A Look at the Legal Side of Stand Your Ground and Other Questions of Self-Defense
Article first appeared at Ammo Land.
U.S.A. –-(Ammoland.com)- Misinformation about self-defense rights and laws is what has sparked major debate over the misapplication of lethal force in civilian communities.
Bruce Lawlor identifies the major issues in self-defense cases, and the legal approaches used to resolve them.
The result is less confusion and greater understanding of what self-defense is, and how to go about determining if a homicide is self-defense or murder.
- Demystifies the law self-defense
- Uses interesting stories, based on actual shootings, to describe situations in which self-defense was claimed
- Identifies the major issues that are present in almost every self-defense case
- Describes the main legal approaches that judges and juries use to decide what happened during a deadly confrontation
- Provides an easy to understand framework for analyzing claims of self-defense that is applicable in to all states, and adaptable to individual states
- Helps non-lawyers understand when deadly force can be used in self-defense
Self-defense is the number one reason people in the United States give for owning a firearm. Americans, or at least part of them, have decided they are willing to use deadly force, if necessary, for their own safety in critical life and death situations. This book is to help them as well as those who are thinking about the individual’s role in dealing with distributed, and networked threats, whether criminal or terrorist.
WHEN DEADLY FORCE IS INVOLVED: A Look at the Legal Side of Stand Your Ground, Duty to Retreat, and Other Questions of Self Defense (Rowman & Littlefield; March 2017) will help you recognize the legal questions that appear in most self-defense claims, and the approaches taken to resolve them. It will help you understand when you can use deadly force to protect yourself. And it will allow you to get comfortable with your decision about whether and under what circumstances you are prepared to use a firearm to protect yourself or someone you love.
Self-defense, as a legal concept, is easy to describe, difficult to apply. Everywhere in the United States, the law recognizes clearly that an innocent person has the right to use deadly force against another person who threatens him or her with death or mayhem. At the same time, there is no national notion of self-defense that applies uniformly in every state. Court decisions about the use of deadly force in one state can vary from decisions in another state, depending on local laws and customs. These variations can create confusion, and at times what appear to be contrary outcomes. Misinformation about the idea of personal self-defense, circulated by both sides in the gun debate has further muddied the waters.
Most self-defense claims involve a common set of legal issues, the same questions over and over again, and there is remarkable agreement among the states about how to resolve them. This book uses a combination of historical fiction and the law to identify these common legal issues and to help readers understand when deadly force may be used in self-defense. The stories that begin each chapter, while imagined, are based on facts disclosed at the trials of people who were accused of murder and claimed to have acted in self-defense. Each one illustrates how the courts historically have handled a particular area of self-defense law.
The end result is a framework that will help you think through the idea of self-defense, and whether the use of deadly force is something you wish to consider. It is not a task to be taken lightly. Possession of a firearm with intent to use it against another person, if necessary, and under what circumstances, is a serious and very personal decision. This book will help you to decide what’s right for you.
Table of Contents
- Necessity. Necessity lies at the heart of every self-defense claim. The idea is that people have a natural, God-given right to protect themselves from deadly danger, and that they shouldn’t be punished if they use deadly force to avoid being killed or injured, provided they played no part in bringing about the danger. In self -defense cases, necessity means unavoidable. It describes situations in which people must either take someone else’s life, or forfeit their own. The chapter begins the book by looking at the overarching question in every self-defense case: was it really necessary to kill anyone?
- Intent. Self-defense occurs when one person kills another intentionally to avoid his or her own mortal peril. The slayer’s intent, bad or good, when performing the deadly act is key to determining whether the killing was necessary, in other words unavoidable. Killing with malice, hostility, or ill will toward the victim is bad intent, and bars a claim of self-defense because the deadly act was motivated by a desire to hurt the victim. Killing to avoid one’s own death or injury, however, is different. It is considered good intent, because the deadly act was motivated not by a desire to harm the victim, but rather by a desire to save oneself. Killing with good intent justifies a claim of self-defense. But what happens if the deadly act is unintentional, if the shooting occurs by accident? For example, a gun discharges without anyone intending to pull the trigger. This chapter looks at the issue of intent and what happens to the shooter’s claim of self-defense if the gun fires by accident.
- Provocation. A person claiming to have acted in self-defense must be innocent of any behavior that helps to bring about the danger that justifies the use of deadly force. In addition to examining a shooter’s intent, the law will also look at his or her behavior to see if it was good or bad. Good behavior seeks to avoid a confrontation, in favor of alternatives that avoid the use of deadly force. Bad behavior inflames the situation, or moves it toward a violent ending. Bad behavior and self-defense are incompatible. This chapter looks at what constitutes bad behavior by shooters in self-defense situations.
- Deadly Threats. The threat of unlawful, deadly danger is what triggers the right of self-defense. It is the prospect of being killed or seriously injured that justifies the use of deadly force in response. Without a deadly threat, there can be no self-defense claim. Deadly danger can take man forms. It is as varied as human behavior. Regardless of how it manifests itself it must be clear, and detectable by human senses. There must be some physical act, some observable behavior, or some objective sign of impending violence that places an innocent person’s life or well being in jeopardy, unless immediate action is taken to avoid it. What constitutes an unlawful, deadly threat is an important question in every self-defense case.
- Verbal Threats. Words almost always begin an escalation toward physical violence, yet words alone never justify the use of deadly force against another person. Someone who is taunted, insulted, ridiculed, even threatened doesn’t get to shoot his or her tormentor, no matter how provocative the language. Yet words are still very important in self-defense cases because they suggest motivation and purpose. They can reveal whether the shooter’s intent was good or bad, and thus help determine whether the use of deadly force was justified. In some jurisdictions, a shooter’s words will be examined to see if they were provocative. This chapter looks at the importance of words in self-defense cases.
- Imminent Harm. The unlawful deadly threat that triggers the right of self-defense must be imminent, but how soon is imminent? Generally, the danger must be on the verge of happening, requiring an immediate “right now” response to avoid it. There is no right to use deadly force now to prevent some future danger, even if the future danger is almost certain to occur. A person must be about to be killed or seriously injured before using deadly force against his or her attacker. Some states have begun to see long term, physical violence against a spouse as justification for the present use of deadly force to prevent future danger. In such cases, the threat is said to be endemic, a continuing danger that can erupt at any time into life threatening danger. This chapter examines the question of how soon is imminent.
- Reasonable Fear. A critical question in every self-defense case is whether the shooter reasonably feared that he or she faced imminent death or serious bodily injury, unless swift action was taken to avoid it. That said, the law doesn’t tolerate overly active imaginations in deciding this question. Fear alone is not enough to justify the use of deadly force. The facts and circumstances of the situation must be such that people, other than the actor, would conclude that he or she was about to be killed or seriously injured. Different states use different approaches to decide what is reasonable fear.
- Duty to Retreat. The concept of the duty to retreat is rooted in English common law, and its purpose is to avoid the use of deadly force wherever possible. It is a public policy preference that seeks to balance society’s interest in preserving everyone’s life, with the individual’s interest in preserving his or her own life. Simply put, the duty to retreat says an individual must make every reasonable effort to avoid deadly danger, before using deadly force to defend against it. English colonists brought the idea with them to the new world, where resistance to its application grew, particularly in situations involving sudden, expected attacks. As Americans marched westward to the pacific, they cast off the idea of retreat in the face of sudden danger, and replaced it with a “true man” standard that says there is no duty to retreat in the face of s sudden threat. The duty to avoid the use of deadly force is still important, however, particularly in situations where the threat builds over time, and this chapter examines that issue.
- Stand-your Ground. Stand-your-ground statutes are best understood in context of the “true man” standard and the duty to retreat. The “true man” standard replaced the duty to retreat in situations where a deadly threat appears suddenly and there is little time to react. When the danger builds more gradually, however, and there is some period of time for reflection before action is required, the duty to retreat still applies. In those cases, a person facing deadly peril must still first seek to end the confrontation, if possible, before resorting to deadly force. If avoiding the use of deadly force means an innocent person must retreat, or cede ground, or give up lawful rights in the face of an aggressor, and look to the law for redress, then in duty to retreat states, that is what the individual must do. Stand-your-ground laws modify the duty to retreat in situations specified in the statute to allow an innocent person to use deadly force, if necessary, without first retreating.
- The Castle Doctrine. The Castle Doctrine is also best understood in the context of the duty to retreat. It came into being to eliminate the requirement for a person to retreat in his or her own home. In that respect it is very much like a stand-your-ground statute. A person attacked in his or her own home is not obliged to retreat in the face of deadly danger, but may stand his or her ground, protect the home, and resist at attack, with deadly force if necessary. Every state has some version of the Castle Doctrine, but there are significant differences in how these laws are applied. Who can claim it, and what area is considered the “Castle” or place of refuge where no retreat is required, often varies form state to state.
- The right of self-defense is tied closely to the existence of a deadly threat. Once the threat disappears, so too does the right to resist it with deadly force. An aggressor’s willingness to end a confrontation must be respected. If an aggressor abandons the fight, or indicates his or her desire to seek peace, either by word or by deed, the right of the person threatened to use deadly force against him or her ceases to exist. If the person initially threatened fails to honor an attempt to de-escalate the confrontation, or turns the tables and attacks the aggressor, or uses the lull in hostilities to gain advantage, then he or she forfeits the right of self-defense, and it passes to the person who has attempted to walk away from the fight, and that person may the use deadly force, if necessary, to defend him- or herself against further attack.
- Mistake. In 1576, an Englishman shot an arrow intending to kill his enemy but missed, and mistakenly killed an innocent man. The archer was found guilty of murder because he was trying to hurt his victim, his intent was bad, and it “transferred” to the innocent person he actually shot. Thus was born the idea of “transferred intent,” meaning that one’s intent follows his or her act to its end result. Good intent, as well as bad intent, travels to the act’s conclusion. So what happens if an innocent person uses deadly force to defend against what he or she reasonably fears is an imminent unlawful threat of death or serious bodily injury, but in doing so mistakenly kills the wrong person? This chapter examines that question.
- Reasonable Force. The force used to avoid danger may be deadly, but it may not be excessive. Deadly force is reserved for situations of extreme necessity, where all lesser means of resistance have failed or cannot be employed. When deadly force is used in situations that don’t warrant it, it is considered excessive, unreasonable, and the actor may not claim to have acted in self-defense. Many factors influence decisions about what is reasonable force. This chapter addresses what they are.
- Threatened. People have the right to go about their business, behave as they choose, and visit any place they want, so long as they behave legally, and do not seek to confront an adversary. That is true even if by moving about they expose themselves to deadly danger. Ignoring the threat of deadly peril may not be the wisest thing in the world, but people are entitled to do it. This chapter looks at how a person may arm him- or herself in the face of deadly danger and behave lawfully.
- Decisions. A self-defense shooting initiates a review process to decide what happened, by people who weren’t there and didn’t see or experience the confrontation. It involves police, prosecutors, defense attorneys, judges, and ultimately a jury, and no matter how strongly the facts appear to support the shooter, the decision about a claim of self-defense is never a foregone conclusion. Evidence is gathered, witnesses are interviewed, laboratory tests are performed, and the laws are discussed. The effort goes on and on until everyone is satisfied they have all the facts. Then a cold calculated decision is made. Is there enough evidence to charge the person claiming self-defense with murder, and to prove it to a jury beyond a reasonable doubt? If there is, criminal charges will be brought. If not, the actor will be exonerated in the victim’s death. In the final analysis, the decision often turns on an assessment of whether the killing was really necessary.
About the Author, Bruce M. Lawlor
Bruce M. Lawlor is a retired Major General from the U.S. Army, a former CIA case officer, former trial lawyer, first Chief of Staff for the U.S. Department of Homeland Security, and former Virginia Tech professor. He works with national, state, local, and private sector executives to enhance organizational and individual security. As an attorney, he represented both police officers and criminal defendants, in civil and criminal litigation, to include arguing successfully a claim of self-defense in a murder case. Mr. Lawlor is a certified firearms instructor, and teaches individual self-defense. He conducted research regarding the rules of engagement for the use of small arms, relating to U.S. Army operations in heavily populated, civilian conflict areas. He is a Harvard National Security Fellow.