The other day my UPS route driver stopped by (thank you, Amazon Prime!) and chatted for a few minutes. He had questions for me about defensive shooting during a home break in, specifically when he could and could not legally shoot a person breaking into his home while he was there and whether he could shoot at someone to scare them out of his yard.
These are more complicated questions than the gunstore commandos (or their modern equivalent, the internet forum cowboys) understand.
We start with the idea that it’s not a matter of whether you “can”, it’s a matter of whether you “need” to. This isn’t a superficial difference; while the law might technically allow the use of lethal force under some specific situations, the fact that you’ve satisfied some arbitrary statutory bullet point doesn’t mean that you should pull the trigger. Our legal system recognizes that at times it’s necessary to inflict harm on another person in order to preserve your own life, but at the same time the application of the law usually involves the totality of the circumstances: would a reasonable person, knowing what you knew at the time of the incident, come to the same conclusion you did? It’s possible to uphold the letter of the law and still be found unreasonable.
This is also a moral and ethical point of view. It might be technically acceptable, for instance, for you to shoot someone who has broken into your home. What if that someone happened to be a drunk party-goer who’d forgotten his keys and mistaken your house for his own? It happens more frequently than you might think. If you come across this drunk in the middle of the night and perforate him because he committed the criminal act of breaking your window, you might get away with it under the law. Then again, you might not. Regardless, you’ll always have to live with the fact that you shot what was an innocent person simply because the law said it was acceptable to do so. Shall we talk about the nightmare of shooting a family member who lost their keys and decided to crawl through a window — all because you confused them with a criminal?
(Readers from Texas and Florida need to read not just their state statutes but also the case law. I think you’ll find that a thorough study of the subject shows that you’re not as free as you may believe with your ability to use force when a threat to your life isn’t present. Of course, those laws don’t say anything about the moral or ethical implications of using lethal force when it’s not needed, even if the statutes are somewhat more generous than the rest of the country.)
Moral and ethical issues aside, in most jurisdictions you simply cannot use lethal force in the defense of mere property. Hardly a week goes by that I don’t find a news article about a thief being shot after stealing something from a homeowner’s car or garage. This is what I call ego-driven use of lethal force: we don’t want to be “dissed” by people getting into our homes and we don’t want people messing with our stuff. We also don’t want to appear weak because we let someone do either of those to us without making them suffer the repercussions. Many people use their firearms to punctuate their ego-based outrage over having their property disturbed, rather than to protect their lives against death or grave bodily harm. Many of them also go to prison for doing so. When you pick up the gun, you need to put down the ego.
So what did I tell the UPS guy in the couple of minutes we had?
First, that a gun isn’t to be used as a tool of control or to induce fear; I’m seeing more and more cases where warning shots are being prosecuted as inappropriate use of lethal force. If he’s not justified in shooting the person intentionally, he’s more than likely not justified in shooting “at” him to scare him into either compliance or flight.
Second, that a firearm’s purpose is to protect himself and his family from bodily harm. He’s got insurance; his television and computer are covered, and neither is worth shooting someone for. From a practical standpoint, even if he were acquitted of charges under those circumstances he’d still be faced with the legal bills, the missed time from work, the mental anguish that comes from being in an uncertain position in the justice system, and the scorn of the public. (Google “Mark Of Cain Syndrome” for more on this very real phenomenon.)
Third, he needs to be able to identify that the person in his house is in fact a criminal and not the aforementioned drunk (or family member.) I suggested at a minimum that he keep a high-intensity flashlight with his defensive pistol and that it should be the first thing he grabs. Remember that old safety rule about positively identifying the target? Yeah, that.
Finally, I explained that lethal force was to protect himself if he were in immediate and reasonable fear for his life — and that his fear needed to be articulable. Did the intruder have a weapon? Was the intruder significantly larger and stronger, or acting in a way that would lead anyone to conclude that death or bodily harm was imminent? Did he see the intruder advance menacingly even after becoming aware of his armed presence? Those are some articulable reasons for shooting at another human being, though not all (and certainly not a full explanation.)
This is just scratching the surface about the technicalities, but they all come back to that difference between “can I?” and “do I need to?” If you focus on the need to, I think you’re in far better legal, moral and ethical shape than someone who is asking when they “can” shoot someone.
If you’re interested in really learning about the justifiable use of force (and every gun owner should be), you should take Massad Ayoob’s course “Armed Citizen’s Rules Of Engagement”, also known as “MAG-20”. I consider it a must for anyone who is serious about carrying or using a firearm for defense of himself of his family. It’s not cheap, but it’s the most comprehensive course of its kind and I highly recommend you take it.
– Grant Cunningham
- Posted by Grant Cunningham
- On March 21, 2016