"I carry my gun to only to protect myself and my loved ones--period".
"I could not live with myself if I did not act to defend a person who was being attacked".
We see those conflicting sentiments often here. It is essential to understand the implications.
The laws of our country permit the use of force to protect another person from physical harm and from kidnapping--under certain circumstances.
At the first level of analysis, the rules can be stated simply; Attorney Andrew Branca puts it this way: one may lawfully employ force in defense of another if and only if that person would be lawfully justified in using force to defend themself.
It's a little more complicated than that: In some jurisdictions, the defender must have a basis for reasonably believing that the other person would be so justified. In others, such a belief alone will not suffice: if it turns out that in reality, that person would not have been so justified, the use of force in intervention would not be lawful.
Remember that.
That's the basic theory, but there's also an important practical reality--one which many police officers have learned the hard way. The victim of such an attack may review the bidding after the fact and decide to not support a story that would support lawful intervention. That leaves the citizen who has intervened, officer or civilian, in a very tight spot regarding justification.
So, those are the basics. What does it all mean? If a citizen sees another person being beaten, shot at, or chased, wouldn't that be adequate?
No.
Even if three people were jumping up and down on an apparent "victim", that would not suffice.
To have any inkling of whether the other person would be justified in using force to defend himself, one has to know what has transpired beforehand. Let's review the elements of lawful self defense.
*******
There are several key elements that come to bear in justifying the lawful use of force in self defense. All must be met. Attorney Andrew Branca lists them this way, but while terminology may vary among jurisdictions, these apply throughout our country.
The first is innocence. A person who has initiated a physical confrontation is not lawfully entitled to defend himself. There is an exception: if the actor makes it clear that he does not want to continue the confrontation and does in fact attempt to withdraw in good faith, he can regain lost innocence.
The second is imminence--The attack against which defensive force is used must be happening, or about to happen, right now-- not later on and not in the past, however recent. The attacker must have the ability an the opportunity to carry out the attack. To illustrate, a man with a knife some distance away lacks the ability to use it in a violent attack.
The third involves proportionality. Though a fist can kill, it is seen in law as unlikely that it will do so, and usually, a lethal weapon may not be brought to bear against an attack made with fists. There are exceptions--we'll get to those. If the attack itself does not involve deadly force, it would not be lawful to employ deadly force in response. Deadly force is defined as force that would be likely to cause death or serious bodily injury. Deadly force obviously involves weapons such as guns, knives, or blunt instruments, and it can also involve a significant disparity of force between the parties--a difference in size, strength, or fitness, or a difference in numbers. Generally speaking, men are more capable of fighting than women, giving women the advantage. Only non-deadly physical force may be used to defend against a non-deadly physical attack, and it must be proportion to the attacking force. Deadly force may only be used to defend against deadly force, and once the realm of deadly force has been reached, the proportionality requirement goes out the window. By the way, pepper spray, properly used, is considered non deadly.
This brings us to avoidance, which in law refers to retreat. The old English Common Law, which dated to the era of contact weapons, required a person to retreat to the wall if attacked. Many US jurisdictions impose a duty to retreat--before using deadly force, a defender must retreat, if retreat is safely possible. Castle doctrine laws obviate this requirement inside one's residence and sometimes in other places. I n addition, some jurisdictions have enacted stand your ground laws that eliminate the duty to retreat anywhere in which a person has a right to be.. There are two kinds--in some jurisdictions, the laws not only eliminate the legal requirement to retreat, they instruct jurors to not consider a defender's failure to retreat when considering reasonableness. In other jurisdictions, there is no such provision.
Finally, to be lawful, the defensive use of force must meet the test of reasonableness. Others will judge that, after the fact. Jurors will be instructed to judge whether a reasonable person in similar circumstances, knowing what the defendant knew at the time, would have done the same thing as the defendant, would have done the same thing. Would he have retreated? Would he have resorted to the use of defensive force? The triers of fact will judge whether he used no more force than was necessary to stop the attack.
Again, the lawful justification of defensive force requires that all of the requirements outlined above be met.
One other important thing: The "green light" for defensive force does not go on and stay on for the duration of the encounter. The window of justification can open, close, open again, and close again several times as events unfold.
*********
Now, it should be obvious that the citizen who comes upon a violent act in progress without knowing what has previously transpired cannot know, or even safely assume, that any of the participants would be lawfully justified in using force to defend himself. Therefore, intervention using force may well be unlawful. Even drawing a gun could lead to serious consequences. Better to call 911, and if possible, take video from a safe vantage point, unless we know what led up to the melee.
*************
Aren't these restrictions just awful? We have all seen the cowhands from the Ponderosa, the man in black with the chess piece on his holster, and the singing cowboys, come along and save the day for someone on television, but that's fiction. Our natural desire to be heroes and to do the right thing applies to reality. In reality, we cannot have people going around shooting the wrong people.
*************
The above discussion is not conjecture. It reflects expert legal opinion, the black letter law throughout our country, the criminal jury instructions, numerous appellate court decisions, and---real cases.
"I could not live with myself if I did not act to defend a person who was being attacked".
We see those conflicting sentiments often here. It is essential to understand the implications.
The laws of our country permit the use of force to protect another person from physical harm and from kidnapping--under certain circumstances.
At the first level of analysis, the rules can be stated simply; Attorney Andrew Branca puts it this way: one may lawfully employ force in defense of another if and only if that person would be lawfully justified in using force to defend themself.
It's a little more complicated than that: In some jurisdictions, the defender must have a basis for reasonably believing that the other person would be so justified. In others, such a belief alone will not suffice: if it turns out that in reality, that person would not have been so justified, the use of force in intervention would not be lawful.
Remember that.
That's the basic theory, but there's also an important practical reality--one which many police officers have learned the hard way. The victim of such an attack may review the bidding after the fact and decide to not support a story that would support lawful intervention. That leaves the citizen who has intervened, officer or civilian, in a very tight spot regarding justification.
So, those are the basics. What does it all mean? If a citizen sees another person being beaten, shot at, or chased, wouldn't that be adequate?
No.
Even if three people were jumping up and down on an apparent "victim", that would not suffice.
To have any inkling of whether the other person would be justified in using force to defend himself, one has to know what has transpired beforehand. Let's review the elements of lawful self defense.
*******
There are several key elements that come to bear in justifying the lawful use of force in self defense. All must be met. Attorney Andrew Branca lists them this way, but while terminology may vary among jurisdictions, these apply throughout our country.
The first is innocence. A person who has initiated a physical confrontation is not lawfully entitled to defend himself. There is an exception: if the actor makes it clear that he does not want to continue the confrontation and does in fact attempt to withdraw in good faith, he can regain lost innocence.
The second is imminence--The attack against which defensive force is used must be happening, or about to happen, right now-- not later on and not in the past, however recent. The attacker must have the ability an the opportunity to carry out the attack. To illustrate, a man with a knife some distance away lacks the ability to use it in a violent attack.
The third involves proportionality. Though a fist can kill, it is seen in law as unlikely that it will do so, and usually, a lethal weapon may not be brought to bear against an attack made with fists. There are exceptions--we'll get to those. If the attack itself does not involve deadly force, it would not be lawful to employ deadly force in response. Deadly force is defined as force that would be likely to cause death or serious bodily injury. Deadly force obviously involves weapons such as guns, knives, or blunt instruments, and it can also involve a significant disparity of force between the parties--a difference in size, strength, or fitness, or a difference in numbers. Generally speaking, men are more capable of fighting than women, giving women the advantage. Only non-deadly physical force may be used to defend against a non-deadly physical attack, and it must be proportion to the attacking force. Deadly force may only be used to defend against deadly force, and once the realm of deadly force has been reached, the proportionality requirement goes out the window. By the way, pepper spray, properly used, is considered non deadly.
This brings us to avoidance, which in law refers to retreat. The old English Common Law, which dated to the era of contact weapons, required a person to retreat to the wall if attacked. Many US jurisdictions impose a duty to retreat--before using deadly force, a defender must retreat, if retreat is safely possible. Castle doctrine laws obviate this requirement inside one's residence and sometimes in other places. I n addition, some jurisdictions have enacted stand your ground laws that eliminate the duty to retreat anywhere in which a person has a right to be.. There are two kinds--in some jurisdictions, the laws not only eliminate the legal requirement to retreat, they instruct jurors to not consider a defender's failure to retreat when considering reasonableness. In other jurisdictions, there is no such provision.
Finally, to be lawful, the defensive use of force must meet the test of reasonableness. Others will judge that, after the fact. Jurors will be instructed to judge whether a reasonable person in similar circumstances, knowing what the defendant knew at the time, would have done the same thing as the defendant, would have done the same thing. Would he have retreated? Would he have resorted to the use of defensive force? The triers of fact will judge whether he used no more force than was necessary to stop the attack.
Again, the lawful justification of defensive force requires that all of the requirements outlined above be met.
One other important thing: The "green light" for defensive force does not go on and stay on for the duration of the encounter. The window of justification can open, close, open again, and close again several times as events unfold.
*********
Now, it should be obvious that the citizen who comes upon a violent act in progress without knowing what has previously transpired cannot know, or even safely assume, that any of the participants would be lawfully justified in using force to defend himself. Therefore, intervention using force may well be unlawful. Even drawing a gun could lead to serious consequences. Better to call 911, and if possible, take video from a safe vantage point, unless we know what led up to the melee.
*************
Aren't these restrictions just awful? We have all seen the cowhands from the Ponderosa, the man in black with the chess piece on his holster, and the singing cowboys, come along and save the day for someone on television, but that's fiction. Our natural desire to be heroes and to do the right thing applies to reality. In reality, we cannot have people going around shooting the wrong people.
*************
The above discussion is not conjecture. It reflects expert legal opinion, the black letter law throughout our country, the criminal jury instructions, numerous appellate court decisions, and---real cases.
