By Gary Hercher – Instructor
There is an ongoing controversy concerning the Carrying of a Concealed Weapon or CCW in this state and around the country. I hear every day, conversations from people that just do not understand the concept of CCW and how it applies to self defense.
A permit or license to carry a concealed firearm is not to be confused with a right to use it or to inflict deadly force. In other words, a permit to carry a concealed firearm is not a license to use it. The authority to use a weapon comes under the laws that pertain to the use of lethal force. These are two separate parts of our societies laws.
There is a remarkable degree of confusion among the general public as to just when lethal force is warranted. The use of deadly force is a complicated subject and just about the time I feel that I am starting to understand its complexity, I realize that there is more to consider.
From the legal aspect, before the use of lethal force, your life must at that moment be in IMMINENT AND UNAVOIDABLE DANGER OF DEATH OR GRAVE BODILY HARM. In a great majority of cases, deadly force means the use of a deadly weapon. This could be a knife or stabbing instrument, gun, a makeshift bludgeon, or even a vehicle.
Some states have a DUTY TO RETREAT and require that you avoid the conflict and any potential deadly force outcome. It is best to withdraw, leaving the scene entirely. How far do you need to retreat? Until you can not retreat any farther, sometimes referred to as the “back-to-the-wall law”. This law becomes even more complex when we consider that in some cases it has been argued that the onslaught was so savage there wasn’t time to retreat, and even that turning ones back or leaving cover to escape would increase the victim’s vulnerability. As you can see this issue can get more complex as we get further into its examination.
One circumstance under which no one need give ground is an assault within the confines of the home. That “A man’s home is his castle” is not merely a catch phrase, but a by-word of the legal system. The dwelling is considered an extension of the man, a part of his body-proper. However, make no mistake about this part of the law. While you do not have a DUTY TO RETREAT in your own home, you must still be in IMMINENT AND UNAVOIDABLE DANGER OF DEATH OR GRAVE BODILY HARM. New Mexico, takes this concept so seriously that one damaging the home may be subject to the lethal force of the owner if that is what it takes to make him desist. Actually, the New Mexico statue is not as radical as it seems at first glance. While the layman may see an image of a person being blown away for throwing rocks against the aluminum siding on his house, a more serious-and more likely-application would involve arson.
There are a few states that allow the use of lethal force in the protection of property, however they stipulate that this only exists during home robberies involving breaking and entering/home evasions. This state is one which requires a citizen to first be in deadly jeopardy before the use of deadly force. EVEN IN YOUR OWN HOME.
Nowhere can a man legally respond to an assault of slight degree with deadly force. As we go further in our discussion of lethal force we need to understand the term Equal Force. The law clearly specifies that equal force must be exact. That is to say that, if attacked one can only respond with no more force than that by which he is threatened-slap for slap, kick for kick weapon for deadly weapon. Remember, this does not mean that the law gives you a right to fight. Fighting is an unlawful act. You can only defend yourself. Remember your duty of retreat? You have a duty to retreat but, if you are backed into a corner and you fear that life or limb are in jeopardy and must fight to defend yourself, you can only use equal force. This will probably be a split second decision and while under the stress of a lethal encounter, these decisions become very complicated.
One of the vaguest and misunderstood concepts in self-defense law is the Disparity of Force. This concept exists when a victim is attacked by one that is physically much stronger or younger, or by two or more attackers. Even with Disparity of Force they must display an intent and be capable of placing the victims life in IMMINENT AND UNAVOIDABLE DANGER OF DEATH OR GRAVE BODILY HARM.
When is lethal force applicable? The classic rule is that the right of self-defense begins when the deadly danger begins, ends when the danger ends and revives when the danger returns. As we have seen, a killing that has taken place after the threat or the crime itself had taken place, cannot be claimed as self-defense. Therefore, at that point no real challenge remained to defend against. For instance, you can not retaliate by chasing the assailant down the street or alley in an effort to retaliate. In this situation, you have become the assailant and he now becomes the victim.
After a very basic inspection of some of the complex issues involved in a lethal force encounter, we can see that there is a lot to consider. Whether a person makes a decision to obtain a CCW permit or even decide to keep a handgun in their home for personal protection, he needs to at the very least, understand some basic principles of the lethal force laws.
This is not intended to be a law class, as there is much more to this subject that can not be addressed in a paper such as this. This is simply just to say that the use of lethal force is a serious one. Anyone who makes a decision to use a firearm or any weapon for self-defense should take the responsibility to educate themselves as to the legal means by which he or she can exercise lethal force. Understand, that this decision can get you into a boat load of trouble if taken lightly.
I was prompted to write this article because of some dangerous misconceptions that many people have as to when they can legally exert deadly force. This is simply just to say that the use of lethal force is a serious one. Too many people believe that they can shoot suspected criminals when in fact, they do not have the right to do so. These same people need to understand that the use of a handgun for self-defense, is to use a handgun in a combat situation. The prevention of hitting innocent bystanders and stray bullets must be considered. The sufficient use of this instrument to prevent an armed criminal from taking lives requires an open mind to training, skill development, and the understanding of its legal use. The right of self defense is something that can not be denied to the public, but we as citizens should posses the necessary ingredients and pre-requisites before we decide to carry a gun in public.
CCW is a good thing. It is a very good thing… But it is serious business and should be treated as such.
The information in this article is not intended to be legal advise. 4It has been this author’s intention to provide some food for thought to show the importance of education in the judicious use of lethal force.