[hga]

Errr, the latter is how these incidents are judged. E.g. the woman who recently ran down a man carrying a sawed off air soft shotgun; especially with the orange tip removed, she could not tell that he wasn't actually threatening in that way. Similarly, a criminal using a fake gun to commit a robbery gets a charge of armed or aggravated robbery.

This is determined after the fact all the time, presumably in the Wisconsin case, and definitely in the Zimmerman/Martin case before it was politicized.