that laws can cover every instance and you can always think up scenarios where the circumstances result in a given outcome.  Most often those situations rarely occur.  The law says you have to be in immediate danger. 

In the scenario you offer above, the guy going back to his truck has many options.  He could decide to get back in his truck and drive away.  Are you certain that he's going back to his pickup to get the rifle?  Are you certain that he's going to kill you with it?  Do you have absolutely no other option once he turns toward the vehicle?  Wouldn't there be a set of circumstances  that led up to the confrontation that would allow you to avert the need to use deadly force? 

The law errs on the side of human life (usually).  I have no problem with that.

[bullit]

I would just add that in example 3, as I said, if I do not follow him to his pickup, once he gets his rifle he can kill me and there's nothing I can do to stop him, because by then he is out of range of my weapon, but I can't run fast enough to get out of range of his.  So if the law will not allow me to stay within range of my weapon by following him, the law is saying that I can not do what it takes to defend myself.

If you and your attorney forego the prosecutors efforts to try you beyond a reasonable doubt of committing a crime AND decide to defend yourself under "affirmative defense, just be able to articulate and authenticate your reasons for doing so.  Remember you are going to be tried by a jury of your "peers" (hah hah...).  In reality is going to be non-gun owning soccer moms and left leaning faculty members from the U (note SFG is a rare breed....). 

Finally, I Bucket is spot on in his post.  The BG is still a human being in society's eyes....

[RedDot]

  The BG is still a human being in society's eyes....

And he was trying to "turn his life around" right before he tried to rob you at gun point... his mom always says so 

[Bucket]

And he was trying to "turn his life around" right before he tried to rob you at gun point... his mom always says so 

He made some bad decisions and was hanging out with the wrong people, too.

[depserv]

All very good points my friends.  I'd say it boils down in some cases to the reasonable person doctrine, and what could be sold to a possibly unreasonable jury.  It's one reason (among many) that a wise man will walk away from a fight long before it becomes one, if he can.  But if he can't, as the saying goes, it's better to be tried by twelve than carried by six (even if the twelve are soccer moms and shallow-minded college professors blinded by liberal doublethink).

Oh, and don't forget that Sarah Palin called herself a soccer mom; I'd be ok with her being on the jury if I had to defend myself.

[HuskerXDM]

He made some bad decisions and was hanging out with the wrong people, too.

He was framed by the FBI.  And why couldn't you just have shot him in the leg?

[depserv]

He was framed by the FBI.  And why couldn't you just have shot him in the leg?

I know you're kidding, but in case someone isn't aware of it a point should be clarified: it's my understanding that shooting to wound instead of shooting to kill is a bad idea.  And so is shooting into the ground or air to warn somebody (as though seeing a gun won't stop them but hearing one will). 

As I understand it, the way the law is generally interpreted, you either have the need to use lethal force or you don't, so you either use it or you don't; you don't kind of use it.  A shot to the leg is most likely to stop someone if the bullet hits a long bone like the femur, and if it hits that, chances are it will hit the artery too, which could be fatal.   

The movie Terminator 2 had Arnold shooting people in the leg as though it was a way of turning a firearm into a stun gun.  I know that was fiction, but there are people whose perception of reality is affected by fiction.  Hopefully none here on this site, but who knows. 

Do those with a better understanding than I have of the law have any thoughts on shooting to wound instead of to kill?

[depserv]

Here's another question to spark some discussion on gray areas:

Are there rules on how far you can go to keep someone from taking control of you?  Obviously it's common for criminals to take control of their victims and then commit violence against them somewhere else.  So I would think the same rules that apply to direct and immediate violence would apply to an attempt to take control of you.  But I don't know the law all that well.  I know what I'd do; I just don't know if it would be as clear cut as a deadly response to an immediate violent act.

Say for example someone claims to be a plain clothes police officer but you don't believe him; he insists on putting cuffs on you because he says you look like a suspect or "for your safety" or something, and he won't wait for you to call 911 and confirm that he's who he says he is (criminals tend to make things happen fast).  A lot of people aren't all that familiar with police procedure, and it's not uncommon for criminals to pretend to be police.

If the only way to stop this guy from putting cuffs on you and forcing you into his car is to draw your pistol and shoot him, are you legally justified in doing so?

[bullit]

Use of "Deadly Force" is defensible when you are under the threat of "immediate and otherwise unavoidable threat of death or grave bodily harm".   Would the"reasonable and prudent" person placed in the totality of circumstances you are in make the decision to use "deadly force"?  You must be able to articulate to the jury why you did what you did....

Say for example someone claims to be a plain clothes police officer but you don't believe him; he insists on putting cuffs on you because he says you look like a suspect or "for your safety" or something, and he won't wait for you to call 911 and confirm that he's who he says he is (criminals tend to make things happen fast).  A lot of people aren't all that familiar with police procedure, and it's not uncommon for criminals to pretend to be police.

If the only way to stop this guy from putting cuffs on you and forcing you into his car is to draw your pistol and shoot him, are you legally justified in doing so?

Your scenario could go a number of ways.  A LEO must identify themselves to you and/or demonstrate proof of such  I don't believe outside of that anyone can give you a perfect answer.  Again, what is the reasonable prudent person going to do in the same situation.  If you "reasonably" used deadly force on a LEO who was outside of their department procedures, it would probably put you on the side of the angels....

[Dan W]

If you "reasonably" used deadly force on a LEO who was outside of their department procedures, it would probably put you on the side of the angels....

 In Nebraska I believe it would be a crime to defend your self against the actions of a LEO, even if the action on the part of the officer was not legal

[bullit]

Dan W.... yes, I would tend to agree with you.  There is no clear cut answer with regards to how the trial might come out.  You would be at the mercy of the jury, but defense would rest on totality of the circumstances as you believed them to be and ability to convey such.

[AAllen]

I agree with Bullit on this, first we are dealing with a compound question.  Was the person a police officer?  Did you or should you have known that the person was a police officer?

If those can be anwered in your favor the next question would be, was the act of trying to control you an attempt to kidknap or otherwise harm you?

If all of those questions could clearly be answered where the

totality of the circumstances as you believed them to be and ability to convey such.

were met, then you would be justified. 

There are a lot of questions you would need to answer before going to the point of using deadly force.  That is one of the things you need to be prepared to do if/when you decide to carry for your defense.

[depserv]

There are a lot of questions you would need to answer before going to the point of using deadly force.  That is one of the things you need to be prepared to do if/when you decide to carry for your defense.

I agree.  That's why I started this thread: better to think about these things while we sit calmly in front of our computer than have to try to think about them when our life is on the line and we only have a short time to decide.

I'd like to thank everyone who has made a well thought out response to my hypothetical questions.