What are Your Rights

Transcription

1 What are Your Rights Can you be prosecuted for self defense Stand your ground law - Castle Doctrine When is lethal force justified Are there limits to self defense Self defense with non lethal weapons Free Publication by Self Defense Fund National Association For Legal Gun Defense

2 Self Defense and The Law National Association For Legal Gun Defense Self Defense Fund Let us start with a question. Can you be prosecuted for Self Defense? The answer is YES you can and there have been thousands of people prosecuted for use of a gun or non-lethal weapon in self defense. Most are shocked when they were charged with a crime. Even if, they are not convicted the cost from their legal expenses and the strain from prosecution leave many bitter and resentful toward our legal system. This is a complex legal issue that few attorneys who are not trained in gun law and self defense comprehend. Even trained Police Officers have been charged with unnecessary use of force, and some are incarcerated. Not every attorney with a license is a specialist. You would not go to a dermatologist for a heart operation yet both are doctors. So why would you use just any attorney when your freedom and assets are at risk? Although the laws in your state may not be exactly the same, essentially most are unified in one fundamental concept. You can use deadly force in self defense for protection from serious bodily injury or death. This law also would provide for the protection of others. If someone attacked you with a deadly weapon you can use deadly force, on the other hand, if someone attacks you with their hands only in rare occasions would you be allowed to use deadly force. The criminal and civil justice system can work hard for you and it can also work against you. What does self defense mean? If you ever have to use your gun or no-lethal weapon for self defense, you will also have to defend your actions in a court of Law. Guaranteed! If you injure or kill someone, no matter what the circumstances, you WILL be arrested and charged with a crime. The police will not make the assumption that you acted in self-defense. The police are not responsible for making that decision. They will let the courts sort that out. You must be prepared to defend yourself a second time in a court of law if you use your gun or any other weapon and harm someone in the process no matter what the reason or circumstance. The legal system allows a person charged with injury to another to excuse or justify their actions as reasonable force used in their own defense or the defense of others. Imagine this courtroom scene. You defended yourself or your family against an attacker. Now you are in front of a judge and the Judge asks: "How does the defendant plead?" Your attorney replies, "Not guilty Your Honor" then the Judge asks, "What's your defense for this crime?" Your attorney replies, "Self-Defense Your Honor." Now you have to prove self defense or become a victim again. While the statutes defining the legitimate use of force in defense of a person vary from state to state, the general rule makes a clear and important distinction between the use of physical force and deadly physical force. A person may use physical force...

3 ...to prevent imminent physical injury. However, a person may not use deadly physical force unless that person is in reasonable fear of serious physical injury or death. A standard of measurement that will be used in court will be the Reasonable man or woman theory. The decision whether a person who is involve in a specific event is not guilty or guilty of a given offense is determined by the application of an objective test in which the conduct of the accused is compared to that of a reasonable person under similar circumstances. In most cases, persons with greater than average skills, or with special duties to society, are held to a higher standard of care. For example, a physician who aids a person in distress is held to a higher standard than is an ordinary person. The reasonable man or woman theory refers to a test whereby a hypothetical person is used as a legal standard, especially to determine if someone acted with negligence. Did this hypothetical person exercises average care, skill, and judgment in conduct that society requires of its members for the protection of their own and of others' interests? This serves as a comparative standard for determining liability. This standard performs a crucial role in determining negligence in both criminal negligence law and tort law. The standard does not exist independently of other circumstances within a case that could affect an individual's judgment. Basically there are four points of comparison which are as follows: 1. The foreseeable risk of harm his or her actions create versus the utility of his or her actions. 2. The extent of the risk so created. 3. The likelihood such risk will actually cause harm to others. 4. Alternatives of lesser risk, and the costs of those alternatives such as loss of life. Most statutes regarding self defense law also include a duty to retreat clause, wherein deadly physical force may only be used if the person acting in self defense is unable to safely retreat. Just remember that a person is generally not obligated to retreat if in one's own home. For example: A person doesn't have to retreat from the living room to the kitchen, then to the bedroom, then to the bathroom, in what has come to be called the "castle exception" (derived from the expression "A man's home is his castle. ) Can you be prosecuted for non lethal self defense weapons such as stun guns, and pepper sprays? A GREAT BIG YES YOU CAN: There is a false belief that non lethal self defense weapons are free from legal prosecution when used to defend your self from attack. First let s look at electro-muscular-disruption technology also known as conducted-energy devices (CEDs) or stun guns. Stun guns have been touted as less lethal than other ways of subduing combative people in high-risk situations, but have come under increasing scrutiny as a number of deaths and injury have been blamed on these devices. Stun guns use high voltage and low amperage to temporarily disable an attacker that has good health. The energy stored in the gun is dumped into the attacker's muscles causing them to react violently. This rapid movement cycle instantly depletes the attacker's blood sugar by converting it to lactic acid. In short, he or she is...

4 ...unable to produce energy for their muscles, and the body is unable to function properly. The stun gun also interrupts the tiny neurological impulses that control and direct voluntary muscle movement. When the attacker's neuromuscular system is overwhelmed and controlled by the stun gun they lose balance. Not everyone is a healthy person. Most of the time the attacker is chemically dependent or may have other illness and that attacker could also be a diabetic or possibly has heart disease so when shocked death or serious injury could result. Chemical and gas sprays which are marketed as non-lethal chemical weapons that stimulate the corneal nerves in the eyes to cause tears, pain, and even blindness. The effects of chemical and gas spray are far more severe, including temporary blindness, a burning sensation of the skin, upper body spasms which force a person to bend forward and uncontrollable coughing making it difficult to breathe or speak. For those with asthma, taking other drugs, or anything that restrict the breathing passages, there is a risk of death. Now let us look at why you were attack? Maybe because you were at the right or wrong place at the wrong time and most likely you have something the other person wants but it could be a person who felt wronged and thinks killing other people is the answer to their problems. There are numerous examples such as divorce court, jealous boyfriend or girlfriend, or religious war. There have been new phrases added to the American English language in recent years like Going Postal, which means becoming extremely and uncontrollably angry, often to the point of violence, and usually in a workplace environment. The expression derives from a series of incidents from 1983 onward in which United States Postal Service workers shot and killed managers, fellow workers, and members of the police and general public in acts of mass murder. Between 1986 and 1997, more than forty people were gunned down by postal spree killers in at least twenty incidents of workplace rage. More people have died or have been injured in mass school shootings in the US in the past 18 years than in the entire 20th century. In a new study researchers have reviewed the history of mass school shootings in the US and found some alarming trends. The five deadliest shootings in the US have occurred in roughly the past 10 years. The Las Vegas attack was the deadliest shooting in modern US history (at least 58 killed), and it's only 10 years removed from the 2007 Virginia Tech massacre (32 killed) and a year removed from the second-deadliest shooting, the Orlando nightclub shooting. November's shooting in Sutherland Springs, Texas is now the fifthdeadliest shooting, with at least 26 victims. It's a largely American phenomenon From 1966 to 2012, nearly a third of the world's mass shootings took place in the United States. A 2016 study looked at 292 incidents in which four or more people were killed. It found 90 of them occurred in America. Put another way: While the United States has about 5% of the world's population, it had 31% of all public mass shootings. People have a greater chance of dying in mass shootings if they're at school or place of business. According to FBI data from 2013, incidents in schools and...

5 ...businesses represent 7 out of 10 active shootings. Some of the country's most high -profile mass shootings have occurred in those kinds of places: Sandy Hook, Columbine, Virginia Tech and San Bernardino. Overseas, these incidents typically happen near military installations. We have talked about Self-Defense but what about Defense of Others The rules are the same under self defense law when force is used to protect another person from danger. Generally, the defendant must have a reasonable belief that the third party is in a position where he or she would have the right of self defense. So when is the use of force justified? Remember, there is a clear distinction in self defense law between force and deadly force meaning injury versus death. The use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary in the circumstances. A person may repel force by force in defense of his or her person, property or habitation, against unlawful force. That is any one who intends, attempts, or endeavors, by violence or surprise, to commit a forcible felony, such as murder, rape, robbery, arson, burglary, etc., then that person is not required to retreat, but he or she may resist and even pursue his or her adversary, until he or she has secured their self from all danger. It is perfectly legal to chase an intruder from your home, and if he turns to engage you, you still have the right to self-defense. However, your purpose for pursuit may only be to apprehend the suspect until authorities arrive (citizen's arrest), or to ensure the invader is far enough away to prevent further harm to you, your family or property. If you do in fact capture the suspect, you may only use force enough tosubdue him, and once subdued, no more force is allowed. Deadly force, that is, force likely to cause death or great bodily harm, is justified under self defense law only if a person reasonably believes that such force is necessary to prevent death or great bodily harm to themselves or others. If an adversary is running from you and you pursue then kill him or her, you can be assured your self -defense will fail. Do I have to be physically harmed or do I have to be hit first before I can take action to defend myself? No! Absolutely not! Your defense may include "preemptive" action (force) on your part, such as your attacked is pointing a gun at you or your family. Preemptive self defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. What about Intimidation? Intimidation is a crime. If someone verbally threatens you, even if they have not yet touched you, they have committed the crime of intimidation, which is considered in most states as unlawful force or coercion. If someone threatens you by shouting, "I'm going to kill you" they have already committed the crime of intimidation. You should assume that they mean what they say and immediately take whatever action you feel is appropriate under the circumstances! Do not wait until they actually attempt to murder you!

6 Are there limits to Self-defense? Obviously, you can't shoot an unarmed person. That would be considered excessive force. The most important limit to self-defense is that the level of response must not exceed the threat. This may seem a bit fuzzy, but that's the way most self defense laws are written. The reality is, if all self defense laws were absolutely clear, there would be no need for lawyers. Basically, if a 'victim' uses excessive force they become the aggressor. Force becomes excessive when it exceeds that which is needed to assure one's own safety. In other words, when he or she says, "I give up" you have to stop. Immediately! What does the law say about Precautionary Measures? Some statutes on self defense law require that when threatened with violence, it is the duty of the person threatened to use all prudent and precautionary measures to prevent the attack. For example, if you leave your business at a certain time every day to make cash bank deposits and then you are robbed then a good attorney could argue that you did not use precautionary measures to prevent an attack. If you call for help, and you get attacked before the police arrive, do whatever you feel is necessary to protect yourself or others. However, if it can be shown that you could have called the cops and avoided the whole situation, you will be perceived as taking the law into your own hands. As a general rule no person is allowed to defend their self with force if he or she could have applied the law such as calling Self-Defense is not always against other people. Attacks on humans are increasing by feral or domestic dogs. Dog attacks with injuries very from minor to significant to severe or fatal and are not uncommon with the close association of dogs and humans in todays daily life. Attacks on the serious end of the spectrum have become the focus of increasing media attention. In the following examples membership in the National Association For Legal Gun Defense can help in two ways. Since there are two sides of law, which are criminal and civil, the member will probably not be charged on the criminal side for shooting a dog or rouge farm animal in an attack so that leaves the civil side of the law. The dog or other animal can not sue you but the owner can and will for killing the animal. Remember you have victim s rights. If you defend yourself, family, or your family pet dog, from a dog or other animal attack your membership covers you against civil litigation when the owner sues. Using a firearm against an attacking dog may seem acceptable but there are laws in the United States which prohibit discharging a firearm in a city, even if you are the holder of a concealed carry license, and reckless endangerment may limit the extent to which a person is legally able to defend themselves in this way. There is always a way for an astute lawyer to attack especially if you have assets and he or she smells a payday. Some state laws hold dog owners liable for the harm or damage that their animal causes to people or other dogs. For example in recent years the Florida dog bite laws have been changed so that prior vicious tendencies may no longer be needed to prove owner liability and in Texas, as of September 1, 2007, the Lillian's Law has taken effect whereby the owner of a dog that causes death or serious bodily injury may be charged with a second or third degree felony when the attack takes place outside the dog's normal place of confinement.

7 Under the law, the owner of a loose dog that causes injury or death can be prosecuted if the owner is found to be "criminally negligent" in failing to prevent the dog from escaping. The third-degree felony charge can bring a sentence of 2 to 10 years in prison and a $10,000 fine. If the victim dies, a dog owner can be charged with a second-degree felony, bringing up to 20 years in prison. The Lillian's Law stems from the brutal attack of 76-year old Lillian Stiles, who was killed by a pack of loose Pit-bull-Rottweiler mix while mowing her front lawn. In California, owners are subject to massive civil liability for attacks by their dogs. The state allows a victim to sue on two strict liability causes of action arising out of a single attack. That action is first created by statute and second arising from common law. In 1989, the California State Legislature enacted a special administrative hearing procedure just for regulating menacing dogs, based on the finding that dangerous and vicious dogs have become a serious and widespread threat to the safety and welfare of citizens of this state. Do I need to research the self defense laws in my state? It would seem that all states would have the same self defense laws, and for the most part, they do. However, the confusion is based on the sometimes subtle differences in wording, and the basic concept of "duty to retreat", as previously mentioned. The confusion comes from a fundamental difference in the philosophy of criminal law. The current self defense laws in America are based on a theory of one's duty to retreat, meaning when faced with a hostile situation, run away. If you cannot run away and have to defend yourself, then use of force is acceptable. In criminal law, the duty to retreat is a specific component which sometimes appears in self-defense and must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the defense to show that the defendant was acting reasonably. This is often taken to mean that the defendant had first avoided conflict and secondly, had taken reasonable steps to retreat and so demonstrated an intention not to fight before eventually using force. What about the Stand-Your-Ground Law & Castle Doctrine? "Stand Your Ground" laws are statutes that significantly expand the boundaries of legal self-defense by eliminating a person's duty to retreat from an invader or assailant in certain cases. The state of Florida became the first to enact such a self defense law on October 1, The Florida statute allows the use of deadly force when a person reasonably believes it necessary to prevent the commission of a "forcible felony." Under the statute, forcible felonies include murder; manslaughter; sexual battery; car-jacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful placing, throwing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. The Florida law authorizes the use of defensive force by anyone who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be. Furthermore, under the law, such a person has no duty to retreat and...

8 ...has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. The statute also grants civil and criminal immunity to anyone found to have had such a reasonable belief. That does not guarantee you will not be sued in civil court. Since the enactment of the Florida legislation, South Dakota, Georgia, Kentucky, Mississippi, and Indiana have adopted similar statutes, and 15 other states (Alabama, Alaska, Arizona, Georgia, Kentucky, Michigan, Mississippi, Missouri, New Hampshire, Oklahoma, Pennsylvania, Washington and Wyoming) are currently considering "Stand Your Ground" self defense laws of their own. States that use the Castle Doctrine law is a legal doctrine that designates a persons domicile, abode, or any place legally occupied, such as a car or place of work, as a place in which the person has certain protections and immunities and may in certain circumstances use force, up to and including deadly force, to defend against an intruder without becoming liable to prosecution. That does not mean you will not go before the Grand Jury or go to court. Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases when the person reasonably fears imminent peril of death or serious bodily harm to their self or another. The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states. Do I have immunity from civil lawsuits under the Stand-Your-Ground Law & Castle Doctrine? NO! In addition to providing a valid defense in criminal law, many laws implementing the Castle Doctrine, particularly those with a "Stand-Your-Ground clause", also have a clause which provides immunity from any lawsuit filed on behalf of the assailant for damages or injury resulting from the lawful use of non-excessive force. Without this clause an assailant can sue for medical bills, property damage, disability, and pain and suffering as a result of the injuries inflicted by the defender, or their next-of-kin may sue for wrongful death in the case of a fatality. Even if successfully rebutted, the defendant (the homeowner defender) may have to pay high legal costs as a result of such lawsuits; without immunity, such civil action could be used for revenge against a defender acting lawfully. The state of Florida became the first to enact such a self defense law on October 1, The Florida statute allows the use of deadly force when a person reasonably believes it necessary to prevent the commission of a "forcible felony." Under the statute, forcible felonies include murder; manslaughter; sexual battery; car-jacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful placing, throwing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. The Florida law authorizes the use of defensive force by anyone who is not engaged in an unlawful activity and who is attacked in any other place where he...

9 ...or she has a right to be. Furthermore, under the law, such a person has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. The statute also grants civil and criminal immunity to anyone found to have had such a reasonable belief. That does not guarantee you will not be sued in civil court. Since the enactment of the Florida legislation, South Dakota, Georgia, Kentucky, Mississippi, and Indiana have adopted similar statutes, and 15 other states (Alabama, Alaska, Arizona, Georgia, Kentucky, Michigan, Mississippi, Missouri, New Hampshire, Oklahoma, Pennsylvania, Washington and Wyoming) are currently considering "Stand Your Ground" self defense laws of their own. States that use the Castle Doctrine law is a legal doctrine that designates a persons domicile, abode, or any place legally occupied, such as a car or place of work, as a place in which the person has certain protections and immunities and may in certain circumstances use force, up to and including deadly force, to defend against an intruder without becoming liable to prosecution. That does not mean you will not go before the Grand Jury or go to court. Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases when the person reasonably fears imminent peril of death or serious bodily harm to their self or another. The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states. Do I have immunity from civil lawsuits under the Stand-Your-Ground Law & Castle Doctrine? NO! In addition to providing a valid defense in criminal law, many laws implementing the Castle Doctrine, particularly those with a "Stand-Your-Ground clause", also have a clause which provides immunity from any lawsuit filed on behalf of the assailant for damages or injury resulting from the lawful use of non-excessive force. Without this clause an assailant can sue for medical bills, property damage, disability, and pain and suffering as a result of the injuries inflicted by the defender, or their next-of-kin may sue for wrongful death in the case of a fatality. Even if successfully rebutted, the defendant (the homeowner defender) may have to pay high legal costs as a result of such lawsuits; without immunity, such civil action could be used for revenge against a defender acting lawfully.