Does your physical condition have bearing?

[Moonpie]

Just curious.
Imaginary scenario: You've just been forced to shoot a goblin who attacked you at the car wash.
Scenario #1 - CHL is a 55yr old overweight man with bad knees.
Scenario #2 - CHL is a 23yr old Army paratrooper home on leave.
Will your physical condition have a bearing on your case?

[seamusTX]

Physical disparity will generally influence how the DA and grand jury treat a self-defense case. It's not a matter of statute -- more common sense. This issue came up in the case of Gordon Hale, who was assaulted by a guy the size of a King Kong.

- Jim

[Mike1951]

Scenario #1 - CHL is a 55yr old overweight man with bad knees.

That's 56, going on 57.

I can't run, and there's little chance of me winning any hand-to-hand conflict anymore.

If I can't think myself out of a situation, then I have a problem.

I only hope I can trust a jury to be understanding.

[flintknapper]

Your age and physical condition only enter the equation to the degree that they make you susceptible to death or serious bodily injury by an attacker.

Just because you have bad knees and can't run away doesn't mean you can shoot someone for slapping you or poking you in the chest.

"I felt threatened" wouldn't go very far with me....If I were on a jury. There needs to be a darn good reason to pull your weapon.

But, yes....age and physical condition can definitely be a factor in any situation where there is a serious attack.

[jbirds1210]

Your age and physical condition only enter the equation to the degree that they make you susceptible to death or serious bodily injury by an attacker.

Just because you have bad knees and can't run away doesn't mean you can shoot someone for slapping you or poking you in the chest.

"I felt threatened" wouldn't go very far with me....If I were on a jury. There needs to be a darn good reason to pull your weapon.

But, yes....age and physical condition can definitely be a factor in any situation where there is a serious attack.

I completely agree and will support it with a quote you might appreciate.

"I have a bad hip"- Joe Lansdale

That is an impressive man....even with the bad hip

Jason

[flintknapper]

Your age and physical condition only enter the equation to the degree that they make you susceptible to death or serious bodily injury by an attacker.

Just because you have bad knees and can't run away doesn't mean you can shoot someone for slapping you or poking you in the chest.

"I felt threatened" wouldn't go very far with me....If I were on a jury. There needs to be a darn good reason to pull your weapon.

But, yes....age and physical condition can definitely be a factor in any situation where there is a serious attack.

I completely agree and will support it with a quote you might appreciate.

"I have a bad hip"- Joe Lansdale

That is an impressive man....even with the bad hip

Jason

Yeah, he's had that bad hip for the 10 years I've known him.

He's put on some weight over the years....so that probably aggravates the hip, but I promise you... he can stand flat footed and put either foot right behind your ear.

What he is really known for...are his "fast" hands, you literally can't see some of his strike combinations. You hear them, but you don't see them.

[casingpoint]

Possibly. Your attacker raises a hand with a gun in it. You fire yours, killing him. But because of his initial attack, in which he shoved you to the ground, your glasses came off and you only thought you saw a gun. The cops find no gun, and the DA thinks you are too visually impaired to have positively identified a gun with your naked eyes. Nonetheless, based on your own perceptions, you were in fear of your life or great bodily harm. That was your true state of mind at the time. Since the attacker put you in a position of impairment by his illegal attack, it is unfair for the consequences of his assault to be shifted to you. Who wins this little conundrum?

[flintknapper]

Possibly. Your attacker raises a hand with a gun in it. You fire yours, killing him. But because of his initial attack, in which he shoved you to the ground, your glasses came off and you only thought you saw a gun. The cops find no gun, and the DA thinks you are too visually impaired to have positively identified a gun with your naked eyes. Nonetheless, based on your own perceptions, you were in fear of your life or great bodily harm. That was your true state of mind at the time. Since the attacker put you in a position of impairment by his illegal attack, it is unfair for the consequences of his assault to be shifted to you. Who wins this little conundrum?

In Texas... the shooter probably would.

In California, the attacker would take you to court and the jury would award him some obscene amount... because you should have been wearing contacts.

[lawrnk]

Physical disparity will generally influence how the DA and grand jury treat a self-defense case. It's not a matter of statute -- more common sense. This issue came up in the case of Gordon Hale, who was assaulted by a guy the size of a King Kong.

- Jim

Agreed. Of course this could also be used against a young and powerful CHL I suppose. My instructor stated the DA/GJ might also condier situation where the CHL is female, or the CHL has wife or kids with him. Common sense stuff of course, but something to think about.

[seamusTX]

Of course this could also be used against a young and powerful CHL I suppose.

Yes, it could. The diciest cases for the defender are those in which the attacker did not have a firearm or knife. A young, athletic man would not have as strong a defense as a less able person.

- Jim

[srothstein]

Of course this could also be used against a young and powerful CHL I suppose.

Yes, it could definitely go against a young fit big CHL too. As a matter of fact, there is a Fifth Circuit (IIRC) case where a cop shot a suspect after a chase and was convicted of excessive force. His physical condition was so bad, he could not control the suspect any other way. The court ruled that the cop SHOULD have been more fit since it was a foreseeable function of his job, so the use of excessive force based on this condition was not reasonable. It is one of the cases forcing cops and departments to get into shape again.

[WildBill]

As a matter of fact, there is a Fifth Circuit (IIRC) case where a cop shot a suspect after a chase and was convicted of excessive force. His physical condition was so bad, he could not control the suspect any other way. The court ruled that the cop SHOULD have been more fit since it was a foreseeable function of his job, so the use of excessive force based on this condition was not reasonable.

Steve - If you can remember the case citation please post it. I would love to read the decision.

[beaucoup ammo]

I'm 62, use a wheelchair or crutches. If a huge, 25 year old With No Visible Weapon comes after me and my wife in a parking lot, obviously intent on pounding me into dust and harming her, what do I do? Get beaten half to death because I have the legal ramifications in the back of my mind, or do I shoot him?

Realistically ,I would shoot him to save my wife and the natural instinct to survive would no doubt push me in that direction as well. Any thoughts on this very possible scenario? Thanks.

[seamusTX]

IMHO, if someone threatens you by verbal threat, gesture, or approach (for example, trying to grab you), you have a reasonable belief that he is about to use force that in your case could easily be deadly force even if a weapon were not used. If you draw a weapon and he continues to advance, I think you have a reasonable belief that he intends to do you harm.

By "verbal threat," I mean something like, "Give me your car keys or I'll kill you." There's a line drawn by PC §9.31, which says,

(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;...

I suppose that how such an incident was handled would depend upon how sympathetic the DA was to armed citizen self-defense. I think it woud potentially be a problem only in a few counties in Texas.

- Jim

[beaucoup ammo]

Thanks, Jim. It's a predicament. He could put me down with a feather. That's precisely why I carry. To "equalize" the situation.