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Thread: how do self defense shootings get handled in virginia?

  1. #1
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    how do self defense shootings get handled in virginia?

    hello world! welcome to the open carry forum!
    Last edited by opencarrypalmtrees; 04-26-2012 at 09:11 PM.

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    Moderator / Administrator Grapeshot's Avatar
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    You research w/cites and give us your answers first - then we'll critique them.

    It would seem that your sole contribution to this site is to present a litany of "what if" scenarios - sincerely believe it is time to offer more positive augmentation.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Accomplished Advocate peter nap's Avatar
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    Getting your backsides kicked isn't worth killing someone over. It doesn't matter if it's legally justified or not but just to answer your question, it is NOT legally justified.

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    Getting your backsides kicked isn't worth killing someone over.
    That's a broad statement that I would have to say would be a case by case basis. How do you know that the person will simply stop with kicking your backside? Once your down, you have no defense, they can continue to beat you until dead.

    "He was only beating his wife's backside, she didn't HAVE to shoot him.."

    Agreed that "what if?" scenarios really don't help much here on OCDO, much better to cite case law than opinions, which hopefully is what the judges are going to do...

  5. #5
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by xd shooter View Post
    That's a broad statement that I would have to say would be a case by case basis. How do you know that the person will simply stop with kicking your backside? Once your down, you have no defense, they can continue to beat you until dead.
    .
    He didn't say wife and I've heard all the BS before. If you want to shoot someone during a simple assault, feel free with my blessing. Grapeshot told me a while back they don't allow soap on a rope so keep a tight hold.

    If that sounds gruff, sorry. The what if and shoulda, coulda, woulda, scenarios get old real fast.

    The way the OP presented this is simple assault and doesn't qualify for lethal force.
    Last edited by peter nap; 01-01-2012 at 08:40 PM.

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    heres something positive about mace

    You may not be able to shoot someone for beating you, but you can certainly mace the heck out of them! The law allows you to use mace in defense of your person, life or property Look at this virginia statue. I personally recommend gel mace since its great for preventing cross contamination.


    § 18.2-312. Illegal use of tear gas, phosgene and other gases.

    If any person maliciously release or cause or procure to be released in any private home, place of business or place of public gathering any tear gas, mustard gas, phosgene gas or other noxious or nauseating gases or mixtures of chemicals designed to, and capable of, producing vile or injurious or nauseating odors or gases, and bodily injury results to any person from such gas or odor, the offending person shall be guilty of a Class 3 felony.

    If such act be done unlawfully, but not maliciously, the offending person shall be guilty of a Class 6 felony.

    Nothing herein contained shall prevent the use of tear gas or other gases by police officers or other peace officers in the proper performance of their duties, or by any person or persons in the protection of person, life or property.

    sidenote: sorry for any negative scenarios while open or conceal carrying, but I post normally the scenarios that can happen and that need an expert opinion. I have spoken to a number of guys at the gun store that say if they were attacked they would just shoot the guy and I have had to say like the black sheep of the group well that technically may not be allowed. : P

  7. #7
    Accomplished Advocate peter nap's Avatar
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    There are about 10,000 things you can do during a fight. I usually think of 9,999 after it's over.

    That's not what you asked about though.

    After being hit 2 times extremely hard and it hurts, you draw your pistol and fire to stop further attack.

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    Not to try to be argumentative here, I understand your frustration with what if's, but I have a problem with your very broad statement.

    Are you saying that in NO case is being beat upon a good cause for pulling your gun and shooting back? That this WILL be cause for you going to jail?

    http://fox.daytonsnewssource.com/sha...s/vid_47.shtml

    This bad guy didn't have a gun, was only punching the LAC, and got shot for it...

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    Quote Originally Posted by peter nap View Post
    SNIP There are about 10,000 things you can do during a fight.
    Yes. And, our OPer seems to have overlooked the first one--get out of the way.

    The first rule of self-defense is to be free of instigation.1 Although the OPer does not pose an instigation, the clean-hands rule can be extended a little bit by yielding.

    "Sorry. I don't want any trouble." (raise hands halfway to surrender position while backing up) This proves you aren't interested in fighting to any cameras or witnesses. Plus, getting out of his way is much, much less trouble than a police investigation for a fight, and much, much, much less jeopardy than a police investigation for a shooting.

    If a defensive macing or defensive shooting still develops, meaning he wanted a fight anyway, I want all the law on my side that I can get. By retreating first, I am reinforcing that I wanted no part of the trouble, and making it even harder for someone to say I did any instigating.

    Here is a source of info on the law on self-defense in VA: http://www.virginia1774.org/Page5.html

    1. From 1774.org: "Justifiable homicide in self-defense occurs [when] a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself. "Smith, 17 Va. App. at 71, 435 S.E.2d at 416 (citations omitted).
    Last edited by Citizen; 01-02-2012 at 01:25 AM.

  10. #10
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by xd shooter View Post
    Not to try to be argumentative here, I understand your frustration with what if's, but I have a problem with your very broad statement.

    Are you saying that in NO case is being beat upon a good cause for pulling your gun and shooting back? That this WILL be cause for you going to jail?

    http://fox.daytonsnewssource.com/sha...s/vid_47.shtml

    This bad guy didn't have a gun, was only punching the LAC, and got shot for it...
    I try not to get legal advice from Fox News XD....for that much,I try not to get it from internet forums either.

    Read the op's question:

    you are at the store you are standing in line and a guy starts cussing at you because you are in his way even though you did nothing wrong, he starts punching you and you realize being only 5'8 he just feels too strong and you are worried he might actually beat you up. After being hit 2 times extremely hard and it hurts, you draw your pistol and fire to stop further attack. You manage to disable the person and they are on the floor screaming in pain. You call 911.... what happens next?
    Given that question, not being attacked by a 50 foot gorilla that pulled your left arm off.
    You were involved in a fight you could have walked away from, were hit 2 times...hard...

    Recreational note:
    The idea of hitting someone is to hit him hard

    You shoot him because "You are afraid of being beaten up" Youare going to be charged.

    You can argue the point all you want but that's the simple reality of it.

    McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, ___ (1978).
    The “bare fear” of serious bodily injury, or even death,
    however well-grounded, will not justify the taking of human
    life. . .
    . “There must [also] be some overt act indicative of
    imminent danger at the time.” (citations omitted). In other
    words, a defendant “must wait till some overt act is done[,] .
    . . till the danger becomes imminent.” (citation omitted).
    In the context of a self-defense plea, “imminent danger” is
    defined as “[a]n immediate, real threat to one's safety . . .
    .” (citation omitted). “There must be . . . some act menacing
    present peril . . . [and] [t]he act . . . must be of such a
    character as to afford a reasonable ground for believing there
    is a design . . . to do some serious bodily harm, and imminent
    danger of carrying such design into immediate execution.”
    Getting punched twice doesn't meet the standard in Virginia!
    Last edited by peter nap; 01-01-2012 at 09:29 PM.

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    Regular Member scouser's Avatar
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    Quote Originally Posted by opencarrypalmtrees View Post
    here is a special scenario,

    you are at the store you are standing in line and a guy starts cussing at you because you are in his way even though you did nothing wrong, he starts punching you and you realize being only 5'8 he just feels too strong and you are worried he might actually beat you up. After being hit 2 times extremely hard and it hurts, you draw your pistol and fire to stop further attack. You manage to disable the person and they are on the floor screaming in pain. You call 911.... what happens next? Are there good examples of this kind of case here in virginia on how the supreme court of virginia ruled on this scenario?

    Will this be considered a disparity of force and would be justified?

    How much are the attorney fees? Would it be okay to just ask for an attorney for free before you speak with police? ....
    I'd just hit him back. Keep in mind you asked what would we do not what we think you should do, so that's my answer. Ask those here who have met me in person, I'm not a small guy, and where I grew up we learned to fight back with our fists. I've been attacked in the street by 3 men at once and I wasn't the one who ended up in hospital.

    However, let's consider common sense now. I know I'm armed and have the ability to shoot the guy if I need to. I also know it isn't necessary. I'd just apologize for being in his way and step to the side. If he decided he still needed to escalate to violence there are plenty of things to hand I could use before resorting to a firearm. Have to know to take the higher road, control myself and avoid trouble not go looking for it. Seems sometimes on here there are those who are just looking for any justification to shoot another person. That's a LAST RESORT, not the first thing you should do

    If you want to know about the legal aspect of your scenario, ask an attorney
    Last edited by scouser; 01-01-2012 at 10:37 PM.

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    Regular Member MSC 45ACP's Avatar
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    Quote Originally Posted by scouser View Post
    I'd just hit him back. Keep in mind you asked what would we do not what we think you should do, so that's my answer. Ask those here who have met me in person, I'm not a small guy, and where I grew up we learned to fight back with our fists. I've been attacked in the street by 3 men at once and I wasn't the one who ended up in hospital.

    However, let's consider common sense now. I know I'm armed and have the ability to shoot the guy if I need to. I also know it isn't necessary. I'd just apologize for being in his way and step to the side. If he decided he still needed to escalate to violence there are plenty of things to hand I could use before resorting to a firearm. Have to know to take the higher road, control myself and avoid trouble not go looking for it. Seems sometimes on here there are those who are just looking for any justification to shoot another person. That's a LAST RESORT, not the first thing you should do

    If you want to know about the legal aspect of your scenario, ask an attorney
    ...While some of us are at the other end of this spectrum. I am permanently disabled and have a truck-load of documentation to prove the fact. If I am required to defend myself, it will be because I am in fear for my life.
    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
    (unknown 'gun~writer')

    Remington 1911 R1 (Back to Basics)
    SERPA retention or concealed...

    "Those who hammer their guns into plows will plow for those who do not." ~Thomas Jefferson
    (Borrowed from "The Perfect Day" by LTC Dave Grossman)

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    Quote Originally Posted by peter nap View Post
    McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, ___ (1978).
    The “bare fear” of serious bodily injury, or even death,
    however well-grounded, will not justify the taking of human
    life. . .
    . “There must [also] be some overt act indicative of
    imminent danger at the time.” (citations omitted). In other
    words, a defendant “must wait till some overt act is done[,] .
    . . till the danger becomes imminent.” (citation omitted).
    In the context of a self-defense plea, “imminent danger” is
    defined as “[a]n immediate, real threat to one's safety . . .
    .” (citation omitted). “There must be . . . some act menacing
    present peril . . . [and] [t]he act . . . must be of such a
    character as to afford a reasonable ground for believing there
    is a design . . . to do some serious bodily harm, and imminent
    danger of carrying such design into immediate execution.”
    I agree getting punched twice prolly isn't gonna cut it.

    AOJ/I applies--ability, opportunity, jeopardy/intent.

  14. #14
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Citizen View Post
    I agree getting punched twice prolly isn't gonna cut it.

    AOJ/I applies--ability, opportunity, jeopardy/intent.
    The problem with these "what if I get punched" threads is that there are a lot of exceptions that could apply. MSC 45 ACP, who is probably tough as nails but like the rest of us, not 20 anymore, probably gave the best exception possible....but I've seen this topic get younger, between 20 and 30 years old try the same argument. Carrying a gun requires a higher "Walk Away" dedication.

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    Quote Originally Posted by MSC 45ACP View Post
    ...While some of us are at the other end of this spectrum. I am permanently disabled and have a truck-load of documentation to prove the fact. If I am required to defend myself, it will be because I am in fear for my life.
    You and me, brother!

    But there were ways to avoid the beating to begin with, and ways to try and get away from it after the first punch (unless the puncher has fast hands).

    As for the rest of the questions raised by opencarrypalmtrees - I offer two possible sets of answers:

    Set #1:
    1) You call 911.... what happens next? You go to jail.

    2) Are there good examples of this kind of case here in virginia on how the supreme court of virginia ruled on this scenario? Yes. (By the way, I charge for looking up case law for folks who should be able to do it for themself. PM me for a fee schedule.)

    3) Will this be considered a disparity of force and would be justified? Maybe. And from your posted scenario, No.

    3) How much are the attorney fees? A lot. But the most expensive one may not be the best one to retain. Same for the lowest bidder.

    4) Would it be okay to just ask for an attorney for free before you speak with police? Sure. But do you meet the qualifications for getting a public defender? And do you really expect one to appear at the jail in a matter of just a few hours?

    5) Should you just use your own attorney even though it may be more than $5000+ and most people don't have that in cash laying around. Depends on a lot of factors - the most serious I can think of being "Do you want a chance of not staying in jail and not losing all the rights they take away from convicted felons?"

    6) Would this have jail time even though you tried to not use the gun? But you did use the gun. Are you wanting to change your scenario and ask all these questions again based on the changed scenario? Want to guess what kind of responses you will get if you do?

    7) I know of the case gary fisher where he spent years in jail and $500,000 in a self defense shooting in arizona but what about in virginia? Mr. Fisher did not shoot anybody in Virginia, as far as I am aware. That means your question is either poorly worded or well beyond "foolish" and probably within the realm of "stupid".

    8) If you use a free lawyer is that wise? Depends on what outcome you are hoping for and how knowlegable and skilled you are as opposed to the public defender. Also depends on whether or not you agree to a plea agreement that the public defender may or may not recommend you accept. Also review #5 above.

    Set #2:

    Aren't you glad you decided to play the "What If" game before bothering to do your own research to at least get a basic understanding of a) the law, b) the legal system, c) the criminal justice system, and d) how most "what-if" scenarios have been answered here in the Virginia forum?

    What's that saying that comic Bill Engvall uses? Oh, yeah! "Here's your sign!"

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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    Regular Member SouthernBoy's Avatar
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    Too many variables to give any cut and dried answers either in the affirmative or the negative. Suppose the victim is confined to a wheelchair? Or walks with a cane? Or has bad knees (me)? Or is an elderly person? Or is small in statue and weight and the attacker is younger and quite a bit larger?

    Too many variables exist in these scenarios for one to give a definitive answer. Some of the best advice is to always be aware of what's going on around you and if you notice something starting to develop, leave or allow the jerk to have his way if needed.

    Never forget that even though you might be carrying a firearm, there is still no guarantee you'll win in an extreme encounter or confrontation. Better to get away if you can and live another day.
    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

  17. #17
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by SouthernBoy View Post
    Too many variables .... Suppose ...? Or ...? Or has bad knees (me)? Or ...? Or ...?

    Too many variables ....

    Sorry, but the OP is responsible for providing us with all the variables that exist in their scenario. The OP has done that for us, giving us
    1) you are at the store 2) you are standing in line and 3) a guy starts cussing at you 4) because you are in his way 5) even though you did nothing wrong, 6) he starts punching you and 7) you realize being only 5'8 8) he just feels too strong and 9) you are worried 10) he might actually beat you up. 11) After being hit 2 times extremely hard and 12) it hurts
    you draw your pistol and fire to stop further attack. (That last one is not a variable. It is the action opencarrypalmtrees took after analyzing the twelve, count them, twelve variables in his scenario.)

    Twelve, count them, twelve specific variables. They form what the attorneys out there like to call "the four corners" of the situation - it's what we have and all that we have. If we change any of the variables we have a new scenario and therefore a new set of responses.

    I know you, SouthernBoy, are trying to get at this notion of "four corners" and how everything changes if even one variable changes, but in keeping with being one of the resident pedants it actually IS my job to point out that all we can work with are the twelve, count them, twelve variables opencarrypalmtrees has provided us with. We do him a disservice if we attempt to change his scenario out from underneath him, as well as run the very high risk of confusing him.

    But more than anything, what we seem to have before us is someone with a history of posting "What If" scenarios and then telling us the following BS:
    sidenote: sorry for any negative scenarios while open or conceal carrying, but I post normally the scenarios that can happen and that need an expert opinion. I have spoken to a number of guys at the gun store that say if they were attacked they would just shoot the guy and I have had to say like the black sheep of the group well that technically may not be allowed.
    Why do I call BS ? Because opencarrypalmtrees says that the scenarios he posts "need an expert opinion" but comes here asking us non-experts for our opinions.(see http://en.wikipedia.org/wiki/Expert for a basic explanation of what an "expert" is, and pay special attention to
    An expert can be, by virtue of credential, training, education, profession, publication or experience, believed to have special knowledge of a subject beyond that of the average person, sufficient that others may officially (and legally) rely upon the individual's opinion.
    [emphasis added] At best we have knowledge beyond that of the average person, due mostly to experience, but that's where we end (unless and until one of the attorneys shows up and tells us they are gving us their considered professional opinion - and I've yet to see any of them do that!).

    In closing, let me say "Thank You" to opencarrypalmtrees for exposing himself so clearly for what he is so early in his stay here.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  18. #18
    Accomplished Advocate peter nap's Avatar
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    Gee Skid....
    Why do people call me grouchy?

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by peter nap View Post
    Gee Skid....
    Why do people call me grouchy?
    Because Snow White says I've got Grumpy sewn up?

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  20. #20
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by skidmark View Post
    Because Snow White says I've got Grumpy sewn up?

    stay safe.

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    Regular Member SouthernBoy's Avatar
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    Quote Originally Posted by skidmark View Post
    Sorry, but the OP is responsible for providing us with all the variables that exist in their scenario. The OP has done that for us, giving us you draw your pistol and fire to stop further attack. (That last one is not a variable. It is the action opencarrypalmtrees took after analyzing the twelve, count them, twelve variables in his scenario.)

    Twelve, count them, twelve specific variables. They form what the attorneys out there like to call "the four corners" of the situation - it's what we have and all that we have. If we change any of the variables we have a new scenario and therefore a new set of responses.

    I know you, SouthernBoy, are trying to get at this notion of "four corners" and how everything changes if even one variable changes, but in keeping with being one of the resident pedants it actually IS my job to point out that all we can work with are the twelve, count them, twelve variables opencarrypalmtrees has provided us with. We do him a disservice if we attempt to change his scenario out from underneath him, as well as run the very high risk of confusing him.

    But more than anything, what we seem to have before us is someone with a history of posting "What If" scenarios and then telling us the following BS: Why do I call BS ? Because opencarrypalmtrees says that the scenarios he posts "need an expert opinion" but comes here asking us non-experts for our opinions.(see http://en.wikipedia.org/wiki/Expert for a basic explanation of what an "expert" is, and pay special attention to [emphasis added] At best we have knowledge beyond that of the average person, due mostly to experience, but that's where we end (unless and until one of the attorneys shows up and tells us they are gving us their considered professional opinion - and I've yet to see any of them do that!).

    In closing, let me say "Thank You" to opencarrypalmtrees for exposing himself so clearly for what he is so early in his stay here.

    stay safe.
    I understand and appreciate your post here. I do not know the gent's history on the site and was just trying to point out to folks that scenarios, while very good tools to use to try to envision situations and what we might want or need to do, are raft with missing variables. I'm sure we all know that no two situations are going to be the same. For example, I have osteoarthritis in both of my knees and while I can get around and am mobile, I can no longer run or fight as I was once capable of doing. This creates a "variable" in the OP's scenario that would likely not be present by a much younger man.

    But I do understand what you are saying in your above quoted post so I'll just sit back and listen for a bit.
    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

  22. #22
    Regular Member MSC 45ACP's Avatar
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    Quote Originally Posted by peter nap View Post
    The problem with these "what if I get punched" threads is that there are a lot of exceptions that could apply. MSC 45 ACP, who is probably tough as nails but like the rest of us, not 20 anymore, probably gave the best exception possible....but I've seen this topic get younger, between 20 and 30 years old try the same argument. Carrying a gun requires a higher "Walk Away" dedication.
    PeterNap?

    You've obviously mistaken me for someone else! While I appreciate the compliment, I am quite far from "tough as nails" anymore. I MIGHT have agreed with you until around 2004 when my body quit cashing the checks written by my mind. I currently have 3 cysts and a tumor in my spinal cord. I've also managed to acquire bone cancer somewhat recently. I'm 46 years old and get very dirty looks from people twice my age when I park in a disabled parking spot. They turn somewhat sheepish when they see me trying to get out of my car and walk on a "bad day" (when pain meds no longer work).

    I'm fairly certain I would be acquitted under most circumstances. Most likely wouldn't even be arrested unless there were "more questions than answers" in the incident. Of course I wouldn't be the one answering those questions. That would be my attorney.
    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
    (unknown 'gun~writer')

    Remington 1911 R1 (Back to Basics)
    SERPA retention or concealed...

    "Those who hammer their guns into plows will plow for those who do not." ~Thomas Jefferson
    (Borrowed from "The Perfect Day" by LTC Dave Grossman)

  23. #23
    Moderator / Administrator Grapeshot's Avatar
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    Tactics may change with age and disabilities, they can be used to advantage, but nothing will beat the leathered quality of a saltwater tanned hide. You stand tall brother Mike.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  24. #24
    Regular Member MSC 45ACP's Avatar
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    You are too kind, Brother Grapeshot. What have I done to merit such praise?
    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
    (unknown 'gun~writer')

    Remington 1911 R1 (Back to Basics)
    SERPA retention or concealed...

    "Those who hammer their guns into plows will plow for those who do not." ~Thomas Jefferson
    (Borrowed from "The Perfect Day" by LTC Dave Grossman)

  25. #25
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by MSC 45ACP View Post
    You are too kind, Brother Grapeshot. What have I done to merit such praise?
    Humility, consistency, honesty, dedication, willingness to fight the good fight and most of all teaching by example. Too few such men IMHO.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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