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You Have the Right, But ...     By Karen MacNutt

There have been many changes since I wrote my first Women & Guns article. The gun control argument has shifted focus a number of times. The anti-gun folks always look for a soft spot, an issue where they can appeal to ignorance and emotion, to chip away at the public's right of self-defense. Selfdefense, not hunting or target shooting, is what the Second Amendment is all about. There have been numerous studies over the years. Some are academically sound, some are not. No credible study, however, supports the claim that keeping guns from honest people reduces crime.

While gunowners in some states have lost ground, there have been impressive gains in other states. Increasing numbers of states grant reciprocity to license holders of other states. The vast majority of states, 40, now have "shall issue" concealed-carry firearms licenses.

Contrary to predictions of the antigun crowd, those laws did not resui t in Wild West gunfights. People have been responsible. The twelve states that grant licenses on the basis of favoritism, or not at all, are out of step with the rest of the country. In spite of the success of the "shall issue" states, America continues to be polarized on the gun issue. In states such as California, restrictions continue to grow while in states such as Florida, the public's right to self-defense has expanded.

One area where there has been positive legislation is with the socalled home castle laws. The terms "home castle" comes from the English Common Law. Sir William Blackstone, who wrote the landmark book on English Law in the 18th Century, noted that every man's home is his castle and that he had certain rights in his home that he would not have in other places. One of those rights is the right to exclude other people by force if necessary. The term has come to stand for a person's right to defend his or her home from intruders. Sad to say, the right of self defense in England has been just about extinguished.

The United States was headed in the same direction with court decisions that allowed trespassers to sue people who defended their homes. In about half of the states, a person assaulted had to retreat if he or she could do so safely. The Massachusetts' courts went so far as to rule that a person had to retreat from his or her own home rather than use deadly force. In reaction to these court cases, a number of states passed "home castle" laws making it clear that you do not have to retreat from an aggressor in your own home. Florida has expanded that to include certain places outside the home.

These laws, however, are not the end of rhe story. It is important that everyone who keeps a gun for selfdefense understands when deadly force can be used and when it cannot.

"Self-defense" is a legal theory based on the claim of necessiry. It justifies an act that would otherwise be illegal. For example, it is illegal to punch someone in the nose. If, however, they are attacking you, your hitting them to defend yourself is legal. Self-defense may be raised in a criminal case. It may also be raised as a defense in a civil case where the complaining parry is asking for money dalnages. In many states, if you fail to raise the issue of self-defense at the beginning of a case, you may not raise the claim after the case has been tried.

The laws governing self-defense are different in each state. Although many of the differences are small, those details may make the difference between going to jail or going home. If you have a gun for defense, learn the law in your state governing the use of force.

The first question in any case of self defense is, "Who is the aggressor?" If someone hits you, they are probably the aggressor. Note the word "ptObably." There are certain instances where injury to a person is so imminent, that he or she can strike first and still claim the right of self defense. For example, if Fang Wolf runs at Ms Riding Hood declaring that he is going to hurt Ms Hood, and Ms Hood hits Fang first, Fang is still the aggressor. This is because he is approaching Ms Hood declaring or showing hostile intent.

In the same instance if Fang gets up and runs away, and Ms Hood chases after Fang, Ms Hood becomes the aggressor. That is because Fang has broken off the fight but Ms Hood wants to continue it.

There are always exceptions in the law. Same example as above. Fang retreats but says he is going to attack Ms Hood's grandmother or he is looking for a big club so he can resume the attack. Ms Hood attacks Fang. Fang might still be deemed the aggressor because he has not broken off rhe arrack, he has just regrouped so that he may continue the attack on more favorable terms to himself.

Each state law will look at the fine lines of who is the aggressor differently. You can not claim self-defense if you are the aggressor even if you were not the aggressor when the fight began. In most instances, if the aggressor runs away, you have to ler him go. Following him is not a smart thing to do legally or tactically as you do nor know where he might be leading you.

Courts also look at the reasonableness of the force used by the person claiming self defense. lri the case above, if Fang were 90-years-old and toothless, Ms. Hood's using a tire iron to beat Fang would be considered the use of excessive force. By using excess force, Ms. Hood loses her victim status and cannot claim self-defense.

Deadly force is force likely to cause death or serious bodily injury. A deadly weapon is one that's use is likely to cause death or serious bodily injury. The laws of most states do not distinguish between knives, clubs, guns or other items that can cause death or bodily injury. If someone uses or threatens to use non-deadly force against you, you may only use non deadly force in defense. If someone threatens to use or uses deadly force against you, you may use deadly force against them.

You may use the claim of self defense for attacks against yourself and against others. Whether or not that other person has to be a family member or have some similar relationship to you depends upon the laws of your state. In mOSt places you can use deadly force to defend a stranger if rhat person's life is in danger.

Most state laws do not require you to be injured before you have the right to defend yourself. That is, you do not have to take the first blow. This is particularly so with deadly force. You do have to wait for the other person to take the first aggressive action. No matter what the prior relationship was between Ms. Hood and Mr. Wolf, she does not have the right to shoot him on sight. This is so even if Ms. Hood has a restraining order tel1ing Mr. Wolf to stay away from Ms. Hood and grandma's house. What types of actions might be considered "aggressive?" That is going to vary from state to state. Mr. Wolf's statements of intent, his carrying a weapon in a manner that indicates his immediate intention to use the weapon, his unjustified and hostile approach to Ms. Hood, his degree of agitarion, are all factors a judge might consider in determining if Mr. Wolf was the aggressor and intended Ms. Hood serious harm. It is in rhis COntext that the duty to retreat arises. Most courts in the United States do not allow people to draw lines in the sand and say, "If you cross this line I am going to shoot you." Most courts would requite Ms. Hood to rake all reasonable steps to avoid a confrontation if she could do so safely.

Self-defense is a defense of necessity. If rhe hostile action can be avoided, then the use of deadly force is not necessary. In such cases many states say one must attempt to avoid the fight by retreating if a retreat can be safely accomplished. Other states, however, do not require that you retreat. Just because you are not required to retreat if you can do so safely, does not mean you should not retreat.

The idea that you might have to retreat out of your home is repugnant to most Americans. Hence, "home castle" laws make it clear that you do not have to retreat from your own home.

Even if your state has a "home castle" law, make sure you understand what your state requires by looking at the court cases as well as the statutes. Even if you do not have to retreat, the rules of necessity and proportionality will still apply. Papa Bear probably will not be justified in shooting little Ms Goldy Locks for sleeping in his bed or eating his grirs. On the other hand, if Mr. Wolf thinks he can blow up Mr. Pig's straw house, he is in for a surprise. These laws make it clear Mr. Pig does not have to retreat to his cousin's brick house.

Questions may arise as to what qualifies as a "home." Clearly an apartment and a so-called mobile or modular home would qualify. Would a dormitory room, or a hotel room, or a boarding house room, a motor home or a tent qua1ify~ What if a person were homeless and living in their car? These are the types of questions Courts decide when they interpret laws.

By expanding the "castle" doctrine beyond your residence or place of business, honest citizens are given one less factor to calculate if they are attacked. In the fractions of seconds you have to develop and carry into action a defense plan, nor having to think about, "Can I retreat?" may be the difference between successfully defending yourself or getting hurt.

On the other hand, just because you do not have to retreat does not mean that standing your ground and fighting is a good idea. Justified or not, if you end up shooting someone, even in self-defense, your life will never be the same. You may have to prove in court that you were not the aggressor or prove that the other person was really th reatening your life and not just asking you for the time. If you say the other person had a weapon and none is found, you will be in big trouble. In the time it takes you to win your case you could lose your job and your home. Even if you win, the legal bills could ruin you financially.

If your state allows you to stand your ground if you are attacked, it is still a good idea to retreat if you can do so safely. Some street encounters happen so quickly there is no opportunity to even consider retreat. On the other hand, if you can get in your car and drive away, do so. Bad guys do not believe in fair fights and there may be more than one of them. Always be alert to what is going on around you. Avoid areas where there may be trouble. An orderly and calculated retreat with a verbal warning can clarifY the intent of your assailant. If you have to go to court, you can say, "He followed me and when I asked him to sray away, he kept coming." Your actions can make his hostile intent clear. Even though you might not be held responsible, YOll do not want to find out that the person you just killed was someone with Tourette's Syndrome coming home from Bible study.

In your own home, where you have no obligation to retreat, you should still think in terms of having a place to which the entire family will retreat within the home. That helps you account for everyone and may prevent a hostage situation. The place should be a spot you can defend without having to worry about the bad guy getting in back of you or your shot penetrating a wall and hitting your neighbor.

Just because something is legal to do does not mean it is the smart thing to do. Being relieved of the legal obligation to retreat before using deadly force to defend yourself does not mean you should not avoid trouble if you can do so safely.


This article was reprinted from Women&Guns Jul-Aug 2006, Copyright © 2006 Karen MacNutt