Reply #99: Time for Self-Defense Law 101... [View All]

[benEzra]

Now if someone breaks into your house you will not know whether he has a gun or not, pretty unlikely anyway if they know you are at home. So if you shoot and kill this guy you are pretty much a murderer.

Looks like it's time for Self-Defense Law 101. If someone has just kicked in your door and is making an illegal forced entry into your home, it doesn't matter if he has a gun, or a knife (same as a gun under the law), or just his bare hands and feet; the law of most states considers someone making an illegal forced entry to your home to be an imminent threat of death, serious bodily harm, or a forcible felony, even in places like Massachusetts and California.

The general criteria that must be met for a homicide to be ruled justifiable are very similar in every state. The best phrasing I have found so far is in Steve Johnson, Concealed Carry Handgun Training, North Carolina Justice Academy, 1995, pp. 3-4, but these criteria would apply in every state, and definitely apply in Florida, Georgia, Kentucky, and other stand-your-ground states. (Note that like Florida, my state of North Carolina is also a Castle Doctrine state.)

(1) Justified Self-Defense

A citizen is legally justified in using deadly force against another if and only if:

(a) The citizen actually believes deadly force is necessary to prevent an imminent threat of death, great bodily harm, or sexual assault, AND

(b) The facts and circumstances prompting that belief would cause a person of ordinary firmness to believe deadly force WAS necessary to prevent an imminent threat of death, great bodily harm, or sexual assault, AND

(c) The citizen using deadly force was not an instigator or aggressor who voluntarily provoked, entered, or continued the conflict leading to deadly force, AND

(d) Force used was not excessive -- greater than reasonably needed to overcome the threat posed by a hostile aggressor."

(Emphasis added.)

Note that all four conditions must generally be met in order for a shooting to be ruled justifiable (there is an exception for someone kicking your door in, but we'll get to that in a minute). A handful of states used to add a fifth criterion to the list above, that of running away from the imminent lethal threat before turning to defend yourself (and hoping the attacker doesn't kill you while your back is turned). Florida was one of those states, and recently eliminated that provision; most states have never had such a provision to start with.

Now, the phrase "reasonable belief" in self-defense statutes does *NOT* mean merely "feeling threatened"; the phrase is a legal term, and its definition in the context of self-defense law is that in paragraph (b) above--i.e., that "the facts and circumstances prompting that belief would cause a person of ordinary firmness to believe deadly force WAS necessary to prevent an imminent threat of death, great bodily harm, or sexual assault." Merely "feeling threatened" isn't reasonable belief; the belief has to be objectively rational, i.e. there is in fact a guy standing in your living room who just kicked in your front door, or there is a guy accosting you on the street holding what appears to be a knife in a threatening posture and threating to cut you up.

Also, it is important to understand that a claim of self-defense is not an automatic exemption to the laws against homicide. Rather, it is what is known as an "affirmative defense"; unlike the regular innocent-until-proven-guilty standard applied to a criminal act, the onus in a self-defense shooting is on the shooter to demonstrate that the shooting WAS indeed justifiable self-defense. In other words, in a self-defense case, the standard is "guilty unless shown innocent," and if the shooting is questionable, it is much more likely to swing against the person claiming self-defense than it is to swing in their favor.

There are a few other conditions that may constitute justifiable self-defense; for example, there is a provision in U.S. legal tradition called the Castle Doctrine that says that if someone is making an illegal forced entry into your home (whether by door or window, whatever), you are authorized to use whatever force is necessary to stop them and it would ordinarily be ruled justified; the presumption is that if the guy is kicking your door down, he's not there to sell magazine subscriptions. A majority of states explicitly spell out the Castle Doctrine in their laws, I believe, but the principle is there in every state, even Massachusetts. Florida, and most other states, also allow the use of lethal force to stop a "forcible felony," i.e. rape, aggravated assault, armed robbery, etc.

How many times does the drunk come home to the wrong house to get his brains blown out?

Not commonly at all. So rarely, in fact, that when it does happen, it usually make national news, and then gets cited by the gun-control lobby for five years until it happens again...

Also the guy is coming in and you are then going to go for your safe where you have locked up the guns. Doesn't it make more sense to call the police? Isn't this much faster?

No. I can have a loaded gun in my hands from our quick-access safe in ~3 seconds. Police response time is going to be around 5 minutes for our neighborhood, and 15-30 minutes for a lot of my coworkers who live in the boonies.

If someone kicks in our door (which happened in our neighborhood a month or two ago, BTW, in the course of a home-invasion robbery), I or my wife will certainly be on the phone to 911. But we'll also be prepared to defend ourselves in case the intruder doesn't heed the warnings to leave and that the police are on the way, and decides to kick in our safe room door as well.

One thing about guns, if you and the attacker have guns, you have to shoot well before the facts are in.

If someone has kicked in your door and is holding a gun, knife, club, or other lethal weapon, the facts are in, dude. He's an imminent threat of death, serious bodily harm, or forcible felony. Period.

And if your attacker has a gun, the dead guy is the unlucky one not the bad guy. In the best of worlds this self defense crap works half the time, the other half you are dead.
And the odds of someone coming at you with a gun when you have gun at the ready are pretty low, especially when your guns are locked up in the safe.

No, the advantage lies with the homeowner who has a gun, knows the layout of the house, knows where the bad guy is, controls the lights, and is behind cover.

BTW, if your premise were true, guns would be as useless for police as for homeowners. The truth is, training beats non-training, all else being equal; if training is equal, long guns beat handguns; if training and weapons are equal, defense beats offense, if you are defending a structure.

A far better defense would be to outlaw guns to greatly lower the chances of a gun coming in the house.

Sure, just like outlawing pot and heroin 80 years ago made it all disappear from U.S. homes and neighborhoods.

Look, I respect your choice not to own a gun. Respect ours. My wife and I choose to own guns (both of us), lawfully and responsibly. Stay the hell out of our choice on this issue, please. I wouldn't dream of forcing my choices on you; please return the favor. Something like 80 million of us own guns, lawfully and responsibly, and half of us are Dems and indies. We're keeping them.

It is established that those that have guns in their houses are much more likely to blow out the brains of someone they know than a stranger.

Only if you count stalkers, rapists known to the victim, crazed ex-spouses, and drug dealers shooting rivals as "people shooting someone they know."

You're also forgetting that something like 99% of successful defensive gun uses do not involve the death of the attacker. My own father had a "save" with a handgun in the mid-1970's, when I was a child; I wasn't there, but his would-be attackers saw his gun, stopped, looked at each other, backed off, and left. If the bad guy backs off and leaves you alone, the defense was successful; the objective is to stop the attack, not kill the attacker per se.