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Saturday, March 1, 2014

Safety Preps: Requirement To Retreat

I just read a great article on the legal right to stand your ground, and the legal requirement to retreat if reasonably able.  Huh?  Sound like a contradiction?  Yeah, welcome to the US judicial system -
The majority of states (34) do not impose a legal duty to retreat before using deadly force in self-defense, making them effectively stand-your-ground states. In these states, retreat is therefore not an essential element of the law of self-defense, and your failure to take advantage of a safe avenue retreat cannot lose you the right to claim self-defense automatically as a matter of law.

That does not, however, mean that the prosecution cannot nevertheless argue to the jury that your failure take advantage of a safe avenue of retreat was unreasonable under the circumstances, and that the presence of a safe avenue of retreat made your use of deadly force unnecessary under the circumstances. This is true even in most statutory stand-your-ground states.  Retreat may not be an element of self-defense in these states, but reasonableness sure is, and necessity is the foundation of all self-defense law.
If, like me, you're in one of those 16 states that DOES require you to retreat, you've just opened a big can of toxic poo if you shoot someone in self-defense. To stay free, you've got to prove you didn't have a way to retreat without putting yourself in additional danger.  How do you like them apples?

Realistically, I don't give a damn what your state law says regarding self-defense.  If the local DA wants to fry your ass because he or she doesn't like guns, you're going to be prosecuted for murder.  If you don't consider those consequences every single time you pick up a gun, you are a fool.

We had a bit of a discussion with this post ("10 Other People You Shouldn't Talk To After A Self-Defense Shooting") on keeping your mouth shut, and on what to say to the police after a shooting.  I'm a huge believer in following the SecondCall Defense strategy:  Call 911 to report the shooting, tell them you feared for your life and to send the police and medical.  Provide your address, describe yourself, then hang up and call your lawyer.

When the police arrive, repeat exactly what you said on the phone to 911, then inform them you won't be making any other statements until you've met with your attorney. 

Then expect to be arrested.

Let's say some maggot entered your home, rushed you with a bat, and you shot him dead.  A totally justified response to a violent invasion of your home.  So you think.

The police arrive and start asking questions:

Police Officer (PO):  Sir, tell me what happened.

You:  Well, I was in my easy chair right there, when I heard someone banging on my door.  It sounded like they were trying to break it down! 

PO:  I see.  What did you do?

You:  I got up, and grabbed my gun.  I walked around the corner and could see this guy trying to kick my door in through the window over there.  The son of a bitch was kicking and kicking.  I got behind this wall right there so he couldn't see me through the window.

PO:  Then what happened?

You:  He finally kicked the door down, and came into the house.  He had a bag and was carrying a baseball bat in his hand.  You know - one of those aluminum ones.  He took a couple steps forward and saw me.  I guess he didn't expect anyone to be home, and he started coming right at me with that bat cocked back to hit me.  I shot him just like I've practiced at the range a hundred times - two to the chest and one to the head.  It stopped him right there.

PO:  Well done!  What happened next?

You:  I pulled my cell phone out of my pocket and I called you guys, that's what happened.

PO:  OK, good.  You did the right thing.  Anyone in your situation would have done what you did.  Let me ask you a couple of things.  Was there anyone else here in the house when this happened?

You:  No.  Just me.

PO:  Great.  Now you said you were in that chair over there.

You:  Yessir.

PO:  That sliding glass door right next to the chair - where does that go?

You:  To my backyard, of course.  Why do you ask?

PO:  Just filling in the details, sir.  You know - all that paperwork the LT will want!  I noticed a gate on your back fence.  Where does that go?

You:  Out to an alley that leads to the street.  Hey, what's with all of these questions?

PO:  I'm almost through sir.  One last question:  After you heard the man kicking your door, how long did it take for him to break it down?  It looks pretty strong.

You:  Hell yes it's strong!  I put on those fancy hinges that screw 6 inches into the wall studs.  And I reinforced the plate on the door jam and added a dead-bolt too.  We've had a lot of break-ins around here, and I needed to protect myself!

PO:  Great idea, sir.  You certainly understand the best ways to keep the criminals out of your house.  So how long did it take for the door to finally come down?

You:  Oh, it musta been a good 30 or 45 seconds, I'd guess.  Hell, maybe a minute!  I didn't put any cheap crap into my set-up.  Only the best!

PO:  Thank you for your cooperation, sir.  I'm done now.  Please turn around and put your hands behind your back.  You have the right to remain silent.  Anything you say....

You:  What the...??

Accept The Challenge

Shall I summarize as an anti-gun prosecutor might?   
By his own admission, he had up to a full minute to retreat to a safe location after he saw the threat.  He had the means and opportunity to stay safe, to avoid a violent confrontation, and to allow the police to do their job.  Any reasonable person would have done so.  Instead, he chose to pick a fight - to display his skills with a gun.  To violently protect inanimate, replaceable property, and that choice resulted in the death of another human being.

Don't help them put you in prison for a very long time.

Alert the authorities that a shooting has taken place, then shut the hell up.  You are going to be adrenaline-soaked, and more apt to say things you shouldn't.  Like any other emergency situation, preparation and a planned course of action will help you weather any storm.

With our scenario, in reality, our guy may have heard the banging for 30 or more seconds, but only saw the guy as he finally kicked in the door and charged the homeowner.  He may have been embellishing the events to show the police he wasn't going to be anyone's punk.

Speak with your attorney, who will assess the situation and determine what will be said to the police and prosecutors.  The method in which the same information is conveyed can mean the difference between freedom and prison.

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Copyright 2014 Bison Risk Management Associates. All rights reserved. Please note that in addition to owning Bison Risk Management, Chief Instructor is also a partner in a precious metals business. You are encouraged to repost this information so long as it is credited to Bison Risk Management Associates.

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