Couldn't have said it any better...

 

Obviously, an off-duty police officer has the right to conceal and carry his weapon whereas for most California citizens this would amount to a pretty serious crime.

I am a card-carrying member of the NRA and own a CCW valid in 30 states - but not CA. It is pretty obvious where I stand on this. But that is a debate for another day.

In answer to M5Kid's question regarding the standard the officer will face re the shootings:

The officer will face the same standards as any other citizen. If he claims self defense he will have to show that he reasonably feared for his life and that the threat was imminent.

The only way that a police officer might be treated differently than an average citizen is in what would be considered a "reasonable fear" of imminent life threatening injury. An untrained individual might be given a lot more leeway as to what might be considered a "reasonable fear" that life threatening injury was imminent. For example, a drunk 80-year old man with a cane might be enough to justify an average citizen in using deadly force because they are not trained to identify such threats or on how to diffuse them without deadly force. But becuase a police officer has training and such, what may be considered "reasonable" for him may include a much more narrow set of circumstances. It would not be reasonable for a trained police officer to consider the 80-year old man with a cane to be life threatening. A response involving deadly force by a police officer in that situation would be disproportionate to the threat and thus unreasonable.

Being hit in the head with a bottle and choked would be "reasonable" for just about everyone I would think. Unless you were hit and choked by a 5-year old.

My hunch is that this officer will be cleared.

 

Yea my brother is a cop and I asked him that once. Malls, Movie Theaters, Sports Arenas. All say they "Ban guns on this premises" But doesnt apply to police officers.


I find it funny they snuck in the score of the game in the article.

 

Dana - My training has been (in addition to fearing for your life) that the assailant has to have intent and opportunity. The example is that a guy on the other side of a river with a machete might have the intent, but not the opportunity... In this case it sounds like those extended criteria were met as well.

 

Is that from the military code? Interesting.

For civilians, the use of deadly force in defense of oneself or another boils down to whether or not the victim reasonably feared for their lives due to an imminent attack. Sometimes it is stated that the response must be proportionate with the threat. For example, if an assailant says "I'm going to kill you!" and pulls out a feather, it would be disproportionate for me to then pull out my Desert Eagle and unload the clip. But proportionality is merely a part of an overall test of reasonableness.

Under the law, intent is a very hard thing to determine. How do I know if someone subjectively intends to kill me? All a civilian can really go off of is what they reasonably observe. If someone says "I am going to kill you!" and pulls out a gun, most people can take them at their word without needing to verify their actual intent. All that is necessary is that the assailant reasonably appear to have intent. That is enough under the law. What they subjectively intended is irrelevant. For example, if someone says to me "I am going to kill you" and comes at me with a sledgehammer, I can likely shoot them and make a valid self-defense claim. If the assailant survives and later testifies that he really didn't intend to kill me, that is irrelevant. All that matters is that I reasonably had a belief that he was going to make good on his imminent threat.

The other issue is imminence of the attack. If the assailant with a knife is on the other side of the river, then I cannot reasonably be in imminent fear for my life. The assailant would likely need to cross the river to kill me thereby destroying the imminence of the threat. Things would be different if the assailant had a projectile and could reasonably kill me from across the river then and there. The civilian standard of imminence is likely very similar to the "opportunity" standard you state above. In order to use deadly force in self defense at the moment of the threat, you must reasonably believe that a deadly attack is going to happen right then and there. Consider now if someone says, "I am going to kill you tomorrow!" This would not be an imminent threat and would not warrant deadly force in self-defense at the moment of the threat. This is why the battered woman syndrome most often fails in court. When a battered woman kills her husband in his sleep, she cannot claim self defense because his attack is not imminent. She may honestly be able to state that she was in fear for her life. But not at that very moment - at least not because of an imminent threat from her husband. Thus, the self defense claim fails.

Reasonableness is a difficult concept in the law. Some often state that it is what the ordinary person would perceive. This is incorrect. If this were so, it would mean that half of the people in that situation would judge it incorrectly. Reasonableness is defined based on what the actual person in the situation should have perceived. A 6'5 Green Beret likely won't feel an imminent deadly threat from a 18-year old girl with empty hands. But an 80-year old woman in a wheel chair very well might. So the standard is both objective and subjective.

 

In the case at hand - with the facts we currently have - I would say that the deadly force was both reasonable and proportionate.

The shooter claims to have been approached by more than one full-sized adult male. He claims that he was struck with a bottle - a deadly weapon. He also claims he was choked by them - an act of deadly force.

If what he claims is true, then he likely acted reasonably in the face of an imminent threat of deadly force. This would be true for both off-duty cop and civilian.

Now we just have to hear the other side. I am sure they will likely dispute the shooter's claims. Then it just boils down to evidence.

 

Dana - thanks for the explanation. From what I understand, when a victim is against more than one opponent, even with just hands, that can justify the use of deadly force. Is this correct? I would think so...

 

All facts like that - number of assailants, weapons, time of day or night, location, etc. - all go to the reasonableness of the response.

Certainly, if there is more than one assailant, the potential victim would be much more reasonable in fearing for his life and thus more likely justified in using deadly force.

Unfortunately, there is no per se rule that says if it is a 2 on 1 fight you can just kill them. Ha Ha!

 

Ohhhh no, it's Gangsta D!

 

As far as I am concerned, if my wife and kid are with me and I am attacked it is ALWAYS life threatening. While a punch to me when alone would just cause me to fight, the same punch when my family is with me would cause me to fight for my life and try to kill my attacker. I am not risking going down cold and leaving my family unprotected, sorry.

Kudos to the cop here for keeping his family safe at all costs!!