What Every Gun Owner Needs to Know About Self-Defense Law

[Dan W]

What Every Gun Owner Needs to Know About Self-Defense Law

      Chapter 1?Introduction

      by Marty Hayes, J.D.

      With firearms ownership comes serious responsibilities. These responsibilities take several forms, including?

            1. Responsibility to ensure that your firearms do not fall into criminal hands, due to carelessness or neglect.

            2. Responsibility to ensure that a child does not get a hold of your firearm, resulting in a tragedy.

            3. Responsibility to ensure that when you are handling your guns, your actions are safe and responsible.

            4. And finally, it is your responsibility to understand the laws regarding use of deadly force in self defense and to be aware of what happens within the legal system when a citizen uses deadly force in self defense.

      Let?s briefly address the first three areas of responsibility before going on to the fourth, which is the main topic of this series. The first two responsibilities require safe, secure storage of your firearms any time they are not in your immediate possession.

      Next, the National Rifle Association and hundreds of private trainers and firearms schools all across the nation teach gun safety and firearms responsibility to hundreds of thousands of people every year. Obtaining training from these folks is how you fulfill the responsibilities in the third concern listed. The Armed Citizens? Legal Defense Network, LLC urges you, the gun owner, to seek out and attend competent training, both to assure that you understand how to meet your responsibilities, and to document your training and knowledge about gun safety and responsibility. Documented training is part of the antidote to post-shooting accusations that you acted without regard for your responsibilities to society.

      This series is designed to introduce you to the fourth area of concern so you can begin to understand your legal rights and responsibilities when using deadly force in self defense. The information in this series should not be considered the sum total of your legal education, but instead, you should think of it as a starting point.

      The High Cost of Self Defense

      Deciding to carry a gun or to arm yourself for home defense is a choice that should be made only after thorough consideration. Many people buy guns with little thought of getting training and without investigating what the legal aftermath may be if they use a gun for self defense.

      While a clear-cut case of self defense normally results in no arrest, no prosecution, and no lawsuit, please understand that many, many cases of self defense simply are not clear cut. For example, what if someone a little larger and stronger than you picks a fight with you? Can you shoot him? At what point in the altercation would you have a right to shoot?

      What if three people, perhaps pan handlers obviously involved in aggressively begging, surround you and demand money? When you feel threatened by their insistence, can you draw your gun to stop their aggression?

      What if someone threatens your life, so you shoot him, but at the instant you determined you had no other choice but to shoot, he twists or turns away, so one or two of your shots hit him in the back? What if one of the shots in the back is the fatal shot? Do you think you might be prosecuted?

      The history of armed self defense is chock-full of incidents in which law abiding citizens legitimately used a gun for self defense and ended up in prison or were bankrupted because they were wrongfully prosecuted or sued. Let me explain how the aftermath of a legitimate act can go so wrong.

      First, if you are arrested after an act of self defense, you will be provided a public defender or you will have to foot the bill yourself for your legal defense. Most people scoff at the idea of a public defender, but I have met and worked for some very good public defenders. It is very likely that a public defender will be well-respected and well-liked by the courts. That?s the good news. The bad news is that in the typical case, there is not much of a budget with which to hire expert witnesses, crime scene reconstructionists and investigators who may be able to track down that one witness who might tell your side of the story. In addition, it is also unlikely that your public defender, or for that matter, a private criminal defense attorney, will have much experience handling legitimate cases of self defense. This is true because most acts of self defense are not prosecuted.

      When a legitimate case of self defense (as opposed to a claim of self defense that is offered purely as a legal strategy) comes before the court, it can become pretty expensive, not only in dollars, but also in time and psychological and sociological impacts. For example, if you become the subject of your local newspaper?s headline news, your neighbors, your kids? friends and even your professional contacts will likely pass judgment long before a jury does. Your kids may have to face accusations from their playmates that their father or mother is a killer, business associates may avoid working with you, and your neighbors may voice hurtful, ignorant opinions about the actions you took to survive. You might even lose your job because it is pretty hard to work if you are locked up in jail for murder if you cannot raise bail money. Do you think that losing your job and facing mounting legal bills might disrupt your family life, too?

      These are only some of the reasons gun owners must understand when it is justifiable to use deadly force in self defense, as well as learning what to expect from the legal system if they are left with no viable alternatives and must shoot an attacker.

      Internationally-recognized self-defense expert Massad Ayoob states it best when he explains, ?Deadly force is justified only when undertaken to prevent imminent and otherwise unavoidable danger of death or grave bodily harm to the innocent.?1

      If you memorize and live that one sentence, you should never be found guilty of a crime involving use of deadly force. While nuances of self-defense law differ from one state to another, all states allow the armed citizen to use deadly force against another human being when their life or the life of a loved one or another innocent person is in imminent danger. It is not that simple, however, and several aspects of using deadly force can still land you in court. While one concern entails understanding when circumstances merit using deadly force, the second is making sure law enforcement, the prosecutor?s office, and if necessary, a judge and jury understand that you reasonably believed your actions were necessary to protect innocent life.

___

1  In The Gravest Extreme, by Massad Ayoob, ISBN 978-0936279008

The educational series of articles of which this is the first is drawn from a 16-page booklet offered free of charge by the Armed Citizens? Legal Defense Network, LLC to increase knowledge among gun-owning Americans about the laws with which they will likely interact if they ever have to shoot in self defense. Founded in 2008, the Network is a membership organization comprised of gun owners, firearms instructors and attorneys who are also gun owners. To learn more about the Network or to join, visit the website at www.armedcitizensnetwork.org or request more information at 360-978-5200 or P O Box 400, Onalaska, WA 98570

      The Armed Citizens? Legal Defense Network, LLC does not assume any responsibility for the use or misuse of information contained in this article, nor does any of the educational information in this article constitute legal advice. Please understand that the information contained herein is simply one person?s opinion on these matters. It does not necessarily reflect the viewpoint of any person other than the author. The reader is encouraged to pursue additional study of the gun laws of their state with a qualified instructor or a knowledgeable attorney.

       ? 2010 by Armed Citizens? Legal Defense Network, LLC which grants permission for its use in this newsletter or publication. For permission to use this educational series elsewhere, please contact Armed Citizens? Legal Defense Network, LLC, Post Office Box 400, Onalaska, WA 98570  360-978-5200 www.armedcitizensnetwork.org

      ?end part 1?

 

[Dan W]

What Every Gun Owner Needs to Know About Self-Defense Law

      Part 2?Justifying The Self-Defense Shooting

      by Marty Hayes, J.D.

      This is part two of a multi-part series explaining laws pertaining to using firearms for self defense. In the first installment, we discussed the responsibility of the armed citizen to understand not only gun safety, but their interaction with the legal system should they use a gun in self defense. In this article, we move on to criteria that influence legal justification to shoot an assailant.

      The Reasonable Man Doctrine

      The standard against which your use of deadly force in self defense will be measured is called the standard of the reasonable person. This criterion asks, ?Would a reasonable person under the same circumstances, knowing what you knew at the time, likely have used deadly force in self defense?? If you can convince the jury that they would have done the same thing, then you will walk free. On the other hand, if the members of the jury say to themselves, ?No, I wouldn?t have pulled the trigger under those circumstances,? then the verdict will probably not be in your favor.

      How do we convince a jury that we acted as a reasonable person would have acted?

      The Elements of Ability, Opportunity and Jeopardy

      For decades, police officers have been taught that they can employ deadly force only under circumstances in which the elements of ?ability,? ?opportunity? and ?jeopardy? are present. The same method of teaching justifiable use of deadly force has been employed in the civilian sector for at least three decades. You won?t see any of these terms in the law books and court decisions, however. Instead, you will see something like this example from the Revised Code of Washington:

            RCW 9A.16.050 Homicide?By other person?When justifiable. Homicide is also justifiable when committed either: (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or?(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

      The laws of your own state probably have similarly complicated language, requiring several readings to really understand what the law requires. Still, a careful reading will show the parallels between the complex language of most state statutes and the more easily understood terms of ?ability,? ?opportunity? and ?jeopardy? that give us clearly understood language with which to discuss and articulate why we had a reasonable belief that our life was in danger.

      For example, in explaining a decision to use deadly force in self defense, you might say, ?Well, because he had a gun in his hand, which I know is a deadly weapon, I knew he had the ABILITY to cause my death. I also knew from my training that a person within close proximity was near enough to shoot me with that gun, in other words he had the OPPORTUNITY to shoot me if he so desired. Because he said he was going to kill me, I also believed that he meant to place my life in JEOPARDY.?

      Would a reasonable person, hearing that statement, conclude that your actions were those of a reasonable person? Likely so.

      Now, let?s do a better job of putting into context the three elements of ?ability,? ?opportunity? and ?jeopardy,? as used to justify using deadly force in self defense.

      Ability

      Ability means that the attacker possessed a weapon capable of causing death or grievous bodily harm. The object in question could be a make-shift weapon, like a beer bottle, a baseball bat, pool cue or even folding chair, if used to inflict a blow. Generally speaking, charges brought against someone for defending themselves or another innocent person rarely center on whether or not the attacker possessed the ability to cause death or serious injury, with a couple of glaring exceptions.

      The first exception is when the attacker you shoot does not have a weapon or an object capable of being used to inflict serious bodily injury, but you thought he did. For example, in my home state of Washington a few years ago, a police friend of mine shot and killed an assailant who was armed with a couple of spoons. That?s right: spoons. The prosecutor did not press charges against my friend because under the circumstances of the shooting he reasonably believed the spoons were a knife. The critical issue is the reasonable perception that the attacker possesses a weapon.

      A related exception is found in the furtive movement shooting, in which an individual is shot when he reaches for something that the defender honestly and reasonably believes is a weapon. Under most circumstances, if the perception is found to be a reasonable one, the defender?s response will be ruled justifiable.

      The second exception, and the one that lands people in jail time and time again, crops up when the defender uses deadly force against an unarmed attacker, or even to fend off multiple unarmed attackers. This happens with surprising frequency, and more often than not, the defender ends up paying a high price legally. The issue involved is called ?disparity of force,? and it is a critical one.

      When a legitimate self-defense shooting ends up in court, many times the civil litigation or criminal prosecution hinges on the question of disparity of force. After all, if a prosecutor knows the attacker had a deadly weapon and was in fact attacking, he is likely not going to prosecute the self-defense shooter. But, what happens when the defender is being stomped to death, choked to death, or otherwise believes a deadly force attack is imminent or underway? And, what if that defender shoots one or more of his assailants, but they claim that they were only beating him up, not trying to severely injure or kill him?

      Legally speaking, likely it was lawful for the defender to use force in self defense, but in court the claim is made that he or she used excessive force. Under these circumstances, the defendant will need to show the jury, or a judge if the case is heard at a bench trial, that they had a reasonable belief that the attackers possessed the ability to cause death or serious physical injury. For the exact parameters of laws of your local jurisdiction, consult the criminal statutes and the self-defense case law of your own state or consult a local attorney who is knowledgeable about self-defense law.

      Opportunity

      In addition to showing that the attacker or attackers had the ability to cause your death or inflict serious physical injury, you must also show that they had the opportunity to carry out a deadly force attack. This usually entails showing that they were close enough to use their ability against you.

      For example, if the attackers simply have their hands and feet with which to attack, they would have to be very close: close enough to control you and hit and kick?typically within arm?s reach. But does that hold true for what is called a ?contact weapon,? a knife, or another object make-shifted as a weapon, like a beer bottle or a baseball bat?

      In the 1970s Dennis Tueller, a Salt Lake City police sergeant, did a study comparing how long it took an officer to draw and fire a handgun with how long it took an average person to run at them from a distance of seven yards and inflict a fatal wound. The times for both drawing and firing and running 21 feet averaged out to about 1.5 seconds. In law enforcement training, that meant the officers should draw their weapons much sooner than had been commonly thought when faced with a person armed with a contact weapon. Knowing that a person can close a distance of 15 to 30 feet in one to three seconds should be part of your mindset, too, and before you decide the person possesses the opportunity to use their ability against you, you need to work out how distance and proximity play into the ?opportunity? factor, combined with the unique circumstances of the incident.

      Jeopardy

      If the elements of ability and opportunity are both present in an altercation, you must still convince a judge or jury that it was reasonable for you to believe that your life was in jeopardy. The element of ?jeopardy? is also sometimes identified as the element of ?intent.? Was the attacker or were the attackers intending to carry out an attack? Was your life in jeopardy?

      Usually, this issue comes up in cases of unlawful display of a weapon or ?brandishing.? To successfully defend against a charge of brandishing, you will need to give sufficient detail about the actions of the attacker or attackers to show how their behavior would lead a reasonable person to believe that they were preparing to attack.

___

The educational series of articles of which this is the second is drawn from a 16-page booklet offered free of charge by the Armed Citizens? Legal Defense Network, LLC to increase knowledge among gun-owning Americans about the laws with which they will likely interact if they ever have to shoot in self defense. Founded in 2008, the Network is a membership organization comprised of gun owners, firearms instructors and attorneys who are also gun owners. To learn more about the Network or to join, visit the website at www.armedcitizensnetwork.org or request more information at 360-978-5200 or P O Box 400, Onalaska, WA 98570

      The Armed Citizens? Legal Defense Network, LLC does not assume any responsibility for the use or misuse of information contained in this article, nor does any of the educational information in this article constitute legal advice. Please understand that the information contained herein is simply one person?s opinion on these matters. It does not necessarily reflect the viewpoint of any person other than the author. The reader is encouraged to pursue additional study of the gun laws of their state with a qualified instructor or a knowledgeable attorney.

       ? 2010 by Armed Citizens? Legal Defense Network, LLC which grants permission for its use in this newsletter or publication. For permission to use this educational series elsewhere, please contact Armed Citizens? Legal Defense Network, LLC, Post Office Box 400, Onalaska, WA 98570  360-978-5200 www.armedcitizensnetwork.org

      ?end part 2?

[Dan W]

What Every Gun Owner Needs to Know About Self-Defense Law

      Part 3? Defending Self Defense

      by Marty Hayes, J.D.

      This is part three of a multi-part series explaining laws pertaining to using firearms for self defense. In the previous installment, we discussed criteria that influence legal justification to shoot an assailant. In this article, we study using the claim of self defense when justifying a decision to use a gun in self defense.

      The Model Penal Code

      The Section 210.1 of the Model Penal Code, which is the basis for the majority of murder and manslaughter statutes in America, states:

       ?Criminal Homicide. (1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being. (2) Criminal homicide is murder, manslaughter or negligent homicide.?

      What is glaringly absent in the above definition is any mention of self defense. Thus, if you intentionally use a gun against another person and that person dies, you have fulfilled the elements of the crime of murder or manslaughter and can be arrested and tried. Only at trial, do you have the opportunity to claim and proffer a defense of self defense.

      However, if you have a legitimate claim of self defense, many prosecutors or district attorneys won?t prosecute because they know that it is a waste of taxpayers? money. Unfortunately, some will and do prosecute clear-cut cases of self defense for political reasons. If their community leans towards an anti-gun, anti-self defense bias, then a politically-savvy district attorney or prosecutor is likely to pursue any gun case in their jurisdiction. As gun owners, this is the reality we face, especially in self-defense cases that are not black and white, but like life in general, have a lot of shades of grey.

      Whatever the motivation, if you are prosecuted or sued after a legitimate act of self defense, you and your attorneys will need to prove to the jury, by a preponderance of the evidence, that you were justified in your act of self defense.

      In a typical criminal prosecution, a prosecutor must prove guilt beyond a reasonable doubt, and the burden is on the prosecution to bring forth evidence to prove the charges. That means they must prove the elements of the crime. If you are tried in a state that follows the model penal code, it isn?t too tough to show that your actions were the same as those spelled out in the crime of murder or manslaughter, because the evidence will easily show that you purposely used a firearm to shoot and kill the deceased.

      If you plead self defense, the burden of proof shifts to you and you are required to prove by a preponderance of the evidence (51% or greater) that your self-defense act was reasonable under the circumstances because you legitimately feared death or crippling injury and that the force you used was not greater than what was reasonable and necessary.

      Because this small booklet only addresses deadly force issues common to all 50 states, we cannot advise you on specifics of your state?s law. In addition, statutory law and case law are subject to change, so again, it is incumbent upon you, the reader, to look up and study the laws of your area or consult with a local attorney who is well-versed in self-defense law, to make sure you fully understand the laws in effect where you live.

      Proving Your Claim of Self Defense

      The armed citizen who has been forced to shoot in self defense faces a conundrum. You see, after a shooting, the police will be called (either by you or another person) and when they question you, anything you say can be used in a court of law against you. If what you say or don?t say raises suspicions that you were not justified in shooting, you will probably be jailed until you can get a preliminary hearing in front of a judge. Conversely, if the officers believe you legitimately shot the attacker in self defense, you will more likely than not sleep in your own bed that night. Thus, the question is, how do you explain to responding officers what happened, but still invoke your right to remain silent? The answer is, you cannot. You must make a decision whether to keep silent or to explain what happened. Let?s evaluate the pros and cons of both so you can make an informed decision.

      If you refuse to talk to the responding officers, it is extremely likely that you will be arrested?maybe not 100% of the time, but often enough that you should plan on spending the next several days, or perhaps weeks or months in jail. While that?s pretty bad, at least you didn?t incriminate yourself by your own words. That is about the only upside to keeping silent, but please understand that if you live in a jurisdiction that is rabidly anti-gun and anti-self defense, you may likely be arrested anyway, so sometimes a decision to remain silent might make sense. It is your choice.

      On the other side of the coin, though, discussing the incident with law enforcement might keep you out of jail and out of the courts, if you explain to the police officers why you felt shooting in self defense was necessary. This requires that you be a good witness and clearly explain the attacker?s actions, telling the responding officers what the attacker or attackers were doing that convinced you that your life was in danger. It means identifying for law enforcement anyone else in the area that saw the incident. It also means pointing out any evidence that the officers might overlook in their investigation. For example, if you knew that the attacker?s buddy grabbed his weapon and threw it in the bushes, it is probably a good idea to tell officers that the weapon is in the bushes, and how it got there.

      If you are going to claim self defense at trial, this approach is necessary because the police need to know what happened that caused you to shoot.

      However, being a good witness doesn?t require explaining every minute detail about your act of shooting. When you were attacked, you were likely under extreme stress in survival mode and the fight or flight instinct kicked in. Physio-psychological effects known to occur during stressful incidents make you a poor witness about the facts and specifics of the attack. These physio-psychological effects include distorted perceptions of time and distance, plus tunnel vision and auditory exclusion, any one of which can result in an inaccurate report of the event if you try to report specific details.

      Instead of going into detail when speaking with responding officers on the scene, I recommend briefly explaining what the attacker did to precipitate your self-defense actions plus pointing out evidence that could be lost or overlooked and identifying witnesses to the event. Next, state that you would like the counsel of an attorney before you give a formal statement, a written statement or even a tape-recorded statement. Once you?ve said that, keeping your mouth shut is likely the best approach. You have been a good witness and cooperated with the police. You have reported the crime committed against you, and frankly that is as far as you need to go at that time.

      ___

      The educational series of articles of which this is the third is drawn from a 16-page booklet offered free of charge by the Armed Citizens? Legal Defense Network, LLC to increase knowledge among gun-owning Americans about the laws with which they will likely interact if they ever have to shoot in self defense. Founded in 2008, the Network is a membership organization comprised of gun owners, firearms instructors and attorneys who are also gun owners. To learn more about the Network or to join, visit the website at www.armedcitizensnetwork.org or request more information at 360-978-5200 or P O Box 400, Onalaska, WA 98570

      The Armed Citizens? Legal Defense Network, LLC does not assume any responsibility for the use or misuse of information contained in this article, nor does any of the educational information in this article constitute legal advice. Please understand that the information contained herein is simply one person?s opinion on these matters. It does not necessarily reflect the viewpoint of any person other than the author. The reader is encouraged to pursue additional study of the gun laws of their state with a qualified instructor or a knowledgeable attorney.

       ? 2010 by Armed Citizens? Legal Defense Network, LLC which grants permission for its use in this newsletter or publication. For permission to use this educational series elsewhere, please contact Armed Citizens? Legal Defense Network, LLC, Post Office Box 400, Onalaska, WA 98570  360-978-5200 www.armedcitizensnetwork.org

      ?end part 3?

 

[Dan W]

  What Every Gun Owner Needs to Know About Self-Defense Law

      Part 4? Common  Pitfalls

      by Marty Hayes, J.D.

      This is part four of a multi-part series explaining laws pertaining to using firearms for self defense. In the previous installment, we discussed using the claim of self defense when justifying a decision to use a gun in self defense. In this article, we will alert the reader to common pitfalls that may prevent using the argument of self defense to explain why you shot an assailant.

      Even if ability, opportunity and jeopardy were present in the altercation and it was reasonable to believe your life was in danger, if you use deadly force in self defense you could still be convicted of a serious crime. This could occur if you were the one who originally started the altercation. Even if the altercation was not a deadly force situation at the beginning, if it escalates to the point where you actually need to use deadly force to avoid suffering serious bodily injury or death, you will still likely be arrested, prosecuted and probably convicted of the crime of manslaughter.

      The initial aggressor principle is not likely to be mentioned in statutory law, but it is contained in most if not all of the common law1 of the individual states. It is seen as a public policy issue, and the Justices of the state appellate courts are pretty much in agreement that the one who starts a fight should not get off scot-free if they kill someone, even if at the end, that killing constituted legitimate self defense.

      Issues about the initial aggressor come up in prosecutions for assault if the person survives or in murder or manslaughter cases if the person dies. If the judge trying the case believes that you started the altercation, he or she is allowed by law to withhold a self-defense instruction to the jury. The jury then does not get to decide if you were justified in using deadly force. If you are claiming self defense and the judge refuses to give a self-defense jury instruction, you are pretty much sunk, at least for that trial and subsequent conviction. You might win a new trial upon appeal, but that will likely take several years, during which you will be in prison.

      There is one thing that will restore your right to self defense even if you were the initial aggressor, and that is withdrawing from the altercation. Your claim to self defense can be restored if you can show evidence that you reasonably withdrew from the altercation, and then the person you shot came after you and started a new altercation.

      Up until now, this series has only addressed the use of deadly force in self defense. Now, we are going to discuss defending others. The right to use deadly force in defense of other people comes from the common law of England, where it primarily addressed a man?s defense of his family. Of course, times have changed, and now the logical need to defend other innocent people out in public in addition to family members, is certainly a distinct possibility. There are two legal issues at work here, one based on the common law, and the other based on statutory law, including the model penal code.

      The Common Law Approach

      In most states, this bit of common law developed over the first two centuries of America?s history and came into existence when judges decided whether or not a third person was justified in using deadly force in the defense of others, under the legal concept of ?standing in the shoes? of the person you are defending. This means if the people who you were defending were legally allowed to use deadly force to defend themselves, then it is legal for you, as well, to intervene with deadly force on their behalf, to save them from suffering great bodily injury or death.

      In a real world scenario, the armed citizen needs to know enough about the situation in which they intend to intervene to understand whether the person they propose to protect has a legal right to use deadly force in self defense. In other words, if the intended victims had been armed and able to use deadly force to defend themselves, would their actions have been legally justifiable? For example, if you are shopping at the local suburban mall, and someone pulls out an AK-47 rifle from underneath his overcoat and starts shooting innocent people, you would be legally justified in shooting him to stop his murderous attack on the other shoppers.2 That response would be legal because it is never justifiable to shoot innocent people in a shopping mall, and so a decision to intervene is easily justified.

      Let?s change the scenario and suppose that you are walking down the street in an urban setting and you come across two people beating up a third person. All three are strangers to you. If you immediately intervene, perhaps by pointing your gun at the people you believe are assaulting the third individual, you might be found guilty of assault yourself, because you didn?t really know enough about the situation to stand in the third person?s shoes. Do you know if he started the fight? What if a knife is now hidden beneath his body, and moments before you stumbled upon the scene he had threatened the others?the people you are now holding at gunpoint? Depending on locale, this would likely be prosecuted as a case of second degree assault or assault with a deadly weapon, because the guy on the ground who you thought was an innocent victim is actually the one who started the altercation. He does not have a right to use force in self defense under the initial aggressor rule, which we covered a bit earlier.

      Under the Model Penal Code

      Alternatively, many states have adopted the Model Penal Code as their guide to statutory law, and in these states, the right to defend others is simply predicated on what a reasonable person believed the situation to be, and what amount of force a reasonable person would employ. There, it is unlikely that you would be prosecuted for pointing your gun at the two, because you reasonably believed you were stopping an aggravated assault.

      Intervening in situations containing unknown factors is complicated. When defending others, the best strategy is one that combines requirements from both common law and statutory law into a workable plan in which you intervene only if it is legal for you to use deadly force if you stand in the shoes of the person you are defending and at the same time reasonably believe that the other person?s life is in grave danger. Realistically, this means defending only your loved ones or other people about whom you know enough to be sure they are innocent, unless the situation entails an obviously heinous act, like a shopping mall mass murder.

      As we close out this topic, let me emphasize that it behooves you to learn about the system of law under which your state operates. Knowledge is power, and when you decide to use a gun in defense of others, the more knowledge you have, the more likely you are to avoid mistakes. 

      ___

1 Common law, also called case law, is created by judges when deciding individual disputes or cases. Thus, it is written into the judicial findings and is not published as is statutory law when a state?s legislative body passes a law.

2  Tacoma (WA) Mall Shooting, Nov. 20, 2005 ?See http://en.wikipedia.org/wiki/Tacoma_Mall_shooting

      The educational series of articles of which this is the fourth is drawn from a 16-page booklet offered free of charge by the Armed Citizens? Legal Defense Network, LLC to increase knowledge among gun-owning Americans about the laws with which they will likely interact if they ever have to shoot in self defense. Founded in 2008, the Network is a membership organization comprised of gun owners, firearms instructors and attorneys who are also gun owners. To learn more about the Network or to join, visit the website at www.armedcitizensnetwork.org or request more information at 360-978-5200 or P O Box 400, Onalaska, WA 98570

      The Armed Citizens? Legal Defense Network, LLC does not assume any responsibility for the use or misuse of information contained in this article, nor does any of the educational information in this article constitute legal advice. Please understand that the information contained herein is simply one person?s opinion on these matters. It does not necessarily reflect the viewpoint of any person other than the author. The reader is encouraged to pursue additional study of the gun laws of their state with a qualified instructor or a knowledgeable attorney.

       ? 2010 by Armed Citizens? Legal Defense Network, LLC which grants permission for its use in this newsletter or publication. For permission to use this educational series elsewhere, please contact Armed Citizens? Legal Defense Network, LLC, Post Office Box 400, Onalaska, WA 98570  360-978-5200 www.armedcitizensnetwork.org

      ?end part 4?

[Dan W]

What Every Gun Owner Needs to Know About Self-Defense Law

      Part 5? The Castle Doctrine and the Duty to Retreat

      by Marty Hayes, J.D.

      This the final installment of a multi-part series explaining laws pertaining to using firearms for self defense. In the previous segment, we discussed common pitfalls that may prevent using the argument of self defense to explain why you shot an assailant. In this article, we review encouraging changes in the law as we conclude this series of articles.

      During the late 1990s and into the 21st century, a dramatic shift in U.S. self-defense law has occurred. Many states have passed laws permitting citizens to carry concealed handguns, as well as strengthening laws allowing use of deadly force in self defense. These include what are sometimes called ?Castle Doctrine? laws and ?No Duty to Retreat? laws. In general, these laws state that a citizen has no duty to retreat from an altercation and if self-defense actions are warranted, citizens can stand their ground and defend themselves. Before this trend, common law in many states required retreat if it was possible without incurring further risks. Additionally, many states have and others are strengthening the right to defend against criminal attack inside one?s home. For example, in 2007, Texas passed what some call a ?Castle Law,? which in part indicates that the homeowner may presume the use of deadly force is allowed in defense against anyone committing a burglary to an occupied dwelling.

      Additionally, some states have even written a provision into their statutory law that releases citizens from civil liability for acts committed in lawful self defense.

      Of course, there are practical limits within each different law, so it is imperative that you, the gun owner, research and understand statutory law and case law as it pertains to your individual state. If you cannot do this by yourself, I recommend contacting an attorney who is knowledgeable on this subject and paying for an hour of his or her time to discuss these issues and their specific application within your own city and state.

      Series Conclusion: Gun Owner Rights and Responsibilities

      We live in interesting times! As I write this booklet, examples of the good and the bad trends affecting self-defense gun owners come to mind, and while both are from the state of Arizona, these are not the only ones I could mention.

      In the spring of 2010, the governor of the State of Arizona signed a bill allowing law-abiding citizens to carry a concealed handgun for self defense without state licensure, unlike most other states that require a state-issued license to carry. Gun owners all across the U.S. applauded Arizona?s enlightened stance toward guns for self defense.

      This occurred not so long after the Coconino County Prosecutor?s office prosecuted a retired school teacher, Harold Fish, for shooting an attacker, and a jury found Mr. Fish guilty of murder for what most people believe was a justifiable homicide. It was only after spending three years in prison, winning an appeal for a new trial, arguing prosecutorial misconduct among other things, that Mr. Fish was released from prison. A second trial was avoided when the prosecutor agreed not to pursue the matter. Mr. Fish incurred over a half a million dollars in legal fees for his defense, according to the website dedicated to this incident.1

      In many jurisdictions, predicting whether a shooting will be considered self defense or a criminal act entails judging the political winds, and this is true not just in Arizona, but across the country.

      If any aspect of an act of self defense brings into question whether or not the attackers possessed the elements of ability, opportunity and jeopardy, or if a shadow of a question about the reasonability of choosing to shoot exists, it opens the door to an unmeritorious prosecution. Though you were justified to shoot to prevent losing your life, you will now face a legal fire storm as the prosecution, judge and jury analyze your self-defense actions from the safety of the courtroom. As gun owners, if only for our own best interests in avoiding prosecution after legitimately defending ourselves, we owe it to ourselves to have a clear and complete understanding of the laws about self defense and the legal system that will enforce those laws.

      With these facts in mind, the Armed Citizens? Legal Defense Network, LLC makes this booklet available free of charge to armed citizens across the country, hoping that the information contained herein will help them take the correct action when faced with a possible criminal attack. We invite the reader to join the Armed Citizens? Legal Defense Network, LLC to further protect their rights after a legitimate act of self defense.

      ___

      1  http://www.haroldfishdefense.org/

      A Few Words About The Source of This Series

      This educational series of articles has been drawn from a 16-page booklet offered free of charge by the Armed Citizens? Legal Defense Network, LLC to increase knowledge among gun-owning Americans about the laws with which they will likely interact if they ever have to shoot in self defense.

      Founded in 2008, the Network is a membership organization comprised of gun owners, firearms instructors and attorneys who are also gun owners. Awareness of cases in which citizens who legitimately used guns in self defense were prosecuted raises concerns among Network members that they, too, could be caught up by a relentless legal system so bent upon prosecuting any gun use that it cannot recognize victims who, with no remaining options, used a gun to prevent death or irreparable injury at the hands of a violent criminal.

      Too often the gun owner lacks the financial resources for a vigorous legal defense, or may lack a clear understanding of their laws and legal system. These gun owners may make mistakes or fail to take actions to protect their legal rights during the aftermath of a self-defense shooting. Too often, they are bankrupted or even incarcerated during or following protracted litigation.

      The Network takes steps to prevent such errors with educational initiatives like this booklet, as well as a series of educational DVDs sent to all Network members. A portion of membership dues funds a non-profit foundation in which monies are set aside for the defense of Network members. To learn more about the Network or to join, visit the website at www.armedcitizensnetwork.org or request more information at 360-978-5200 or P O Box 400, Onalaska, WA 98570

      The Armed Citizens? Legal Defense Network, LLC does not assume any responsibility for the use or misuse of information contained in this article, nor does any of the educational information in this article constitute legal advice. Please understand that the information contained herein is simply one person?s opinion on these matters. It does not necessarily reflect the viewpoint of any person other than the author. The reader is encouraged to pursue additional study of the gun laws of their state with a qualified instructor or a knowledgeable attorney.

       ? 2010 by Armed Citizens? Legal Defense Network, LLC which grants permission for its use in this newsletter or publication. For permission to use this educational series elsewhere, please contact Armed Citizens? Legal Defense Network, LLC, Post Office Box 400, Onalaska, WA 98570  360-978-5200 www.armedcitizensnetwork.org

      ?end of series?

[A-FIXER]

Good read,.... now I'm even more inclined to be more watchful.

[SemperFiGuy]

Thanks a Whole Bunch, Dan.

This material will go on the CD-ROM for my Nebraska and Iowa Concealed Handgun Permit/CCW classes.

[After I check out the copyrighting and so on.]

sfg

[Dan W]

This information is available from the Armed Citizens? Legal Defense Network for distribution IF it is presented exactly as published.

[SemperFiGuy]

Dan:

Coulda figgered that your postings would be following the Letter of the Law.

Got some CHP classes coming up in January and the spring.   This info will be included as part of the courses.

A pretty significant part, actually.

 

sfg

[Dan W]

SFG, they also produce a .pdf file to reproduce their booklet for printing

http://www.armedcitizensnetwork.org/images/stories/Hayes-SDLaw.pdf

[SemperFiGuy]

DanW:

Well, Many Thanks!

I just bookmarked it on my computer so that it's available for future use.    [To which it will certainly be put.   Starting w/my January 9 NE Concealed Handgun Permit class at Cabelas.]

BTW--Just finished an ATA/NRA Trap Shooting Coach class.   Offered at Papillion Gun Club by an excellent Instructor/Coach named Jim Dickerson out of Arnold, MO.

My next move will be to learn to actually Shoot Trap.

Yes.......the steps are out of order.   But I've found it's better to take a formal class in gunnery and then go out and diligently practice everything from the class until it all fits together.   The other way is to take weeks, months, and years to learn it a piece at a time.   And maybe wrongly at that.


sfg

[Dan W]

SFG although off topic, I would highly recommend a summer trap league for a quick way to get started in trap competition. Loose and relaxed enough to have fun, while still able to keep a little pressure on to perform better every week.

[SemperFiGuy]

Dan........

Heard you.

sfg