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When can you lawfully use deadly force in defense of yourself or others? Attorney Thomas Faulk discusses “perfect” and “imperfect”
self-defense.
By some estimates, 30,000 or more federal, state and local laws regulate the ownership and use of guns. As described in the first installment of “Guns and the law,” entitled “How many gun laws have you broken today?” , the complexities of those laws, combined with ignorance and inconsistency of enforcement, makes accidental criminals out of thousands of gun owners each and every day.
But few topics generate more controversy than the use of guns in self-defense. Among the many questions I am routinely asked are:
- Under what circumstances can I use deadly force in self-defense?
- Can I use a gun to defend against property being stolen?
- Can I use a gun to defend myself against an unarmed aggressor?
- Do I have a “duty to retreat” before using deadly force in self-defense?
Nor is there a lack of self-professed “experts” willing to render truly bad advice. Odds are you have heard this one: “If you shoot ‘em outside, drag ‘em inside before you call the cops.” (I’ve even heard a cop say that.) In the era of modern forensics, this advice will doom you to explaining why a trail of DNA (not to mention a host of other forensic evidence) says you are lying.
Complicating the matter, grand juries occasionally refuse to indict people who wrongfully use deadly force. A few years back, for example, a Charlotte homeowner shot a felon fleeing from a home burglary. Despite what lawyers would have interpreted as clearly unjustified use of deadly force, the grand jury (perhaps out of sympathy for the homeowner) refused to indict.
A PRO-GUN LAWYER WEIGHS IN ON DEADLY FORCE
Answering questions on the use of deadly force is attorney Thomas Faulk Jr., author of an essential resource for gun owners entitled “Firearms Law of North Carolina.” While a portion of his book deals with North Carolina law, his extensive sections on deadly force represent good advice to all.
In general, the book is usable and understandable for laymen. Rather than simply listing statutes, laws are organized into how they apply in various situations. Of particular interest is a section called “Top Ten Subjects Summarized.” Areas covered include “Children and Firearms,” “Concealed Carry of Firearms,” and a variety of other critical topics. Moreover, not only does the author list topics by use, he provides a summary of relevant case law.
Today’s segment of “Deadly Force” discusses “perfect” versus “imperfect” self defense, including the legal criteria which, in most states, must be met before using deadly force. Part 2 of “Deadly Force” will be published on Monday, December 14, will discuss instances in which deadly force may or may not be used in self-defense (including common misconceptions), and peculiarities of North Carolina law.
INTERVIEW WITH THOMAS FAULK
Valone: "Thomas, thanks very much for taking the time to help gun owners stay on the right side of the law. Your book deals extensively with the use of deadly force in self-defense, both in the home and outside it.
"In general, what general requirements must be satisfied before using deadly force in self-defense? What is “perfect” self-defense versus “imperfect” self-defense?
Faulk: "The general requirements which must be satisfied before using a firearm in self-defense are as listed below for 'perfect' self-defense.
“'Perfect' self-defense is where a citizen used a firearm in self-defense when all of the requirements necessary to allow such a shooting were satisfied. Perfect self-defense is a very good situation to have for a citizen who was forced to use a firearm in self-defense.
“'Imperfect' self-defense is when a citizen shooting in self-defense held the honest but unreasonable belief that the requirements authorizing the use of a firearm in self-defense were satisfied.
"Generally, in the United States, where this common law doctrine of imperfect self-defense is recognized, it is used to reduce the sentence imposed by the court on the shooter for the shooting. The doctrine of imperfect self-defense is not recognized by a majority of States. State v. Bowens, 532 A.2d 215 (N.J. 1987).
"North Carolina courts adopted a two-tiered analysis of homicide claims under the categories of perfect self-defense, which excuses a killing altogether, and imperfect self-defense, which may reduce a charge of murder to voluntary manslaughter. State v. Ross, 449 S.E.2d 556, 559 (NC 1994)."
'PERFECT' SELF-DEFENSE
Says Faulk, with regard to "perfect" self-defense:
North Carolina courts have repeatedly held that a defendant is entitled to assert perfect self-defense when evidence is presented tending to show:
- "it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
- defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
- defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
- defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm."
Under the law of perfect self-defense, a defendant is altogether excused if all of the above four elements existed at the time of the killing. Reid , 335 N.C. at 670, 440 S.E.2d at 789. Under the law of imperfect self-defense, if the first two elements existed at the time of the killing, but defendant, although without murderous intent, was the aggressor in bringing on the affray or used excessive force, defendant is guilty at least of voluntary manslaughter. McAvoy , 417 S.E.2d at 497.
"In conclusion, very few citizens will consider or remember, or ever even knew, the four elements listed above. If all elements were present, the citizen will have a good defense to the shooting. If only some of the elements are present, the citizen may have a partial mitigating defense."
Copyright © F. Paul Valone All rights reserved
No part of this publication may be reproduced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording, scanning, digitizing or any information storage and referral system, without written permission from the publisher. For reprint permission, contact: fpv@fpaulvalone.com
www.GunsPoliticsandFreedom.com
For legislative information, go to:
www.GRNC.org
Comments
One of the most common misunderstandings my students have is the idea they should "shoot to kill." When they understand that their whole purpose in self defense is to STOP THE ATTACK, then they have a better grasp on all the rest. If their attacker happens to die as a result of their actions, it is chance, not the intent.
I am the survivor of a violent attack, and I had to shoot a man to save my life. Believe me, I had no time or presence of mind to go through a checklist. I just did what I had to do to survive.
The better trained a person is in self defense and the use of their defensive tool, the better.
Well said, MammaLiberty. Thank you.
Excellant article Paul- Look forward to the next installment. It is too bad that NC State Senator Debbie Ross won't allow the Castle Doctrine to be voted on. Comments, phone calls, and letters to Ms. Ross over this issue go unanswered. Typical liberals.
Greg
obviously Greg, Debbie Ross is willing to sacrifice the live of yourself, you wife and children. No other view can be seriously considered. Wonder why she hates you. It is hate that would cause someone in her position to place you at jeopardy, no matter what lame-ass excuse she and her ilk offer.
One wonders just where Ms. Ross thinks she gets the authority to decide such things for other people...
I don't notice that she proposes any guarantee for the safety of anyone.
Personally, I don't allow anyone to make that determination for me.
When someone enters my house or attacks me physically they take the risk of death upon themselves if I feel my life or the lives of those under my protection in my house is being threatened. I am not the one committing the felony nor am I the one who sought them out. I would rather be judged by twelve than carried to my grave by six. No law in this land had the right to force me to become a target or a victim of a criminal. Nor does any politician have the right to severely limit my choices of protection as long as criminals can get access to weapons of far greater destruction than I can whether it is by stealing them from citizens, cops, armories, or importing them from outside this country. Until a politician can prove objectively that they have stopped all weapons from falling into the hands of criminals and they can point to a zero crime rate with no weapons use should they prevent us from protecting ourselves from their imperfect laws and enforcement.
Many have heard the expression regarding natural powers of the people listed and associated with the words ‘soapbox’, ‘jury box’, ‘ballot box’ and ‘cartridge box’.
The ‘jury box’ power of the people, is the least known and unfortunately for the accused, far too often unused power.
In cases of trial, judges instruct the jurors to render a verdict based on law, but it is the juror’s first duty to determine if the law being applied is within the Constitutionally-granted powers afforded to government to have enacted it begin with.
If not, then the law being cited which the accused has allegedly violated is effectively null and void, therefore no ‘crime’ has been committed and the verdict cannot rightfully be other than “Not Guilty”.
From experience, one person with this knowledge can rather easily sway the opinion of others on the jury to rendering a correct verdict.
Worst case scenario is a ‘hung jury’ requiring a retrial.
While under law, any person, act or thing can be declared ‘illegal'--the basis of a criminal act involves intentional violation of a person's 'Rights'.
The General Rule for the Use of Force is only that amount of force necessary to cause the perpetrator of a ‘Rights-Violating Act’ to cease and desist their activity.
Laws which make it ‘illegal’ for an adult-age person to keep and bear arms are irrefutably a violation of ‘Rights’ by government.
To make it ‘illegal’ for law-abiding Citizens to keep and bear at least the same arms that a person with no regard for ’Rights’ or law either one would freely use against them to commit a ‘Rights-Violating Act’ is Immoral.
The purpose for enumerating the keeping and bearing arms as a 'Right' is to establish written laws against government prohibiting violations of this specific 'Right'.
The ultimate purpose for the keeping and bearing of arms is that the Citizens always retain the power to alter or abolish an Immoral government.
“Pass enough laws and everyone becomes a criminal.
When so many laws have been passed that no one person can possibly know them all, they’re of no value whatsoever to the people.
At this point, only certain laws are being enforced and thus only the appearance of being a Nation of ‘rule by law’ exists. What’s actually occurring is only selective enforcement--that is, Government choosing whom to enforce only certain laws against.
Whatever laws government has not thought to enact for itself to specifically immunize those in government from liability for their actions, the propensity is thereafter for government to seldom if ever abide by, let alone enforce any laws which affect them.
They will however rigorously enforce any and every law conjured up against the Citizens, most especially those which provide government enhanced sources of revenue--fines, fees, property seizures & etc.
This is not ’rule by law’ but rule by men using the law to legalize and legitimize tyranny.”
LEO shoot and kill and are never held accountable. We the people have to kiss up just to have a weapon.
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