Another excellent bill passed this year is HB 165, which rewards property owners and business that do not establish the reckless policy known as the "gun-free" zone. It gives those who do not set up "gun-free" zones immunity from liability if an invited gun owner negligently causes injury or death on the premises. The law affected is 53-5a-103 which also can be accessed at le.utah.gov.
]]>I'll be adding plain-talk summaries to these updates soon. For now here they are via PDF.
Idaho Code Section 18-4009 - JUSTIFIABLE HOMICIDE BY ANY PERSON
Florida Statues: Section - 776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.
Florida Case Law: Florida's Appeals Court Upholds Stand your Ground Law.
]]>
There has got to be a better way. Before we look at possible solutions, let us give you a more in depth look at the shocking facts from actual cases. It’s hard to imagine this kind of brutality in a supposedly civilized society. Commonwealth v. Sands, 553 S.E.2d 733 (Va. 2001) is an appalling case of years of physical beatings and prison-like domination. Following are the facts recited by the appeals court, except we substituted her real first name instead of using her legal designation, appellant.
Black’s law dictionary describes battered woman syndrome as “a constellation of medical and psychological conditions of a woman who has suffered physical, sexual, or emotional abuse at the hands of a spouse or lover.” (Black's Law Dictionary 8th ed. 2004). A Maryland court recently compiled a learned discourse on the subject of battered woman’s syndrome as follows (citations omitted):
The following quote from an open-minded Oklahoma court explains how the concept of reasonableness and imminence can be different for the battered woman:
After her conviction of murder, in an appeal to the Supreme Court of West Virginia, Mrs. Harden insisted she had killed her husband in self-defense. The court agreed:
The court in Harden set forth a subjective and objective test for reasonableness and imminence and held that the defendant had met both tests.
If a wife/girlfriend is being abused, we advise that she (1) immediately ask a court to order her husband/boyfriend to stay away from her and (2) establish a separate residence. She should make it very clear to the local police that her husband/boyfriend has threatened to kill her and she believes he will try to do so again if he gets a chance.
Warning About Protective Orders - Unfortunately, far too many women believe that a court order will protect her from physical harm. IT WON’T!!!!! We don’t know how to emphasize this enough. If the dirty, mean, cantankerous, abusive, possessive, dominating, tyrannical SOB decides to commit murder, do you really believe he will care if you have a protective order that tells him to stay away from you or else he will be in contempt of court? Does he care even if he’s told violating the court order could result in a felony conviction? Hello!!!! The imbecile is either willing to do life without parole for first degree murder, wants to die in a gun battle with police and go out “in a blaze of glory,” or he plans on putting a bullet through his own head after he puts his lover’s backside on ice. Does anyone honestly believe a protective order provides any physical protection at all? IT DOESN’T! Certainly experienced law enforcement officers and seasoned domestic relation judges know that most of the domestic-violence murders they see or hear about occur AFTER a protective order is in place. The courts should be handing out bullet-proof vests, handguns gift certificates to gun safety classes if they are serious about the defense of women. Surely they know the police often cannot respond quickly enough to save a woman whose husband or boyfriend has decided she must die.
Why in the world would we suggest she get a protective order if it’s not worth the paper it’s written on to protect her physically? It’s to PROTECT HER LEGALLY when she blows his VIOLENT A$$ away!!!!!! [Another dramatic reminder that we are NOT SUGAR COATING anything in this article!!!]
If he tries to kill her in her new, SEPARATE household, the home defense law of the state in which she lives should apply. Home defense laws are typically more protective than laws pertaining to self-defense outside of the home. If he tries to break in to kill her and he has a weapon, she would normally be justified. (Yeah, Yeah, we know some of the Eastern States have wimpy home-defense laws, but we are doing all we can to change that. See Mother of All Self-Defense Laws, Chapter 20, Self-Defense Laws of All 50 States by Attorney Mitch Vilos and Evan Vilos.) If he has no weapon, but is threatening to beat her to death, and she kills him, she can probably count on being arrested and prosecuted, but, if she lives in the right state, she may be found not guilty. Some states have home-defense statutes that reduce the threshold for using deadly force from “fear of death or serious injury” to “fear of personal violence.” The holding of an older Pennsylvania case supports the wisdom of an abused woman getting a separate residence if she thinks she may have to use deadly force to survive her intimate partner’s threat to kill her:
Tragically, notice the wife was still prosecuted and convicted and had to appeal. We assume she either had a rich daddy or one dynamite of a pubic defender. Of course, this case happened in the “old days” when a woman could get a lawyer like Perry Mason without exhausting her entire one-fifth ownership interest in Gigantous Corporation.
In the event you are unlucky enough to have come upon this article AFTER your defensive incident and your trial is still pending, make sure you tell your lawyer about the following jury instruction that he might be able to use depending upon the facts and the law in your state. This rule of law should be applied in your case unless when arm wrestling your husband while he was alive, you won 9 out of 10 matches.
We encourage women advocacy groups throughout the country to work tirelessly to do what it takes to make sure their state changes its laws and its jury instructions to account for the realities of domestic violence and battered woman syndrome. Furthermore, we all need to abandon the backward concept that women are better off without a means of self-defense. Some police agencies are now encouraging battered women to get a gun and take a self-defense course so they will know how to use it and get legal training to know when the law allows them to use the weapon for self-defense.
And last, but not least, if you are a “gun guy” who’s abusing his intimate partner, you COWARDLY SON OF A #@TCH! STOP IT NOW!!!! The rest of us Second Amendment advocates don’t claim you as one of us.
]]>Sometimes we find ourselves in places where we know we shouldn’t be because of unavoidable circumstances. The other night in an unnamed city, my wife and I attended a dance competition MC’d by our oldest daughter. It was in the bad part of the city. There was no parking near the venue in question. I had to park on a dark, vacant street a block and a half away. As the event ended, I told my wife I would get the car and pick her up. Coincidentally, I had crashed on my bike earlier in the day and was limping as I walked to the car alone.
Before I arrived at the car I noticed a couple of individuals with dark hoodies approaching from the opposite direction. One continued to advance towards me and the other stopped at a payphone, didn’t dial the payphone, but picked the payphone up and pretended he was calling someone (do those phones even work anymore?). I immediately recognized it as an attempt to get one of the suspicious individuals behind me while the other lingered in front on the phone. As the first one approached, I instinctively loosened my Sig P238, .380 caliber in my right pocket for quick access from my Sticky Holster. I wanted to make sure that if I had to pull my gun, the Sticky Holster would stay in the pocket and the gun would come out of the pocket quickly (these are VERY versatile holsters, incidentally, for several applications). The Sig P238 is a 1911 design. I had my thumb on the safety, finger off the trigger, but I always carry the gun with a cartridge in the barrel and the hammer back with the safety on. By the time the first man was anywhere near me, I had moved to the opposite side of the sidewalk and made sure that he knew I was watching every move he made. Also, I had my black leather jacket pulled back to make it obvious I had my hand on a gun. I knew if these two were predators they would likely suspect I was not going to be helpless prey, despite my limping.
The first man slowed as I watched him move about 10 to 15 paces behind me. I kept turning to watch him while still keeping my eyes on the man positioned at the street phone. As I passed the man at the phone I again stayed on the opposite side of the sidewalk. He dropped the phone and began to follow me about 5 to 10 feet across the sidewalk keeping pace with me but about two steps behind. I continued walking towards my parked car while watching him very closely with my hand still obviously positioned on my gun which was still concealed inside my pocket.
To my relief, after I taken about five steps with the second man who had been on the phone walking at the same pace, he fell back behind me and I watched both of them run back into an alley behind me. I crossed the sidewalk to our vehicle never taking my eyes off of the two until they disappeared into the urban jungle. I jumped into the car and immediately locked the doors while starting the engine. I unholstered my pistola and placed it on the seat beside me. I’m certain the two could never have described my pistol because they never saw it; it wasn’t just another “black gun.” I had not brandished it so even if they lied about the incident, a brandishing case would be hard to prove.
This incident worked out just the way our Founding Fathers intended it to. The predators got the point. I didn’t have to call the police and waste two hours of their time and mine filing a police report.
Again, the firearm was never exhibited nor was a shot fired. I felt impressed not to say a word to these individuals during the encounter. This incident demonstrates an effective way of dissuading would-be predators without committing the crimes of brandishing or assault with a deadly weapon. During this incident I did not see any weapons in the possession of these two individuals. Suppose I had shown my gun to the man who had been holding the street phone. Had he seen the gun and thereafter contacted the police with the story he was simply going to ask me for spare change to make a phone call, I could have been the one getting into trouble for brandishing. Refer to Chapter 10 of our book Self-Defense Laws of All 50 States for similar incidents where the defenders used their body language to get the message across that they were armed, but did not actually exhibit the firearm.
This experience could certainly be considered a defensive incident with a firearm. Liberals scoff at criminologist Gary Kleck’s estimate that there are 2.5 million defensive uses of a gun a year in the U.S. The research of economist John Lott Jr. reveals that less than 2% of these incidents involve firing the gun. Like in my situation, most of these incidents are not divulged to the police. Law-abiding citizens don’t call the police after incidents such as this because they don’t want to be hassled by police officers who believe that they should be the only ones who should carry guns, not to mention the uncomfortable two hours at the police station or in the rear of a police cruiser answering questions wondering if something you just said will eventually get you prosecuted for an honest act of self-defense.
Hopefully, this incident and those described in Chapter 10 of our book will give the reader an effective method of dissuading possible assailant/predators without running the risk of being charged with a crime.
]]>“Stand-Your-Ground” or, more dramatically, “Make-My-Day” laws, refer to provisions in state self-defense statutes or case law that dispense with the duty to retreat before using force in self-defense. Of course, not all state laws are exactly alike, but as of February 2014 thirty-three states had some semblance of no-duty-to-retreat in their self-defense statutes or case precedents [1].
The articulated rub for opponents of SYG is that persons facing threats of serious injury or death may use force likely to cause death or serious injury without first retreating. Retreat is only required, however, if it can be done in complete safety or reasonable safety, depending upon the wording of the statute or case law. Unfortunately, as this article reveals, determining whether it is safe to retreat during an adrenaline-filled deadly attack may not be so easy or obvious.
The concerns of those who support SYG are several. First, the split-second delay during the required legal analysis of whether or not to retreat could be the difference between living through the assault or dying as a result of it. Second, retreating by moving makes accuracy much more difficult for the defender and could result in harm to himself or other innocents. Third, the requirement of retreat gives police and prosecutors another element to hang their accusations on. This, in turn, could create a chilling effect on the right of self-defense, which many consider to be God-given or inalienable, and dissuade the innocent from making preparations to defend themselves under any circumstances [2].
The self-defense concepts currently being applied in each of the U.S. states evolved from feudal times in England as part of English “common law.” At common law, a person was not required to retreat from his castle (home) when under attack. He could legally respond with arrows, scalding oil, boulders or any other potentially lethal object. However, if he were assaulted at a place outside of his home, he was required to retreat “to the wall” before using weapons that could kill or seriously injure his attacker. “To the wall” meant having to retreat until the defender could no longer do so. The to-the-wall concept eventually evolved into a phrase only requiring the intended assault victim to retreat if he could do so in “complete safety.” Presently, several U.S. states on the Eastern Seaboard and Midwest still apply this rule requiring retreat before using deadly force if retreating can be done in complete safety or if reasonably possible.
Doing away with the duty to retreat before using deadly force shifts the risk of dying, if you will, from the intended victim to the assailant. This risk shift, in addition to being referred to as SYG or Make My Day, is also referred to as the “Castle Doctrine.” In other words, these states have expanded the rule at common law that a person did not have a duty to retreat from his or her castle to places outside of his or her home where he or she has a right be. Hence, SYG is often referred to as “an expansion of the castle doctrine.” An obvious corollary to SYG is that trespassers must retreat if they can do so in reasonable safely. As trespassers, they do not have a right to be on the premises upon which they are trespassing.
Nebraska’s statute states that using deadly force against an assailant is not justifiable (not legal) if “[t]he actor [defender] knows that he can avoid the necessity of using [deadly force] with complete safety by retreating . . . [3]” Minnesota’s duty-to-retreat doctrine originates from legal precedent and uses the less-protective phrase “reasonably possible” rather than “complete safety.” “Minnesota has recognized that a person who kills another in self-defense must have attempted to retreat if reasonably possible.” [4] (Emphasis added.)
*
Florida’s controversial stand-your-ground law states:
“ . . . a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” [5]
Although many believe Florida’s SYG law, enacted in 2005, was the first of its kind. However, Utah has had such a law since the early 90’s. Utah’s SYG provision says, “A person does not have a duty to retreat from [deadly force] or threatened [deadly force] . . . in a place where that person has lawfully entered or remained . . .”[6]
Texas’ SYG law contains safeguards applicable in most states with SYG, although other states usually address these concepts in subparagraphs other than the subparagraph eliminating the duty to retreat. These safeguards, as described later in this article, ensure that persons who are the aggressors or otherwise violate the law are not allowed to invoke SYG:
A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using [deadly force] as described in this section.
For purposes of determining whether [a defender] reasonably believed that the use of [deadly] force was necessary, a finder of fact [e.g. a jury or judge] may not consider whether the [defender] failed to retreat.[7] (Emphasis added.)
How many times since the George Zimmerman/Trayvon Martin case have we heard media personalities criticize Florida’s SYG law asserting that the law allows citizens to shoot someone if they simply feel threatened? For example, a recent New York Times article summarized Florida’s law as follows:
The shooting [of Jordan Davis by Michael Dunn], which unfolded in this northern Florida city [Jacksonville], has drawn attention once again to the state’s expansive self-defense laws that allow people who say they feel threatened to use lethal force to protect themselves.[8] (Emphasis added.)
Another false characterization a little closer to home was reported in Florida’s Sun Sentinel wherein its editorial board wrote:
Stand Your Ground removes any duty to retreat and allows people to use deadly force when they feel their lives are in danger.[9] (Emphasis added.)
Say what? All you have to do in Florida to be justified in shooting someone is to feel or say you felt threatened? Hardly. A cursory look at Florida’s self-defense law cited above proves this assertion to be totally false. First, the law makes clear that it doesn’t matter what the defender feels or believes if the feeling or belief is not reasonable. For example, someone who is fanatically afraid of germs does not have a right to kill someone who simply attempts to greet him with a harmless but sweaty handshake. The threat has to be one that a “reasonable man” would perceive as an immediate threat of death or serious bodily injury. Furthermore, the use of deadly force, e.g. shooting a gun, must be necessary to prevent the threat of serious injury or death. If a defender uses more force than is necessary to stop the threat, his claim of self-defense will fail.
This raises the question: Do members of the media even read the law before they say or write such obviously false statements or do they simply parrot previous media misstatements? And because members of the public rely upon the media more and more for information, does the media bear some legal or at least moral responsibility for citizens who harm others believing all they have to do is say they felt threatened before they use deadly force?[10]
SYG laws do not require a defender to retreat from anywhere he or she has a legal right to be before defending with deadly force. Nevertheless, the flip side of this rule is that a defender must retreat before using deadly force if he or she is a trespasser. Furthermore, in virtually every self-defense law of every state having SYG the defender loses the right to claim self-defense if he was the initial aggressor, provoked the conflict, engaged in mutual combat by agreement or was committing a felony which ultimately lead to the use of force in self-defense. Under some circumstances the defender may regain the right to self-defense, but only after he retreats and makes it crystal clear to his opponent that he is abandoning any threat of harm. If these exceptions to the law of self-defense are not expressly stated in the self-defense statutes of SYG states, their courts generally apply them by case precedent. As a result, in cases like the Zimmerman/Trayvon Martin case and the recent Dunn/Davis (“loud music” case), SYG is generally not the issue; the real issue in these cases was - who was the initial aggressor? If Florida had proven beyond a reasonable doubt that George Zimmerman had drawn a gun on Trayvon Martin and Martin was simply fighting to keep from being shot, Zimmerman could not have prevailed on the theory of self-defense and under no circumstances would he have been justified in standing his ground.
Most people first learn about perception and reaction time in drivers’ education classes. The rule of thumb is that it takes about three quarters of a second to perceive an impending traffic collision and another three quarters of a second to react and apply the brake or steer evasively to avoid a collision. That’s one and one-half seconds total.
Anyone who receives any degree of advanced tactical training learns that “action always beats reaction.” Not long ago, I was invited by Utah law enforcement trainers to be the “token” criminal defense attorney to interview police and probation officers after simulated officer-involved shootings. During the seminar, I was able to observe the principle that “action always beats reaction” being demonstrated. The participants were given dart guns. While the “officer” had his dart gun trained on the “bad guy,” the bad guy had his hands in the air with a dart gun in his or her hands. The instructor had whispered instructions to the bad guy that when he was told to “put the gun down,” he would pretend to be dropping his hands to do so, but then to shoot the “officer” who had his gun trained on the bad buy with the officer’s finger on the trigger. Invariably the bad guy was able to shoot the officer before he or she could react even though the officer’s gun was pointed directly at the bad guy. The trainer would then explain that the reason this was happening was that the bad guy didn’t have to contend with the delay inherent in the process of perceiving and reacting. The bad guy’s mind had been made up far in advance of his or her act of shooting the officer. The officer, not knowing what the bad guy was up to until just before the bad guy pulled the trigger, was never able to catch up, so to speak, because of the additional burden of perceiving and then reacting. Unlike in TV cowboy shows of yesteryear, in real life the good guy seldom wins this kind of a gunfight.
Hence, one of the dangers with doing away with SYG is that it adds another time-consuming calculation to a deadly encounter – whether or not the defender should or should not retreat before using deadly force in self-defense. When split seconds could mean the difference between life and death, burdening a defender with a legal requirement taking additional time could prove fatal. An innocent citizen could die during the required legal analysis and get shot or stabbed in the back during the required retreat. Hence, legislators have reasoned that rather than have the defender bear the risk of dying in such encounters, that if a defender has a right to be where he or she is located when attacked, the risk of dying should shift to the assailant.
If an innocent defender is at risk with his or her finger on the trigger as illustrated in the police training described above, think of the disadvantage a person is under who is carrying a weapon that is concealed. Not only does that person have to perceive and react, he has to dig his firearm out of a concealed location through clothing, in a holster, a purse or wherever.
Opponents of SYG and their supporters in the media would have us believe SYG was a new legal principle concocted by the National Rifle Association and applied for the first time in Florida in 2005. As indicated above, several states applied SYG in their self-defense statutes long before Florida. But SYG evolved in American case law long before that and was presented as a just and equitable principle. In fact, in 1895 the United States Supreme Court, in a case arising in Indian Territory [11] during dispute involving white settlers, applied SYG to a homicide that took place “50 to 60 yards” outside of the defendant’s home, holding that the defendant when threatened with deadly force at a place he had a right to be could stand his ground and use deadly force in his defense.
Beard v. U.S., 158 U.S. 550, 564 (1895). In so holding, the Supreme Court cited several state court cases and treatises that explained how, in this country, the law of self-defense had evolved dispensing with the less rational rule requiring a citizen to retreat “to the wall” when confronted with an imminent deadly threat.
Id. At 561, 562. Consequently, most American states continue to follow this rule that justly shifts the risk of dying from the innocent defender to the assailant. And despite the loud clamor to repeal SYG, no state has done so.
SYG is not an extremist legal philosophy that was suddenly thrust upon American society in 2005 by what some consider militant pro-gun organizations. It was a legal principle that came about after serious reflection of how the law of self-defense should be applied in America’s courtrooms and received a final stamp of approval by the highest court in the land, the United States Supreme Court, in the late 1800’s. It shifts the risk of being killed or seriously injured from the innocent intended victim to the unlawful assailant. But the principle is counter balanced by the requirement that the defender must indeed be innocent of any wrongdoing. He loses the right of self-defense if he is the initial aggressor, provoked the conflict or illegally agreed to mutual combat. The threat to the defender must be one of imminent great bodily harm or death and his actions must ultimately be judged to be reasonable necessary. The law ultimately punishes the use of excessive force. For these reasons, SYG is the majority rule and continues to gain acceptance among the states rather than lose it.
Here are the current state updates in the law of self-defense as of the above-date. Please remember to try not to be the “test case!” We do our best to keep up, but it is conceivable that one “slips through the cracks.” Since publishing our book Self-Defense book in 2010, virtually all of the changes in state law have been positive – more protective of the innocent and more dangerous for criminals.
Despite the attacks on “Stand Your Ground” (SYG) laws, which legal principle has been the majority view since a U.S. Supreme Court case in the late 1800’s, we’re not aware that any SYG laws have been repealed although there is a violent attack on Florida’s SYG law currently. I have been invited to write a law review article supporting Florida’s SYG law which may be published this summer. I will post the article on our Facebook page and blog when it is completed.
Alabama – [Alabama in August of 2013 added “place of business” as a special place and made it clear that business owners could defend their businesses at night when the business was closed:]
§ALA.CODE 1975 § 13A-3-23 (a) (4) & (5) (4) Using or about to use physical force against an owner, employee, or other person authorized to be on business property when the business is closed to the public while committing or attempting to commit a crime involving death, serious physical injury, robbery, kidnapping, rape, sodomy, or a crime of a sexual nature involving a child under the age of 12.
(4) (5) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, business property, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, business property, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring. The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if: [See Alabama Subchapter under Presumption of Reasonableness in Special Places.]
Alaska – [On September 18, 2013, by adding paragraph 5 below to §11.81.335. Justification: Use of deadly force in defense of self, Alaska became a true Stand Your Ground (SYG) state by dispensing with the duty to retreat in places where the defender has the right to be present. The corollary to this is that trespassers obviously must retreat before using deadly force if it’s completely safe to do so.] (5) in any other place where the person has a right to be.
]]>