Vegaspassat wrote: Waking down the street. And some guy (with a badge) points a gun at him. Is he within his legal rights to defend himself with deadly force?
No. In brief, if a guy with a badge (cop) points his gun at you, you are obligated to comply with his instructions. Assume arguendo, you have done nothing wrong. He may be pointing a gun at you for any # of reasons. He very well may have RAS or PC. You of course have no way of knowing at the beginning of the stop why he is pointing his gun at you. You can't assume, as an OCer, that your OCing is why he is pointing a gun at you. For all you know, an armed robbery just occurred and you match the description, etc.
I was stopped at gunpoint back in my college days. I had done NOTHING wrong. Turns out the scenario was exactly as above. An armed robbery had just occurred. I was driving a type of vehicle that matched the description of the get away vehicle. My physical description also matched the perp. My location and direction of travel were consistent with having committed the armed robbery, also.
Iow, he had bucketloads of RAS that I was the robber.
*i* had no way of knowing that. I just know a cop was pointing his gun at me (several, actually) and issuing me orders. I followed same orders, was proned out on the pavement, etc. and handcuffs were applied.
They explained why they were seizing me and I explained where I was coming from (taco bell). I even had a receipt, plus I was in the middle of eating a taco at the time I was stopped. Since a stop was made for a crime involving threatened deadly force (the perp used a long gun), the officer was justified in frisking me , which he did, as well as the passenger compartment (justified under Michigan v. Long - in Michigan v. Long, the SCOTUS determined that if police have RS that the person is armed and dangerous, they may frisk the passenger compartment of the vehicle he was stopped in. Similar to a terry frisk. It's essentially a "Car frisk", cannot search in areas where the weapon couldn't be (container too small, etc)
After they frisked me and the car, pursuant to Terry v. Ohio and Michigan v. Long, I spoke with them, told them where I was coming from etc etc and it became apparent pretty quickly that I was not the perp.
The point of the story is that you can't know at the time you are stopped at gunpoint by a cop whether he has RAS of a violent crime or not. The fact that you have done nothing wrong is ENTIRELY irrelevant. The issue is the facts and circ's known to the officer at the time he uses that force. In brief, you have to assume he's in the right for doing what he is doing. If it turns out after the fact, he was NOT , you have avenues for redress (consider the guy who just got 15k for getting a gun pointed at him because the cop did NOT have justifiable reasons to point a gun at him (imo, he should have gotten a bigger settlement, but I digress).
Being stopped at gunpoint is what is referred to as a "felony stop". They are key process for officers, and the methods used are done for officer safety and are entirely consistent with the 4th amendment. The force used by officers in a stop must be reasonable GIVEN the crime suspected. As long as that is the case, the stop will be considered a Terry (as opposed to a constructive custodial arrest) and also given that it is not unreasonably extended in time, etc.
However, as a contrary example - If a cop stops you at gunpoint for a (for example) shoplift where no gun was used or implied, it would
1) be viewed as a de facto arrest (vs. terry seizure) and all evidence gained, to include testimonial and physical would be suppressed
2) the ofc. would be civilly liable, as well as subject to deparmental discipline
I've stopped people at gunpoint many many times in a 20+ yr long career, and for everything you could imagine, from murder suspect to you name it. I'm still here living and breathing, too - which is the point. Otoh, one of my best friend was shot and killed during a terry type encounter. He was an attorney before he was a cop and I have no way of knowing if he pat frisked the guy, but whatever occurred during the stop, it ended up with him dead. I think about that nearly every day and I use proper officer safety to protect myself, while balancing the right of suspects to be free of UNreasonable seizures.
Stops at gunpoint allow officers to "get the draw" on suspects. This is valuable because it gives them the upper hand IF the suspect responds violently. It also deters the suspect FROM acting violently, because he can see he is outnumbered and the cops have the drop on him. In cases where they do respond violently (reach for the gun, etc.) it's often a suicide by cop, a guy determined not to be taken alive, etc. I've never had to shoot during a terry stop, thank god.
In brief, if a cop points a gun at you and issues orders, yes - you are legally obligated to comply. And remember, if you are OCing, you may ASSUME it is a cop wrongly drawing down on you merely because you are OCing (and if so, that cop deserves serious discipline and maybe even termination depending on training, facts, etc. ) but it very well may be for some other reason entirely.
cheers
