For Rule10b5, GunLawyer001 and any other member of the PA Bar

[sgser]

And any one else who would care to add substance

A recent question referring to ROE for the carrying citizen was answered by the suggestion “Read the LAW!!! That’s the best advice I can give you...” and another to spend a few hours studying [Title 18 Chapter 5] Another forum member asked a question and was dragged through the coals for his sincerity. These questions involved how a person might legally and reasonably react to a given situation. The legal part is what I am concerned with. So, I am asking that Rule10b5 and GunLawyer and any other lawyer on the forum to opine.

Rule105b made a number of not so subtle points about the uninitiated and their reading of the law. A few of which I noted below. I, personally, have long since stopped trying to know what I may or may not legally do. A legal opinion, then, is the guide that I am asking for. I guess I’ll understand if you choose not to respond.

In one of his posts Rule said: “Basically, if someone is going to ask, and wants an argument, rather than the right answer, there's no point in me responding.

Let me say up front, I DON’T WANT AN ARGUMENT! All I am hoping for is a clear explanation in plain English about what these statutes are saying with respect to the questions I have.

While I have not quoted GunLawyer I know his position is that we act prudently and not "go to extremes" without justifiable provocation. His advice, as I recall, was generally even tempered.

That being said, I have some questions concerning Title 18 Chapter 5.

But first, let’s get the disclaimer up front. Let it apply generally

So says Rule10b5

The material presented herein is for informational purposes only, is not guaranteed to be correct, complete, or up to date, does not constitute legal advice and does not establish an attorney-client relationship. You should NOT act or rely on any information in this post or e-mail without seeking the advice of an attorney YOU have retained.

In plain English, while I am an attorney, I'm NOT your attorney, and I'm NOT giving you legal advice. .

While I thought I understood what those first five lines meant, it’s the “plain English” part that left no doubt. And it’s “plain English” that I would really like to have as answers to the questions below.

Let me take a few of Rule’s comments, admittedly out of context, but I think they might explain why I think my questions need to be answered by those trained to interpret the law.

In Miscellaneous threads Rule stated:

… the danger that I'm always raving about when well-meaning folks who aren't lawyers start reading the law. You read Jenkins and think "Oh, hue & cry that makes sense" -- and you act in reliance on it -- when it doesn't mean even remotely what you think it meant even though the plain language looks like it does to you.

Followed by:
This is why lawyers and law school exist -- because the law is a complicated bitch. It's not a shortcoming for anyone -- it's just that you can't expect to perform surgery properly without going to med school. Same thing with reading the law.

And posted elsewhere were:

It’s pointless to debate any topic beyond a certain point with someone who's not trained enough to, fundamentally, understand why his argument won't work.

It's dangerous for people who aren't trained to opine on the state of the law.

Because I've been trained to understand and analyze the law. Because I've done enough appellate work to know what is and isn't a good argument. Because I've tried enough cases to know what you do and don't argue before the jury walks in the room. Because I can read a bloody statute.

… bunch of statutes in a book that you can look at and apply to whatever situation is at hand without even a passing knowledge of hundreds of factors that are so basic that most lawyers don't even consciously think of them when approaching a legal issue

And all of a sudden you have to spend a couple of hours reading legal codes to figure out whether it's legal for you to walk East on a sidewalk, after dark, with your dog on a leash while whistling softly to yourself.

The above makes abundantly clear that without good legal counsel we’re in the dark as far as the law is concerned.

For all of these questions assume legally CC.

So, the first question.

Let’s say you’re walking the dog or with your wife and/or kids and someone approaches you and demands your wallet or whatever. Let’s say you or your wife is disabled and retreating speedily isn’t really an option (As it probably would be with kids). You back up a step or two but the bad guy(s) closes on you all the time demanding your property (to which he has no legal claim). Consider also that you know that all too often the sociopaths among us are usually not satisfied with taking your property and leaving. Let’s say on one hand there are no overt threats. Then on the other, that there are. What if he starts to kick your dog?

How far can one go and feel, more or less, confident that one is acting in a justifiable manner?

How about

You are in your car and it is blocked so that you cannot drive away. You’ve made your 911 call. The bad guy(s) are converging on you. They begin to kick or otherwise damage your vehicle. In one case they are armed with tire irons or bats, in another, nothing.

And

You are on your property and one or several people trespass. You ask them to leave. They refuse. You call 911. They spread out and begin to damage your property.

Finally

In any situation where one is accosted and feels threatened how may a person display a firearm without it being considered brandishing?

Thanks in advance

[LittleRedToyota]

i am not a lawyer, but will try to give some kind of answers to your questions. i think the actual lawyers might be a little hesitant to address your specific questions because every situation is unique. the outcome depends on the "totality of the circumstances" which can never be adequately conveyed on an internet forum or in a hypothetical situation at all.

when lawyers give advice about hypothetical situations, people tend to try to apply that advice to other situations where the "totality of the circumstances" are different and the advice is not relevant.

unfortunately, there simply are not concrete answers to the questions you are asking. each case is unique...and depends not only on the totality of the circumstance of that case, but also on the LEOs, DA, and judge involved.

having said that...and repeating once again that i am not a lawyer (but do often play one at my business) here goes:

So, the first question.

Let’s say you’re walking the dog or with your wife and/or kids and someone approaches you and demands your wallet or whatever. Let’s say you or your wife is disabled and retreating speedily isn’t really an option (As it probably would be with kids). You back up a step or two but the bad guy(s) closes on you all the time demanding your property (to which he has no legal claim). Consider also that you know that all too often the sociopaths among us are usually not satisfied with taking your property and leaving. Let’s say on one hand there are no overt threats. Then on the other, that there are. What if he starts to kick your dog?

How far can one go and feel, more or less, confident that one is acting in a justifiable manner?

the fact that he is demanding your property is basically irrelevant (except to the point that you could use it help show that he is presenting you or your wife with the threat of serious bodily injury or death).

if giving him your wallet will make him go away, you must do so. however, the question is "how do you know if he will go away if you give him your wallet?" good question.

as you can probably see, we have already left the world of cut-and-dried for the world of fuzzy interpretation--which is only predictable to a certain extent.

certainly, if he make over threats that would help your case. if he starts kicking your dog, that would also help your case. the fact that your wife is disabled and cannot retreat will certainly help your case.

ultimately, you have to be able to articulate (and convince either the DA, judge, or a jury) that you were legitimately in fear of serious bodily injury or death to either you or your wife...that you did not believe giving up your wallet would end the threat...and that you could not retreat with complete safety.

How about

You are in your car and it is blocked so that you cannot drive away. You’ve made your 911 call. The bad guy(s) are converging on you. They begin to kick or otherwise damage your vehicle. In one case they are armed with tire irons or bats, in another, nothing.

i would say that if the are armed with tire irons/bast and actually break any of the glass, you would be pretty much in the clear. at that point, it would be hard to argue that you were not in imminent danger of serious bodily injury or death. it woudl also be hard to argue that you could retreat with complete safety (assuming you could not drive through your yard or something).

And

You are on your property and one or several people trespass. You ask them to leave. They refuse. You call 911. They spread out and begin to damage your property.

just from this description, it does not sound like you are in danger of death or serious bodily injury, so you cannot use deadly force to stop them from damaging your property under PA law.

Finally

In any situation where one is accosted and feels threatened how may a person display a firearm without it being considered brandishing?

there is no "brandishing" law in PA. however, pointing a firearm at someone can be "assault". i'm sure you could get a "making terroristic threats" or something like that in there too.

basically, imho, the best rule is do not make it known you have a firearm until you are ready to draw and use it--and would be justified in doing so. if, in the act of drawing, the threat realizes you have a gun and turns tail and runs, great. if not, then you do what you need to do.

however, if you are in a situation where using deadly force would not be justified and you display a firearm and that causes the situation to escalate to one where deadly force is used, you are in a world of poo legally.

again, i am not a lawyer.

[fingers80002]

Dead men tell no lies!

[rwilson452]

Anyone care to take a crack at explaining "disparity of force"?

[jon'76]

I'm no expert and certainly not a lawyer, but in my uneducated and unsubstantiated opinion the law and legalities rarely come into play until after all is said and done. If you're being threatened you'll KNOW when it's time to stop the aggressor, and then you'll hope and pray it was legal and the DA doesn't decide to make an example out of you. What is justified isn't always legal, and what is legal isn't always justified.

[GunLawyer001]

It's not a good idea for me to draft a comprehensive legal brief on all the hypotheticals involving the use of lethal force.

Generally, you can't kill someone for what they might possibly do, but you may be excused the use of lethal force for what you reasonably expected them to do, if they were going to use deadly or crippling force against you (and you didn't provoke them), or against another innocent person, or to stop a rape. Other scenarios may also justify deadly force, but if you haven't memorized the cases and statutes, I'd forget about them.

There's no legal requirement that you hand your wallet to a mugger in the hope (or even certainty) that he will then go away. You do have to flee if you can do so in safety, but you don't need to cooperate with their unlawful demands. As a practical matter, you need to decide whether the subsequent criminal and civil trials would be less burdensome than losing your wallet, ID, LTCF, credit cards, etc. Another factor is that the mugger is likely to steal your gun if you don't use it. There may be a "special" afterlife for people shot with their own guns, who knows.

If the mugger simply demands your wallet, you can't shoot, it's a crime but not an immediate deadly threat yet. If you refuse and he vaguely alludes to "busting you up", you still can't shoot. If he then draws a weapon and points it at your wife's head, it's probably too late for your Patented Speedy Combat Draw 'N Fire technique, since you can't outdraw a man who's already got his gun out. So perhaps you'd want to have your weapon out and ready before you'd need to pull the trigger.

There's no crime called "brandishing" in PA. What they'd get you for is probably assault, if you display a firearm and make implicit or explicit threats. But "justification" applies to assault, too, so scaring away a mugger by displaying a firearm could be justified. Police are often confused about the distinction between "use" of lethal force and "display" of lethal force, so there may be some extra charges tossed in. Your lawyer should understand that "displaying" is not "shooting", and the balancing test for justification is different between the two acts.

My advice is to shoot if you are willing to spend time in jail and spend all your money on lawyers, rather than not shoot and allow the perp to do whatever he looks like he's planning. So I'd shoot a man to save my life, my family, even an innocent victim, because I don't want to spend the rest of my days reflecting on how I could have saved someone, but let them die. But I won't shoot as my car is being driven off by thieves, or to stop a liquor store robber as he flees the scene, or because a car full of teens just smashed my mailbox.

If someone starts kicking my dog to death, I'll likely intervene with my gun in hand, and react further as appropriate. It's worth noting that someone who persists in unlawful conduct in the face of an armed citizen is more likely to be intending something truly godawful. Here's an example: A woman is standing alone by her car in a supermarket lot, late at night, and some cheesy-looking guy approaches from 100 feet away while asking if she has change for a dollar, or can she show him an address on a map. He's now 20 feet away, she can't see a weapon, he's made no threats, but it's 10 PM and nobody else is within sight. She warns him loudly that he has a gun, and should not come any closer, and she shows him the gun. He reacts by approaching faster, while saying that he just wants directions or whatever. At 3 feet away, she shoots him. If I'm on the jury, I'll acquit, because no rational man will brave a gun just for directions, but a rapist or mugger might. Is that the law? I dunno, but I would vote to find that she is not required to wait until he has his hands on her before reacting, because that's how thousands of women and kids go missing every year. At the least, it's Darwinian natural selection, and one less dumbass on the loose.

[MrUgly]

Is it really necessary to play "What if..." on every scenario? There are too many variables such as time of day, type of clothing and what you had for lunch that could be determining or mitigating factors.

"Would a reasonable person be in fear for their life?" Yes or no?
"Can you safely retreat from the threat with out exposure to harm?" Yes or no?
"Do you have the means to stop the attack?" Yes or no?

And even if you were on video tape with the bad guy yelling "I'm gonna kill you, sucka!" and waving a gun at you, you might *STILL* be charged. It's all situational. These threads that pop up "Would I be justified if *THIS* happened?" or "If I am masturbating in my car and someone tries to stab me, can I shoot them?" or "If the Wal-Mart greeter starts beating me with a flyer, can I shoot?" are just getting silly. Maybe I'm being jaded, but jeeze. We are gun owners. We routinely handle objects that can kill. The exercise of common sense should not require the consensus of an Internet forum. At the end of the day, it's you, your conscience, and the District Attorney that decide how it goes.

If you want a legal opinion, GO HIRE A LAWYER!

[normanvin]

Is it really necessary to play "What if..." on every scenario? There are too many variables such as time of day, type of clothing and what you had for lunch that could be determining or mitigating factors.

"Would a reasonable person be in fear for their life?" Yes or no?
"Can you safely retreat from the threat with out exposure to harm?" Yes or no?
"Do you have the means to stop the attack?" Yes or no?

And even if you were on video tape with the bad guy yelling "I'm gonna kill you, sucka!" and waving a gun at you, you might *STILL* be charged. It's all situational. These threads that pop up "Would I be justified if *THIS* happened?" or "If I am masturbating in my car and someone tries to stab me, can I shoot them?" or "If the Wal-Mart greeter starts beating me with a flyer, can I shoot?" are just getting silly. Maybe I'm being jaded, but jeeze. We are gun owners. We routinely handle objects that can kill. The exercise of common sense should not require the consensus of an Internet forum. At the end of the day, it's you, your conscience, and the District Attorney that decide how it goes.

If you want a legal opinion, GO HIRE A LAWYER!

What he said................

[Carnes]

And any one else who would care to add substance

...snip...

Let me take a few of Rule’s comments, admittedly out of context, but I think they might explain why I think my questions need to be answered by those trained to interpret the law.

In Miscellaneous threads Rule stated:

… the danger that I'm always raving about when well-meaning folks who aren't lawyers start reading the law. You read Jenkins and think "Oh, hue & cry that makes sense" -- and you act in reliance on it -- when it doesn't mean even remotely what you think it meant even though the plain language looks like it does to you.

Followed by:
This is why lawyers and law school exist -- because the law is a complicated bitch. It's not a shortcoming for anyone -- it's just that you can't expect to perform surgery properly without going to med school. Same thing with reading the law.

And posted elsewhere were:

It’s pointless to debate any topic beyond a certain point with someone who's not trained enough to, fundamentally, understand why his argument won't work.

It's dangerous for people who aren't trained to opine on the state of the law.

Because I've been trained to understand and analyze the law. Because I've done enough appellate work to know what is and isn't a good argument. Because I've tried enough cases to know what you do and don't argue before the jury walks in the room. Because I can read a bloody statute.

… bunch of statutes in a book that you can look at and apply to whatever situation is at hand without even a passing knowledge of hundreds of factors that are so basic that most lawyers don't even consciously think of them when approaching a legal issue

And all of a sudden you have to spend a couple of hours reading legal codes to figure out whether it's legal for you to walk East on a sidewalk, after dark, with your dog on a leash while whistling softly to yourself.

The above makes abundantly clear that without good legal counsel we’re in the dark as far as the law is concerned.

I think that it is way past time that we as citizens demand that the government provide us with translations of the laws, in plain English, so that we can know whether or not we can, 'walk East on a sidewalk, after dark, with your dog on a leash while whistling softly to yourself.'

It's total BS that we need to hire an attorney, spend hundreds of dollars just to find out if, 'I can walk my dog East...' Then afterward be arrested for doing so, then pay an attorney thousands of dollars so the court can tell me it was okay.

Why do we put up with this crap!? The system is supposed to be by us, for us... Not by 'them', to terrorize us!

[Chevmeister]

let me start
IANAL if you take my advice adn goto jail for it, then its your problem, if your stupid enough to do somethign cause you read it on the internet, please seek professional help.

When i am asked "when can i shoot" my general responce is if your going to be killed, raped, or beat beyond bandaids and stitches, within the next 3 seconds, Shoot. Thats assuming you can draw and fire in under 2 seconds. As far as the legalities of this, well if your going to be dead, raped or beat half to death, wouldnt you rather have 12 people decide your fate rather than the person willing to do you harm?
Apply that to your questions, thats my generic review of the law. as far as to protect property, if you come out your door with a shotgun, people will leave. Is that legal, I dunno, is there a law against cleaning your shotgun outside???