- - Wednesday, March 15, 2017

ANALYSIS/OPINION:

WHEN DEADLY FORCE IS INVOLVED: A LOOK AT THE LEGAL SIDE OF STAND YOUR GROUND, DUTY TO RETREAT, AND OTHER QUESTIONS OF SELF-DEFENSE

By Bruce M. Lawlor

Rowman & Littlefield, $36, 286 pages

What justifies the use of lethal force in self-defense? On the surface, it seems to be a simple concept, particularly to laymen; but the question is one of the most complex and thorny legal issues that prosecutors and courts of law can deal with. The right to self-defense is actually perhaps the most narrowly defined of all human rights; that is something that most laymen do not understand even though it is attempted as a defense every day in homicide trials. Bruce M. Lawlor presents an excellent study of the issues involved in self-defense in a clear in understandable manner in “When Deadly Force is Involved.” It is a book that should be read by every American who owns a gun as it lays out the perceived parameters of that define the justifiable use of lethal force.

There was once a time, during the Middle Ages in Europe when no individual had the inherent right of self-defense. Only the king or his designated agents had the right to take the life of one of the king’s subjects no matter what the threat or justification. It was not until well into the Enlightenment that self-defense generally became recognized as a universal human right.

It is important for the potential reader to understand what this book is not. It only addresses the use of force by civilians. It does not pertain to law enforcement or the military. Those two institutions have their own rules, which are separate and distinct. It is also not about gun control, although firearms are involved in every illustrative example. The only issue is whether the shooter was carrying an authorized firearm. A convicted felon who claims self-defense will almost always be convicted of something because his mere possession of a firearm was a crime no matter how much danger he faced or how outrageous the actions of the victim were leading up to the shooting.

There are a number of narrowly defined criteria that are used to test the legitimacy of a self-defense claim. They are necessity, intent, provocation, deadly threats, verbal threats, imminent harm, mistake, threat, reasonable force, and reasonable fear. The author devotes a chapter to each using an illustrative example. Each case study gives a clear explanation of the test. They make the book comprehensible to the lay reader, and also tend to make the overall work interesting and a smooth read.

Over the years, a body of beliefs that puts individual action into societal context has come into use. Virtually every state interprets these differently and these is no common federal standard. The most controversial is the “duty to retreat standard.” This is a vestige from English Common Law and when strictly applied, means that before a person takes decisive self-defense action, he or she must have shown an effort to retreat from the situation.

Americans in general have not liked duty to retreat, particularly in the West and South and many states have passed “stand your ground” statutes. Absent any bad behavior otherwise on the part of the shooter, it is much easier to claim self-defense in stand your ground states. Obviously, the attitudes of prosecutors in such states are influenced by public attitudes as well as the attitude toward guns.

Finally, most states, in some way recognize the Castle Doctrine. This doctrine holds that a man’s home is his castle and that there is no duty to retreat when your home has been invaded. Depending on the state involved, interpretations vary. In most states, you cannot lure someone into your house without warning, and then claim self-defense after you have blown him away from ambush.

Mr. Lawlor is a retired U.S. Army major general with extensive civilian experience. His advice in any potential deadly force situation is to try to walk away if possible. He wisely points out that defending oneself in court is expensive, time-consuming, and prosecutors have absolute discretion of whether or not to take a case to trial. Once you have pulled the trigger, you have placed your life in the hands of a stranger. That is why I recommend this book to any American who routinely carries a firearm. In the majority of the cases in this book, the shooter’s claim of self-defense failed to meet one or more of the tests. Most of these incidents happen in 15 seconds or less under great duress, and there is not time to go through a legal check list.

• Gary Anderson is a retired Marine Corps colonel. He is an adjunct professor at the George Washington University’s Elliott School of International Affairs.

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