Concealed Carry, Deadly Force & The Law

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Mar 9, 2007, 7:56:44 AM3/9/07
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The Balance of the Issue
Vincent DePascale, J.D.

I THE BASIC QUESTION

In the not too distant past, the yearly F.B.I. national crime statistics
told us that violent crime in the United states is 30% less than it was in
the 1990s prior to the concealed carry laws; the laws in virtually all
states required honest, law-abiding citizens to present an affirmative
defense when carrying a concealed weapon for the defense of themselves,
their families and their property; and most of the guns on the street were
carried by violent criminals who had acquired them illegally and used them
feloniously.

In those days, I told my clients who inquired about carrying a concealed
weapon (along with organizations to which I spoke on the subject) what the
statutes required of them; what the case law said; the various difficulties
that could arise with the places where the weapon would be carried; the
costs of defending themselves in criminal court even when they would
probably win; and the absolute proscription against consuming alcohol at the
time of, or within hours of, being armed. As an attorney with a substantial
background in criminal defense and police law, I was required to give these
people the status of the "Black Letter Law," as we used to say in law
school.

I also told them what I considered to be reality, which is what the street
cops doing the investigations and what the grand juries who would hand down
the indictments appeared to use as their yardstick:

1. Unless you shoot someone, no-one is going to know that you are armed;

2. If the shooting is justified, the courts do not care that you had the
weapon;

3. If the shooting is not justified, the fact that you had the gun is going
to be the least of your problems.

Despite the documented crime-diminishing effect of the concealed carry
statutes, those statements are as true today as they were when I first made
them more than 30 years ago, and the state in which you live and work does
not make any more difference now than it did then. While there may be
differences between the police and civilians, among the criteria for the use
of non-deadly force, there are no differences when we talk about deadly
force. A license or a badge that authorizes the carrying of a weapon
(concealed or overt) is not a license to use it, and it certainly is not the
authority to do so indiscriminately. That is true for the police and it is
also true for anyone with a concealed firearms license.

II HANDGUNS AND DEADLY FORCE

Any discussion involving the use of deadly force by law abiding civilians
with concealed firearms licenses is founded in the proposition that a
handgun is a defensive weapon.

There are large bore rifles that will easily kill a human being at 1000
yards (more than ½ a mile) when the person shot cannot under any fact
pattern rationally be averred to be a threat to the shooter. There are
shotguns that can literally cut a person in half or impact multiple targets
at greater ranges. There are assault weapons that will empty a 20-cartridge
rifle magazine in 3 seconds and spray an entire room with lethal,
high-velocity rounds. There are machine pistols that will fire 20- to
30-round magazines of 9mm or .45 ammunition in seconds and destroy
everything in sight. These are offensive weapons. The sole "raison d' etre"
is to kill, and their use involves an entirely different philosophical
analysis requiring a totally divergent conglomeration of answers.

Irrespective of the caliber of the cartridge for which the weapon is
chambered, the sole purpose of a handgun is to put an assailant on the
ground and to immediately stop the threat. Such use is generally confined to
short distances, as according to the FBI shooting statistics, something like
85% of the gunfights every year take place at 21 feet or less, and most are
at less. The average number of rounds fired by both sides is something like
3.8, almost never expending all of the cartridges in the cylinder or
magazine.

Whether or not an assailant dies is generally up to God and not the shooter,
as there are documented cases of people walking around for years with
bullets in their heart, brain, spine, lungs, etc., etc. I personally had an
instructor at the JAGC School at the University of Virginia who had a .30
bullet lodged in one of the chambers of his heart from the Korean Conflict.
He was a walking, talking, active duty officer with the United States Army,
clocking time toward retirement. At the JAGC School, we studied the case of
a Master Sergeant who put his .45 pistol to his temple, pulled the trigger,
shot himself in the head, and was court-martialed and sentenced to Ft.
Leavenworth Prison with the .45 bullet still in his brain.

III PHILOSOPHICAL CONSIDERATIONS

One of the basic tenets of litigation work is that facts alter cases. At one
point, we started with 10 commandments, and now we have more than 80,000
laws of one kind or another with which we must deal on federal, state,
county, and municipal levels. Despite the fact that any given individual
only comes into contact with a small fraction of that number, it does not
alter the conclusion that this is not necessarily progress.

For the sake of brevity, and because the philosophical principles do not
change when the name of the action changes, we shall deal with the killing
of a human being in this rendition. A homicide is defined as the killing of
a human being. The laws passed by states say that one person shall not kill
another, but:

1. The state performs executions despite the fact that they are homicides.

2. A police officer who kills a person engaged in a felonious use of deadly
force has committed a homicide, but that is a non-criminal act if the
shooting is justified.

3. The killing of an assailant attempting to cause death or grievous bodily
harm to you, your family or another innocent person in your presence is
considered non-culpable, despite the fact that it is a homicide. Whether or
not self-defense is considered an affirmative defense which the defendant
must establish or a fact that the prosecutors must overcome, the homicide is
legal if the shooting is justified.

The real bottom line here proves that the only absolute is that there are no
absolutes in the real world. You do not need a college degree to understand
that facts alter cases.

Within your own experience, you have heard people describe situations where
someone received a certain result from a related fact pattern, and either
you or someone else hearing the story recites a different outcome from what
you/they consider to be the same set of assertions. In fact, the divergent
resolutions are the result of non-identical patterns of information, but
since no-one was actually present at the time, you/they do not know that and
are misled.

Without citing cases ad nauseam, we need only to look at the situations of
O. J. Simpson and Michael Jackson, both of whom were acquitted by juries who
were the only non-court persons (except the judge, the lawyers, the bailiff
and the court reporter) to have heard and seen all of the evidence and to
have used their joint intelligence to interpret that evidence. Despite the
fact that there is a gargantuan difference between being weird and being
guilty of a crime, we all know that to this day, some people are adamant
(and sometimes prone to violence) over the contention that both are still
guilty, and that the jury was somehow hoodwinked. These legally inaccurate
opinions are based on an insufficient and inadequate knowledge of what
happened in the courtroom. The news media is not only a totally unreliable
source of information, but it provides only a microcosm of the information
that they want you to know. If you have any doubt that the media tries to
alter and steer the thinking and decisions of the public, just look at how
they treat gun control issues and ignore the monumental achievements of the
CFLs. I have yet to see a news article or TV story on how well the CFL laws
are succeeding, but I sure see massive reports on any misuse of a firearm of
any kind or type.

IV CRITERIA

From the mid-1970s through the late 1980s, I was also involved in teaching
some use-of-force and firearms courses at the Ohio Peace Officer Training
Academy, run by the State of Ohio for police officers. Pursuant to those
efforts, I wrote the program that Ohio adopted as the criteria for the use
of deadly force for the peace officers trained at the Academy.

For the purposes of this discussion, disabuse yourselves of the erroneous
notion and illogical argument that "like force" means the same or similar
weapon. "Like force" means deadly verses deadly, and non-deadly verses
non-deadly. A baseball bat in the hands of a person sufficiently large and
strong enough to wield it is a deadly weapon, and all things being equal,
you can shoot them if you are attacked by a person swinging one if they mean
to cause you death or grievous bodily harm. The same weapon in the hands of
a child is a joke. A woman with a knife is as deadly as a man with one, and
you do not need to ascertain (to your detriment) just how well she knows how
to use it.

The criteria for the use of deadly force, irrespective of the jurisdiction
in which you live, work or travel falls into two categories, each with 3
components. Without exception, we are dealing with a totality of
circumstances, and the existence of a preponderance of the requisite
elements is not going to get it done. Since no-one can remember a treatise
for any extended period of time, I reduced the entire proposition down to
six words, 3 in the attack phase and 3 in the response phase. They are
numbered consecutively because all must exist and must do so at the same
time and place.

A. THE ATTACK PHASE

1. Ability:
Irrespective of the circumstances, the assailant must have the instant
ability to cause death or grievous bodily harm. No matter what they say or
otherwise do, no matter how insulted or angry you may be, no matter how
unjustified their speech or actions are, no matter how righteous your cause
may be, or how deserving they may be of punishment or even retribution, in
order to be a viable threat, they must have the present ability to cause
death or grievous bodily harm.

2. Opportunity:
Any assailant upon whom you intend to practice the modern martial art of
pistolcraft must in fact have the opportunity to cause death or grievous
bodily harm to you or someone else. Regardless of the ferocity of the
intent, or even the overall ability to perform such acts with impunity, if
there is no present opportunity on the part of the miscreant to carry out
their intent, your only feasible option is to notify the proper authorities
and have them handle the situation.

3. Jeopardy:
The person and the attack must in fact put you or another in a present state
of jeopardy. The ability or the opportunity to hurt or kill you sometime in
the future, the totally credible promise to do so in the future, the fact
that they could have done so in the past, or even the fact that they tried
to do so in the past, is insufficient to justify the use of deadly force
against a person if you are not presently in jeopardy. This caveat includes
the situation where the person is 30 feet away with a knife, even a big
knife, even if they are threatening you, if they are stationary. If they
start moving toward you, particularly at a fast pace, then facts alter
cases.

B. THE RESPONSE PHASE

4. Reasonable:
Granting that all of the requirements in the attack phase have been met,
there are still factors and requirements that must be addressed and met. The
response must be the sensible response of the objectively reasonable person
who has not acted in such a manner as to bring the attack upon themselves.
The test is an objectively reasonable person and not someone with excessive,
outlandish or exaggerated ideas, ideals or notions. The fact that you may
have the undisputed right to defend yourself still does not mean that you
can do so with deadly force if that is not the reasonable response to the
threat.

5. Logical:
The requisite components of logical are as follows: The definition of
logical is the same in these circumstances as it is in any other. Logic does
not change with the situation, but remains a constant and is a mental
process that is unaffected by outside influences. Education may cause a
person to understand the parameters and elements of logic, and be able to
define the various syllogistic references, but it will not make a person any
more likely to act correctly in a use-of-force situation. What we are
basically dealing with here is most often termed "common sense," and if your
reaction to the threat is not defined by a common sense approach, it will
not be easy to explain your conduct to an investigating police officer or a
judge. College makes you educated; it does not make you smart. A CFL gives
you the right to go armed; it does not give you the right to use the weapon
indiscriminately. Most of us would be less than pleased with anyone who
acted in such a manner as to place the concealed carry program in danger
through any form of aberration.

6. Necessary:
Whatever response you make to a threat, that response must be necessary.
This is the hardest of the requirements with which to accede, because if you
have the ability to walk away without danger, you must do so. No matter what
the malefactor has said or done, you are not the judge or jury; law
enforcement is not your prerogative or responsibility. Once you no longer
must use deadly force to protect yourself or another, you cannot do so and
you must let the law take its course. This can be particularly difficult or
frustrating in cases where the antagonist has thrown a knife at you, or has
tried to shoot you and their weapon has jammed, and they then surrender in
the face of the fact that you are armed, but that is the way it is. Once the
confrontation is over, it is not necessary for you to shoot to survive
unharmed.

V CONCLUSION

The right to bear arms is not an unmitigated right to use those arms
indiscriminately. A license to carry a concealed weapon is not a license to
use it without just cause. Discretion may or may not be the better part of
valor, but gun control is certainly the penalty for the rampant misuse of
firearms.

Dr. DePascale is an ex-prosecutor, ex-JAGC, fmr Special Assistant to the
County Sheriff, fmr Guest Instructor OPOTA firearms courses (10 yrs.),
currently practicing as a Criminal and Domestic Litigation Attorney in
Grandview Heights, Ohio.

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