So, do you draw your handgun in self defense or not? Yes! No! Maybe! Well, what do you do? Suffice it to say, there are many, complex considerations and variables in each different situation we might encounter to just begin answering that seemingly innoculous question. To begin, yes we have a 2nd Amendment Constitutional right to keep and bear arms in the United States. It is certainly a euphemism to say the decision to own, carry, and use a handgun is a very serious one that comes with great responsibility. Of course, as gun owners we should know, follow, and respect the law and get proper and thorough handgun training. And that is not just a three-hour introductory course on a few handgun topics, or twenty-years-ago military training classes, or squirrel-hunting lessons from Pop when we were young. If we don’t know what we are doing, not just in terms of handling and shooting skills with a gun, but also in regards to the legal responsibilities and situational factors, there is a high probability that we might be fitted with some new bracelets and mandatorily locked away in a compact cubicle. Even if we believe that our use of deadly force was bona fide and in justifiable self defense against that contemptible, despicable cretin. There is also a high probability, thankfully, that we will never have to draw our handgun to protect our lives or those of our loved ones or against great bodily injury. Still, we should be prepared with the shooting skills training, legal understanding, and know upfront the common concepts, key deadly-force principles, and responses necessary for our personal long-term survival (mentally, physically, and financially) in many self-defense situations, just in case.
So, even if we have the excellent handgun shooting skills and strongly believe that our use of deadly force was the correct response in our encounter, there is also a high probablility that we may get in trouble. People think and reason differently, have different values and priorities, define and interpret things in their own terms, have different experiences and understandings which flavor their decisions and actions, and are just unique. It is like rolling the dice, since there are so very many, different combinations and situations we might experience with various outcomes in a short amount of time. I guess the old axiom or the 3-3-3 Rule does come into play. This generic Rule means the majority of self-defense encounters involving the use of deadly force occur at 3 yards or less… with 3 rounds fired… and in only 3 seconds. Our whole future is at risk and based on the actions we take in a very short amount of time and at a very close encounter of the gun kind.
It is difficult for some of us to NOT draw our gun in self defense if we believe we are being threatened in any way or our property is being stolen. We know we are in the right and the other bad guy is wrong. However, there are much data, many cases, and court rulings that should influence us to be very conservative about drawing our handgun. We want to survive at the end of the day. Remember, there is no doubt that innocent people actually get convicted in our justice system. Trial is always a risk. Yes, we want to develop our shooting skills, but knowing the legal ramifications of the situations and proper applications are just as important… and probably more so. As always, the best way to win a gunfight is to not be in one to begin with. To avoid having to deal with the risk of a mandatory prison sentence and to be wise enough to avoid doing the types of things which may give rise to criminal charges against us. So, as a legal layman and not practicing law or giving legal opinions, I want to offer some general things I have discovered about self-defense situations, in order to give you some “food for thought” and to help you anticipate and broadly prepare for deadly force encounters. I am not a practicing attorney and am just trying to generally help folks. Of course, the specific variables and factors of each situation apply.
Here are some lessons I learned as a non-attorney layman about surviving self-defense situations.
1. Understand “Reasonableness”
Self-defense justification is centered around “reasonableness.” It is very difficult for you as the defendant-to-be to predict with even an above-average level of certainty what a random group of strangers (who do not know you, your values and motivations), will believe is reasonable given all the facts and circumstances of any situation. It is a high-risk crap shoot of rolling the dice with much uncertainty. Whenever you think about drawing your handgun, you need to consider both whether what you are doing will be considered reasonable by strangers, as well as the real possibility that radically-different versions of events may be presented to the police, the prosecutor and ultimately your jury. You can lose much if the jury determines what you did was “unreasonable” under the circumstances. What you did was excessive use of force. Did you have non-deadly force options to handle it. Could you have avoided shooting the bad guy, ad infinitum. You could end up in jail for a long time. Understand that it all gets down to what a diverse group of people arbitraily think and determine to be “reasonable” or “unreasonable.” Everyone behaves in a way that makes sense to themselves, but sometimes we do not know what we do not know, because we lack the prior relevant experience, knowledge, and understanding of a specific event or situation. There is NOT a body of common knowledge and understanding that everyone has and accepts. Really, there is no “common sense.” It is subjective and open to interpretation. It makes sense to me to try to entirely avoid a situation where your very freedom depends on judgments and subjective opinions about “reasonableness” from unknown, randomly-selected strangers. So, know the risk factors in your unique situation, avoid trouble if you can do so safely, and be very conservative when deciding about drawing your handgun. Hey, I am not a weany and not afraid and have some decent shooting skills. Not the issues. I rationally believe that Survival is a worthwhile goal. Getting even or getting rid of this one bad guy or even most of the bad guys in the world may not be the optimal goal for you in a deadly-force encounter. Are you the “policeman” for the world or the savior of all mankind to deal with wrongdoers? Maybe being a superb witness to help the police do their job is more important. Avoiding the confrontation does not mean you are weak, do not care, do not have the handgun skills, or are afraid. It could mean that you rationally thought thru the specific situational variables and threat level to arrive at your decision to retreat and avoid possible personal danger. Even if there is only a 1% chance of injury or death, do you want to draw and shoot? Is it worth it? You are not trying to prove your skills or right all wrongs. I don’t know about your motivation and goal, but my goal is to survive each day and be prepared with my handgun just in case. Remember, anytime you introduce a gun into any situation, you automatically escalate the confrontation, just because there is a gun present.
2. Ensure there is an “Imminent” threat to life or great bodily injury.
Imminent means right away, impending, close at hand, forthcoming in the here and now. Not this afternoon, tomorrow or later. Most states have determined that the threat against which you seek to use force to defend against must be “imminent.” In my state of Florida, the law and court rulings have predetermined that using force against a non-imminent threat is unreasonable. A jury will usually be instructed about this predetermination of reasonableness. Some states have predetermined that using force to defend against mere words alone is unreasonable. Also, many states have determined and some have laws stating that using deadly force to protect property is unreasonable. The judge will usually instruct the jury about these predetermined decisions about reasonableness. There are many diverse predetermined rules to know, understand, and they vary greatly among states. Know your state’s or jurisdiction’s laws.
3. Recognize “Perceptions” may trump reality.
Shootings and court cases may not necessarily focus on what “actually” happened, but rather what people perceive happened and what they interpret from their observations and then report. Know that one person’s version of the facts is just that and others usually have very different versions or perspectives. Is a fact an indisputable fact? Does different criteria and evidence exist to support or deny the “fact?” “Facts” are what are believed by one person and may not be the universally-accepted truth. Evidence and understandings differ. In almost all criminal cases, there are other different or even conflicting versions of the same set of data, information, and facts. What is truly believed by one may not be truly believed by another… or it may be subjective opinion and interpretation. Different versions of the facts can easily lead to vastly different potential results in court. Usually, there are several different versions of events, the situation, and behaviors. So a meeting of the minds with a common understanding may be difficult if not impossible. The “truth” may or may not come out, but getting other people to accept the genuine truth may be a problem. Perceptions are critical. People have different perceptions about what occurred and sadly some people lie. Do you want to “Bet Your Life” and a lengthy prison sentence on all this subjective uncertainty and varying opinions?
4. Identify at least 3 key “Situational” Variables in each deadly-force encounter and do so quickly.
Is the threat (a) Armed, (b) in Close Proximity for imminent danger of death or great bodily injury, and (c) have Hostile Actions and/or Hostile Words been expressed and acted upon. I understand as a non-attorney that ALL THREE of these variables must be present in most situations to justify the use of deadly force and you must usually prove they do. Usually just because someone is armed with a gun in their hand does not alone give you justification to draw and shoot the individual. Also, because someone 2 blocks away from you has generally threatened you or pointed a gun in your general direction, is not a reason by itself to draw and start shooting. Again, situational variables, complexities, and laws definitely come into consideration and vary among states and jurisdictions. It is difficult to generalize and say without a doubt or as a concrete statement that these must exist to justify drawing and shooting. It is very situational and complex. The close proximity and nearby position of the individual which allows them to immediately inflict serious bodily harm or death on you comes into consideration. Close proximity per some jurisdictions has been specified as 21 feet or less. Again, this varies. Of course, someone taking hostile action and expressing very hostile, threatening words can place you in jeopardy. There are other situational considerations called “disparity of force factors”, like needs of handicapped individuals, male v. female encounters, special skills like mixed martial arts or boxing prowess, two or more members in an attacking group, seniors over age 65, etc. Some states have laws with special considerations for these individuals. My book “Concealed Carry & Handgun Essentials” goes in depth on these factors for a better understanding. Be very careful and understand the situational variables and considerations.
5. Be silent, if involved in a self-defense encounter or shooting… usually.
Recognize that you have a Fifth Amendment Constitutional right to remain silent. But, what are the ramifications? I learned that the jury does not usually get to know whether or not a defendant exercised his or her right to remain silent. In general, if a prosecution witness or the prosecutor mistakenly comments on the defendant’s exercise of his or her right to remain silent, a mistrial can result. So at a trial, if you the defendant exercise your right not to testify, the jury is usually instructed not to hold this fact against you. So it usually seems there is no disadvantage for you to remain silent. But, some recent court decisions indicate that you might get into trouble by being silent, e.g. the Salinas decision in 2013. Your attorney can help you with this in your state and jurisdiction because there are a lot of complex, influencing factors to know. Whether or not you should be silent is complex and so very situational… usually. Again, do not pretend to be an attorney and assume you know the law. I recognize that I have a lot to learn here.
Not saying anything after a self-defense encounter does not mean you are being difficult, do not want to cooperate, nor do not want to take the correct action. You could have valid reasons for remaining silent, even if you are innocent and want to do the right thing. Recognize that after a deadly force encounter or shooting, probably any statement you make will not be complete, details may be fuzzy, you may omit something important. You will be stressed, with much adrenalin pumping, and be somewhat in shock. Given this adrenaline surge and shock, it is the worst time to offer an accurate and complete statement about what just happened. Honest mistakes occur in details, facts, & events by those involved in a shooting. You may not intend to give erroneous information and may make mistakes. So usually wait until you are more composed and after talking with your attorney to get proper guidance in your specific situation.
Remember, the Miranda Warning gives you the right to remain silent and anything you say will be used against you in court. As generally mentioned above, a 2013 Supreme Court decision in the Salinas case indicates if we do not invoke the 5th, our silence might be used against us. If that terrible situation occurs where there is much uncertainty of facts and circumstances, where someone is injured or dies, and we are being questioned, we have to be very cautious, even as an innocent person, about the statements we make. The question remains for me. Do prosecutors violate an accused criminal’s Fifth Amendment right against forced self-incrimination when they use evidence of his silence against him, even when the evidence comes from questioning conducted before he was taken into police custody? Be careful.
Drawing and using your handgun in self defense is about what is “reasonable” in each unique deadly-force situation. What is reasonable to one may not be reasonable to another. It varies a lot. Often, you must prove that you are innocent with a preponderance of evidence and might be considered guilty until you prove otherwise. You have very little control over what strangers believe was “reasonable” for your actions and much subjectivity and interpretation are involved with different versions likely for the same event and set of “facts.” You have much to lose.The facts of most deadly-force criminal cases are usually challenged and disputed and your fate and possible long-term prison term, if convicted, are at stake. So, you can see the strong consideration to be very conservative about drawing and using your handgun. Don’t pretend you know the details of the law and give yourself legal advice. You are not at attorney and may have just a few inklings about the law.Your survival goal in many ways may be threatened in the long term. There probably will be very rare times in the short run when you must draw and possibly use your gun ONLY to protect life and great bodily injury, rather than property. But, you must ask yourself in each different situation what is serious enough to warrant drawing your handgun in self defense, knowing the risks, costs, and hassels you probably will endure. Is the $200 stereo or $300 computer tablet worth it? Is just a 1% risk of death or great bodily injury to yourself worth it? Risks always are there of being arrested and prosecuted when you draw your handgun, even if you believe it is the correct thing to do in the face of the obvious thug and criminal. The law in your area MAY even technically permit you to not retreat, to stand your ground, and to draw your gun, but should you?
While you may be in the right and the “bad guy” is without a doubt a no-good crook, recognize that “good guys” do not always win and that you have much to lose. So my suggestion is to AVOID confrontations if at all possible, to RETREAT if you can safely do so, and to NOT ESCALATE encounters by introducing a gun into the situation. Your worth as a surviving, breathing human being is far more valuable and much less costly than trying to right a wrong, demonstrating your shooting skills, paying back and getting even with the bad guy, and proving you are right and not afraid. Think rationally, be disciplined, avoid the machismo and emotional reactions. Safety first always. SUCCESS!
Photo by author.
This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney in your state or jurisdiction for legal advice
and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense, stand your ground law, and concealed carry. This is not legal advice and not legal opinions. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever. Safety First!
© 2016 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 [email protected].