Legal to draw?

[ellington]

http://www.delawareonline.com/article/20110615/NEWS/110615034/1-arrested-1-sought-attack-66-year-old-man?odyssey=tab|topnews|text|Home

Would the victim in this article have been justified in drawing his firearm if he had one in his possession? I've taken the CCW course and Iam waiting to hear back on my paperwork, but quite frankly, I'm still not crystal clear as to when I can legally draw my weapon.

Thanks

[Hawkeye]

Not enough information to say one way or the other.  The article only says one of the suspects hit the man. No information is given about the 66 year old victim.  I know of a couple of guys in their 60's who are strong as an ox.  Unless the older man was physically disabled in some manner I do not think disparity of force would come into play. Did the older man somehow provoke the younger man to act? Was the older man in legitimate fear for his life?  Did he have the means to withdraw from the situation? Again, not enough info do say.

[ellington]

Interesting. This is why I ask. I posted this article on a different forum and have thus far received responses that have been 100% YES!!! I'm not disputing your assessment. It's just that these situations are always so grey.

Thanks

[oldgraygeek]

I'm not sure of the legalities... but, if someone steps onto my property and hits me, they will never leave my property.

[Animal66]

I'm not sure of the legalities... but, if someone steps onto my property and hits me, they will never leave my property.

I second that!

[rusirius]

I'm not a lawyer, and I'm probably not one of the 12 that would be sitting on your jury, so take what I have exactly for what it is... My opinion... It's not advice or any of the such... Simply an opinion...

First off, TECHNICALLY speaking Delaware doesn't have a brandishing law.  With that in mind, TECHNICALLY speaking drawing your weapon isn't a crime.  Now if you draw it and point it at someone, or draw it and start yelling that you're going to shoot someone, well then that falls under other laws like terroristic threatening, etc...

However, (if there are witnesses  ) if you drew your weapon and things escalated it could be surmised that you in fact escalated the situation.  That would completely be up to how the jury interpreted things.

Also remember that in Delaware UNLESS you are INSIDE your own home, there is a "Duty to Retreat".  Meaning that your first course of action would be to get inside the house to prevent the encounter.  Now if the guy busts in once your in the house, then it's easy to feel that you are in danger of death or serious injury meaning you could then draw and/or use lethal force and not have much trouble.

If the guy hits you then it's really debatable rather you could use lethal force.  If the guy was built like Tyson and you felt he could easily kill or seriously injure you, then again it shouldn't be hard to be considered justified.  On the other hand if the guy is 5'2" and scrawny and YOU are built like Tyson, then you might have a hard time convincing anyone of that.

On the other hand, if he produces a weapon, then you can easily surmise that serious injury is inevitable, and again would be justified.

One last note.  The reason you are still probably a bit confused about "when" you can draw your weapon (and use it) is because in general an instructor is not going to give you hard set rules about when it is or isn't acceptable.  Why?  Because there really are no hard set rules.  Yes there are laws about what DEFENSE you can use for using lethal force, but again that's interpretable.  It depends on rather they decide to prosecute and if they do, it depends on what the jury believes you "THOUGHT" during the situation.  There really is no right or wrong answer in these "grey" areas... All you can do is use your best judgement based on the law and hope that others decide that your judgement was sound.

[Hawkeye]

The victim told troopers he was sitting on his porch when the two men complained they were overcharged at the nearby Charles Liquors store. One man, later identified by police as 23-year-old Freddie Moore of Wilmington, allegedly punched the victim in the face and pushed him over the porch railing, causing him to fall three feet to the ground. The attacker and his companion then fled, police said.

The vast majority of self defense situations with legally armed citizens goes no further then the victim indicating to the suspect that he is armed.

It is possible that if the guy had a firearm for self protection and he indicated to Moore that he had a gun maybe he would not have been hit. But as the article says Moore and his companion fled. There is no direct threat from someone who is running away from you. You are going to have a hard time convincing a jury that you shot him in the back for self defense as he was fleeing.  You may have a bruised lip and a bruised ego but that is not worth going to jail for.

[TwistedKarma]

Sudden accurance outside of the house is legal.   What is confusing, is what caused this guy to go up on  a porch, from the sidewalk,  WHAT provoked him to punch him?  On drugs, or did the 60 year old get tired of his F words.? (speculation) and tell him to stfu...?  Too much missing clues.    Remember , retreat if possible.  This gives you one more card in your favor if something bad did happen. 

One thing that I got out of training, is that awareness is the key.  Not pulling it, not  knowing when you can, not having it chambered, but reading people , so that you can see it coming.  Defuseing arguments, instead of escallating them.   

From your story, I'd speculate, the old man told him to shut up.  He got sidewalk smacked .     

[Radnor]

I will start off with...  IANAL too.

But a man almost 1/3 the old mans age....  As long as the 66 yo was minding his own biz and did NOTHING to provoke them.  

JUSTIFIED!

I had more written here, but you never know who lurks on the boards.....  
Good topic for a F2F meeting.  There's the bone thrown out again for a group meeting.

[Knotacare]

 I would immediately let them know I am carrying & to leave my property now. I would then  retreat & call the police & not so much for protection but to document the situation. Arguing with the brain dead gets you nowhere.  I do not believe I would have drawn my weapon in this situation unless I felt my life was in danger. Then there would be one less scum bag in the world & I'd have to spend  lots of money on a lawyer.

[Schmenge]

I know one thing for sure and that is I hope to God I never have to draw my weapon. Have you noticed that most of the laws concerning use of force refer to the guy who used that force as "the defendant"? In other words, if any of us ever has to use force, we're at least going to be under threat of indictment.

It's good to talk about this issue and give it lots of thought just in case it ever happens. Keep your eyes and ears open everyone! I hope we all can avoid being "the defendant". 

[GunEnvy]

I am from the school of thought that if you draw your weapon you use it. I would however have no problem with showing the weapon in this case, almost prepare to draw. Maybe stand up, approach the door, tuck the covering garment behind the weapon and just all around let them know to move along. Rarely will the bad guys call the police to claim they were threatened because the bad guys will usually have enough illegal posessions or history to know they will lose in the eyes of the responding officer. Since the victim is technically ON his house I wonder if the need to retreat would be null?