YOUR FIRST POINT
As to your first point, there's nothing wrong with what I said, but I do understand the not being aware of what "assault" is really all about. This is an error people make all the time. What tends to happen is people confuse the terms "battery" and "assault."
But, believe it or not, brandishing a gun is, in fact, the epitome of "assault with a deadly weapon." You're not allowed to go around pointing guns at folks (without proper legal justification), and this (or some slight variation thereof) is the crime you commit if you do.
What a lot of people don't understand about the word "assault" is that it generally refers to an attempted or otherwise unsuccessful battery. Battery is, generally speaking, an "[i]ntentional and wrongful physical contact with a person without his or her consent that entails some injury or offensive touching." [Source: Black's Law Dictionary, 6th ed., p. 104]. An "assault" is, generally speaking, "[a]ny willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm... An assault may be committed without actually touching, or striking, or doing bodily harm, to the person of another." [Same source, p. 75].
Pointing a loaded gun at someone is the simplest example of assault with a deadly weapon. The same source's definition of "Assault with dangerous or deadly weapon" in fact provides one and only one example: "e.g. pointing loaded gun at one is an assault with dangerous weapon." [Same source, p. 76].
Now, Black's is a very reputable source that almost all attorneys use on occasion, but it provides only general definitions, and they don't apply everywhere. In some jurisdictions, I am sure that pointing even an unloaded gun would count. I googled the term to see if I could quickly find anything helpful, and, apparently, this California defense attorney believes that even an unloaded gun will suffice in California: http://www.bruzzolaw.com/criminal-charges/assault-battery.html
YOUR SECOND POINT
As to your second point, regarding my second point, in which I was saying that even if self-defense was available with respect to the killing of the guy with the gun but not as to the other guy, when you're claiming self-defense, the standards vary widely from jurisdiction to jurisdiction, but generally it goes something like this: "A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force." [Same Source quoting from the then-current version of the Model Penal Code, p. 947].
Your analogy to two burglars breaking into your house is not apt, although it probably would be the basis of a reasonable argument if it were apt. However, in the house situation, even if one of the burglars was not brandishing a weapon and it otherwise is not reasonable to believe that it is necessary to shoot him in defense of your person, you might nevertheless be able to use the defense sometimes known as "defense of property." Also, when it comes to people breaking into your living quarters, law in most places tends to give you more license to defend it than it does other types of property AND more license to defend yourself while you are inside it than it does when you are at other places, so while I'm not a criminal law expert, it wouldn't surprise me if you were not liable for killing an unarmed burglar given that his partner in crime has a weapon and that they are already in your living quarters.
In the film, the two people were in a car, and the car definitely didn't belong to the shooter. No one else was around. So the only defense I can see being an issue here is self-defense. And to attempt to argue that you have used reasonable and necessary force when you've shot and killed a person sitting in a car who appears to have no weapon in his hands seems to me to be quite a stretch. The argument would surround how immediate the threat was and how necessary the deadly force was. He could point out that his victim's friend had a gun and so the gun was within his reaching distance. But it seems to me that the counter-argument would be, "Well, you could have at least waited to see if he actually attempted to grab the weapon before you shot him." Y'know maybe you could argue it. I think it's a tough one though.
So, I think the shooter was right to be scared of possible criminal liability, at least in theory.
However, as the original poster pointed out, the two witnesses that could have helped to establish his criminal liability were dead, so it may have been tough to prove, in the real world, that he wasn't properly defending himself.
THIRD POINT
And as to your third point, although I know a little about criminal law, I know much less about how it tends to work in the real world, but, y'know, I'm sure the types of people that tend to gravitate towards cop and prosecutor positions might well be inclined to wink and forget this ever happened, given that the victims were robbers.
Still, I don't think there was anything odd about them being afraid of criminal liability. I'm all for questioning the premises of films and all that, but I don't think premise-flimsiness is really a problem for this film.
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