The Flip Side of Self-Defense

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The Flip Side of Self-Defense
Bob Irwin

The gun magazines today are filled with articles relating to self-defense
with firearms. Stories about testing various guns, holsters and ammunition
are standard fare in every publication. Often, there are short examples of
recent incidents showing how armed citizens were able to use a firearm to
protect themselves or their family when confronted by a criminal. It has
been estimated that a couple of hundred thousand of these self-defense cases
take place every year in the United States. The vast majority of these
incidents end with only a warning being needed to convince the attacker to
disengage. However, in a growing percentage of these cases, the potential
victim finds it necessary to actually shoot the aggressor. Unfortunately,
these magazine articles rarely tell the whole story. There is often another
side to these cases of self-defense.

I have been teaching firearms and use of force for law enforcement, private
security and civilians for 25 years. While I am not an attorney or a
psychologist, I have been involved in the aftermath of scores of these
shooting incidents. The thoughts and theories outlined here are based on my
personal experiences, interviews with the parties involved in shootings,
discussions with law enforcement investigators and working with attorneys
who litigate shooting cases. Before we continue, please allow me to say that
the purpose of this article is not to discourage the use of firearms by
honest citizens for self protection. That is a fundamental right and
sometimes a very necessary thing to do. However, these incidents rarely
actually end when the gun smoke clears from the air.

There are three major areas of concern here. First, there is the possibility
of criminal charges being filed against the citizen because the shooting did
not meet the state's legal standard for the justifiable use of deadly force.
Then there is the probability of a civil lawsuit from the criminal or his
family to gain monetary compensation for his injuries. The third potential
problem area is the mental and moral anguish many individuals suffer after
taking a human life, no matter how justified.

A great deal of what civilians "know" about the legal use of deadly force is
incorrect. The problem is that most publicized shootings of criminals are by
law enforcement. That causes many citizens to believe that they can do the
same thing. That belief is often incorrect. Police insert themselves into
violent or suspicious situations because they are required to; they cannot
ignore a cry for help. Unlike law enforcement officers, private citizens
have no legal duty to protect anyone from anything.

Because law enforcement officers are required to intervene in dangerous
situations, they carry in the law a protection called qualified immunity.
That legal principle says that if they acted reasonably, based on whatever
information they knew (or should have known) at the time of the shooting,
they cannot be held to answer in court. That principle applies even in cases
when additional information discovered after the fact shows that the police
were wrong. The law recognizes that law enforcement officers sometimes must
make quick decisions that are based on incomplete information. The typical
instance is the, "Later we discovered it was a toy gun," type of case.
Civilians carry no such immunity, as they are acting because they choose to,
not because the law requires it. Civilians can run away from dangerous
situations; police cannot. A law enforcement officer's rules of engagement
are very different from those that apply to a private citizen. In most
instances, civilians simply cannot legally take the same actions that we
expect of police officers.

With that being said, let's look at what the post shooting dangers are to
civilians. First, consider the possibility of criminal liability. What if it
turns out that the use of gunfire was actually illegal? State laws vary
quite a bit in what is considered justifiable use of deadly force. Some
require exhausting all other options, including retreat, while others allow
you to stand your ground. If you really had no other way out, the District
Attorney or a criminal jury are likely to be understanding. While it is
quite impossible to outline here all of the laws of the various states and
their local court interpretations, in most jurisdictions you may use deadly
force only when it is necessary to protect a human being who is in immediate
danger of death or serious bodily injury. In general terms, there must be
surrounding circumstances indicating that the situation was so dangerous
that gunfire was actually a reasonable solution and used in order to save
yourself or another person. I encourage readers to educate themselves on the
specific laws and regulations regarding use of deadly force within their
state. Remember, nothing in any law allows the shooting of people who
deserve to be shot, but rather, only those that need to be shot.

In my 25 years of teaching firearms to 20,000 students, I have only two who
were charged under criminal statutes for wrongfully killing a claimed
"attacker." One is currently doing life without the possibility of parole
for what was pretty clearly a murder with no self-defense issues involved.
The second was recently convicted of manslaughter for an unnecessary
shooting involving a road rage incident. He was in his van and the drunken,
unarmed attacker was on foot. I am quite sure that he now realizes that he
should have chosen to drive away instead of shoot. Another student was
charged with assault with a deadly weapon for striking an opponent with his
handgun (an action that is not recommended for safety reasons) after he was
punched in the head by another patron in a bar. He did not fire his gun, but
rather, used it as an impact tool to ward off the attack. It took the jury
only 31 minutes to return a verdict of not guilty. The jury correctly saw
that his chosen force level was reasonable self-defense. Could he have
legally fired his gun? Possibly so, but he wisely chose a less intrusive
defense that was more appropriate for the danger presented.

Much more common addendums to self-defense shootings are civil lawsuits. The
fact that there were no criminal charges in a shooting does little to
prevent lawsuits. In a criminal case the jury's question is, "Could you
legally shoot?" That is the easy question. In a civil case the jury's
question is, "should you have shot?" This is the difficult question. There
have been several high profile cases recently where a criminal jury found
the shooter "not guilty," but a civil jury still awarded substantial
monetary damages. Basically, the criminal jury looks at what action you
took. Was it legal or not? The civil jury looks at what action you took and
what else you could have done instead. Civil court is where you are asked,
"Why didn't you just run away or point your gun to warn him off?" Was there
a safe solution you chose to ignore? It is those types of cases where you
see the criminal case dismissed and the civil case take your home and your
savings. A separate word here about court cases: If you get involved in a
shooting, hire an attorney and follow his advice. When you speak to
investigators or testify in court, tell the truth about what happened.
Juries understand fear and panic, but they don't understand lying about the
incident. Your memory of the event will be poor at best. People acting
quickly in stressful situations rarely remember the events clearly and in
the right sequence. Don't add to the facts or testify as to what you think
may have happened. If you don't remember, you don't remember. If you guess
and are wrong, you will appear to be a liar. If the jury thinks you are
lying, you will lose.

The third problem is post traumatic stress. Over the years, I have had the
opportunity to interview more than 80 individuals that have shot and killed
someone in a self-defense situation. These included police and security
officers who shot suspects, merchants who shot robbers, homeowners who shot
burglars and potential victims who shot rapists and muggers. All in all, I
would guess that about 20% of the shooters are mentally fine with the
incident and go on with their lives as before. Another 40% have some
emotional problems over it and take a few months or more to get themselves
back together. The remaining 40% have serious life changes because of the
experience. They commonly become alcoholics, addicted to pain killers, end
up divorced, lose their jobs, or in extreme cases, commit suicide. Taking
the life of another human is not an easy thing for most of us. You were
taught from childhood that killing is wrong. That lesson was correct.
Killing is wrong. Unfortunately, life sometimes presents scenarios where you
have no other option. Should you or a loved one become involved in one of
these traumatic incidents, even if you think you're okay, get some
professional counseling as soon as possible.

The ability of Americans to possess firearms in their homes and businesses
has saved countless lives. Almost all states are now allowing for the fairly
simple issue of concealed firearm permits. Nationally, in the last few
years, the addition of these armed citizens has caused at least part of a
statistical drop in the rate of street crime. We can expect these types of
crimes to continue to decline as rape and robbery become more risky
professions. With that being said, the use of deadly force in self-defense
is rarely a completely winning situation. I would suggest that even if your
state law allows you to stand your ground, you evade the attack instead. If
you are able to escape, then you are safe from the attacker, safe from
criminal charges and safe from civil lawsuits, and you probably don't need
the psychiatrist. The best way to really win a gunfight is not to play!




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