Copyright © 2010, 2013 by Guns West Publishing, Inc.
All rights reserved. No part of this book may be reproduced in any form or by any means
without permission in writing from the publisher.
Compiled, written and published in the United States of America
by Attorney James D. Vilos and Evan John Vilos for Guns West Publishing, Inc.
ISBN 978-0-9845058-7-6
James D. “Mitch” Vilos
Evan John Vilos
Guns West Publishing, Inc.
PO Box 1148
Centerville, UT 84014
To order additional books: 1-800-530-0222
E-Mail: mitchvilos@gmail.com
To consult with Mitch: 801-560-7117
801-499-9702 (Evan)
www.firearmslaw.com
www.utah-injurylaw.com
CHAPTER 1 Introduction
CHAPTER 2 From Neighborhood Watch to Life in Prison
CHAPTER 3 Understanding the Crucial Terms and Concepts of Self-Defense Law
CHAPTER 4 Template [Subheadings] Described in Detail
CHAPTER 5 Self-Defense Laws of All 50 States
ALABAMA
ALASKA
ARIZONA
ARKANSAS
CALIFORNIA
COLORADO
CONNECTICUT
DELAWARE
DISTRICT OF COLUMBIA
FLORIDA
GEORGIA
HAWAII
IDAHO
ILLINOIS
INDIANA
IOWA
KANSAS
KENTUCKY
LOUISIANA
MAINE
MARYLAND
MASSACHUSETTS
MICHIGAN
MINNESOTA
MISSISSIPPI
MISSOURI
MONTANA
NEBRASKA
NEVADA
NEW HAMPSHIRE
NEW JERSEY
NEW MEXICO
NEW YORK
NORTH CAROLINA
NORTH DAKOTA
OHIO
OKLAHOMA
OREGON
PENNSYLVANIA
RHODE ISLAND
SOUTH CAROLINA
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
VERMONT
VIRGINIA
WASHINGTON
WEST VIRGINIA
WISCONSIN
WYOMING
CHAPTER 6 State Deadly Force Chart
Duty to Retreat Map
CHAPTER 7 Thumbs-Down Factors
CHAPTER 8 Justifiable Acts of Self-Defense
CHAPTER 9 Conflict Avoidance
CHAPTER 10 Step Up in Force
CHAPTER 11 Perception and Reaction Time and the Non-Firearm Deadly Threat
CHAPTER 12 The “SUPERDELL” Schanze Brandishing Case
CHAPTER 13 Domestic Violence and Battered Woman’s Syndrome
CHAPTER 14 Statements Made After a Defensive Incident
CHAPTER 15 Risk of Being Sued for Defending Yourself
CHAPTER 16 TASER: A Less-Lethal Alternative
CHAPTER 17 Self-Defense from Animals
CHAPTER 18 Additional Resources
CHAPTER 19 About Future Editions
CHAPTER 20 Conclusion: The Mother of All Self-Defense Laws
CHAPTER 21 About the Authors
In addition to the dedications and acknowledgements in our First Edition, we would like to thank our readers who took their precious time to take our plea to heart when we wrote in Chapter 19:
Our goal is to be the MOST RELIABLE source of information about the law of self-defense in the country. We can only achieve this with the help of our readers. Please contact us [through our website] with information about changes you’ve heard about involving your state’s self-defense laws, questions about anything you find unclear, if you believe we’ve made an error or suggestions for topics in future editions.
Our goal has not changed. With the help of many of our readers, we have improved both the quantity and the quality of legal information in this Second Edition. We dedicate this book to those who took the time to unselfishly inform us of changes in the law in their respective states, grammatical errors, spelling errors and topics that required a more comprehensive discussion. Questions alone regarding unclear provisions in the law or our interpretations thereof inspired additional research and clarification. We still consider this a team effort. We couldn’t have done what we have accomplished in this edition without your input. For that we extend a heart-felt thanks.
Again, I would be remiss not to acknowledge the contributions of my son and co-author, Evan. Without his efforts, our work product would never have been what it is. Furthermore, we would not have been able to share the results of our labor with so many without his management, marketing and computer skills. Working with Evan on this project has been one of the most enjoyable and fulfilling endeavors of my legal career.
We were flattered to discover that our book has been a catalyst for change in some of the states where the right of self-defense is still suppressed compared to that of most of the Western and Southern States. We encourage each of our readers to continue to pressure (with civility, of course) their respective state legislatures to bring their state’s self-defense laws on par with the “Mother of All Self-Defense Laws” touted in Chapter 20. Remember, Pancho’s Revolution consists of establishing the right of self-defense in every state as an “inalienable right” and not just a privilege.
— Via Con Dios. Mitch “Pancho” Vilos
WHY WE WROTE THIS BOOK - One of the most common reasons we are hired to defend people involved in defensive incidents is because they did not fully understand the limitations of the law of self-defense. The requirements of legal self-defense are often vague and difficult to understand. There are countless hidden legal traps causing a multitude of misconceptions. The consequences of such ignorance of the law can be disastrous. If you get convicted like the hapless fellow whose tale is told in Chapter 2, your life as you now know it will be OVER (life in prison with no possibility of parole)! The cost of paying a competent attorney to go “all out” to defend against allegations of murder or attempted murder can be an excursion into the world of bankruptcy.
Rather than meeting a client after he has made a serious legal mistake, our goal is to educate him before he tears his Taurus out of his Thunderwear! We want to be like the fence at the edge of a sea cliff that prevents people from falling into the ocean, rather than coast guardsmen at the bottom of the cliff who dredge up torn and dismembered corpses ripped apart by feeding frenzies of sharks and barracudas (figurative for homicide detectives, prosecutors and personal injury lawyers).
Our Unusual Writing Style - We’re not writing this book to impress our colleagues, lawyers and judges. We hope its plain enough so that every person who keeps any weapon for self-defense will understand. This book is a private conversation between you and us. We don’t want an impersonal, complicated writing style to get in the way of helping you avoid the indescribable horror of being arrested, prosecuted or convicted. So we use the personal manner of addressing you as “you” (think of it as ya’ll, if you’re from Dixie) and us as “we” and “us.” After all it’s YOUR BRASS THAT’S ON THE LINE! You must understand the rules of law so well that you can apply them in the one and one-half seconds we refer to as perception and reaction time before some thug whacks you or a loved one. Some may consider our writing style tacky for highlighting ABSOLUTELY CRUCIAL CONCEPTS using ALL CAPS, bold, italics, underlining; different fonts, [ colors and brackets ]. Hopefully you’ll appreciate the over emphasis as long as it keeps your posterior out of the hoosegow and ambulance chasers out of your wallet.
Why We Cited Statutes, Jury Instructions and Excerpts From Cases Rather Than Simply Summarizing - The ultimate responsibility of knowing what the law says rests upon you, not us. We could have reduced the size of the book considerably by generalizing or simply providing you with our “plain-talk” explanations, but we wanted you to have access to the actual words by which your acts of self-defense will be judged. We have given you references to the laws we have cited, hoping you will check for changes that might occur between now and the next edition of this book. Any crucial information that becomes available to us, will be posted on the internet as we have described in Chapter 19.
ME vs. We - When referring to my experience and insights as a trial lawyer, I speak in terms of “I and me.” When describing research findings, the term “we” is used to acknowledge the exhaustive research of my son, Evan, and the impressive team of law clerks he helped to assemble. He is not yet a lawyer, but this book would have never been completed without his focus and tenacity.
HUMOR (Entertainment) - Finally, you’ll notice a little levity interspersed throughout the book (OK, some of it’s really corny). Bluntly put, this law stuff can be VERY DRY. We thought a little light humor might “help the medicine go down” as Mary Pop ’Em (ugh!) used to say. Hopefully, it will help you remember the material better because you didn’t nod off while soaking it in. At the same time, we pray the funny stuff doesn’t cause you to misjudge the seriousness of the topic or fail to tremble at the dire consequences if you do.
Who the heck is Pancho Vilos and what in the world is “Pancho’s Wisdom?” The character Pancho Vilos started as a Single Action (Cowboy Action) Shooting Society membership persona. However, in the process of writing previous books on Utah’s Gun laws, Pancho became the leavening agent in the bread, the comic relief that made reading law bearable. He also became a symbol for the frustration and anger that many gun owners feel when they are confronted with naysayers and anti-self-defense politicians who have no common sense when it comes to the Second Amendment. Pancho sports a sombrero and a poncho, which he defines as a “South of the border concealed arsenal permit!” Tourists happening on wanted posters tacked to fence posts, trees and cactus swear that Pancho bears a striking similarity to the attorney-author of this book. He is often filmed riding with the infamous Cold Water Gang that terrorizes civilized folk along parade routes, historical sites, pioneer celebrations and commercial grand openings. He is an enigma whose wisdom and photos grace what would otherwise be the blank spots in the text of this literary work. Pancho is most certainly on Secretary Napolitano’s Right-Wing Extremist Watch List (and Proud of It!), having written communications to his compatriots like the following seized by Federales patrolling the historical Pony Express Trail:
I love God, my family, my country, my guns, my dogs and my truck; oh, and my fellow man, as long as he KEEPS HIS MITTS OFF all of the above!
Pancho’s “Gunnut” Quips are comedy relief to keep your spirits lifted as you tackle a serious subject carrying a heavy responsibility. If you truly are a gunnut, you will understand all the hidden meanings (e.g., only a gunnut would know what Hoppes No. 9 is) and maybe crack a smile. (You just might be a gunnut if your girlfriend thinks the smell of Hoppes No. 9 is your aftershave!) But there is a serious purpose to these as well. Typical judges, jurors and prosecutors do not view life through the same optics we do! They don’t see the need to remain vigilant to vanquish villains with a Vaquero. This could, in turn, affect the way they perceive whether it was reasonable or necessary (see critical discussion about these terms in Chapter 3) to use deadly force during a defensive incident. Please remember this as you face up to the fact that you just might be a gunnut if you don’t give a hoot what Brangelina or Lady Gaga did last weekend!
Our goal is to make this book and our website the most accurate, helpful, insightful, entertaining and valuable information EVER assembled concerning the right of self-defense. With your assistance and feedback (see Chapter 19, About Future Additions), we believe this is not an impossible dream.
Corrections: We have created a page on our website at www.firearmslaw.com so we can post critical corrections or updates as soon as we become aware of them. We will list any corrections by chapter and by state alphabetically. Of course, we will incorporate all corrections into the very next edition of the book. If you become aware of anything you believe to be in error, please do not hesitate to contact us immediately at mitchvilos@gmail.com. Of course, we reserve the right to control the actual content of our book. We are anxious to combine efforts with our readers to make this the most accurate and complete compilation of self-defense laws for non-lawyers ever written.
Every attempt has been made to ensure the accuracy of this book, but state statutes, cases and jury instructions can be vague and subject to different interpretations. Statutes are often amended, changed by judicial interpretation, replaced and repealed with little notice to the public. Cases are often overturned. Committees rewrite jury instructions.
Disclaimer: Therefore, the authors, their agents, publishers, contractors, employees, heirs, assigns, distributors, wholesalers and retailers of this book accept no liability, express or implied, for damages of any kind resulting from reliance on any aspect of this book, including but not limited to, consequential damages. This book should be used as a guide only and not considered as legal advice. Attorney Vilos is currently licensed to practice law in Utah only. You should seek legal advice from competent, experienced attorneys practicing criminal law IN YOUR OWN STATE. There is no guarantee that police, prosecuting attorneys, wildlife officers, courts or juries will agree with the authors’ interpretations. Even if our interpretation is right, you may still have to pay attorneys to defend you. We encourage the reader to use the citations given in this book to check for changes in the law. Nothing in this book is intended to suggest that you may violate any state or federal law governing the possession of firearms or other weapons. Because you may have the right to use deadly force does not imply you may lawfully possess a firearm or other weapon in any given jurisdiction. Weapons possession issues are beyond the scope of this book.
We published our first “gun-law” book in 1998 to help non-lawyers have quick access to Utah’s weapon laws. To aid in understanding, we summarized each law in simple terms referred to as “plain-talk.” Not long after our first book was published, clients from the high desert charged with weapon offenses began drifting into our office. Their statements to investigators, from time to time, reminded us of something that might have been recorded in the Tombstone Epitaph, “He crawfished a bet and called me a liar, Sheriff!” Not always picture perfect, we see the claim of self-defense quite often in our office.
While researching the law of self-defense in preparation for trial, we shudder at all of the potential hidden legal traps. We have begun teaching legal seminars and certifying students for concealed firearm permits to illuminate the uninformed. Our objective is to help avoid the legal nightmare.
During our interaction with clients and students, we became aware of a shocking number of misconceptions about the law of self-defense. Perhaps you have heard or read “legal conclusions” uttered by Law and Order wannabees that sound something like this:
• “If you shoot someone breaking into your home and they fall outside, drag them back into the house.”
• “If you shoot someone in self-defense, make sure you kill them. Otherwise, they’ll sue you for all you are worth.”
• “Don’t draw your gun unless you intend to shoot to kill.”
• “I have a concealed weapon permit; I don’t understand why they arrested me for brandishing.”
• “He was twice my size; I felt threatened, so I shot him.” (Explanation why the defendant charged with attempted murder shot an unarmed assailant.)
• “Trespassers will be shot; survivors will be prosecuted.”
These myths, half-truths and misapplications of the law of self-defense stem from incomplete knowledge and training. Some of the reasons citizens have a hard time finding and understanding self-defense law include:
• Self-defense statutes can be very difficult for non-lawyers to find. It’s easier to rely on what others claim the law says than to look it up and study it for one’s self.
• Not all states have self-defense statutes and the statutes of those that do can be quite incomplete.
• Some statutes are so old and broadly worded that courts have changed their meanings.
• Self-defense law can be buried in pattern jury instructions which are not readily available to the public.
• No state’s self-defense laws are exactly like those of any other state.
• Cases changing the meaning of state self-defense statutes are not easy to locate or understand.
We wrote this book to help non-lawyers quickly find and thoroughly understand the laws of self-defense in their home states and in states where they will eventually travel. There is no longer any reason for you to speculate or rely on rumors. You can read the law for yourself straight from the mouths of legislators and judges. And we use “plain-talk” summaries to help you cut through the thicket of legal mumbo jumbo. This is the most comprehensive compilation of self-defense laws ever assembled for non-lawyers under one book cover. The stories behind the cases we summarize illustrate legal principles that would otherwise be difficult to understand or remember. Our ultimate goal is to reduce the number of tragedies like the one described in Chapter 2.
Staying out of trouble is important, but staying alive is paramount. Police academies are now revealing the brutal truth to their cadets that “action always beats reaction.” Officers who don’t understand the realities of perception and reaction time are at the complete mercy of suspects who know no mercy. It’s the exact opposite of Hollywood westerns where the good guys always outdraw the bad guys even though the bad guys go for their guns first. For a detailed description of the training exercise often used to convince police trainees of this reality, see Chapter 11, Perception and Reaction Time. The point is that fractions of a second could make the difference between life and death. If trained officers are dying because of failure to account for perception and reaction time, imagine the challenge facing ordinary citizens who have not been through a police academy. Citizens should know the law of self-defense well enough to apply it without unnecessary delay. What good is it to be armed, if you are killed during the legal analysis?
To combat this problem, state legislatures in many states have passed laws giving innocent citizens an advantage during a criminal attack. These laws come in the form of presumptions and reduced thresholds triggering the right to use deadly force sooner under certain conditions. These laws could give citizens and their loved ones the split second advantage needed to survive. They are worth knowing. If your state has not adopted such laws, we encourage you to use the knowledge gained by studying this book to educate your state’s lawmakers. Working together, we can make our communities safer. See Chapter 20, The Mother of All Self-Defense Laws.
We wanted to make access to the self-defense laws of any state quick and easy. To do this we organized the book like a reference manual. The heart of this book, if you will, is Chapter 5. Chapter 5 contains the complete text of every state’s self-defense laws, with “plain-talk” summaries. The states are listed alphabetically from Alabama to Wyoming. All the information you will need to fully understand the material in Chapter 5 is explained in Chapters 3 and 4.
• Chapter 3 contains an explanation of the terms and concepts most commonly found in the law of self-defense.
• Chapter 4, to create some degree of uniformity and logic, we created a simple outline containing the main topics, such as the elements of and exceptions to the law of self-defense. We refer to this outline as our TEMPLATE.
• Chapter 6, the State Deadly Force Comparison Chart, succinctly summarizes, in table format, the issues thoroughly explained in Chapter 5. This chart and the accompanying map make it easy to see which states require retreat before using deadly force.
The remaining chapters will assist you in the application of principles contained in Chapters 3 through 6. These include topics such as: factors that most often lead to arrest and prosecution, conflict avoidance, perception and reaction time, an analysis of different levels of threat and the potential legal ramifications of such reactions, use of Tasers, self-defense from animals particularly those listed as endangered, domestic violence, civil liability, and dealing with the aftermath of a shooting. We also point you to a wealth of additional resources related to self and home defense. For those who wish to participate in the political process, we provide an all-star list of favorable self-defense provisions that your state legislature should choose from. We refer to it as “The Mother of All Self-Defense Laws.” See Chapter 20.
Larry Harmon thought he knew what the laws of self-defense were in his state. After all, he lived in Fillmore, Utah, about as close to the Old Wild West as any man can be in this day and age (OK, and then there is Texas!). His objective that fateful day was simply to watch his neighbors’ cabins and keep two ruthless-looking young toughs from beating him up and taking his gun away. Why is he sitting in the Utah State Penitentiary doing life without parole? His shocking story is in Chapter 2. Could the next sad story involving a defensive incident be yours?
(Dramatization) Larry Harmon knew they were up to no good. They tried to break into his place and then went through the neighborhood of cabins peeking into windows and rattling doors. The tall thin one had on a black motorcycle jacket with chains hanging off of it. The muscular one with long hair looked like he was high on something. They kept coming straight at Larry even though his pistol was clearly visible. He had no doubt they were capable of overpowering his aging, 57-year-old frame and pistol whipping him, or worse, with his own gun. He yelled, “Stop! Don’t come any closer; what’s your business?” But it didn’t faze them; they kept coming. The one on Larry’s right started to circle. Larry’s truck with an open door was behind him and to the left; he had nowhere to run. Larry gripped his old 1911 tighter just in case they lunged for it. When the longhaired one was within 3 feet of him he raised his .45 pulling the hammer back, praying they’d turn and run. Nothing. With the attacker on the left literally an arm’s-length away, there was no more time for waiting. Larry pulled the trigger. He swung right to stop the attack from that side. He spotted a blur of black leather filling his peripheral right. Too close for aiming, he spun and jerked the trigger, firing several more shots as the dark form disappeared into the trees. That’s how Larry remembers it as he sits out his sentence of life without parole at the Utah State Prison near Salt Lake City.
Twenty-seven-year-old Douglas Greer, a felon convicted of methamphetamine possession, lay dead in the road, shot through the face. His companion, Ray Thomas, whose past included allegations of domestic assault, escaped with a bullet hole through the back of his arm. Larry called 911 to report the shooting. The Utah Supreme court summarized the official but conflicting versions of what happened as follows:
The homeowners in the rural Frampton Heights area had an informal “neighborhood watch” system of keeping an eye on one another’s properties and investigating the names, license plate numbers, and activities of strangers seen in the area. Harmon, the only year-round resident, participated in the watch and reported suspicious tracks or people to the owners of the five other cabins in Frampton Heights.
At trial, Harmon and Thomas gave conflicting testimony regarding the events leading up to and following the shooting.
Harmon testified as follows: He was awakened from a nap by knocking on the front and side doors of his cabin. When he looked outside, he saw two young men, Greer and Thomas, whom he did not know. Thomas was jerking on the side screen door, which was locked from the inside, apparently trying to open it. Harmon watched the two men walk away from the cabin toward a gate exiting his property. The two men then walked back toward his cabin and began looking at one of his automobiles. Harmon called out to them to state their purpose and told them to leave. Without verbally responding, they walked back toward the gate and exited his property. Harmon set out in his truck to check his neighbors’ homes and to get more information about the two men and what they were doing in Frampton Heights. After checking the homes and finding nothing amiss, he spotted Greer and Thomas walking along the road leading to Fillmore. He drove past them, parked his truck on the side of the road, got out, and asked them their names and what they wanted. Greer and Thomas did not respond to his questions but continued to approach him with “unfriendly expressions,” without heeding his requests that they stop. Greer approached straight on while Thomas circled around to Harmon’s side. They continued to approach, even though Harmon was displaying a .45 caliber handgun he had retrieved from his truck. Backed against the door of his truck, Harmon feared for his life inasmuch as the two men were not responding to his requests to stop advancing, and it appeared that they could disarm him. Thus, in self-defense, he shot Greer once in the face and then turned and rapidly fired at Thomas. After the shooting, Harmon returned to his cabin, called 911 on his cellular phone, and reported that he had shot someone who had been trying to break into his property. [After a defensive incident, do you think your version is the only story law enforcement officials will hear? Think again.]
In contrast, Thomas testified as follows: He and Greer were on their way up to Twin Lakes, above Fillmore, when their vehicle became stuck in the mud. After unsuccessfully attempting to free it, they decided to walk back to town. To save time, they took a shortcut down a mountain and found themselves in Frampton Heights. They followed a fence line until they came to Harmon’s property, and though neither Greer nor Thomas knew Harmon, they jumped over the fence and entered his property, hoping that the property owner might be able to help them pull their vehicle from the mud. Thomas walked up to the porch of the cabin and knocked on the door. Receiving no answer, he went around to the side door of the cabin and again knocked. When no one responded, he and Greer began walking down the road, away from the cabin. However, Harmon called out to them, and they walked back toward the cabin, believing they could still solicit help. When they were twenty to thirty feet away, Harmon began yelling at them from behind the screen door. Harmon asked them if they were ignorant and couldn’t read, ...and he told them that they were on his property and ordered them to leave. They then left Harmon’s property and began walking on the road toward Fillmore. As they were walking, Harmon’s truck approached from behind, passed them, and stopped about six or seven feet in front of them. Harmon got out of the truck wielding a .45 caliber handgun. Thomas and Greer stood still.
Harmon held out the gun and asked Thomas if he knew what it was. Thomas replied that he did. Harmon then told him that the gun was a .45 and asked Thomas his name. After Thomas responded, Harmon turned and said something to Greer. Thomas heard the hammer go back on the gun and saw Harmon raise it and shoot Greer in the face from a distance of six to twelve inches. Harmon then pointed the gun at Thomas, asked him if he wanted to get shot, and told him to “take off running.” As Thomas was running away, he heard the gun fire and felt a bullet strike his arm. He also heard several more shots and saw dirt flying in front of him.
During the trial, the medical examiner testified that Greer had been shot once in the face at a distance of six to twelve inches from the end of the gun. Thomas’s physician indicated that the bullet which struck Thomas entered from the back of his arm and exited out the front. The evidence introduced at trial further indicated that Harmon fired a total of five shots from his gun, which held a maximum of eight rounds.
State v. Harmon, 956 P.2d at 264, 265. A rural jury in Fillmore, Millard County, Utah convicted Larry Harmon of First Degree Felony Murder for killing Greer and First Degree Felony Attempted Murder for shooting at and wounding Thomas. Greer’s mother and Thomas obtained a combined civil judgment against Harmon for $1.5 million dollars and executed on everything he had saved or owned. In October of 2008, the Utah Parole Board decided that Harmon would spend the rest of his life in the Utah State Prison without the possibility of parole. An October 2008 article entitled Convicted Killer to Spend Natural Life in Prison, by Ben Winslow of the Deseret News in Salt Lake City reported:
“He had a truck, a gun and a cell phone. He chose to use the gun instead of call for help,” Greer’s mother, Juanita McCall, said at his parole hearing on Sept. 2.
Harmon, who is now 70, apologized and said it was a “tragic error in judgment.” ...the five-member [ parole ] board ruled against [ ever ] releasing him [from prison] because of the number of victims, the aggressive act itself and that Harmon minimized it, instead of accepting responsibility.
Did the jury completely discount a legitimate concern I hear from gun owners all the time—being rushed and overpowered by multiple unarmed assailants? Harmon claimed he only fired his gun because Greer and Thomas wouldn’t stop at his commands. Assuming it happened the way he described, what was he supposed to do at that point? Had they disarmed him, they could have killed him with his own gun. He had a right to confront them and find out why they were going around trying to get into houses. He had a right to arm himself before approaching them. If they rushed him, he had a right to use reasonable force to defend himself. It wasn’t clear from the record of the court how large Greer and Thomas were. Nevertheless, there were two of them and only one of him, sometimes referred to by concealed weapon instructors as “disparity of numbers.” They were obviously much younger, stronger, and more agile. It seems likely that they could have easily overpowered Harmon and taken his gun. Why was Greer so close to Harmon unless he refused to stop or back off? I do not recall reading any evidence in the 1500 page trial transcript that Harmon, after he stopped his truck, approached the boys. The evidence was that the .45 casings fell fairly close to the truck. These are very troubling issues for those who carry a weapon for self-defense.
How do you legally deal with multiple assailants who are not exhibiting weapons but are refusing to obey your command to stop? Several plausible acceptable legal solutions to this problem are discussed more fully in Chapters 9 through 11. There were several Thumbs-Down factors in this case that we would not have known about had I not spent a day and a half reading the transcript at the Millard County Courthouse. See Thumbs-Down Factors, Chapter 7.
This case is a dramatic and solemn reminder to gun owners of the legal, moral and psychological risks of using deadly force. It is one of many cases reported in this book in which gun owners were found to have acted with excessive force resulting in the conviction of a crime and making them liable in damages. A careful study of these cases, compared to incidents in which there was no arrest, will help the reader see how police, prosecutors, judges and juries thread the needle through the intricate wording of each of the states’ self-defense laws. The stories of how the law was applied to the defensive incidents described in this book will add “flesh” to the bare-bone self-defense statutes and aide in understanding. Additionally, staying with our cliff analogy in the preface, we hope to show you right where the edge is so you don’t step over it. The problem is, sometimes the edge is not very well defined; you get too close —GOTCHA!
Introduction
Although we could not find two states with exactly the same self-defense laws, we found that all of them contain a few common, vital, core concepts as well as many similar terms. To understand the self-defense laws of any of the states, it is absolutely critical for you to understand these concepts. That is why we have asked you to read, comprehend and remember the content of this chapter and the next before proceeding.
WARNING: It would be impossible for any author to anticipate ALL the variables in any given case that could result in a criminal prosecution, conviction or civil damage award. A slight change in the facts could affect whether police arrest, prosecutors prosecute or whether jurors and/or judges convict. Unpredictable variables that could affect whether you are arrested, prosecuted or convicted could include the personalities of the persons making decisions about what you did, the emotions of such persons at the moment these decisions are made, and even societal factors, such as recent heinous crimes shocking the community or hateful attitudes about guns and gun owners. Race, religion, national origin and sexual preference of the defender or victim can affect the outcome of a case despite the best attempts by lawyers or judges to keep it from happening. Police, prosecutors, judges and jurors are only human and make mistakes. There is no such thing as ABSOLUTELY PREDICTABLE justice. Therefore, the examples we use in this book illustrating situations where a person might be justified in using deadly force should not be taken literally. They are simply to illustrate the legal principle being discussed. They are NOT to make you believe you have a license to use force when dozens of other variables not mentioned in the example could affect whether there is an arrest, prosecution or conviction. Even though your actions fall within THE-PERFECT-TEXT-BOOK-DEFINITION OF SELF-DEFENSE (if there is such a thing) if you get the wrong arresting officer, prosecutor or jury, you could be arrested, prosecuted or convicted.
Example: Texas has one of the most protective home defense statutes in the country. Most folks have been led to believe that homeowners may always legally shoot intruders who break into their homes at night. At least one would think it’s true in a place like Texas, where, according to Miss Congeniality, “everyone has guns.” One night several teens broke into the trailer of an elderly man, Jose Gonzales, age 63. Fearing for his life, the homeowner shot and killed one of them. It turned out the deceased boy was only 13 and his friends told the police they only broke in to steal candy and a soda. Despite an uproar from the community that this man was even charged, he was tried for murder. Deseret News, Sept. 28, 2008. Why was he prosecuted? Was it the age of the boy, an anti-gun prosecutor, or racial undertones at work? Who knows? Unless he qualified for a public defender, the trial cost him a fortune. The outcome of the case is reported in Chapter 7, Thumbs-Down Factors.
History and Background
The philosophy behind most of the states’ self-defense laws comes from English common law. When British settlers immigrated to the original Thirteen Colonies, they brought their knowledge of the law of England with them. These rules of common law began to take shape in both the statutes and cases of the American states. Although some states like Virginia and Washington D.C. never did enact self-defense statutes, cases from those two jurisdictions have passed on common law rules from case to case until the present. In the law, we refer to these cases as “legal precedents.” The law used in a previous case is generally applied in later cases unless there is a good reason to change it.
The differences we see in states’ self-defense laws are because courts and legislatures of each state have adjusted common law according to their values and beliefs. In many Western and Southern states, citizens are allowed to use deadly force more readily than in other parts of the country. Laws that justify the use of deadly force to prevent the commission of violent felonies or that lower the threshold for the use of deadly force in special places, such as homes or occupied vehicles, may allow defenders to react more quickly and thus increase their chance of survival. From a tactical standpoint, they are worth knowing. Such laws not only protect the innocent, they serve as a warning of potential injury or death to criminals.
Purpose
The next two chapters are to help you understand basic self-defense principles common to all states. This prevents us from having to repeat them for each of the fifty states.
Approach
Chapter 5 contains a subchapter for every state, starting with Alabama and ending with Wyoming. In each state we divide the discussion of self-defense into several topics. These topics include the use of non-deadly force, deadly force, the duty to retreat before using defensive force, limitations on the use of force, the right to use deadly force to prevent serious felonies and to defend persons in your home and other special places. Defense of property is also addressed. For each state we created an outline of sub-headings that we refer to as our “TEMPLATE.” These topic sub-headings alert you to the subject being addressed and are flagged by [ brackets, red ink and bold print ]. The TEMPLATE makes it easier for the reader to understand how the law differs in each state in relation to each of these vital topical areas.
Statutes - Most states have self-defense statutes, or laws that were written by their respective state legislatures. All state statutes are preceded by this symbol - §. For example, Alabama’s general law of self-defense is cited as Alabama Code § 13A-3-23. Use of force in defense of a person. Of those states that have statutes, some states’ statutes are quite complete and address most or all of the topics listed in the TEMPLATE below (e.g., Texas, Utah). Others have statutes that are short and relatively incomplete (e.g., Vermont, Wyoming). A few have no statutes at all (e.g., Virginia and Washington, D.C.). Unfortunately, some states’ self-defense statutes have been interpreted by courts to mean something different than the plain language of the statute. For example, one of California’s statutes says you can use deadly force “to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.” On its face, the statute gives the impression you would be totally justified as a vigilante sniper who picks off rioters and felons all day long from the top corner of a skyscraper. This statute has been dramatically limited by case law. We alert you what effect case law has had upon such statutes. This is vital information that you could not find on your own without an enormous investment of time and money.
Case Law - For those states that do not have self-defense statutes, or whose self-defense statutes are short and comparatively incomplete, we have conducted exhaustive research to find whether each state’s court cases address the topics outlined in our TEMPLATE. If a rule of self-defense is contained in a case, the name of the case is cited in italics as in the following Vermont case, State v. Wheelock, 609 A.2d 972 (Vt. 1992). These rules are created by appellate court interpretations of statutes or previous cases.
Jury Instructions - If a rule is contained in a jury instruction, we will tell you it is a jury instruction, where the instruction can be found and whether it is generally accessible to the public. What are jury instructions? When a case goes to trial, it is the job of jurors to listen to the witnesses and decide what really happened. After they decide what the facts are, the trial judge tells them what the law is. They apply the law to the facts and arrive at a verdict. The judge either reads the law to the jury or gives it to them in writing. These oral or written restatements of the law are referred to as “jury instructions” or “charges to the jury.” In states that have statutes defining the laws of self-defense, the jury instructions will generally be worded using the language of the statutes. Where there is no statute covering a particular issue of self-defense (e.g., duty to retreat before using deadly force), the courts and lawyers look at previous cases that have decided that particular issue. The court then takes the rule of law found in the case or cases and drafts jury instructions informing the jurors what the law is regarding that particular self-defense issue.
Jury instructions are not law. They are simply attempts by lawyers and judges to define the law for the jury in any given case. In each case, the lawyers argue to the judge what the instructions should say and the judge makes a final decision based upon his reading of the self-defense statutes and/or cases in his particular state (or neighboring states, if no cases in his state can be found speaking to that particular self-defense issue).
Although jury instructions are not considered laws like state statutes are, some states like California rely heavily upon them. In such states, they are updated frequently to reflect appeals court cases that either approve the instructions or change them. When a particular jury instruction or part of an instruction best states the rule we are informing you of, we will cite the instruction rather than a statute or case. In other words, we use the most correct statement of a state’s law of self-defense, whether it be a state statute, a law case, or jury instruction.
The TEMPLATE - The Order of Presentation of Each State’s Self-Defense Law
We have attempted to present each state’s self-defense law using the following outline or TEMPLATE. We say “attempt” because not every state addresses all of the topics nor do the topics appear in the same order in every state. Rather than force a state’s self-defense law into the outline where it would make no sense, we often just insert the concepts in brackets (for example, [ Duty to Retreat ]) into the statute to alert you to what concept is being addressed. Notice we highlight these TEMPLATE topics in red. In the TEMPLATE section of each state’s subchapter black print indicates the actual statute, case or jury instruction which describes that state’s self-defense law. The use of the color red alerts you to TEMPLATE topics and our commentary. TEMPLATE topic headings appear [ In Red, Bold, Initial Caps, and In Brackets ]. We list the topics for which we could find neither statutes nor case law at the bottom of that state’s subchapter under the heading [ TEMPLATE Topics We Could Not Find Explained in Statutes or Cases ]. For such states, we suggest you look to neighboring states to see how their courts have decided the issue. Courts often rely on case decisions in bordering states if their own state law doesn’t say anything about the issue. For example, it’s not uncommon for lawyers and judges in many of the less populated Western states to cite California cases or jury instructions when a statute or case precedent can’t be found in their own state. The following TEMPLATE shows the topics and order of presentation we attempt to use for each state, where possible. We purposely did not assign consecutive numbers or letters to the TEMPLATE topics because the laws of every state may be arranged in quite different order.
TEMPLATE
NAME OF STATE
[ Defense of Self and Others ]
[ Non-Deadly Force ]
[ Deadly Force ]
[ Use of Deadly Force to Prevent Serious Felonies ]
[ Defense of Third Persons ]
[ Exceptions to Justifiable Self-Defense ]
[ Initial Aggressor ]
[ Provocation ]
[ Committing Felony or Unlawful Act ]
[ Mutual Combat ]
[ Exceptions to the Exceptions ]
[ Withdraw and Communicate ]
[ Duty (or No Duty) to Retreat – Generally ]
[ Defense of Person(s)s in Special Places – (e.g., Home, Business, Occupied Vehicle) ]
[ Duty (or No Duty) to Retreat From Special Places ]
[ Co-Habitants; Co-Employees – Duty to Retreat ]
[ Presumption of Reasonableness in Special Places ]
[ Responsibility to Innocent Third Parties ]
[ Civil Liability ]
[ Defense of Property ]
[ Helpful Definitions Relating to Self-Defense Statutes ]
[ TEMPLATE Topics We Could Not Find Explained in Statutes or Cases ]
(For a detailed explanation of each topic mentioned in this TEMPLATE, please refer to the following chapter.)
Core Concepts Explained
Before we give you a detailed explanation of each topic contained in the TEMPLATE, we need to make sure you understand the “Core Concepts” of the law of self-defense. The terms Justification, Reasonable, Necessary, Imminent, Serious Bodily Injury, and Deadly Force are critical to the understanding of self-defense law.
JUSTIFICATION
Justification in simple terms means not guilty or not liable. Killing another person without justification is murder or manslaughter. Killing without justification will also subject the killer to liability for wrongful death. Killing another person in lawful self-defense is justifiable and is not a crime. Justification can be a defense to a civil lawsuit as well. Only judges and juries have the authority after a defensive incident to decide if a person’s actions were justifiable. No attorney or firearms instructor, no matter how smart or talented, can predict with certainty whether a person’s reaction to any particular threat will be judged as justifiable. No two defensive incidents will ever be exactly alike. There are simply too many variables.
REASONABLE
Every self-defense law requires a defender to act reasonably. Example: The law is not going to allow a person who is unreasonably afraid of germs to wander through public areas shooting people who come too close. The fear has to be a reasonable fear. Someone with a broken bottle standing within arms length threatening to “cut your face off” would invoke a reasonable fear of death or serious injury in most people. A person may honestly believe his life is in danger, but if his belief is unreasonable and he responds with deadly force, he will be convicted of a crime. Just in case you’re into dictionary definitions:
Reasonable person. 1. A hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others’ interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions. Also termed reasonable man; prudent person; ordinarily prudent person; reasonably prudent person; highly prudent person.
See reasonable care under CARE. Black’s Law Dictionary (8th ed. 2004), reasonable person. A reasonable fear of serious injury or death alone is not enough to justify the use of deadly force. The threat must be imminent and the defender must be without fault in causing the conflict.
Reasonable belief and actual belief – You’ll notice in Chapter 5 that some state’s self-defense statutes say you have to have both a reasonable belief as well as an actual belief. Whether the state statute requires it or not, you should never use defensive force unless you actually believe it is necessary. Because this is our advice, we don’t believe it’s important for us to include a scholarly dissertation about the subtle differences between state statutes that require only a reasonable belief and those that require both a reasonable and actual belief.
Chapter 12