Interesting hypo! Let's look at it from the 4th Amend. perspective. Some would argue that Tenn. v. Garner would apply, but I would argue that Tenn. v. Garner is a fleeing suspect case and that if the suspect is not fleeing anything else in Garner is dictum. If Garner doesn't apply then we have to fall back to the balancing and objective reasonableness approach of Graham v. Connor. Using this approach we have to ask what would a reasonably well trained officer have thought/done when faced with the same circumstances. Because the test is objective, the fact that the officer still considers the suspect dangerous (stipulation # 3) is irrelevant. There has to be something in the scenario that would cause an objectively reasonable officer to believe the suspect was still dangerous and deadly force is necessary. Given that the officer successfully took the weapon from the suspect, in the absence of additional facts, the use of deadly force would not appear to be objectively reasonable.
The basic problem is that the threat of deadly force does not appear to be imminent. I would argue that in self-defense cases (as opposed to fleeing felon cases) the Fourth Amendment requires that the threat be imminent. In general, the law of civilian self-defense also requires that the force be imminent. The fact that the suspect was immediately dangerous a few moments ago but then now no longer has the gun (and the officer successfully took it) does not substitute for (or constitute) a reasonable perception of an imminent threat. The fact that the suspect does not retreat arguably would suggest to a reasonable officer that the suspect is submitting. In the absence of additional facts, it would be hard to argue that submitting would create a reasonable perception of an imminent threat. Obviously, more facts could change the result, (e.g., suspect continues to approach the officer after being ordered to stop, suspect refuses to put hands up and reaches in jacket, suspect is close enough to possibly overpower officer without gun and get gun in officer's possession) but I agree that shooting the suspect with the suspect or the officer's weapon would not be justified at this point. I would be interested in seeing how some of the rest of you would analyze this situation. _____ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Guy Smith Sent: Monday, September 17, 2007 10:17 PM To: 'List Firearms Reg' Subject: [BULK] Disarm and shoot legalities Importance: Low After a recent martial arts class where we were learning how to take a gun away from an attacker, an interesting question came up and I was unsure of the answer. Stipulated: 1) A mugger had pointed a gun at you and you were in reasonable fear of your life. 2) You successfully take the gun from him. 3) You still consider him dangerous though you do not see him holding another weapon. 4) He is not fleeing. Can you shoot him with his own gun? My gut instinct is that you would be charged with aggravated assault at very least. But does the mugger's immediately previous action and lack of retreat constitute a continuing threat, justifying lethal force? Yours in Liberty Guy Smith Author, Gun Facts [EMAIL PROTECTED] www.GunFacts.info
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