When is deadly force justified in NYS (Upstate)?

[NS496]

I'm sure this topic has been covered many times over but I tried searching and couldn't find the answers to my questions. Maybe because they are too hard to even answer. So as I understand NYS law, a justifiable shooting would only be if I was in fear of my life or the lives of my loved ones. Assuming that's correct, my question is how does that translate to strangers. Example, If I'm walking down the street and I see a BG beating another man on the ground, is this just cause?? Does the BG have to have a weapon (pipe, knife, gun)?? What if he's just beating him with his fist over & over again?? Another good example would be a woman being raped, what then?? I would obviously call 911 but what should one do in those situations?? Can you just scare the BG off with your weapon??

I know that its highly unlikely that I'll just happen upon these types of scenarios but I'd like to know the answers if possible. And just to clarify, I'm no vigilantly out looking to shoot somebody. Been a NYS ccw license holder for 16 years but never really carried because it was always too much trouble due to the larger pistols I own. I recently purchased a small frame pistol and I'm gonna start carrying more often so I got all these scenarios running though my head all the time now. Again I apologize if this topic has been discussed over & over again.

Perhaps I'm letting my mind run too wild on this subject...

 

[JohnD13]

NYS penal code section 35 through 35-20 covers it. I found this short write up on a related page.

"In order for a Person to be justified in using Deadly Physical Force, he/she must be factually correct that the person committing the crime is actually: using Deadly Physical Force on the Person or a 3rd person, committing Robbery, committing Arson, committing Burglary (it is advised that the Person retreat whenever possible), kidnapping, committing Forcible Rape, and/or committing Forcible Sodomy (Criminal Sexual Act)."

 

[NS496]

NYS penal code section 35 through 35-20 covers it. I found this short write up on a related page.

"In order for a Person to be justified in using Deadly Physical Force, he/she must be factually correct that the person committing the crime is actually: using Deadly Physical Force on the Person or a 3rd person, committing Robbery, committing Arson, committing Burglary (it is advised that the Person retreat whenever possible), kidnapping, committing Forcible Rape, and/or committing Forcible Sodomy (Criminal Sexual Act)."

Thank you, looks like it would in fact be justified in those situations then. However, the key phrase is "he/she must be factually correct that the person committing the crime is actually:". The "factually correct" & "actually" parts of that sentence may be very hard to prove in some situations.

 

[rwilcox1951]

Deadly Force

Justification for the use of deadly physical force is covered in Article 35 of the NYS PL. "Justification", being the operative word. It does not give anyone, civilian or law enforcement the "right" to use force. This is a subject constantly drummed into the heads of police officers. We covered this subject every time we qualified with firearms, no exceptions. This subject should be covered in DETAIL in any pre-licensing class. The idea of a permit holder walking around not knowing when he may legally use a firearm is scary.

 

[The_Outlaw]

Thank you, looks like it would in fact be justified in those situations then. However, the key phrase is "he/she must be factually correct that the person committing the crime is actually:". The "factually correct" & "actually" parts of that sentence may be very hard to prove in some situations.

"Factually...Actually", Blah, Blah, BLAH!
Attorneys can make it difficult to make any real life decisions if you allow them to.

I don't live in New York, but even if I did I would just 'kiss' the situation...
K.I.S.S. (Keep It Simple Stupid)
And no, I'm not calling you stupid. It's just a phrase that works i.m.h.o.

If the bad guy is seriously threatening me or a loved one with severe bodily injury or death, then I will draw my sidearm while taking aim at center mass of the bad guy and prepare to fire while loudly shouting at the bad guy to "STOP".

a) If said bad guy flees the scene and the threat is now gone, then I will re-holster my sidearm and immediatly call 911.
Also be prepared to call my attorney.

b) If said bad guy continues to approach menacingly or attacks, then & only then will I open fire as needed while aiming at center mass of the bad guy until the immediate threat has stopped. (Because it's better to be tried by 12 than carried by 6.)
Once the bad guy is down, I will immediatly call 911 and then call my attorney a.s.a.p.

Don't go around looking for trouble and chances are you can keep out of trouble.
Avoid conflicts whenever possible.
Always use common sense.
However, If you are ever cornered and forced to choose between being a Helpless Victim or a Fighting Survivor...
Always choose to be a Survivor.

That's just my .02 cents. Take it or leave it.

~Good luck & Stay Safe~

 

[rwilcox1951]

Deadly Force

Article 35 justifies the use of deadly physical force only to the penal law felonies specified in article 35. In other words, while it justifies the use of deadly phys force in the case of Burglary 1st degree, it does not justify the use of deadly physical force in Burglary 3rd degree. So a working knowledge of the laW is required to be safe and not get yourself jammed up. Article 35 also talks about "equal force". You would not be justified in the use of deadly force against someone using just their fists in an assault against you or someone else. I personally would use what ever level of force required to defend myself or my family, but be advised doing so could have some real serious consequences. This is how the law in NY is interpreted. There is no "stand your ground law" here.

 

[BC1]

Article 35 justifies the use of deadly physical force only to the penal law felonies specified in article 35. In other words, while it justifies the use of deadly phys force in the case of Burglary 1st degree, it does not justify the use of deadly physical force in Burglary 3rd degree. So a working knowledge of the laW is required to be safe and not get yourself jammed up. Article 35 also talks about "equal force". You would not be justified in the use of deadly force against someone using just their fists in an assault against you or someone else. I personally would use what ever level of force required to defend myself or my family, but be advised doing so could have some real serious consequences. This is how the law in NY is interpreted. There is no "stand your ground law" here.

Not entirely correct.

The wording of A35 does not differentiate between levels of burglary. An interesting case was recently overturned on appeal because the perp shot a police officer through the front door without knowing who he was. Police responded to a call from a neighbor that Raymond Zayas was committing domestice violence. Police arrived. They did not give a warning and began to break into the house. Zayas shot through the door hitting the LEO. He was originally convicted for the shooting but the conviction was overturned on appeal because under article 35 he had the right to fire through the door. Charges for criminal possession of a weapon were also dropped because in NYS it is not a crime to defend your self with an illegal handgun within your own home (see NYS PL265.03 P4).

NYS has no "stand-your-ground" law. The law merely requires you make an attempt to retreat, IF YOU CAN DO SO SAFELY. You cannot safely retreat if you're elderly, disabled, accompanied by kids, etc. In certain situations you may stand your ground. Once physical contact has been initiated you can stand your ground. You may absolutely stand your ground in your house... there is no duty to retreat on your own property.

You may also exercise deadly physical force against someone who does not have a weapon. A35 is an affirmative defense that is based on the actions of a prudent person. What is a prudent person? Well, for example, a heart patient can't defend himself against a bare-fisted attacker who is much younger. Such a beating could prove fatal. NYS allows the use of deadly physical force in any situation where an assault is of such depravity that significant or permanent injury will probably occur. This definition is not constant but rather is variable. What were the actions of a reasonable person given the same situation? The grand jury or jury must put themselves in that position. For example, I once beat a child murderer real badly. Knocked him out when he walked directly up to me and mouthed off. Now if that was someone I didn't know I would have been charged. The perp even tried to file charges. The D.A. said that considering he murdered a member of my immediate family, had threatend me in a news article and was convicted stabber, I didn't have to wait until he actually produced a weapon. It was reasonable to believe allowing him to get too close could prove fatal. No charges filed. So there are no hard and fast rules on this.

 

[JimPage]

Justification for the use of deadly physical force is covered in Article 35 of the NYS PL. "Justification", being the operative word. It does not give anyone, civilian or law enforcement the "right" to use force. This is a subject constantly drummed into the heads of police officers. We covered this subject every time we qualified with firearms, no exceptions. This subject should be covered in DETAIL in any pre-licensing class. The idea of a permit holder walking around not knowing when he may legally use a firearm is scary.

That sounds like a logical thing, but you must realize that the NRA Basic Pistol course demands that instructors NOT cover that material. They can have a lawyer or a law enforcement officer teach that section. However when I was teaching the course I could find no one willing to take responsibility for teaching that section. I queried the county DA, state police, county sheriff and local police.

The issuing agent in this county requires the NRA Basic Pistol Course or Military sevice within three years to apply for a CCW.

 

[BC1]

That sounds like a logical thing, but you must realize that the NRA Basic Pistol course demands that instructors NOT cover that material. They can have a lawyer or a law enforcement officer teach that section. However when I was teaching the course I could find no one willing to take responsibility for teaching that section. I queried the county DA, state police, county sheriff and local police.

The issuing agent in this county requires the NRA Basic Pistol Course or Military sevice within three years to apply for a CCW.

Jim, I grabbed two LEO who are also NRA certified to teach the legal portions of PPITH and PPOTH classes. They get paid $100-$150 per hour for the lecture and are covered by my insurance. I have a lot of takers. Try doing that and see if some are willing to get involved. In the NRA basic pistol and first steps pistol course there is no requirement to teach the law. In those classes I provide students with the NRA-ILA guidelines for the state and do a quick review. Just advise them the document is not meant as legal advice but rather is educational in nature. It provides a lot of the basics on NYS gun law.

 

[towboater]

Better be damn sure the fella getting beat, is the good guy. You never know the situation until you come across. What if the guy giving the beating is the VICTIM? Say he was attacked , is unarmed, and got the advantage. You shoot the man you believe to be the attacker, who in reality is the victim. World of poo comes down on you for that. Just saying man, 4 lbs of pressure at the wrong time, will ruin your life.

 

[NS496]

Great responses and seems there is no cut & dry yes or no answer to this. Way to many variables to consider. The scary thing is that if we are ever faced with one of these situations, we'll have only a few seconds to make a decision, and it better be the correct one... I think that a pistol course that covered this subject in detail should be offered and a mandatory requirement for ccw holders to attend periodically.

 

[alamoadam]

A good book

Pick up "In The Gravest Extreme" by Massad Ayoob. May answer some your questions.

 

[nogods]

Justification for deadly force is a tough issue for the law to address. We don't want people using deadly force unnecessarily, but we don't want a person to suffer harm when they have no choice but to defend themselves from such harm. In between those two extremes is a never-never land of legal uncertainty.

I think the only rationale way to approach the issue is to understand that if you choose to discharge your weapon you are assuming all risks of that decision. If you are unwilling to assume that risk then don't discharge your weapon.

 

[JimPage]

BCI: Thank you.

 

[onetuza]

I just dont understand our justice system. In FL, George Zimmerman was getting his head slammed into the sidewalk, (there were witnesses), defended himself and shot the aggressor in self defense, and yet was charged with murder. What good are laws and permits, etc., if nobody follows them?

Then there's the teen who was driving a van full of illegals, crashed, killing nine of them and he's charged with murder? What happened to negligent homicide? I thought that murder implied intent to kill?