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"Defense of a third party" question
Posted: Tue Sep 09, 2008 1:54 pm
by mr.72
OK, I am trying to find a way to articulate this clearly.
Does the "defense of a third party" justification for the use of deadly force include a situation where the third party has escalated the conflict?
Like for example, let's say you are out with your brother, and some bad guy threatens your brother in some way. Rather than doing the smart thing and walking away, your brother engages the bad guy in the conflict and aids in escalating until the bad guy finally winds up with a gun drawn on your brother. So you, the CHL holder, end up shooting the bad guy in defense of your brother.
Thoughts?
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 2:08 pm
by Purplehood
I would imagine that technically the bad-guy is still the one that instigated the trouble in the first place. If he hadn't, the incident would never have occurred. So based on what limited info you have provided, you are probably justified.
That is just an opinion, of course.
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 2:24 pm
by srothstein
The way I read the law, this could be very shaky ground. It is clear that the third person would not necessarily be jusitfied in using force himself (read section 9.31(b)(4) where it describes how you cannot use force against force that you provoked). The third person would clearly have to take some step to de-escalate or break off from the confrontation at this point.
And, in 9.33, you can use the same force to protect a third person that the third person could use. So, you would not be justified until the third person did something to de-escalate.
At the point you describe, I am not sure that you could justify the use of deadly force.
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 3:01 pm
by Purplehood
I think the issue is did his brother "provoke" the incident? Based on my limited read, he didn't. If he did, then I agree with you.
BTW, I thought provocation was not a defense?
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 3:04 pm
by mr.72
Well I tried to come up with a distilled hypothetical situation.
A much more complicated, convoluted but essentially similar situation could potentially arise and I'd like to be apprised of the law.
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 3:23 pm
by hankintexas
mr.72 wrote:Well I tried to come up with a distilled hypothetical situation.
A much more complicated, convoluted but essentially similar situation could potentially arise and I'd like to be apprised of the law.
It seems to me that if you know the possible situation "could potentially arise" in advance, You would need to make every effort to prevent such a confrontation from occuring?
If I knew in advance that "so and so" may want to harm my brother, I would tell my brother to stay away or get LEO's intervention in advance.
Then again, If my brother picks a fight, it's his own butt. He should know better. I am not going to back him up if he is wrong and instigated the situation.
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 3:34 pm
by mr.72
The situation is not quite so simple as I've made it out to be, and trying to read between the lines is not going to help illuminate it. I am not going to go into greater detail on an internet forum!
Trust me every possible effort has been made to avoid such a confrontation. There is only so much you can do in advance.
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 3:40 pm
by Purplehood
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 7:14 pm
by Venus Pax
mr.72 wrote:The situation is not quite so simple as I've made it out to be, and trying to read between the lines is not going to help illuminate it. I am not going to go into greater detail on an internet forum!
Trust me every possible effort has been made to avoid such a confrontation. There is only so much you can do in advance.
Without knowing all the details, it's hard for us to give you an accurate opinion; however, I understand your desire not to go into detail. I have relatives that have made me want to dig a hole and crawl in it, and I don't care to air it on the 'net.
I'm sensing from your post that self-control isn't your brother's forte. Many people have this problem. I would have a serious heart-to-heart with my brother if I were you. You need to let him know that you will do what you can for him if he's attacked and tries to flee (if this is indeed the case), but that you will not stand by with a water hose if he chooses to stir an antpile.
JM2C.
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 8:04 pm
by The Annoyed Man
First, I honestly have no idea of what I'm going to say next has anything to do with your particular situation, but this is just what came to my mind on reading this thread.
I'd slap my brother (the 2nd party) to get his attention if necessary, and drag him away from the confrontation with the 3rd party. A big man can walk away from a verbal confrontation, secure in the knowledge that he's the better man. That's how you de-escalate. If possible, you walk away. It it is a small man who invests so much of his own ego in the situation that he can't walk away from it if possible. Who cares what anybody else thinks about it? Once you're outside, then you can call the law and get it on record that the 3rd party is an aggressor. If the 3rd party persists in being a jerk and persists in trying escalate the situation, he just winds up looking like the fool that he is. That also leaves you as the 1st party in a much better position to justify use of lethal force in defense of the 2rd party should the 3rd party produce a roscoe and start waving it around.
But also, my brothers are all grown up and fully capable of making their own decisions, even if they are stupid decisions. Fortunately, neither of them is a stupid man, and both are secure enough in their own identities that they don't need to engage in contests of urinary azimuth and range with foolish strangers.
...at least that's what I was thinking.
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 8:55 pm
by mr.72
This is not a situation only involving me, and my brother. but my parents, my children, and my brother's children are also in the potential picture, so my brother's behavior would be all about a misguided protective streak. My brother is 2 years younger than I am and he and I have a long history of making opposite choices. A heart-to-heart from me will not help any. He would do the opposite of what I suggest.
Re: "Defense of a third party" question
Posted: Tue Sep 09, 2008 10:40 pm
by aardwolf
mr.72 wrote:I am not going to go into greater detail on an internet forum!
Without details, all I can say is
9.31. SELF-DEFENSE.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(4) if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor;
and
9.33. DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if:
(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.
Re: "Defense of a third party" question
Posted: Wed Sep 10, 2008 9:14 am
by The Annoyed Man
mr.72 wrote:This is not a situation only involving me, and my brother. but my parents, my children, and my brother's children are also in the potential picture, so my brother's behavior would be all about a misguided protective streak. My brother is 2 years younger than I am and he and I have a long history of making opposite choices. A heart-to-heart from me will not help any. He would do the opposite of what I suggest.
It sounds pretty complicated, and I understand why you don't want to go into details in public. I wouldn't want to either, given the value I place on my family's privacy.
[just kidding]
It may be counter-intuitive, but maybe telling your brother, "What
ever you do,
don't get therapy!" might help?
[/just kidding]
Seriously though, it sounds like a difficult situation for you.
Re: "Defense of a third party" question
Posted: Wed Sep 10, 2008 9:44 am
by mr.72
The Annoyed Man wrote:
It sounds pretty complicated, and I understand why you don't want to go into details in public. I wouldn't want to either, given the value I place on my family's privacy.
[just kidding]
It may be counter-intuitive, but maybe telling your brother, "Whatever you do, don't get therapy!" might help?
[/just kidding]
Seriously though, it sounds like a difficult situation for you.
It is a difficult situation, but hopefully it never really materializes. I am just trying to think ahead, just in case.
Re: "Defense of a third party" question
Posted: Wed Sep 10, 2008 6:17 pm
by petroleumag07
I would just pray that the next time any situation arises that you are there to help your brother get away from the scene and remain safe.
Whatever that requires.
Just ask God for disernment on your part, your brother's part, and the other party's part.