[Udink]

I was out hiking with my two sons (ages 3 and 5) yesterday in the Book Cliffs, about three miles from the nearest pavement at the end of a rough dirt road--it was really out in the middle of nowhere. We had hiked along a trail that went up a steep hillside, and after about half a mile, we turned around and started heading downhill toward the truck. It was then that I saw a person standing next to the truck, but there were no other vehicles in sight. Apparently some transient had been camped nearby, and after we'd left the truck, he started snooping around. I'm not exactly sure what he was doing, probably looking for a spare key hidden under the truck, but I saw him climb into the truck bed. At that point I yelled down to him to leave the truck alone, and he stopped what he was doing to look up the mountainside toward me, then ducked down behind the cab of the truck again where I couldn't see him. I yelled again, and he got out of the truck bed, but kept snooping around.

I knew then that there was something wrong with the guy--he knew I was there and I was coming down the mountain toward him, but he wasn't leaving. I decided to fire a warning shot, in the opposite direction from him, just to let him know I was very serious about protecting myself, my sons, and my property. After I fired the shot and yelled at him one more time to leave, I saw his arm come down in a sweeping motion toward one of the rear tires, and I heard the air suddenly escaping. He then slashed the other rear tire and left the area.

As I was hurrying down the trail toward the truck, he disappeared from my view in the bottom of a wash, and when he came back up the other side of the wash a few minutes later, he was wearing a large backpack which he hadn't been wearing before, so I'm assuming he was camped down there. As I was heading west and he was heading south, he slowly started looping around to the east and then northeast and was coming straight toward my sons and me. I really thought at that point that he was coming after us, and at a minimum I knew that he had a knife, and I thought that I might really have to use the handgun to defend my life. We were at the bottom of the mountain by then, and we headed northwest to try to put some distance between us and him. We ended up circling around each other about 1/4 mile apart, and finally it got to the point where he was hiking up the trail that we'd just come down off of, and he kept on going up. I finally felt safe enough to stop and dial 911, and I explained to the dispatcher everything that had happened.

About nine law enforcement vehicles arrived, and they even called out an airplane to search for the guy, but once he climbed to the top of the mountain (about 1,000 higher in elevation from where the truck was), he was off the narrow trail and could disappear in almost any direction. The police never did catch up to him--he had a one hour head start--but one Emery County sheriff's deputy got pretty close before he crested the top and disappeared into the juniper and pinyon pine.

I'm not necessarily certain that being armed saved my life, but I definitely question the mental stability of the guy. Before I'd even fired the warning shot to scare him off, he had cut holes in the two 5-gallon fuel cans that were in the bed of my truck, all presumably because I'd yelled at him to leave. He was bold enough to stick around even after I'd fired the warning shot, and the sheriff's deputy said that the guy was yelling down at him and taunting him as he tried catching up.

Apparently the guy wasn't afraid of me after he knew that I was armed (especially because he started walking straight toward me at one point), so if I hadn't been armed I think that yelling down to him would have been a big mistake. I shudder to think what might have happened if I hadn't been able to defend myself and my sons.

 

[Udink]

I spend a fair amount of time out in the "wild" Geocaching where you see few people and have always felt pretty safe.

Same here--in fact, I was actually out looking for somewhere to place a new geocache when all this happened. I go out nearly every weekend to remote places, mostly in and around the San Rafael Swell, and I've always felt pretty safe out there. I think I still feel pretty safe, this was obviously a very isolated incident, but it sounds like it might be difficult convincing my kids that it's okay to go back out into the wilderness.

I would also like to add that having a cell phone and a GPS out in the wilderness is a lifesaver as well. Both of them sure came in handy in this situation.

 

[Udink]

Also I've seen posts about wacko's like this at another site. IIRC they were discussing roughly the same area. Seems to me they are having a little problem down there.

What other site? I'd like to read up on it and see if there are any other areas that I need to avoid.

 

[Udink]

Plus, I'm not sure why you say it's not "Not really self-defense, but....". It sure sounded like it to me.

All I really meant was that my life was never in immediate danger, though it could have turned that way quickly. I think that letting him know I was armed prevented it from turning that way.

Did I get it right that he slashed TWO of your tires??? Jerk. Did you have to pay for a tow out of there, or did you get new tires??

Yep, he got two of 'em. He slashed one rear tire and started walking away, but after two steps he apparently thought better of it and walked around the truck to slash the other rear tire. I still had one good spare, and my father-in-law had another spare of the same size so he drove it out to me.

 

[Udink]

He wasn't even close to you, right???

That's correct. He was 0.4 miles away.

He didn't Threaten you with "serious bodily harm or death" right???

Correct again.

You NEVER shoot a "warning" shot...IF you shot you shot to stop the IMMEDIATE THREAT.

Maybe you mean "YOU" never shoot a warning shot. I do, and did in this situation, and I was perfectly within my rights to do so. I was quite far away from the bad guy, I fired in a safe direction, I had a good backstop, and as required by Utah law, I was more than 600 feet away from the nearest structure or road.

I think you were in the wrong 100%

Do you mean legally? Tactically, morally? I believe I have a moral duty to stop somebody from messing with my stuff, especially when I'm an hour away from any police response. I didn't break a single law, and I believe my actions caused the bad guy to leave the area while avoiding a face-to-face confrontation. Works for me!

Seeing somebody going thru a Truck...Observe and IF possible call 911. Give description and wait for the Popo

Maybe in town that's acceptable, but where I was, I absolutely was not going to simply sit there for hours with two young children waiting for the guy to leave.

 

[Udink]

I think you were wrong tactically and legally

Ok, fair enough, but HOW was I wrong either way? I had no legal duty to retreat, the firing of my handgun was done in a legal manner, and I got the results I wanted--he left, and I didn't have a potentially violent confrontation with him in front of my kids. I hope you don't think cowering behind a boulder would have been a better choice, but I wasn't about to let this guy have his way with my property.

As for quoting laws, this one is more applicable to the situation:

76-2-406. Force in defense of property.
A person is justified in using force, other than deadly force, against another when and to the extent that he reasonably believes that force is necessary to prevent or terminate criminal interference with real property or personal property:
(1) Lawfully in his possession; or
(2) Lawfully in the possession of a member of his immediate family; or
(3) Belonging to a person whose property he has a legal duty to protect.

Would you call firing a handgun into a hillside, more than 2,000 feet away from the bad guy, "deadly force?" I may have threatened deadly force, but I did not use deadly force.

By the way, if you want to read my whole write-up of the situation, including pictures of the area, follow the link below. It might give you a better idea of what went down and why I did what I did.

http://www.udink.org/archives/2006/11/be_prepared.shtml

 

[Udink]

Firing a warning shot from your handgun is not within your legal right. You can only pull and show your gun if you feel you are in immediate and imminent danger (for yourself or others).
Defense of property specifically states "A person is justified in using force, other than deadly force..." and a handgun is always considered deadly force.

I must admit that I'm baffled by yours and UTOC-45-44's responses. I do appreciate feedback on the situation, but I'm not sure you even understand the circumstances. By your logic, anybody at a firing range who fires a handgun at a paper target is using unlawful deadly force if there is another human being within hearing distance. Do you understand that I was nearly half a mile away from the bad guy, that he couldn't have even seen my handgun at that distance, and that I fired in the OPPOSITE direction from him? He heard a loud bang, that's it. He did not see my handgun, and I did not point it at him. How is this considered deadly force under Utah law?

I don't have all the answers, but the only thing I could suggest different is to high tail it back to your vehicle, and if he starts to come at you, THEN you have every legal right to pull your gun and if he doesn't stop, then you can shoot him (after giving him some verbal warnings).

Again, did you even read what I wrote? Are you saying that you would rush with your 3- and 5-year-old kids into a potentially violent confrontation? Or, leave them alone on a rocky cliff while you rushed alone into a potentially violent confrontation? I would not, and had no desire to, so I did what I could from a distance, and IT WORKED! The bad guy left, nobody got hurt, and I was able to safely return home with my kids.

 

[Udink]

Your purpose of firing a round (even in the opposite direction) was a "show a force" directly linked to the man looking through your vehicle. You did it, to try to stop him from doing what he was doing, which is a show of force (and a gun is considered deadly force). In that situation it would at least be brandishing a weapon, even from a distance, because your intent was to get him to stop what he was doing. If you were just having target practice, and shooting at rocks or logs, then your intent and the purpose of firing the gun, are completely different and are not linked, which would not be possibly illegal (because I'm not a lawyer, and I never stayed at a Holiday Inn Express, etc.).

Thanks for at least trying to explain why you feel that way (as others have not been able to do). I see where you are coming from, however, I cannot find anywhere in Utah law that defines "deadly force." That is why I compared normal activities at a shooting range to the use of my handgun to warn off a lunatic. In both situations, the gun is pointed in a safe direction and there is no (or very little) chance of anybody getting harmed.

Also, I don't see what intent has to do with it, since it was not my intent to harm anybody. If I intended to kill somebody by flicking a booger at them, I doubt they'd haul me into court. The same would apply to my situation--I had no intent to harm anybody, and my actions could not possibly have harmed anybody. Please explain to me how you think my actions equal the use of deadly force. I admit it was a show of force, but it was not the use of deadly force.

 

[Udink]

Well, you sure do know how to copy and paste, but can you point out how these apply to my situation? I can see that you're willing to stick to your position no matter what evidence to the contrary is presented, but I hate to let an argument, no matter how weak, go unchallenged. Here, I'll pick them apart one by one:

Deadly force
Definition
: force that is intended to cause or that carries a substantial risk of causing death or serious bodily injury

I did not intend to cause, nor was there any risk of, death or serious bodily injury. Therefore, this definition only shows that I did not use deadly force. Thanks for proving my point for me.

76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
Every person, except those persons described in Section 76-10-503, who, not in necessary self defense in the presence of two or more persons, draws or exhibits any dangerous weapon in an angry and threatening manner or unlawfully uses the same in any fight or quarrel is guilty of a class A misdemeanor.

I did not draw or exhibit my handgun in an angry or threatening manner. In fact, I was quite calm. As for unlawfully using a handgun in a fight or quarrel, first you'd have to define "unlawfully." I think I've already shown that I did not use "deadly force" (by your own definition) and therefore my show of force was lawful. Ok, next:

76-10-507. Possession of deadly weapon with intent to assault.
Every person having upon his person any dangerous weapon with intent to unlawfully assault another is guilty of a class A misdemeanor.

First of all, notice the qualifier "unlawfully" before the word "assault." This implies (and is backed up explicitly elsewhere in the Code) that some assault can be legally justified. Secondly, we'll have to look into the legal definition of "assault" in Utah:

76-5-102. Assault.
(1) Assault is:
(a) an attempt, with unlawful force or violence, to do bodily injury to another;
(b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or
(c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.

(a) is ruled out because I did not attempt to do bodily injury.
(c) is ruled out because I did not cause or risk bodily injury.
(b) is a little bit tricky, depending on how you define "threat" and "show." I don't believe that firing my handgun constitutes both a threat to cause injury and a show of force. It could possibly be construed to be one or the other, but not both at once. I would consider the shot that I fired to be a show of force--I showed that I was capable of using force, but I did not threaten to use that force to injure anybody.

By the very defintion that it is a deadly weapon you used deadly force. And this is MY understanding.

Anything can be considered a deadly weapon (or "dangerous weapon" as it's defined) under Utah law. If I had thrown a rock at the ground, would you consider that to be the use of deadly force? If you consider firing a handgun into the ground to be deadly force, then by your own statements you'd have to consider throwing a rock at the ground to be deadly force as well.

 

[Udink]

Utah Code Section 76-10-50876-10-508. Discharge of firearm from a vehicle, near a highway, or in direction of any person, building, or vehicle -- Penalties. ...
www.le.state.ut.us/~code/TITLE76/htm/76_0C038.htm - 5k - Cached - Similar pages

76-10-508. Discharge of firearm from a vehicle, near a highway, or in direction of any person, building, or vehicle -- Penalties.
(1) (a) A person may not discharge any kind of dangerous weapon or firearm:
(i) from an automobile or other vehicle;
(ii) from, upon, or across any highway;
(iii) at any road signs placed upon any highways of the state;
(iv) at any communications equipment or property of public utilities including facilities, lines, poles, or devices of transmission or distribution;
(v) at railroad equipment or facilities including any sign or signal;
(vi) within Utah State Park buildings, designated camp or picnic sites, overlooks, golf courses, boat ramps, and developed beaches; or
(vii) without written permission to discharge the dangerous weapon from the owner or person in charge of the property within 600 feet of:
(A) a house, dwelling, or any other building; or
(B) any structure in which a domestic animal is kept or fed, including a barn, poultry yard, corral, feeding pen, or stockyard.
(b) It shall be a defense to any charge for violating this section that the person being accused had actual permission of the owner or person in charge of the property at the time in question.
(2) A violation of any provision of this section is a class B misdemeanor unless the actor discharges a firearm under any of the following circumstances not amounting to criminal homicide or attempted criminal homicide, in which case it is a third degree felony and the convicted person shall be sentenced to an enhanced minimum term of three years in prison:
(a) the actor discharges a firearm in the direction of any person or persons, knowing or having reason to believe that any person may be endangered;
(b) the actor, with intent to intimidate or harass another or with intent to damage a habitable structure as defined in Subsection 76-6-101(2), discharges a firearm in the direction of any building; or
(c) the actor, with intent to intimidate or harass another, discharges a firearm in the direction of any vehicle.
(3) The court shall:
(a) notify the Driver License Division of the conviction for purposes of any revocation, denial, suspension, or disqualification of a driver license under Section 53-3-220(1)(a)(xi); and
(b) specify in court at the time of sentencing the length of the revocation under Subsection 53-3-225(1)(c).
(4) This section does not apply to a person:
(a) who discharges any kind of firearm when that person is in lawful defense of self or others; or
(b) who is performing official duties as provided in Sections 23-20-1.5 and 76-10-523 and as otherwise provided by law.

Amended by Chapter 220, 2005 General Session
Download Code Section Zipped WP 6/7/8 76_0C038.ZIP 3,299 Bytes

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76-10-508. Discharge of firearm from a vehicle, near a highway, or in direction of any person, building, or vehicle -- Penalties.
(1) (a) A person may not discharge any kind of dangerous weapon or firearm:...

...2) A violation of any provision of this section is a class B misdemeanor unless the actor discharges a firearm under any of the following circumstances not amounting to criminal homicide or attempted criminal homicide, in which case it is a third degree felony and the convicted person shall be sentenced to an enhanced minimum term of three years in prison:
(a) the actor discharges a firearm in the direction of any person or persons, knowing or having reason to believe that any person may be endangered;
(b) the actor, with intent to intimidate or harass another or with intent to damage a habitable structure as defined in Subsection 76-6-101(2), discharges a firearm in the direction of any building; or
(c) the actor, with intent to intimidate or harass another, discharges a firearm in the direction of any vehicle.

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Utah Code Section 76-6-10176-6-101. Definitions. For purposes of this chapter: (1) "Property" means any form of real property or tangible personal property which is capable of being ...
le.utah.gov/~code/TITLE76/htm/76_07002.htm - 3k - Cached - Similar pages

76-6-101. Definitions.
For purposes of this chapter:
(1) "Property" means any form of real property or tangible personal property which is capable of being damaged or destroyed and includes a habitable structure.
(2) "Habitable structure" means any building, vehicle, trailer, railway car, aircraft, or watercraft used for lodging or assembling persons or conducting business whether a person is actually present or not.
(3) "Property" is that of another, if anyone other than the actor has a possessory or proprietary interest in any portion thereof.
(4) "Value" means:
(a) The market value of the property, if totally destroyed, at the time and place of the offense, or where cost of replacement exceeds the market value; or
(b) Where the market value cannot be ascertained, the cost of repairing or replacing the property within a reasonable time following the offense.
(5) If the property damaged has a value that cannot be ascertained by the criteria set forth in Subsections (a) and (b) above, the property shall be deemed to have a value less than $300.

Amended by Chapter 291, 1995 General Session
Download Code Section Zipped WP 6/7/8 76_07002.ZIP 2,206 Bytes

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Once again, a great example of copying and pasting. You are really getting good at this! :roll:

When you have something substantive to add, please feel free to do so, but until then I'd appreciate it if you continued your mall ninja antics elsewhere.