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Can you really be convicted of defending yourself? Yes, when it’s not really self defense.

Can you really be convicted of defending yourself? Yes, when it’s not really self defense.


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The firearm is a lethal force tool that has a very narrow range of application. Knowing and understanding that fact may keep you out of jail!

It’s incumbent upon those who keep firearms for personal protection to know the legalities of the use of deadly force. The firearm, when aimed at another person, is a deadly weapon — and there is a pretty well-established body of law (both common and statutory) which deals with the use of that weapon. Not knowing what that law is, and how it’s applied, can get you into hot water!

Take the case of David McLaughlin. Last year one David Bailey broke into his garage in the wee hours of the morning. Mr. McLaughlin’s garage is of the detached variety, but he apparently had some sort of alarm installed which alerted him to Mr. Bailey’s break-in.

McLaughlin went into his backyard with his gun and encountered Bailey. At this point, according to McLaughlin’s lawyer, he told Bailey to “freeze”. Instead of complying, Bailey started running out of the yard and into an alley. According to police, McLaughlin fired once in the backyard, and then pursued Bailey down the alley, firing two more times at the fleeing suspect. If the news accounts are accurate, it was McLaughlin’s third shot which actually hit Bailey, wounding him in the arm.

McLaughlin was charged, and later convicted of, criminal recklessness resulting in serious bodily injury — a felony in his home state of Indiana.

How could someone shooting at a burglar be convicted of a crime? Pretty easily, actually, if the circumstances don’t warrant the use of lethal force.

Let’s take it a step at a time, with the caveat that I’m not a lawyer and that my knowledge of the legalities surrounding the use of lethal force are from a private citizen’s understanding:

1) Responding to a break-in in a non-detached building may not be a good idea. Someone in a building that is not connected to your dwelling is not a direct threat to you until you meet them — and then you have some amount of culpability in the outcome of the interaction. Could the burglar decide to enter the house after the garage? Yes, but until he does he poses no direct threat to you which necessitates a lethal response. (Yes, I realize that this is an idealization which presupposes an efficient police response, and that there are many areas in this country where response to a break-in in a detached building may not get a response at all. Still, you need to understand that your actions could set the stage for an unfortunate outcome!)

2) Responding with lethal force to a property crime isn’t, in most cases, allowed. McLaughlin was said to have been the victim of previous break-ins, which explains the alarm and perhaps his reaction. McLaughlin’s attorney said “You have to stop somewhere. People are tired of having their stuff taken.” Sorry, counselor, but that’s not a defense to the use of lethal force in a mere property crime! (With such poor representation he may have a case for a new trial.) Generally, you may only use lethal force to stop an attack which offers the immediate risk of death or grave bodily harm, not to stop someone from stealing your circular saw.

3) Your lawfully possessed firearm is not a license for you to attempt to detain someone. When Bailey ran out of the garage and McLaughlin told him to “freeze”, what exactly did McLaughlin expect to happen? Was he going to hold him for the police? What was his plan if the suspect didn’t freeze? Did he give any thought at all to that? Using a gun to hold someone for police, in the absence of any indication of a heinous crime already committed (more on this later), brings you into a very dicey legal area. You are not a cop; your gun is not a compliance tool in the way that theirs is. It’s a protection tool, nothing more; don’t allow yourself to imagine that it confers more authority (or ability) than it does.

4) Pursuing a suspect who has done you no physical harm will often be seen as you initiating a confrontation. Once the initial contact is broken and the parties have separated, from a legal standpoint it’s over. Any other interaction is now a new incident, and will be looked at from the point of view of who started it. Once Bailey ran out of the yard, the incident was over and it wasn’t until McLaughlin ran after him was there a new incident — the one where Bailey got shot. (You’ll note that Bailey testified it was the third shot, fired during McLaughlin’s pursuit, which resulted in his injury. That may or may not be provable but had the first shot been the one which hit him, McLaughlin’s defense could have argued that it was the result of the unintended meeting as Bailey came out of the garage. That would seem to me to be more defensible because it wasn’t the incident which McLaughlin started. See how complicated this becomes and how easily things can go against you?)

5) Shooting at a fleeing suspect is virtually never defensible. McLaughlin testified that he shot because he saw Bailey’s arm move in a way that suggested he might shoot back as he was running away (despite the fact that he never told that to the investigating officers.) Bailey was unarmed, McLaughlin had not actually seen a gun, and it was presumably dark in the alleyway — all of which make this defense less than believable. The way it was explained to me, shooting at a fleeing suspect is reserved for those instances where the person has just committed a heinous crime against another human (murder, possibly violent rape) and there is reason to believe that he will commit another such act if his flight is not immediately stopped. Obviously none of those was the case here, making the two shots fired in the alley an unjustifiable use of deadly force and no doubt contributing to the jury’s decision to convict. Just because people shoot fleeing suspects in the movies doesn’t mean you can!

6) McLaughlin’s statements to police (particularly concerning the furtive arm movement Bailey supposedly made) were not entirely consistent with his testimony in court. Before making any statements, make sure you’ve contacted your attorney! Have a plan for what you’ll tell investigating officers and for how you’ll arrange for immediate legal representation. (See below for one way.)

This is a sad situation, but what’s sadder is that it could have been avoided entirely if Mr. McLaughlin had a more thorough understanding of the legalities of lethal force in self defense. How can you avoid this happening to you?

Take Armed Citizen’s Rules of Engagement (MAG-20) from Massad Ayoob. Yes, it’s an expensive class where you don’t get to shoot, but from the standpoint of understanding the use of lethal force it’s second to none. Had McLaughlin been a MAG-20 graduate, I am certain that this entire incident would have had a significantly different outcome.


Learn from Mr. McLaughlin’s misfortune; get educated before it happens to you!

-=[ Grant ]=-

P.S.: The foregoing is based upon news accounts of the incident and the conviction; there may have been evidence offered at the trial which contradicts or lessens the points I’ve made above. Still, the lessons are valid and important, and any detail conflicts do not alter that importance.


  • Posted by Grant Cunningham
  • On September 9, 2014

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