Self Defense Gun Use and the Reasonable Person Standard
From the Times Leader in Pennsylvania:
“The (new) law is written very clearly. You must believe your life is in danger.”
Ashley Varner NRA spokeswoman
If Jacob Trucan’s life is threatened, he thinks he could pull the trigger.
“I believe in protecting yourself, especially in cases of rape or something like that,” said the 15-year holder of a concealed-weapon permit. “A woman or a guy should have the right to protect themselves.”
Turcan, an avid hunter and shooter, supports a law recently proposed by a Lycoming County Republican that could change the idea of self-defense. Pennsylvania law currently requires victims to retreat if faced with threat or attack in public, but allows people to use deadly force against intruders in their homes.
The passage of the so-called stand-your-ground bill would allow holders of concealed-weapon permits to shoot someone in public if they are threatened with death, rape, kidnapping or serious injury.
The bill sponsored by state Rep. Steven W. Cappelli, R-Lycoming, mirrors laws passed in 15 other states beginning in October 2005 in Florida and most recently in Michigan. Cappelli’s proposal is different than those in other states. Here the exception is only extended to the state’s concealed weapon permit holders.
Chad Ramsey, field director for the Brady Campaign to Prevent Gun Violence, believes the bill will encourage thoughtless shootings. “This will embolden somebody who might not normally take out their gun. Knowing they have the legal protection, they will be more likely to shoot.”
National Rifle Association lobbyists pushed for the legislation in states such as Pennsylvania, where the duty-of-flight laws are on the books. . . . .
The above article is much more accurate than a very recent piece in the New York Times.
I had sent the following letter into the NY Times:
Dear Letters Editor:
Your article on state laws that do not require that people retreat before they are able to defend themselves was extremely misleading and left out one important aspect of these laws (Adam Liptak, "15 States Expand Right to Shoot in Self-Defense," August 7). There was perviously and still is a reasonable person standard. People can only use their gun defensively if they are threatened and they use force that is commensurate with the threat that they face.
The previous law only required that one retreat if you could do so in complete safety (not simply "must retreat if possible"). Given that, it appears that all three of the examples provided in the article are not useful for illustrating a defensive action that was illegal previously that are somehow legal now.
Sincerely,
John R. Lott, Jr.
The Dean's Visiting Professor
State University of New York at Binghamton
(Given that they just published another letter by me, I really can't complain that the NY Times did not publish this letter.) The only point that I would have clarified more in the Times Leader piece is the reasonable person standard. It is not simply up to the victim to decide if they are in danger.
Ashley Varner NRA spokeswoman
If Jacob Trucan’s life is threatened, he thinks he could pull the trigger.
“I believe in protecting yourself, especially in cases of rape or something like that,” said the 15-year holder of a concealed-weapon permit. “A woman or a guy should have the right to protect themselves.”
Turcan, an avid hunter and shooter, supports a law recently proposed by a Lycoming County Republican that could change the idea of self-defense. Pennsylvania law currently requires victims to retreat if faced with threat or attack in public, but allows people to use deadly force against intruders in their homes.
The passage of the so-called stand-your-ground bill would allow holders of concealed-weapon permits to shoot someone in public if they are threatened with death, rape, kidnapping or serious injury.
The bill sponsored by state Rep. Steven W. Cappelli, R-Lycoming, mirrors laws passed in 15 other states beginning in October 2005 in Florida and most recently in Michigan. Cappelli’s proposal is different than those in other states. Here the exception is only extended to the state’s concealed weapon permit holders.
Chad Ramsey, field director for the Brady Campaign to Prevent Gun Violence, believes the bill will encourage thoughtless shootings. “This will embolden somebody who might not normally take out their gun. Knowing they have the legal protection, they will be more likely to shoot.”
National Rifle Association lobbyists pushed for the legislation in states such as Pennsylvania, where the duty-of-flight laws are on the books. . . . .
The above article is much more accurate than a very recent piece in the New York Times.
I had sent the following letter into the NY Times:
Dear Letters Editor:
Your article on state laws that do not require that people retreat before they are able to defend themselves was extremely misleading and left out one important aspect of these laws (Adam Liptak, "15 States Expand Right to Shoot in Self-Defense," August 7). There was perviously and still is a reasonable person standard. People can only use their gun defensively if they are threatened and they use force that is commensurate with the threat that they face.
The previous law only required that one retreat if you could do so in complete safety (not simply "must retreat if possible"). Given that, it appears that all three of the examples provided in the article are not useful for illustrating a defensive action that was illegal previously that are somehow legal now.
Sincerely,
John R. Lott, Jr.
The Dean's Visiting Professor
State University of New York at Binghamton
(Given that they just published another letter by me, I really can't complain that the NY Times did not publish this letter.) The only point that I would have clarified more in the Times Leader piece is the reasonable person standard. It is not simply up to the victim to decide if they are in danger.
posted by John Lott at 5:53 AM
5 Comments:
"This will embolden somebody who might not normally take out their gun. Knowing they have the legal protection, they will be more likely to shoot." [chad ramsey, brady bunch]
As it should be. This is exactly what we want; we want citizens to finally assume responsibility for their own protection. The Brady bunch are just dead wrong. They have long promoted the concept the government knows best and individuals know nothing. Whenever (and whatever) government does it only does second best; but when we do for ourselves we do it the best.
The Brady bunch believe criminals should keep the right to stare us in the eye while we avoid eye contact; but this is completely wrong. Criminals should fear eye contact with law-abiding citizens, and law-abiding citizens should boldly stare criminals down at all times. It is criminals that should practice the principles of "retreat" , not law abiding citizens. Someone should ask the Brady Bunch why they hold such reverence for criminals.
John, I think you might be incorrect; there is a "presumption" of "reasonable belief" built into the Bill, under ss 2.1:
(2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat if both of the following exist:
(i) The person against whom the defensive force was used was in the process of unlawfully and forcefully
entering, or unlawfully and forcefully entered, a dwelling, residence or occupied vehicle, or if that person unlawfully and forcefully removed or was attempting to unlawfully and forcefully remove another against that other's will from the dwelling, residence or occupied vehicle.
(ii) The actor knew or had reason to believe that an unlawful and forceful entry or act was occurring or had occurred.
This only applies to dwellings, residences or occupied vehicles, though.
Dear nimrod45:
Thanks very much for the note. As you probably know the entire bill can be found here:
http://www.legis.state.pa.us/WU01/LI/BI/BT/2005/0/HB2231P3110.HTM
1) A minor point first: The presumption does not apply if the person against who the force will be used is there legally. "(2.2) The presumption set forth in paragraph (2.1) does not apply if: (i) the person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence or vehicle, such as an owner or lessee, and is not subject to an active protection from abuse order issued pursuant to 23 Pa.C.S. § 6108 (relating to relief) to assure the safety of the actor or any other person in the dwelling, residence or vehicle." . . . .
2) More importantly, section 2.3 states: "An actor who is not engaged in an unlawful activity and who is attacked in any other place where the actor has a right to be has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force if the actor believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping or sexual intercourse by force or threat."
The bottom line is that these terms get defined in such a way as my original claim is correct.
Of course there are "exceptions" for people who are legally entitled or empowered to be in the dwelling, residence, or occupied vehicle; to do otherwise would be monumentally stupid - that would mean you would have no legal right to recover possession of your dwelling from those who are illegally occupying it...
Section 2.3 involves all places other than a dwelling, residence or occupied vehicle at which you have a legal right to be.
The important part of Litpak's story is this paragraph:
"The Florida law, which served as a model for the others, gives people the right to use deadly force against intruders entering their homes. They no longer need to prove that they feared for their safety, only that the person they killed had intruded unlawfully and forcefully. The law also extends this principle to vehicles."
Which is, in fact, true, since the presumption of "reasonable belief" is built into the law, for those particular instances.
The rest depends on how finely you wish to split hairs...
This is the important part of the law, but leaves out completely another important aspect: it only partially defines the concept "serious bodily harm."
(2.4) A person who unlawfully and by force enters or
8 attempts to enter an actor's dwelling, residence or occupied
9 vehicle is presumed to be doing so with the intent to commit:
10 (i) an act resulting in death or serious bodily
11 injury; or...
Here is an example: I'm 5'6", but the person acting only offensive towards me is over 6' tall (this is important). This taller person has more capability (and may have the capability while a person my height does not), more potential to actually commit "serious bodily harm" than another who is smaller. Another way to articulate this is: a large person can more easily break the arms of a smaller person: a person the same size as his victim has a more difficult task to break his limbs. Therefore justification for applying deadly force may include size or other factors.
This is important because we know from research (The Bias Against Guns) that women and smaller people benefit the most from firearm possession - why ? We know guns are an "equalizer"; that is, in a society that is by law disarmed, taller and younger males have an advantage over other weaker members of society. But when all members are allowed to possess fireams then no physically stronger or superior people are at an advantage. This is why the "intent to commit serious bodily harm" must be broadened and defined for the benefit of inferior individuals. Big people (or criminals) must respect weaker people.
This issue lies at the core of self defense - self defense includes weapons that equalize or create an edge over some others (those with the intent to victimize).
The most important aspect of a rtc permit or a conceal/carry permit is having the knowledge of knowing when you can morally and legally shoot another (or legally point a firearm at an individual). It is not important to be a sharpshooter or having extra knowledge of firearms. A "saturdaynightspecial" has an accurate (deadly)range of about 25 feet - no more. And revolvers are relatively simple compared to semi-automatics, to operate. Knowing the law and the morality of the application of deadly force is paramount. The same can be said of the law itself - it must be definitive and it must be simple to understand - not lawyer speak - not esoteric.
A permit to carry can only involve a written test (scored by computer)of knowing how to apply the law of self defense - nothing else or nothing more. This also helps to eliminate any discrimination by police or any other government employees.
A permit holder should be an expert on the knowledge of legal self-defense -- nothing less !
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