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Justifiable Use of Deadly Force--The Code of the West

What protections are we afforded if we use deadly force?

By Tony Pan Sanfelipo

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Over the last few years, we’ve seen and heard a lot about police officers using deadly force on civilians. Most often the ruling comes down as “justifiable use of force.”
Police are protected by something known as qualified immunity when they injure or kill someone while attempting an arrest. This immunity protects police from lawsuits alleging that they violated someone’s rights. There’s a two-step process in evaluating if an officer’s actions were legal: Did the action violate a person’s constitutional rights?  If the answer is yes, then the second question is: Was the right so clear that a reasonable officer would know his or her conduct violated the right?  That second question is important because if an officer makes a “bad guess” in gray areas of the law, he’s protected as opposed to knowingly violating someone’s rights.
What about us, as citizens? What protections are we afforded if we use deadly force?  It’s widely accepted across the country that you have a right to defend yourself, using lethal force if necessary.  Determining the justification of lethal force comes down to the “reasonable man” doctrine. In other words, what force would a reasonable man use if faced with the same situation as you?
Much of the country has some form of concealed carry law, making this information even more important. Generally, deadly force is justified only when the threat of death or serious injury is imminent from an attacker. If you’ve decided to carry a gun for self-defense, you have a great responsibility to know the law and how to properly handle your weapon. 
You have a right to protect yourself and loved ones from the threat of serious harm. But, there are responsibilities with that right.  Carrying a weapon does not somehow elevate you to the status of “tough guy” and you should never consider yourself different in any way previous to carrying, except that you now have more ability to protect yourself in a dangerous situation. 
Part of being responsible includes knowing who is around you. That’s called situational awareness. Don’t go into neighborhoods you generally avoided before carrying a weapon, just because you feel protected now. If an argument breaks out around you, avoid the confrontation and leave the area if you can.  This “retreat” is required in some states, and knowingly staying in a dangerous situation when you could have left exposes you to great liability if you end up drawing your gun and shooting someone.

In the event a threat of imminent danger to you or your loved ones presents itself, some states require that you only use as much force as necessary to end the threat.  That means if you’re a 260-pound steelworker and some 130-pound sidewalk commando who had a few too many drinks is threatening you, but has no weapon, you’re really not supposed to pull out your Sig Sauer and shoot him, even if you’d like to. That would be unjustifiable in a court of law. You should defend yourself in some other way less than lethal force.
No matter what the circumstances, you can be sure that if you shoot someone, you will be arrested. Do not touch anything (other than possibly rendering aid to the victim, which looks good to jurors-- it shows you didn’t really want to shoot anyone and tried to help afterward).  If no continued threat remains, holster your weapon and wait for the police.  Keep your hands away from the weapon, and verbally tell them where it is without reaching for it. Don’t move any shell casings or other evidence at the scene. Don’t admit to anything and ask to speak to an attorney before answering any questions. 
If you happen to be that 130-pound nerd, and the steelworker ends up being shot, you better have just cause for using deadly force. Even if that big goof was harassing you, if you initiated the conflict or threw the first punch, you could lose your self-defense protections. Provoking someone to attack you and then shooting them is not wise.  A jury will think if you poke a bear, you’re going to get mauled.
Also, do not escalate an argument. Responding to threats with threats of your own means you’re engaging in a dangerous game. Many times when there is a fight in a bar, police don’t worry about who started it. They arrest both parties as “mutual combatants.”  The same could hold true in a gunfight situation where self-defense takes a backseat to willing participation in a gun battle.
You also lose your justification protections if your attacker retreats and is leaving and you still shoot him. Meanwhile, some states require you to attempt to escape or retreat if you can. If your state adopted the Castle Doctrine, you have no legal duty to try to escape if you are in your home or place of business. Some states have gone even further and adopted “Make My Day or Stand Your Ground” laws, which mean you have a right to stay and no legal duty to retreat from a threat.
Finally, training and proficiency in the use of your weapon goes a long way if you end up in court. Demonstrating to a jury that you know how and when to use your weapon depicts you as a responsible person, as opposed to the panic-stricken person who fires wildly in a crowded space with no regard for the safety of others.
 I hope you never have to use a weapon to defend yourself or a loved one, but if you do, make sure are well versed in the laws governing the use of deadly force in your state and the states you travel in.
Tony Pan Sanfelipo is the senior Motorcycle Accident Investigator at Hupy and Abraham, S.C. for more articles and free constitutional rights card.

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Reader Comments

Nicely written piece, as a daily carrier of a firearm or two. I pray that I never have to use my weapons in self defense or in defense of another, but if the time comes it's good to know what yours rights are and are not.

Oconto Falls, WI
Tuesday, January 27, 2015
Thanks Pan , I love how you always make it real. I think everyone should learn situational awareness and conflict avoidance. When are you going to teach another self defense class?

Big Bend, WI
Sunday, January 25, 2015
Editor Response You would...
Great article, I have a CCW Lic and carry a Glock 36 daily, really good information for those who don't know, carrying a weapon comes with great responsibility and should not be taken lightly.

Weekly practice is a must for those who carry. Get as much training as you can with someone who is an expert. There's lots of good instructors in California and Nevada.

Houston Thad Cranford
Clinton, LA
Sunday, January 25, 2015

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