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General Legal Considerations for Use of Firearms in Self-Defense

General Legal Considerations for Use of Firearms in Self-Defense

General Legal Considerations for Use of Firearms in Self-Defense

I write this article merely to give you some general information and concepts about using firearms and deadly force for self-defense, as a classroom firearms trainer and not as an attorney teaching legal definitions, concepts, doctrine, or strategies. Understand that I am not a licensed Lawyer and most certainly am not offering legal advice, legal opinions, or even any suggestions as to what you should do or not do in any deadly force situation. I leave these decisions solely up to you for your particular situation and for your interpretation and understanding of the laws of your state and/or jurisdictions, which vary tremendously. I just want to help in my general way. So validate my general views with a Lawyer who’s licensed to practice law in your state. When you decide to carry a gun for self-defense, you have assumed a great responsibility to protect yourself, your family, your friends, and other innocents around you. You must now ensure you understand the many complex considerations involved.

My goal (and probably yours) is to survive a deadly encounter with an assailant, without me or my family being harmed in any way. This includes saving my life and the lives of my loved ones, not risking criminal prosecution, and not causing financial bankruptcy or damages to myself and family from a civil judgment from a civil suit that can be initiated by anyone. In essence, even for bad guys and bad gals, deadly force must be recognized as a LAST RESORT for use only when you need to save your LIFE. If you are going to carry and/or use a gun for self-defense, in addition to being well trained in the safety rules, the basics of shooting, resolving malfunctions, accuracy fundamentals, and tactics, you should be trained and understand the circumstances under which the use of deadly force is warranted, both legally and morally. In my firearms training classes, I include legal considerations’ topics and scenarios, as well as firearms fundamentals and safety.

Realistically there probably is not such a thing as a universally-accepted justified or “Good Shoot” or even an in- concrete “reasonable” justification of your use of deadly force in ALL situations, because that is determined by the judge and/or jury… and influenced by your defense attorney, the prosecutor, and interpretation of the many involved and complex factors. It is my lay, non-legal opinion that this subjective interpretation variable does exist, even in the face of written, in black-and-white, specific laws and “facts.” What is “reasonable” for one, may NOT be “reasonable” for another. So white may be beige and black may be gray… or involve many other off-colors. Of course, this varies by individual… or for our topic by jurisdiction and state. So what is “justified” in using deadly force may be easier in some locations and not in others. Your justification by jurisdiction may involve persuasively influencing (in a legal way) and interpreting factors to the arresting officer, state prosecutor, grand jury (if involved), trial jury (if involved), and civil trial jury (if involved). So, you will, with a high degree of certainty, have to justify your use of deadly force according to the law of your state. You should know the law of your state for your justification… and preferably BEFORE an incident occurs. Some states have laws to protect you against civil court cases for using deadly force, like Florida. In some other states, even though you have proven you were justified in using deadly force, the criminal or the criminal’s family are allowed to sue you. For example, Hawaii and New Jersey allow a civil suit against you, even if deadly force was justifiable. California, Colorado, District of Columbia, Idaho, Maryland, Massachusetts, North Carolina, North Dakota, and Rhode Island all state that you cannot use more force than necessary. Meaning if you could have defended yourself any other way then deadly force would not be justified. I am generally familiar with Florida law, so here is my non-legal understanding about the use of deadly force in Florida, per FL Statute 776.013.

In Florida and in general Deadly Force should ONLY be used if you reasonably believe that such force is necessary to prevent imminent death or great bodily harm to yourself or another or to prevent the imminent commission of a forcible felony. You reasonably think and believe that you are in an immediate danger of being killed or seriously injured (e.g. probably not just a broken arm)… and reasonably believe that immediate force is necessary to prevent the danger… and you use no more force than is necessary to defend against the danger (e.g. non-deadly vs. deadly force)… and you are “in a place where you have a right to be” (e.g. no permission is needed)… and are not engaged in unlawful activity (e.g. smoking marijuana or robbing someone.)reasonably believe

You’ll notice the word “reasonably” above. This subjective standard is open to interpretation among the states, by attorneys, judges, and juries and varies. In general, the judge and/or jury will ask some variation of this question: “Would a reasonable and prudent person in the same situation, knowing what you knew and nothing more at that time, have made the same decision you made?” The judge and/or jury will ask themselves whether the danger you perceived was real and imminent, whether you were reasonable in your belief that you would be harmed, and whether you reasonably responded to that danger without excessive use of force. The general guideline under self-defense law is that you are only allowed to use enough force to combat the force being used against you. For example, could “non-deadly force” have been used instead.. such as pepper spray, etc. It is my lay understanding that use of a lesser degree of force or non-deadly force, which is force that will not usually cause death or great bodily injury, may generally be used to stop almost any crime as long as a firearm or other deadly weapon was not used. In Florida, using excessive force can be a crime and even a felony.

Another consideration in determining if you have the legal right to defend yourself by using deadly force is the ability to retreat. Some states require you to “escape” the situation if you can. If you knowingly had a way out of the situation, the state could possibly charge you with murder. The Castle Doctrine law that many states have adopted means that you have no duty to retreat if you are in your own home and in most cases, at work. This law varies considerably from state to state, with different definitions and areas of emphasis. The Stand Your Ground Law is an extension of the Castle Doctrine, which means you have no duty to retreat anywhere you have a right to be. Florida is an example. Again, this varies considerably. I understand about 20 states have a DUTY TO RETREAT law unless you are in your HOME. Some states with this are: Alaska, Arkansas, Connecticut, Delaware, District of Columbia, Hawaii, Iowa, Maine, Maryland, New Jersey, New York, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, and Wyoming.

These factors apply in Florida to the interpretation of where you can “stand your ground” and apply your use of deadly force. As a reminder, this is only my non-legal opinion and general understanding for Florida.

1) your home, dwelling, or where you live- e.g. your house, a temporary rental, a motel room, an igloo, a tent, etc;

2) places you rent, lease, or pay membership to (or are invited to)- e.g. golfing club or golf course, gym or health club, gun club, pool, dance club, etc.;

3) public places that are open to the general public- e.g. streets, parking lots, roads, sidewalks, parks, etc.and

4) your occupied vehicle and passengers inside who you approve and invite.

States greatly differ in their language and definitions, but in general for the legal use of deadly force in self-defense the following questions must be addressed:

  • Was it justified for the situation?
  • Was it necessary? Could it have been avoided?
  • Was deadly force reasonable?
  • Was death or serious bodily injury imminent?
  • Was a weapon used by the burglar, robber, or assailant?
  • Was the victim involved in any illegal activity?

As just a guideline, using “deadly force” in self-defense will be generally excused ONLY if a gun or other weapon was used by the “Bad” guy or gal during the commission of the robbery or crime, even if there is a Castle Doctrine which might allow immunity. The reality of the subjective interpretation remains. So, IT VARIES and IT DEPENDS. Frustrating!

Recognize that arrest and a wrongful death suit probably will happen to you the GOOD guy or gal, if you kill or injure a robber or burglar for example. Whether a judge and/or jury will side with you or not, is an unknown toss up. Again, so frustrating for the “Good” guy or gal. Generally speaking, if you might have to use deadly lethal force, consider the key legal variables in your area for each incident in advance. Especially, know your laws. You are probably saying “Oh yea, I will anticipate every possible situation.” This, of course, is difficult and time consuming, but you make the trade-off with your goal. Waiting to consider what-if scenarios when they occur, may be too late and cause you to hesitate, risk your life, and place your life in peril. Anticipating at least some possible general scenarios ahead of time will help.

Here is another important legal consideration. While you may not be guilty in protecting your home, business, your life, your family, or lives of others from the “Bad” guy or gal, and even if you followed the law, it will still cost you about a minimum of $25,000 in defense costs or more if it is drawn out for a year or longer. There are other costs to you, not just monetary ones. You may have to spend time in jail and experience the embarrasment and humiliation. You will miss time at work which will cost you wages and perhaps promotion opportunities. You will pay a defense attorney a large sum of money to defend your righteous actions. You will feel stress and anxiety and your family will also. So, only you can decide and justify for yourself the use of deadly force, even if it is so very evident that the “Bad” guy caused everything and is at fault. Consider is it cost effective and prudent for killing someone over your $500 stereo and your TV, not to mention the moral considerations, your time and possible erroneous reputation tarnishment, the stress for taking someone’s life, and the many other legal considerations. I hope you are never faced with this terrible situation and can avoid using deadly force in self defense, but think ahead as best you can about the many complex factors to be prepared. Just in case.

I certainly believe that anyone charged with a crime is presumed innocent until proven guilty. However, that doesn’t mean you will always be treated as if you were innocent throughout the process, even if you are the “Good” guy or gal. Keep in mind that self-defense is an affirmative defense. Meaning, in order to claim the elements of self-defense, the defendant (you) must first admit to committing the act. Then the defendant has the involved task of showing why his actions were justified, and not a criminal act, and persuading the judge and/or jury to see it that way.

There are a lot of legal considerations for using a firearm or weapon in self defense and I have presented just a few of them here. In my firearms training classes, I use a checklist with a list of these and more variables to consider in various scenarios. Make sure you are aware of the factors, think ahead about them, and have a plan for considering the many variables for your use of deadly force… and be able to cover them quickly in a real situation.

SUCCESS!

© 2013 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at ColBFF@gmail.com.
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  • http://www.facebook.com/kstageberg Kyle Stageberg

    Perhaps there ought to be a law that that protects people
    who are protecting themselves, their home and or their family. It’s a sad
    world we live in where one can be charged criminally and or sued by the family
    for doing nothing more than protecting themselves.

    • Linda W. Morrow

      before I looked at the bank draft which was of $6228, I accept
      that…my… best friend woz like actually receiving money parttime on
      their computer.. there great aunt has been doing this less than 9 months
      and just now took care of the morgage on there mini mansion and bought
      a great new Mazda. read more at, jump15.comCHECK IT OUT

      • http://www.facebook.com/people/Michael-Olson/100000198405780 Michael Olson

        if its so amazing why arent you doing it instead of spamming everyone to go check out virus sites?

    • Jasonb92

      The US Supreme Court established in 1975 the use of deadly force can only be used to protect a person, not property. That being said you have the right to use deadly force if you or your family are in imminent danger and have no other option available at that moment. If the suspect is fleeing because they see you are armed then your life is not in danger at that moment. As far as civil cases, you may be sued but if you legally shot a scumbag then make sure your lawyer is good to make that case to avoid paying their family.

    • anAmericanByChoice

      Totally agree! “Perhaps there ought to be a law that protects people who are protecting themselves, their home and or their family[,]” but this is a good article that spells things out: the way the law, society operate these days, white can be black and black can be white and we should be aware of that and be very, very careful. Common sense is also not always something people can use when in a situation that makes adrenalin go up and fear for self and loved ones and thus the need to protect self and others kicks in! But carrying a gun is a huge responsibility and one should educate oneself about all that is involved. I bet most people have no idea, as Jasonb92 mentions, that “The US Supreme Court established in 1975 the use of deadly force can only be used to protect a person, not property.” Was or were the perps trespassing? Yeah, maybe so, but that cannot justify killing someone, especially if they turn and run, and even if they don’t, the burden will be on the defender to prove s/he was afraid for their own life and the lives of their loved ones were at risk. But the law is often blind not because it is equal to all – it is not – but because of stupidity: cases like a guy brakes into your home to rob you, using a kitchen window; hurts himself on a knife, turns around and sues you because he hurt himself on your property… and gets away with it. Insane, but true. So, yeah, “there [definitely] ought to be a law that protects people who are protecting themselves, their home and or their family”

  • skeeter1269

    Im new to carrying but felt the need that I have to for my own protection now since I’ve become disabled due to an accident. I understand the duty to retreat but in my case I feel im a target since I walk with a cane and cannot run to escape from a life or death situation. Still I hope that I will never have to use my weapon but if it comes down to me or my family atleast I will be prepared. God Bless us all and the constituions 2nd amendment!

  • Kenpodon

    It’s frustrating how un-united these United States are. From traffic laws, gun laws, sentencing for bad people, motorcycle helmut laws, etc. etc. etc. If it wasn’t for politicians we could have things the same nationally. Sheesh! I have a drivers license in NM, if I move to another state I’m no longer qualified to drive unless I get that state’s license! I have a CC permit, when I travel I have to adjust my route depending on what state laws are at the time. There are many many examples like this. Yeah, we’re united alright.

  • dean800

    just before I saw the receipt of $6634, I didn’t believe that my friends brother had been realie earning money part time on there computar.. there dads buddy started doing this 4 only 17 months and at present paid for the dept on there villa and bought a great new Buick. we looked here, jump15.comCHECK IT
    OUT

  • oneoclock

    No one seems to know that Pennsylvania has a new and improved Castle doctrine law as of 2012 which no longer requires you to run away and also protects against civil lawsuit if you use justified deadly force.

  • Roberto Horton

    If you think Alan`s story is cool,, a month back my friend’s dad basically brought in $7626 just sitting there an eleven hour week from there apartment and the’re neighbor’s step-mother`s neighbour done this for 3 months and broght in more than $7626 parttime on there mac. use the guidelines from this web-site, jump15.comCHECK IT OUT

  • bose_sucks

    Thanks God I live in Arizona, Someone in your house? in your back yard (with 6 foot brick fence) or even trying to steal your car? (In your drive way) Shoot em. No one can sue you and you don’t have to “justify” deadly force.

  • Marlene Wilkes

    uptil I looked at the draft which had said $9248, I be certain …that…my father in law was like they say realie receiving money part-time at their computer.. there aunts neighbour had bean doing this for under fifteen months and resently cleared the morgage on there apartment and bourt a great new Lotus Carlton. go to, jump15.comCHECK IT OUT

  • Olga Peluso

    til I saw the paycheck four $9266, I didnt believe that my best friend was realy erning money part-time from there pretty old laptop.. there moms best frend has been doing this 4 less than eight months and by now cleard the morgage on their house and purchased Mercedes. read more at, jump15.comCHECK IT OUT

  • barry

    seems to me if they (the government) wants to lower crime and get this major problem under control then they need to pass a law that if you a criminal tries to in any way steal, rape, intent to do harm then that person has a right to defend them self with out worry about getting into trouble. if more criminals new that if they were going to break in or cause harm and they were going to get shot with out the other person getting into trouble then that might scare the stupid out of them.

  • Emily Boyd

    Dominic. true that Leslie`s st0rry is amazing, on tuesday I bought a brand new Alfa Romeo from having made $9605 this-past/four weeks an would you believe ten/k last munth. with-out any doubt it’s the easiest-job Ive ever had. I started this 7-months ago and pretty much immediately started earning over $73.. per-hour. I follow the details here,, jump15.comCHECK IT OUT

  • http://www.facebook.com/david.curcione David Curcione

    You Have the Right to Defened Your self from and Criminal intruder triing to rob you in your home or properity too! Amendments ,1st, 2nd, 4th amendment of the bill of rights too! Yoy can own a Gunsafe bolted to cellar Floor Below your houe, Town house too! & properoty as well to agreed!!! is one Rifle , Shotgun for Hunting too! A handgun is Revolver For hunting too! Home Defence is Semiauto pistal && 7, 8 ,9, 10 rounds too! is 2 clips one in the Semipistal too! agreed!!! Lawabiding Gun owner too!

  • http://www.facebook.com/david.curcione David Curcione

    The N.R.A. Gives you this Right By the U.S.A. Constitutions of the Bill of Rights too! By our First Presidend of in history George Washington on July ,4th 1776 A.D. too! He was elected in 1781 A.D is our Father of the Country is the good U.S.A. true!!! The first Free Nation is by the Free American English Seaking People is English is our First Langwich too!

  • Lacy Phillips

    I was reading this article because I have read about a couple of instances lately that involved a stranger striking a child (in particular an infant) in a public place. I carry legally in Indiana and I just have a feeling that if some random stranger laid hands on my child at the store, I’d draw on him. And I wonder if drawing on someone in a situation like that would land me in hot water. Sigh. I should probably just carry mace.

  • Randy

    Thanks, Colonel. Sobering considerations regarding self-defense ramifications, confirming sound “last resort” advice.