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
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.


© 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 [email protected].