Personal Protection and the Use of Deadly Force in America

Introduction: Self-Defense in Modern America

Personal protection has become an increasingly important issue in today's crime-ridden and danger-filled society. Debates over how far self-protection can go before it becomes a crime in itself continue to rage on, while the self-defense strategy has progressively inundated America's courtrooms. The laws regarding personal protection vary considerably based on a number of factors, including the state in which one resides, whether the incident took place on personal or public property, and the type of criminal activity involved.

Considering how much media attention has been given to the right to bear arms in recent years, it is somewhat surprising that self-protection by firearm ranks so low in public preference. Perhaps the reason is rooted in the fear of actually using a weapon and winding up in more legal trouble than the perpetrator. We have all heard stories about people going to jail simply for protecting themselves, their family, or their place of business from a hostile intruder. If there is no gun, there is no temptation to use it.

How Americans Protect Themselves

A recent Gallup poll found that of all the different measures Americans can take to protect themselves, they are "least likely to say they carry a weapon for defense, such as mace or pepper spray, a knife, or a gun." The most commonly chosen self-protection measure was avoiding dangerous neighborhoods. In between were: having a guard dog or watchdog, and installing an alarm system. Weapon protection ranked in the following order of preference: keeping a gun in the house, carrying pepper spray for defensive purposes, carrying a knife for defensive purposes, and carrying a gun for defensive purposes (Carroll, 2007).

The laws have been changing in recent years, however, moving toward giving American citizens the right to use deadly force to defend themselves on or in their own property. There is also evidence that self-protection with firearms can serve as an effective deterrent to crime. As Siegel (2008) reports, "each year 2.5 million times, victims use guns for defensive purposes...[it is] estimated that armed victims kill between 1,500 and 2,800 potential felons each year and wound between 8,700 and 16,000...Ironically, by fighting back, victims kill far more criminals than the estimated 250 to 1,000 killed annually by police" (p. 80).

At the same time, attempting to protect oneself from a dangerous criminal with a deadly weapon often increases the danger for the victim. Threats of self-protection or retaliation — as opposed to compliance — can aggravate the criminal and cause more serious harm, especially if the criminal does not take the reciprocal threat seriously or if it is obvious that the victim has never fired a gun at a human being before. According to Siegel (2008), "Research indicates that victims who fight back often frustrate their attackers but also face increased odds of being physically harmed during the attack" (p. 80).

Castle Doctrine and Stand Your Ground Laws

For example, in 2007, Texas Governor Rick Perry "signed a new law that expands Texans' existing right to use deadly force to defend themselves 'without retreat' in their homes, cars and workplaces" (Stoddard, 2007). Essentially, this means that if someone threatens you in your car, home, or office, you have the right to use deadly force against them without fear of legal repercussions. These types of laws are known as "Castle Doctrines," and it is up to individual states to decide whether or not to adopt them.

As of January 2009, the states that have a Castle Doctrine are (Tekel, 2009):

Alabama, Alaska, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Washington, West Virginia, and Wyoming.

A total of 38 states have made it legal to shoot someone if they threaten you on your own property. This is a remarkable legal development that has returned America in many ways to the ethos of the 1800s and the Old West. While several factors are fueling this trend, the most notable is the September 11, 2001 terrorist attacks, which fundamentally shifted America's collective mindset toward one that favors a more aggressive posture of self-defense.

Legal Requirements for Justified Deadly Force

Kauffman (2004) identifies four legal requirements for a self-defense shooting to be considered valid:

(1) Force may be used only against an unlawful aggressor. This means both that the target of defensive force must be an attacker, and that the attack must be without legal justification. The attack need not be strictly illegal — an insane or mistaken attacker may be legally excused, but their attack is not justified, and therefore one may use defensive force against them.

(2) The use of force must be strictly necessary. There must be no non-violent alternative available, and one may use no more force than is strictly necessary. There may be limited exceptions — for instance, one need not retreat from one's own home — but in general, one must use the minimum necessary force, or no force at all when possible.

(3) The amount of force must be proportional to the threat. One may not use deadly force unless one is being threatened with especially serious harm: death or serious bodily injury. If threatened with minor force, one may use only minor force to resist.

(4) The attack must be imminent. Force may be used neither in mere anticipation of possible future harm, nor after the threat of harm has passed (Kauffman, 2004, p. 1).

These are sound restrictions in theory. However, not all intended victims are innocent bystanders. Often, the person who claims self-defense has a criminal history of their own. So who is to say exactly what happened and how genuinely endangered the shooter really was? There is always the possibility that the shooter was not being threatened at all and is simply using that claim as a cover for an entirely different motive. Unless there are eyewitnesses or a video recording of the incident, it can be very difficult to determine what truly occurred. While it is true that "self-defense cases require a thorough investigation of all aspects of the case including the alleged victim's reputation and prior difficulties between the parties" ("Florida Use," 2009, p. 1), there is no guarantee that the findings of such an investigation will be accurate.

Conclusion

In the end, while there is no denying that people should have the right to defend themselves against someone who is trying to kill or rape them, the adage "violence begets violence" seems extremely apropos to this situation. Even police officers who have been specifically trained for lethal confrontations are expected to exhaust every possible alternative before shooting someone. Giving the same broad rights and powers to untrained civilians does not seem like the wisest policy. Yet more states continue to adopt Castle Doctrines despite clear negative repercussions. Whether this trend will progress or reverse remains to be seen, but it seems likely that it will take a tragedy of considerable magnitude before the laws begin moving in the other direction.

References

Carroll, J. (2007, October 26). How Americans protect themselves from crime. Gallup Daily News. Retrieved October 27, 2009, from http://www.gallup.com/poll/102418/how-americans-protect-themselves-from-crime.aspx

Coalition to Stop Gun Violence. (2009). Shoot first laws. Retrieved October 27, 2009, from http://www.csgv.org/site/c.pmL5JnO7KzE/b.3509335/

Florida use of deadly force for self-defense. (2008). Sammis Law. Retrieved October 28, 2009, from http://www.criminaldefenseattorneytampa.com/FloridaDefenses/DeadlyForceSelf-Defense.aspx

Kaufman, W. (2004). Is there a "right" to self-defense? Criminal Justice Ethics, 23, 20–31.

Liptak, A. (2006, August 7). 15 states expand right to shoot in self-defense. New York Times. Retrieved October 29, 2009, from http://www.nytimes.com/2006/08/07/us/07shoot.html

Siegel, L. J. (2008). Criminology. Florence, KY: Cengage Learning.

Stoddard, E. (2007, March 27). Texas signs new self-defense by gun law. Reuters. Retrieved October 27, 2009.

Tekel. (2009, January 24). Castle Doctrine map. Retrieved October 26, 2009, from