A bit more than three years ago (November 2013), I wrote (applying the four elements of my deadly force paradigm) on armed response to a home invasion. See “‘CASTLE’ DEFENSE: WHAT CAN–MAY–SHOULD–MUST YOU DO.” [See also other active links in the text below, and related MSW posts referenced below]. For our purposes here, “home invasion” is defined as an unlawful and forceful entry by stranger(s) into the enclosed confines (fenced or walled grounds, or building interior) of an occupied residential dwelling.
In the prior post, I offered for consideration on the SHOULD and MUST: “The legally recognized sanctuary of your “castle” has been invaded. The presence of criminal-minded strangers who have made forceful entry often ends in great bodily harm or death, and such heinous crimes carry long prison sentences. Innocent lives (yours included) are clearly in extreme peril. Escape is often impossible or impractical, as an attempt to do so may put innocent life in increased danger. You have issued a verbal challenge or decided to do so would be tactically unsound, and have a target at gunpoint or are at your favorite ready position. The home invaders are now aware the castle is occupied and their presence is known, but have chosen not to make a hasty exit. If not now, when?” (Italics added here for emphasis). Continue reading
Takeaway: Do not leave an unsecured handgun (whether loaded or unloaded) in an unattended vehicle unless the environment is secure or you or a trusted other has eyes on it. If there will be times when you cannot do that, upgrade the vehicle storage space with a security enhancement such as a reinforced trunk, or a permanently installed or cabled hardened lock box. This admonition is a matter of common sense risk mitigation (loss of life and property, and civil liability come to mind) and compliance with the requirements of various federal and state laws.
If you own a popular model truck or SUV, the manufacturer/vendor deserving of your first look for handgun storage is Console Vault®. For under $300 you can have a good-looking and perfectly fitting, permanently installed secure lock box in your factory console, with combination dial or “barrel” key access. (If you are even slightly handy, it is a 15-minute DIY job which produces a factory installed look). Continue reading
[Photo Credit: Alan Diaz, Pulitzer winner, for the AP (2000)]
Merriam-Webster (online): “at gunpoint – under a threat of death by being shot.”
Executive Summary: Why are guns pointed at people? On occasion, to shoot them. More often, to compel compliance with the gun pointer’s command (to cease unlawful or threatening activity and/or to initiate directed activity). Gunpoint command/compliance as a “technique” or “tactic” is frequently unsuitable, as a failure to comply (mere flight included) ought not be responded to with the use of deadly force. [Because the MAY and SHOULD (elements of my deadly force paradigm — see related links below) are not satisfied]. For LEOs sued for “excessive force,” the propriety of gun-pointing will increasingly be a jury question. For the non-sworn, gun-pointing is strongly disfavored even when lawful, as it requires significant training, skill, and discipline..
Recent incidents of gun-pointing revived one of my long-held (about 15 years) firearm related observations: Guns are pointed at people way more than they need to or should be pointed — by LEOs and the non-sworn. (For a related MSW post, click: “CONSIDERATIONS FOR THE NON-SWORN : HOLDING SOMEONE AT GUNPOINT.” I touched on the subject for LEOs as well, click: “THREATENING DEADLY FORCE : MUSINGS ON “BRANDISHING” AND “WARNING” SHOTS.” For my thoughts on gun fighting and shooting people (who need to be shot), click: “A SHORT ESSAY : WINNING IS EVERYTHING . . . AND THE ONLY THING,” and “MAY/MUST QUESTIONS ANSWERED CORRECTLY. . .SHOOT FIRST, LIVE”). Continue reading
The title says it all.
If you are not a member of the National Rifle Association, and you are a gun owner, regardless of your political leanings, you should be. I am not a doomsdayer. I’m not a defeatist. I’m not the kind of guy that gives the anti-gun-rights movement any more credit than they deserve. I don’t see every attempt at a federal gun grab as being a serious attempt. Some are nothing more than politicians pandering to their base. But, every run at gun control, whether it is half hearted pandering, or a serious attempt to take our Rights away, follows the same script. The demonizing of one organization as standing in the way of “common sense”. The National Rifle Association. I swear to you some of the time I hear Washington politicians blame the NRA and they sound just like a rerun of Scooby Doo from when I was a kid. “I would have got away with it if it wasn’t for that darn meddling NRA” Continue reading
Active Shooters in Movie Theaters
As we tune in to the news on just about any given week, we see more and more copycat “active” shooters in movie theaters in the United States. This unfortunately is the new norm. Because this is the new norm, our tactics are going to have to shift to combat these cowardly acts of seemingly random murder.
In examining the events of past theater shootings, the only constant variable is they occur in the darkness of a movie theater, aside from the constant that the shooter is mentally ill.. The scenarios have presented different targets, different responses by victims, and different guns involved used by the shooters. The shooters have sat in different parts of the the theater, struck at different times in the movies. Based upon that, our tactics must be fluid. Continue reading
I now offer for your consideration a “final” installment on my paradigm for the use of deadly force. The posts directly-related, in chronological order, are HERE, HERE, HERE, HERE, HERE, and HERE .
As previously defined, the MUST: If deadly force is not employed, you or someone you cannot live without will likely die. Add, if you wish — the MAY permits, and the SHOULD will normally compel — or suffer great/serious bodily injury/harm. Sprinkle with the required dose of reasonable certainty that deadly force is necessary (something way north of even odds, as the use of deadly force invokes the decision process reserved to life’s most important questions) and imminence (usually meaning within a few seconds, but I often note how the certainty of suffering deadly force, might make much longer intervals considered imminent), and slip on the halo of the non-culpable, reasonable man acting in good faith. (LEOs: I may write a post on your MUST at a later date).
“If your head tells you one thing, and your heart tells you another, before you do anything, you should first decide whether you have a better head or a better heart.” Marilyn Vos Savant
I framed the SHOULD element of my deadly force paradigm as — do you employ deadly force and risk everything you are/have and will ever be/have. It often presents as whether you should come to the aid of another person. As suggested in my prior paradigm posts, the SHOULD analysis likely goes to the “core of your being.” So, don’t expect the answer from another (including me (HERE) ). Moreover, your answer will be part of a complex split-second decision you will likely make alone. Thus, it behooves you to give it serious thought and make the necessary analyses ahead-of-time. (If you’re an LEO, you have agency requirements and training imperatives — and case law trends — to factor in as well). The key is mental preparation. Before the event, you have one or more “plans” — if this particular balloon goes up, I disengage/leave/summon help, or I respond with X, Y, and/or Z.
Let’s revisit the MAY element in detail, as I promised in a recent MSW post on my use of deadly force paradigm. (HERE)
MAY: The inquiry — whether the use of deadly force is within the law. (We live in political correctness infected and curious Rule of Law interpretation times; so, that inquiry is to be distinguished from the distinct and less easily answered — can/will I be charged with a crime). In earlier posts I urged the importance of knowing “the law” beforehand, what sources to study, and to be mindful of “trends” (the inclinations of prosecutors, juries, and judges . . . good luck with that) in the law of justified deadly force. Here’s sources, in my (but not necessary the only) order of research, usually available free — online or in every law school library:
- Current year state statutes (caveat, even unambiguous statutes can be subjected to surprising judicial interpretation these days)
- Jury instructions (often termed “pattern” or “standard,” possibly officially promulgated by state highest court, required or suggested in criminal cases and all trials, not always consistent with or limited to language of related statute)
- Appellate case law (including opinions of the court over your locale’s trial court, the state’s other intermediary appellate courts, and the state’s highest court for criminal appeals)
- Local prosecutor’s memoranda on use of deadly force by LEOs and nonsworn in cases not prosecuted
- Federal case law commentary on state statute or common law use of force principles, or on Constitutional rights bearing on state criminal proceedings
- State law legislative history and enactment commentary (may or may not exist)
- Other state(s) interpretation(s) (highest state court opinions) of similarly worded statutes
Well, that was quick. And a unanimous decision (9-0) no less. I wrote in detail about Henderson v United States (HERE) in March, so go there for the facts of the case, related statutes, and parties’ arguments. (Note you are still good to go with the “Lessons Learned” discussion there). The actual 10-page May 18th opinion of the U.S. Supreme Court is HERE. (I endeavor here not to confound you with any lengthy legalisms or scholarly analysis).
While the Court rejected almost all of what the Government argued, it did not — as I hoped it would — limit or reject the “constructive possession” theory, or give detailed guidance on the mechanisms for firearms dispossession. The decision is nevertheless important to firearms owners who may run afoul of federal law which makes certain persons forever (felony conviction) or temporarily (mental/drug issues, pretrial release, probation, supervised release) barred from firearms “possession.” But note, the Court stated (in a footnote) “. . . our decision here . . . addresses only . . . court-supervised transfers of guns.” Continue reading
In a 2012 year-end post, I offered a decision paradigm on the use of deadly force. (HERE). The paradigm consisted of four elements — usually considered ad seriatim. My paradigm remains a work-in-progress. I write now to restate it in a stand alone post, and to add some broad thoughts on the elements. (I expect to tackle the elements in more depth in future posts).
Deadly Force Paradigm
CAN – do I possess (to a reasonable certainty) the necessary equipment, skills, and mindset to accomplish the task (i.e., WIN)? This element should be addressed objectively, long before the moment-of-decision presents. Common sense in “equipment” selection, and repeated training and practice are essential. Being physically fit is definitely part of this element. (HERE). Have you done all you can to be truly prepared to respond in a deadly force encounter? By the way, which is paramount — equipment, skill, or mindset? Always? Continue reading
Body armor and ballistic rated panels (for use in packs, briefcases, or other off-body use) are described best by the well-known Kafkaesque adage: It is better to have it and not need it, than to need it and not have it. I don’t mock the “tacticool” nature of body armor, and I avoid debating the SWAT or military “wannabe” aspects of owning it. (I readily acknowledge you are not alone if you do). I think armored materials are something worthy of consideration for anyone who frequents gunfighting classes, shoots regularly, or because of employment or other lifestyle particulars, has concerns of going where negligent friendlies or armed hostiles might be present. The days of body armor being only for LEOs passed (somewhat quietly) years ago.
Executive Summary: Let’s default to my deadly force paradigm: If you CAN afford it, and CAN do what you need to do when it is deployed (adequately conceal it, run and move effectively, maybe in confined space, and shoot, with additional bulky kit, maybe 18 pounds worth), go for it. If you acquire it, study up on and observe the manufacturer’s storage and care specs for the particular product. Unless a specific federal, state, or local law prohibits the ownership of such products, the non-sworn MAY own/wear body armor and ballistic-rated materials. SHOULD you buy such products? That is for you the reader to answer, as is how/when to use it. If you buy, buy the best-tested you can afford which is convenient to deploy, fits properly, and can be stored and maintained to suit your lifestyle. Expect some ribbing from “friends.” How about the MUST? It is beyond question the products save lives. Yours and/or the life of someone you “cannot live without,” regardless of who is slinging shots. At the very least, overt soft armor and plate carriers provide convenient, user-friendly platforms to attach identifying patches, pouches, and other “things.” And plates do provide a good weight-bearing workout. Continue reading
The U.S. Supreme Court is once again considering a case which could significantly impact those who own firearms, both LEO and the non-sworn. (I previously wrote on the Abramski case, involving the ATF Form 4473 actual buyer rule, HERE and HERE). The recently submitted case, Henderson v. United States, arose in an interesting setting (equitable action for return of property under federal procedural rule), and has an unusual pedigree (the Court of Appeals decision is not officially published, and thus it is not precedential). Some have suggested Henderson reflects an irreconcilable conflict between federal statutes and a judicial rule. Others perceive it to be a forfeiture or 2nd Amendment case. I think it will not be decided as any of those. For a synopsis of the facts, and the legal issue(s) remaining after developments from the parties’ briefing, see the Henderson preview page at SCOTUSblog, HERE.
Like Abramski, Henderson was once an LEO (Border Patrol agent). He entered a guilty plea to marijuana trafficking, for which he received a six-month prison sentence. The narrow question “officially” presented to the Supreme Court was whether after federal conviction, a judge may order the government to transfer non-contraband firearms voluntarily surrendered (to the FBI) as a condition of pretrial release to: a designated person, such as one to whom the defendant has sold the firearms, or; someone (who might be influenced by the defendant) to sell them, for the benefit of the defendant. I think the Court may remand for further proceedings to implement the law/procedure it decrees. Whatever the actual holding, I hope the Court will: provide guidance from which firearms owners (whether or not criminally accused or convicted) and their attorneys can implement a plan to effect dispossession upon firearm disability, and; put to rest erroneous legal positions (FFL requirement for consignment dispossession, necessity for the government or a court to inquire of and approve dispossession arrangements) advanced by the government. Continue reading
When searching for the “best” ammunition for EDC, premises defense, or the downright silly (but dreaded nevertheless) “zombie apocalypse,” you will likely consider using a law enforcement product, even if you are not an LEO. Whether for pistol, AR-15, or shotgun, you will likely choose products from these brands/loads:
Takeaway — Simple answer: Yes, less-lethal (impact, aerosol chemical, conducted energy) should be considered as a possible EDC adjunct to being armed. If you choose to carry less-lethal, get initial and periodic refresher training from a professional credentialed for the particular type/brand less-lethal weapon. Be prepared to articulate what you chose to carry (likely OC) and why. Update your knowledge base at least yearly for usage studies and legal developments, and to consider any product improvement. If you choose not to carry less-lethal, be prepared to articulate why not. Whichever way you go, expect that somebody, maybe someone whose opinion matters, will second guess you. Continue reading
Executive summary: Usually a bad idea, often a very bad idea.
[This is a follow on to prior posts, THREATENING DEADLY FORCE : MUSINGS ON “BRANDISHING” AND “WARNING” SHOTS, and “CASTLE” DEFENSE: WHAT CAN–MAY–SHOULD–MUST YOU DO]
“Can/should I hold someone at gunpoint?” A common question when the topic of guns and defensive use of deadly force is discussed. The questioner’s “gunpoint” hypothetical usually poses a home invasion, robbery attempt of the questioner, or “in progress” interdiction of someone committing a property crime, or a violent crime against the questioner or another person. The question is another one to which I respond with my smart aleck lawyer’s answer: “I don’t know, can/should you?” It lends itself to analysis similar to what I discussed in prior MSW posts on the use of deadly force — my paradigm:
CAN / MAY / SHOULD / MUST
For the purpose of this post, holding someone “at gunpoint” is not necessarily muzzling the threatened person(s), openly holding an exposed firearm in any specific “ready” position, or a mode of “display” permitted or prohibited by a state “brandishing” statute. I use the phrase here to mean the display of a firearm coupled with the express or implied threat that a failure to obey commands will result in the use of deadly force, that is, the gunpointer WILL shoot. (If unprivileged, usually considered a serious felony, such as an armed assault or assault with/by deadly weapon). Consider the following for your analysis of the SHOULD element of the paradigm. Continue reading