What is the Universal Rule for Self-Defense With a Gun?

Status
Not open for further replies.
M

MisterMike

Member
Joined
Feb 19, 2009
Messages
758
Location
Midwest USA
Several recent posts about differing versions the castle doctrine and various statutory provisions for the use of self-defense have gotten me thinking: Considering the fact that each of the 50 states addresses self-defense somewhat differently and given the fact that many of us travel from state to state, would it be possible to arrive at a universal rule (or set of rules) that would pass muster in all 50 states?

I know that there is no substitute for knowing the laws of the state in which you are located, but I also know that, practically speaking, most will not research the statutes and court decisions of each state into which they travel. So, posted with an invitation for your criticism and improvement, I offer the following first stab at a "Universal" set of rules:

1. If faced with an imminent and wrongful threat of death or great bodily harm to yourself or another innocent person, the person being threatened must attempt to retreat before any person is justified in resorting to forcible defense, if the person being threatened can retreat safely.

2. If safe retreat is not reasonably possible, an innocent person may use that force which is necessary, but no more, to prevent imminent and wrongful death or great bodily harm to himself or another innocent person.

3. The use of deadly force to defend one's self or another from imminent and wrongful death or great bodily harm is justified if safe retreat or a lesser degree of force is not reasonably likely to prevent the wrongful death or great bodily harm.

I know that this can be improved. What would you suggest? Keep in mind the objective--a self-defense rule that would pass muster everywhere in the U.S., even though some states may afford broader rights of self-defense.
 
Last edited:
If the badguy has the means, opportunity, and intent to cause you or a third party grevious bodily injury or death, then he may be shot to stop those actions.

There should be no obligation to retreat.
 
There should be no obligation to retreat.
Click to expand...

While there shouldn't be, some states may require it, and therefore he is including it in his rules that would be acceptable to all states.

I know that there is no substitute for knowing the laws of the state in which you are located, but I also know that, practically speaking, most will not research the statutes and court decisions of each state into which they travel.
Click to expand...

Carrying a gun requires a lot of responsibility. In my opinion, part of that responsibility is knowing the laws for the area you are in. I see what you are trying to get at, but I strongly agree with your statement that there is no substitute for knowing the laws of the state in which you are located.
 
If it has escalated to the point of requiring deadly force, retreat is a moot point, at least to me. It would mean that there is no opportunity to retreat, your choices are defend youself or be injured/killed.

If someone is robbing you at gun point, retreat is not a sound option, as you can just as eaily be shot trying to get away as standing your ground. For me, the best choice would be to make it seem as though I were going for my wallet, instead retrieving my weapon, then moving to avoid being hit and firing back simultaneously.

On the other hand, a guy approaching my vehicle with a baseball bat is not an imminent threat unless my car is boxed in.

In other words, my personal definition of imminent danger requiring force in self defense means that you had no other option. I imagine most laws are written similarly, that if the is no way to retreat safely, you may use any necessary level of force in self defense. And if the aggressor is armed with a gun, or within closing distance and has an edged or blunt weapon, there is no way to retreat safely.
 
IMHO, the primary rules need to be simple, not complex. If they are simple, the issues cannot be made subject to multiple-choice branching. That's important.

With this in mind, we can probably begin to construct a paradigm in which these simple rules can be sequential and meet whatever legal / political conditions are in place in a given municipality.

The point is--how do we get from an inherent right to self-defense to a common rule number 1--e.g., "have a gun?"

Jim H.
 
Ability
Opportunity
Jeopardy




Ability means that the other person has the power to kill or to cripple you.

Opportunity means that the circumstances are such that the other person would be able to use his ability against you.

Jeopardy means that the other person's actions or words provide you with a reasonably-perceived belief that he intends to kill you or cripple you.


Read Massad Ayoob's book In The Gravest Extreme, he covers the topic better than any else I know of.


For a good quick overview of the subject read this, and yes I know it is a "girly" site but the info is just as good.
 
1. If faced with an imminent and wrongful threat of death or great bodily harm to yourself or another innocent person, the person being threatened must attempt to retreat before any person is justified in resorting to forcible defense, if the person being threatened can retreat safely.

2. If safe retreat is not reasonably possible, an innocent person may use that force which is necessary, but no more, to prevent imminent and wrongful death or great bodily harm to himself or another innocent person.

3. The use of deadly force to defend one's self or another from imminent and wrongful death or great bodily harm is justified if safe retreat or a lesser degree force is not reasonably likely to prevent the wrongful death or great bodily harm.
Click to expand...

I'm not sure just how useful a general rule can be. This would probably be fine in Massachusetts, but I wouldn't want anyone staying overnight in Missouri to believe that compliance with the above is necessary should his hotel room, automobile, tent ,or travel trailer be invaded. I think it would be important to add another phrase addressing unlawful forcible entry on an occupied domicile and the differences among jurisdictions.

If it has escalated to the point of requiring deadly force, retreat is a moot point, at least to me. It would mean that there is no opportunity to retreat, your choices are defend youself or be injured/killed.
Click to expand...
Interesting point--and it could be reversed: if retreat is safely possible, it can be argued that deadly force is probably not immediately necessary. It may be very appropriate in the case of a home invasion, and it may be lawful otherwise in some jurisdictions, but absent the fact of an unlawful entry into one's home or other covered locations, it may prove more difficult for the actor to produce evidence that all of the requirements for self defense, including immediate necessity, were present, if it is clear that avoidance or escape had been safely possible but had not been attempted.
 
There are no general rules. Every state has different laws. We don't want people reading the "universal rules" and thinking they apply to them, when they may not.

In Florida, there is no duty to retreat. In other states there is. The only common denominator is death/great bodily harm is imminent. Some states qualify that law, others don't.

It's safest just to point people in the direction of their local laws.
 
The REAL Universal Rule

HAVE a gun... a truth brought sharply into focus by my weekend in Chicago.

I was prevented from protecting myself and could expect no protection from anyone else.

If you don't HAVE a gun, everything else related to having one is meaningless.
 
From a legal perspective, I think you've done a good job of summarizing statutory language that would accord with all 50 states statutes. However, I think part of the problem is that your summary isn't very useful in providing actual guidance to the average joe on when they can or cannot use deadly force.

For example:
may use that force which is necessary, but no more

What does that mean in terms of what lawful force can be used? It is going to be tough to give a universal answer to that since the case law of 50 different states will define it (or make it irrelevant in some cases). If the terms used in the universal answer do not have a universal definition, they aren't very useful to your goal.

Also it highlights a problem I've always had with the "duty to retreat" language - if you can retreat safely, then is the threat of death or serious injury actually imminent? From a legal drafting perspective, the duty to retreat language seems to be redundant with the requirement that the threat be imminent.
 
Last edited:
MISTER MIKE 1. "If faced with an imminent and wrongful threat of death or great bodily harm to yourself or another innocent person, the person being threatened must attempt to retreat before any person is justified in resorting to forcible defense, if the person being threatened can retreat safely."
Click to expand...

That entire sentence, contradicts any reasonable action of self defense because of its restrictions, structure, and wording.

I doubt you have ever had the misfortune to have to make the decision to protect yourself or family, under those illogical restrictions.

In a real crime situation, things happen fast. For the victim(s) there are fear and confusion, and adrenalin pumping like Niagara Falls, but you would demand "logical" (to a D.A.), "reasonable" (to a jury) decisions based on whether or not there was a door someplace through which the victim could run, or a window (hopefully on the ground level) from which the victim could jump, or a bathroom to which the victim could flee and lock the flimsy doorknob, or a basement or attic in which the victim could hide. This while hoping the criminal was not right behind you or attacking a member of your family, while you thought about if or if not you should find some way to "retreat."


Realistically, by the time one could plow through all the legalities and restrictions imposed by "duty to retreat" as you stated, one could very easily be either dead or terrible injured.

And you think that would be a "reasonable" Federal law, applicable in all 50 States, huh?

Absolutely not.

Fortunately, Idaho has laws that favor the victim, not the criminal.

Just my take on it.

L.W.
 
Whether there's a duty to retreat or not, if you can, why not? As long as you're not in your home which I firmly believe should be defended without hesitation, if you CAN feasibly get away, just do it. You'll never be hassled for not shooting in that kind of situation.

The rest is all judgment.
 
Whether there's a duty to retreat or not, if you can, why not?
Click to expand...
In Ohio, outside of my home or vehicle, I'm required to retreat... if I can do so in "PERFECT SAFETY".

I'm not going to turn my back and run, nor am I going to be forced into a dangerous place. I was a lousy runner as a 21 year old infantry officer. I'm not any faster in my 50s.

I'll withdraw if I can do so with NO additional danger to myself. I don't have the slightest intention of incurring one iota of danger to protect somebody who's credibly and immediately threatening my life.
 
And you think that would be a "reasonable" Federal law, applicable in all 50 States, huh?
Click to expand...

I believe you misunderstood. He is trying to summarize a rule that would work anywhere in the United States. Because some states are more restrictive than others, in order to make a "rule of self defense" that will work anywhere in the United States, the most restrictive state will determine that rule.
 
fear is subjective. what you may percieve as fear, i would probably just shrug off...YMMV
Click to expand...
The "fear" must be of an imminent act and one recognizable by a "reasonable man".

Fear of a magic spell is not "reasonable".

Fear that he will kill you in two weeks isn't "immediate".

If you advance on me brandishing a gun or knife, that's a reasonable fear of an immediate act that poses a deadly threat.

If you're substantially large and stronger than me, or are accompanied by others and attack me with physical force, that's a reasonable fear of an immediate act that poses a deadly threat.
 
In truth, any person with a lick of decency would do everything reasonable to avoid the conflct or allow it to escalate. Profuse apologies, even if not warranted, are better than killing another human. Having said that, there are those criminals who just won't let it go and anybody with a lick of self respect would do everything reasonable to prevent an attack.
 
"Don't be wrong."


RE: Shooting in back

It has been shown that a person can turn away extremely quickly, even in the time span it takes for a person to start pulling the trigger. I believe Ayoob wrote an article on it (and I think they timed it at 0.10 seconds, which is faster than my double taps with a Glock 23 at 0.15-0.18 seconds between shots, but that needs to be validated via the article). So...the shooter makes the "shoot" decision and begins to implement it. Conditions within the fight are such that the target turns for some reason...and suddenly it's a "back" shot. The reality is the shooter had a front shot at the time, but OODA loops being the way they are, a small time delay occurs between the decision and the bullet strike.
 
Last edited:
Status
Not open for further replies.

Similar threads

D
  • Locked
A Review of Self Defense (MD Specific, But All Should Read)
Replies
1
Views
956
Spot77
S
johnmcl
  • Locked
Look What Crossed Over (VA)
Replies
6
Views
708
zoom6zoom
Z
S
  • Locked
Proposed stand your ground law in MN
Replies
0
Views
315
Schlickenmeyer
S
F
  • Locked
Florida shooting ruled self-defense
Replies
5
Views
437
Gewehr98
G
Trent
  • Locked
Self Defense and "Willful or Wanton Misconduct"
2
Replies
30
Views
2K
Trent
Trent
Back
Top