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Thread: Refresh my memory of NC law

  1. #1
    Regular Member Ruger's Avatar
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    Something I was just thinking about... I can't remember if this came up in my CCW class:

    If a BG is attempting to rob you & has his hand in his pocketsaying that he has a gun, yet he has not displayed it (this kind of thing does happen), legally speaking, is this still considered to be a threat of deadly force which can in turn (under NC state law) be answered with deadly force? My gut instinct would be to shoot the piece of trash where he stands - even if he is bluffing, I would have no way of knowing for sure, so why should I chance it? I know that my common-sense approach might not stand up in court though.

    I know that a non-specific verbal threat of violence does not legally justify use of deadly force, but it is a completely different situation (I think?) when the person is standing in front of you claiming to have a gun in their pocket that is pointed at you.

    So I guess the bottom line is this: If he claims to have a gun, but you have no visual proof of it, can you still respond in the same fashion as if the gun were clearly visible?

    I know, every response is going to be prefaced by IANAL, and the next time I am at Calibers I plan to ask Kenny (as he was the instructor for my CCW class), but I figured I'd throw the question up on the wall here too.
    Carry on!

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    I'd say that sounds like a reasonable person would believe there was a gun present. Ok to move out of the way and shoot (if it can be done safely) in my book.

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    This is out of The concealed handgun and the use of deadly force PDF.

    When can I use my handgun to protect myself?
    A. You are legally justified in using deadly force (i.e., your handgun) against another
    person, when and only when:
    1) You actually believe deadly force is necessary to prevent an imminent
    threat of death, great bodily harm, or sexual assault, and
    Page 4 of 7
    2) The facts and circumstances prompting that belief would cause a person
    of ordinary firmness to believe deadly force was necessary to prevent an
    imminent threat of death, great bodily harm, or sexual assault, and
    3) You were not an instigator or aggressor who voluntarily provoked,
    entered, or continued the conflict leading to deadly force, and
    4) The force used was not excessive, i.e., the force used was not greater
    than reasonably needed to overcome the threat posed by a hostile
    aggressor.


    The burden would be upon you to prove in the court of law that one (Or more) of the above situations fit what went on in the altercation.

    I feel that a man trying to rob you while saying he had a gun would fall under "Imminent
    threat of death" Because that is like him saying give me your money or else and tapping on his pocket he is Threating you with a tool which can cause death, So too me that would be a death THREAT, now will he use the gun if he even has it? doesnt really matter (I dont think) the point is he THREATEN you with a gun which gives him the ability to ( http://www.useofforce.us/3aojp/ ) cause you GREAT BODILY HARM. Really there is no way to know if he is bluffing.

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    in CCW class it is stated that the danger must be real, imminent. Someone with their hand in their pocket, in my opinion does not present that, therefore, duty to retreat. While getting my hands on my own weapon, I would move away. If he presented a weapon at this time, then, he's bought and paid for.

    Secondly - unless you are one hell of a shot, and are completely used to and comfortable in real life, here and now, deadly force situations, shooting the gun out of his hands is a fallacy. In real life, you are ngoing to lose fine motor control, and will be lucky to hit a target the size of a man, much less the size of his hand.

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    Regular Member elixin77's Avatar
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    My CCW instructor told me flat out, that if someone has their hand in a pocket, and they either have their finger pointed out to make it look like a gun, or they say they have a gun and will use it on you if you dont (fill in the blank), then I am allowed to fire on them, because that is an imminent threat. If they say they are going to do something to me with a deadly weapon, then by all means do what you can do make sure they don't 'use' their deadly weapon against you.

    Also, NC does not have a duty to retreat if your threatened.
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    I am a CCW instructor, and have been for ten years, and I gave my humble opinion as above. That would bring in that "reasonable man" in that jury box to decide the fine points.

    However, NC does indeed have a duty to retreat, unless you are in imminent danger of loss of life, great bodily injury or sexual assault, or are on one's own premises.

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    BTW I FORGOT IANAL. :celebrate
    A little something to read though...
    http://www.useofforce.us/

    This really has NOTHING to do with your ?

    Plus this NOT from the STATE of NC

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    Regular Member Ruger's Avatar
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    BigDogOps wrote:
    Secondly - unless you are one hell of a shot, and are completely used to and comfortable in real life, here and now, deadly force situations, shooting the gun out of his hands is a fallacy. In real life, you are ngoing to lose fine motor control, and will be lucky to hit a target the size of a man, much less the size of his hand.
    Oh, believe you me, I would never try any such thing. Perhaps you misunderstood. I spoke of shooting the piece of trash (the BG) where he stands. Not shooting the gun out of his hand. If one is a good enough shot to be able to do that, then he might as well just aim for that 3x5 area of the head that is most likely to result in a BG-fatality. Why anyone would ever try to shoot a gun out of a perpetrator's hand is beyond me. Sounds like a good way to become a casualty yourself.
    Carry on!

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    You ain't kidding about that last part!

    As far as one shot, I've always been thought to double tap - if I evert have to use it, I can always thanks falling back on training.



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    Here is another good link too check out....


    http://www.laaw.com/uofdef.htm

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    People get their hands shot in gun fights a lot more often than you might think. Someone telling you that they have a gun falls under the same category as telling you they are going to kill you, in my opinion. In NC you can't respond to a verbal threat with deadly force. I would not take the chance over a few bucks.

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    Regular Member Ruger's Avatar
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    CarryOpen wrote:
    I would not take the chance over a few bucks.
    Giving the dude the money from the register (or giving him your wallet & other valuables) is no guarantee that he's not going to shoot you anyway. I don't care what the robber says. He can tell you to "give me the money & nobody gets hurt", and still shoot you anyway. These kind of things do happen. No, I don't have a specific story to link to, but I think we've all heard about these kind of things on the evening news or in our local papers from time to time.

    In reading The Concealed Handgun Manual by Chris Bird, the author writes about how you cannot take the robber at his word, and it is better to fight back if given the opportunity. He quotesa firearms instructor (whose name I forget) who gives a few examples of how to create a distraction. For example: It could be something as simple as looking past the robber & saying (as though speaking to someone who isn't really there) "Its OK - I'm handling it". The robber (assuming he is alone)is more than likely going to turn his head to look to see who you are talking to. This creates a window of oppurtunity (even if it is brief) for you to draw your weapon & take a shot.
    Carry on!

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    Throwing your wallet at them can create that hesitation too.

    Here's one that went south after giving up the money. They still killed the clerk. This stuff makes me much less likely to cooperate.

    http://www.kctv5.com/video/22870596/index.html


    A question back to the OP. At what point would you wait to shoot if not when threatened. He has the drop on you now. If the gun comes out he has more of a drop on you. If the shooting starts you'll be too busy ducking and covering to be able to draw. Not downing you with that last statement, but no one has a stand up western style gunfight. There's a lot of ducking and running with the shooting. Just stuff to think about.

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    Regular Member Ruger's Avatar
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    Why wait? I wouldn't if I could help it. Making a motion that appears to be going for my wallet could in all actuality be reaching for my SR9 or G21in a SOB holster, or my LCR in a pocket. On the off chance that someone was gutsy or crazy enough to attempt to rob me while OC'ing, then a distraction (as mentioned above) could be an important part of deflecting attention for a second so that I could draw my weapon from its hip-holster.
    Carry on!

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    I believe that you are 100% likely to face prosecution if the robber was not actually armed and only 90% likely to face prosecution if he is armed and didn't show you the weapon. In your CC class your instructor would have shown you a video that explicitly outlines scenarios where you cannot use deadly force. One of those scenarios is a person threatening to kill you and not brandishing a weapon. The next that that shows in the video is a big red circle with a line through it. We can justify it all we want, but from a legal standpoint someone trying to rob you with no visible weapon is not a very strong case for deadly force in NC.

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    I saw a scenario just like this unfold before my very eyes one evening in Greenville. A guy who was riding his bicycle in front of the Sigma Nu house got into some kind of verbal confrontation with the guys sitting on the porch of the house. I didn't hear what was said or who started it. He rode off and while he was riding past my house I heard him say something like yall wait right there I'll be right back. Sure enough about 15 minutes later he rides back past my house and stops in the street in front of their house, drops his bike on the asphalt and is pointing something shaped like a handgun but wrapped in a handkerchief at the dozen or so people on the porch. All but one of them hit the deck, like flat (smart move!). The one guy who didn't drop immediately pulls out his concealed handgun and with it trained on the guy who starts retreating very quickly ( but is backing up, still facing them) he basically backs the guy up at gun point almost half a block away to the kangaroo gas station across the street where there were two campus cop cars parked. I mean this happens right in front of them. The campus cops didn't intervene but seconds later Greenville PD comes screeching up and the guy who was riding the bike is arrested. I don't think the cops ever took the gun away from the guy who backed the other one down. It turned out the guy on the bike had wrapped a screwdriver and something else together to make it look like a pistol. What a dummy!! I would have gladly witnessed against him if the one guy had shot him. I'm glad he didn't but this young idiot on the bike easily could have been killed in that situation. I can't imagine a successful prosecution against the armed citizen if he had actually pulled the trigger. I would have drawn and put a little red dot on him as well but I wouldn't have chased the guy like he did. Obviously everyone who the screwdriver assembly was pointed at thought they were about to be shot as did I...

    This question by the op just made me immediately think back to that night.


    "In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot." - Mark Twain

    I don't bother with pragmatic statistics while discussing my constitutional rights. The issue is far less complex, to me. Free men should be able to act like free men.

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    Like said previously if you feel like your life is threatened you have the right to defend yourself. hopefully you have a witness if no gun found. most bad guys might think people are unarmed so he might be bluffing but you done bring a knife to a gun fight. Anyway just my 2 cents

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    One of those scenarios is a person threatening to kill you and not brandishing a weapon.
    Good point. I forgot about that, and was wrong to say that I would shoot the guy with his finger in his jacket.

    However, wouldn't it be prudent to draw him down at this point, and then see what his reaction is? If he's bluffing, then he'll try and back out as quickly as possible.

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    in CCW class it is stated that the danger must be real, imminent.
    You are mistaken. A "reasonable prudent person" must believe that the threat is real (and imminent). If a BG walks up the the bank teller and states that he has a weapon and his hand is in his pocket, then a reasonable person would be justified in using deadly force. On the other hand, if the BG made the same statement and obviously there was no weapon in either hand then you might have a difficult time convincing a jury that a reasonable person would have thought the threat legitimate enough to use deadly force.

    CCW instructors are notorious for erring on the side of safety. I've heard all kinds of silly opinions by CCW instructors that are nothing but that...uneducated opinions. One Texas instructor even told me that I could carry my weapon thru the airport so long as I was flying within the state of Texas, such as Dallas to Houston. His idea was that since the plane never left Texas, and my permit was valid statewide, that It would be legal. Even in 1995 it was not legal to carry on any commercial airplane regardless of the place of departure or destination. AND, you'll never get anywhere arguing with them because they "have been thru the course and they know the law" and all that.

    You read all the time about some cop who smoked a BG because the cop mistook a pager, cell pohone, etc. for a weapon and the shoot was ruled justified. The acid test is "Would a reasonable, prudent person be in fear of their life." YOU WILL be asked this question by an attorney!

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    Well, maybe I'm wrong, so I'll quote Reece Trimmer from the supplied video.

    “The threat must also be an immediate threat, and imminent threat, a threat of death or serious injury that’s right now, here at hand…a threat the victim confronts and cannot avoid by other means.”
    “Even threats to kill do not justify use of deadly force, where the conduct that constitutes an imminent threat of death is not present.”
    “Do not draw, and do not point a handgun unless you have the legal right to shoot that handgun, and that right does not occur until your life is imminently threatened with death or serious bodily harm”
    “The citizen must have an actual belief that deadly force is necessary to prevent an imminent threat of death, serious injury or sexual assault.”



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    This is a very interesting topic.

    What if someone pointed a fake gun a you that looked real. You shoot and AFTER THE FACT it's discovered the gun was fake. So there was no imminent threat but I don't see how any jury would convict the shooter.

    Likewise I think the hand in pocket is the same.

    If LEO's are acquitted for shooting unarmed people who they suspect are armed but actually have a candy-bar, a wallet, or a hairbrush, the same standard should be set for non-LEO's.

    http://cornellsun.com/node/26276

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    Think about it - Hand in the pocket - Even if he had a gun, BG would have to draw it and point it before firing.

    Object, held and pointed as if it were a firearm. Whether it's a real gun, fake gun, or a snickers bar, if I were the one being pointed at, I'd assume it was a real gun.

    You're talking about time differences in less than a second, but how long is some attorney going to have to make you look guilty.

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    BigDogOps wrote:
    Think about it - Hand in the pocket - Even if he had a gun, BG would have to draw it and point it before firing.
    Why would the BG have to draw to fire?

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    Need to refine your "duty to retreat" You can be under a threatat any time, the key is that the threat must be immediate of imminent death, great bodily harm or sexual assultwhere duty to retreat does not apply. It also does not apply if you are on your own personal property which could be your home or place of business.

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    Well, you got me on that one - I'm thinking pants pocket, not coat pocket. You have a point.

    Sig45man, you are also correct about your own property.

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