Guns and the law: The use of deadly force (part 2)

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Can you legally use a firearm to defend others? Personal property? Against home invasion? Attorney Thomas Faulk clarifies common misconceptions.

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.

In last week’s segment of “The use of deadly force,” Thomas Faulk, pro-gun lawyer and author of the essential resource Firearms Law of North Carolina, discussed elements which must be present for “perfect” self-defense, as well as the legal ramifications of “imperfect” self-defense.

In this segment, I ask Mr. Faulk about:

• Use of force in defense of property;
• Use of force in defense of others;
• Common misconceptions; and
• Peculiarities of North Carolina regarding forcible entry into a dwelling.

Valone: “Can someone legally use a firearm to protect property?”

Faulk: “The short answer is ‘no.’ The North Carolina Supreme Court summed up the rule well in State v. Lee, 127 S.E.2d 774 (NC 1962), by stating that ‘a person in possession of property … has the legal right to defend and protect it from threatened and impending injury or destruction at the hands of an aggressor, or if it is personal property, to prevent it from being unlawfully taken, or injured, or destroyed by another, and in doing so he may use such force as is reasonably necessary, and no more than is reasonably necessary, to accomplish this end, subject to the qualification that, in the absence of a felonious use of force on the part of the aggressor, human life must not be endangered or great bodily harm inflicted.’ [Emphasis added].

“If the ‘felonious use of force’ condition is triggered, then the incident has expanded from being a mere theft of property to some version of an assault with a deadly weapon, and the authority for allowing the use of a firearm in self defense then relies upon the assault with a deadly weapon aspect and not on the property theft aspect.”

Valone: “Can someone use a firearm in defense of another person?”

Faulk: “Yes, a citizen can use a firearm in defense of another person in all the same situations and under the same rules as if that citizen was defending themselves. The North Carolina Supreme Court has been consistent and clear on that point, in the McKoy, McLawhorn, and Terry cases, discussed in detail in my book. Surprisingly, under the Robinson line of cases, a citizen even has the duty to protect another person.”

Valone: “North Carolina had a peculiarity when it comes to using firearms to prevent forcible entry into a residence, compared to using firearms against an intruder already present in the residence. Your book covers this subject extensively. Can you tell us a little about that?”

Faulk: “North Carolina used to give more latitude to a homeowner to shoot an intruder trying to enter their residence, compared to less latitude to shoot an intruder who was already in their residence. These two rules seemed backward to many people. North Carolina enacted NCGS 14-51.1, which made the rule the same for shooting an intruder in self defense, whether the intruder was breaking into a home, or was already in the home. One rule, one statute, covering both home-invasion situations.

“NCGS 14-51.1 states, in part, that ‘a lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry, if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.’”

Valone: “You have a section of your book entitled ‘Urban Myths About Using Firearms In Self-Defense.’ What are some of the common misconceptions?”

Faulk: “The most common misconception is that a person planning to shoot in self defense must first fire a warning shot. That is not true and has never been true in North Carolina.

“The other common myth is that if you shoot an intruder inside your home, you should drag his body over to a door or window before the police arrive. This myth had its origin in the law before the enacting of NCGS 14-51.1, where the law was more lenient on shooting someone trying to get inside of your home compared to shooting someone already inside your home. With the enactment of NCGS 14-51.1, the law is now the same in both circumstances. However, it is not now, and has never been, the case that citizens could or should drag bodies around and artfully arrange the crime scene.”

Valone: “What else would you like to add?”

Faulk: I want to thank Paul Valone for this opportunity to contribute in some small way to his valiant support of our constitutional right to keep and bear arms. If anyone would like to learn more, I would appreciate their purchasing a copy of Firearms Law Of North Carolina, sold through Grass Roots North Carolina.

Valone: “Thanks, Thomas, but the kudos should really go to you for helping lawful citizens comply with the labyrinth of gun laws facing them. Anybody who owns or possesses a gun while in North Carolina needs your book.”
 
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