NOTE: I’m not a lawyer nor am I giving legal advice. Seek competent legal counsel (an attorney not the police), in your State, if you have specific questions, concerns, etc.
Is it legal to defend yourself or others? This is a concern for many people and it’s difficult sorting through the myths, half-truths and simply bad information out there. We’ve already discussed self-defense is not taking the law into your own hands and that you have a basic human right to protect yourself and others.
What Is Self-Defense
Self-defense is not taking the law into your own hands. The media, along with television shows and movies, often refer to people who defend themselves as taking the law into their own hands. This is simply not true. All people have an inherent human right to protect themselves from violent attack.
Marcus Tullius Cicero (106–43 BC) wrote, "There exists a law, not written down anywhere, but inborn in our hearts, a law which comes to us not by training or custom or reading, a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right.”
Self-defense is not revenge. Self-defense happens in the moment of violent attack. Civilized society has laws prohibiting unlawful violent attack, but unfortunately not everyone follows these laws. In the moment of violent attack, you have the basic human right of using force, up to and including deadly force, to stop the attack.
Once the attack is stopped and you are no longer in danger, prosecution and punishment of the attacker belongs to society. You have given up this power to the society you live in. John Locke put it this way, "But though men when they enter into society, give up the equality, liberty and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislature, as the good of the society shall require; yet it being only with an intention to everyone the better to preserve himself his liberty and property". (Locke, John; Second Treatise on Government, Chapter 9)
If you seek to punish your attacker on your own, after the attack has stopped, you are then taking the law into your own hands. As a citizen, you have transferred this authority to the government. But this transfer of authority to punish the attacker is not the same as your right to defend yourself with force at the moment of attack. They are two separate issues. Your human right to protect yourself, and those around you, from violent attack is a right which should be protected by law; not granted by it.
Self-Defense is Protected by Law
Here is the good news, each State has written laws governing what’s typically called the Use of Force. Most of them will be published online for you to research and read. You will not need a law degree to understand the basic verbiage of the laws, but how the words get applied in the real world of criminal charges and courts will require the help of competent legal counsel. Google “[Your State] Use of force laws” and look for the listing URL for your actual state government law page. There will be plenty of other results but go to the actual source on your State government website.
The basic answer to my opening question, is ‘yes’ it is legal to defend yourself and others. To my knowledge, throughout the United States you can use force, up to and including deadly force, to protect yourself or another person from death or serious bodily injury. All use of force must be objectively reasonable to the situation at hand. Some States have laws known as ‘Castle Doctrine’ or ‘Castle Laws’ which provide specific protections to people using force inside their home against intruders. Some States have ‘Stand Your Ground’ laws which mean you do not need to retreat from a violent person even if you can reasonably do so.
Using a Gun (or any tool) for Self-Defense
Many people who have made the choice to own a gun, do not know the laws governing its use in self-defense. A gun is considered a deadly force tool. Deadly force is defined as “that force which a reasonable person would consider likely to cause death or serious bodily harm.” Each State may vary in deadly force, self-defense law so you must know the law where you live.
This is the law in my State:
- A person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person against another person’s imminent use of unlawful force.
- A person is justified in using force intended or likely to cause death or serious bodily injury only if the person reasonably believes that force is necessary to prevent death or serious bodily injury to the person or a third person as a result of another person’s imminent use of unlawful force, or to prevent the commission of a forcible felony; For purposes of this section, a forcible felony includes aggravated assault, mayhem, aggravated murder, murder, manslaughter, kidnapping, and aggravated kidnapping, rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a child, aggravated sexual abuse of a child, and aggravated sexual assault… Any other felony offense which involves the use of force or violence against a person so as to create a substantial danger of death or serious bodily injury also constitutes a forcible felony
- In determining imminence or reasonableness, the trier of fact may consider, but is not limited to, any of the following factors: (a) the nature of the danger; (b) the immediacy of the danger; (c) the probability that the unlawful force would result in death or serious bodily injury; (d) the other’s prior violent acts or violent propensities; and (e) any patterns of abuse or violence in the parties’ relationship.
“I Feared For My Life”…
In a lot of self-defense classes and concealed carry permit courses, you will hear an instructor tell participants that after using force, they need to tell police, “I feared for my life.” It’s not that simple though. You can’t shoot someone and simply say, “I feared for my life” and make it all go away.
Your action must be objectively reasonable to the threat posed by the person you used force against. Just because someone acted in a way that made you afraid may not be justification for shooting them. The determination of reasonableness will be based on the following information:
- Would a reasonable person facing the same circumstances act the same way you did or use similar judgement?
- Based on the totality of the facts known to you at the time the force was used – no 20/20 hindsight evaluation.
- Based on the severity of the crime and threat posed by the person you used force against.
You have the right to defend yourself and your family. At the heart of all that is America is this, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The right to self-defense is protected in law, but you must be well aware of the boundaries and not cross the line.
Knowing when you can draw and use your weapon is essential. This lack of knowledge is what gets so many good people on the wrong side of the law in what they considered to be a self-defense situation. American police officers are the best trained people in the use of force and deadly force and look at the ambiguity and controversy surrounding many police shootings. You will face the same level of scrutiny if you shoot someone. You must know the law and act within the boundaries of the law.
When Can You Pull a Gun on Someone?
In St. Paul, Minnesota, police officers attempted to stop a stolen car when then fled from them at a high rate of speed. Officers lost sight of the vehicle and ended their pursuit. A short time later, officers were alerted to a crash involving the stolen car and another vehicle. Upon arriving, witnesses told the officers multiple people had fled the stolen vehicle.
A few moments later, officers heard gunshots a short distance down the road from the crash site. Officers quickly found a wounded man laying in the front yard of a home. Another man, later identified as home-owner Vincent Trotter, was standing in the front yard with a handgun at his feet. As I’ll discuss in a later post, Trotter made a mistake of speaking to police at the scene.
Trotter told officers he pulled up to his home and saw the man standing by the door to his [Trotter’s] home. Trotter stated, “I told him, ‘Don’t move,’ he moves, and I let three or four rounds go.” Trotter was arrested and charged with Second Degree Felony Assault with a Dangerous Weapon. Two of Trotter’s rounds hit the house across the street. To make matters worse, Trotter had a sign next to his front door reading, “NO TRESPASSING! VIOLATORS WILL BE SHOT. SURVIVORS WILL BE SHOT AGAIN!”
You can pull your gun on someone when that person poses an imminent threat of death or serious bodily injury to you or another person. Additionally, your actions must be reasonable – meaning a reasonable person facing that situation would react as you did. Other than an imminent threat of death or serious bodily, you cannot pull your gun on someone. Don’t pull a gun on someone trespassing on your property, stealing your Halloween jack-o-lanterns, or vandalizing your mailbox.
Know the Law and How to Apply It
Another post will deal specifically with what you should do immediately after a self-defense shooting. As previously mentioned, I’m not a lawyer and nothing in this book constitutes legal advice. Read your State laws governing self-defense and use of force. Read the book mentioned below. If you have questions beyond that, find a lawyer in your state experienced in self-defense.
Anyone serious about armed self-defense should read the book, The Law of Self Defense: The Indispensable Guide to the Armed Citizen. This book is written by Andrew F. Branca, a renowned expert in self-defense law, and “teaches you how to make quick, effective, legally appropriate decisions in life-and-death situations. His easy-to-understand analysis thoroughly covers the laws of all fifty states. Key legal principles are illustrated with interesting, sometimes heart-wrenching, true life examples of people defending themselves, and how their decisions helped, hurt, or even destroyed their case."
Don't Pull a Gun to Protect Property
Deadly force can only be used to meet a deadly force threat. Deadly force (a gun or any force likely of causing death or serious injury) cannot be used to protect property. Law abiding citizens can easily end up on the wrong side of the law because they do not fully understand when they can use a gun.
I read a news story a few years ago regarding a man who was coming home from shopping. As he pulled into his driveway, he saw a burglar run out of his front door carrying his [the homeowner’s] television.
The homeowner, a concealed weapon permit holder, was armed and jumped out of his car. The burglar was now running across the front yard and the homeowner drew his handgun and started shooting. All his shots missed the burglar and ended up inside his neighbors’ homes. The homeowner was charged with a list of serious crimes. He was never justified in shooting to prevent the theft of his television.
A somewhat common problem across the nation is a homeowner catching someone attempting to steal or vandalize property, outside the home, and holding them at gunpoint until the police arrive. You can easily catch an Aggravated Assault criminal charge by pointing a gun at someone who was stealing or damaging property.
Conclusion:
If you own a gun for self-defense, ensure you know the laws governing your use of it. Don’t believe what you hear at the gun-store, shooting range, or social media.