Before we get too far into 2017, let’s take a quick look back at the 10 most popular Texas & U.S. Law Shield blog entries from 2016. Gun-law attorneys get into the stickiest issues — restrictions about owning body armor in some states, when you can shoot attacking dogs, how to navigate the carry rules at your church — and pass along legal insights to keep you from having trouble with the legal system. Click each item’s headline to open the story and see what you missed.
New Orleans resident John Ford has the distinction of being the only private citizen with the right to carry a stun gun or TASER within the city limits. But even that right has been limited to just a 90-day period that began on December 14, 2016.
Louisiana law permits possession of stun guns for self-defense without the necessity of a permit, but municipalities are free to enact their own regulations. New Orleans has made the sale and possession of stun guns illegal with a city-wide ban on such devices.
Undeterred, Ford filed a federal lawsuit in U. S. District Court in November against the city and the police superintendent, asserting that the city’s ban violates his state and federal constitutional right to bear arms. Ford is seeking an injunction against enforcement of the ban. He simply wants to keep a stun gun in his home for self-defense rather than having to resort to deadly force if ever confronted with a violent criminal attack.
In his suit, Ford states:
“(Ford) is aware of the potential legal, economic and psychological ramifications of even the justified use of deadly force to defend himself or his home against a violent criminal attack. (He) would prefer to minimize the likelihood that he would have to resort to deadly force in the event he was forced to defend himself or his home against a violent criminal attack.”
On Wednesday, December 14, the city and Ford reached an agreed stipulated order, granting him the sole right to purchase and possess a stun within the city limits of New Orleans. U.S. District Court Judge Mary Ann Vial Lemmon ordered the stipulation to be adopted. The agreement staved off for now an injunction being sought by the suit. According to court records, New Orleans city officials “may” take a look at revising somewhat the municipal code section that bans the sale and possession of the non-lethal devices.
But for 90 days at least, Ford, and only Ford, can buy a stun gun and carry it “anywhere a firearm is allowed to be carried either openly or concealed.” without the city having to admit it’s violating state or federal law with the ban.
Attorneys for Ford indicate he will push for the injunction if the city does nothing or not enough to lift the ban.
So, for the next few months, John Ford will be the only private citizen in New Orleans with the legal right to shock you – with a stun gun, that is. –by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield Blog
If you plan to make a gift of a firearm to a family member, close friend, or relative this season, there are right ways to do that — and some very wrong ways to transfer firearms to loved ones, say Texas & U.S. Law Shield Independent Program Attorneys.
Ownership of a firearm has serious legal implications that other consumer products don’t. So let’s look at some questions you may have about giving a firearm as a gift this holiday season.
Gift Certificates Make the Process Simple
Texas Law Shield Independent Program Attorney Emily Taylor said, “The ATF recommends that if you want to give someone a new firearm, rather than going to a gun store, buying it, and giving it to someone, purchasing a gift certificate from a retailer and giving that as the present makes the process easy.”
“That way,” she said, “the recipient will get the exact gun he or she wants, and there’s no question about who is ‘the actual buyer of the firearm,’ which is a question any purchaser must certify on the Federal Form 4473 at the time of purchase.”
1: Can the Recipient Legally Own a Firearm?
If you decide to go ahead with giving a gun directly to the recipient, you must find out if the intended recipient can legally own a firearm where he or she lives.
“There are more than 20,000 different gun laws on the books, so the kinds of firearms that law-abiding citizens can own vary quite a lot,” said Taylor. Also, she reminded gun givers of a big restriction that many people overlook: Juveniles under the age of 18 generally may not possess a handgun.
Taylor pointed out that gift givers must not ever transfer a firearm to someone they know legally can’t own one. That’s a federal felony, so if your sketchy brother-in-law may be disqualified from owning firearms, don’t take the chance. It’s also worth pointing out that if you even have reasonable cause to believe the recipient can’t legally own a firearm, that’s enough to get the giver prosecuted under the law.
3: In-State Transfers Are Easier
There’s no federal law that prohibits a gift of a firearm to a relative or friend that lives in your home state. Abramski v. United States, a recent Supreme Court decision involving a “straw purchase” of a firearm, did not change the law regarding firearms as gifts.
According to the National Shooting Sports Foundation, there are a handful of states that currently require in-state firearm transfers to run through a local firearms retailer. This ensures an instant background check will be performed to make sure the recipient is not legally prohibited from owning the gun. This is the law in California, Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, and Washington State. Also, the District of Columbia Maryland and Pennsylvania require a background check for private-party transfer of a handgun.
Taylor said, “There are exceptions, so it’s important to carefully check the law of your state, ask your local firearms retailer, or call Independent Program Attorneys in these states to get clarifications on the law.”
4: Getting the Gift There
If you would like to gift a firearm to someone in another state, you may not simply ship handguns or long guns to that person. If you would like to transfer a gun to an individual in another state, this must be accomplished by using Federal Firearms License Dealers as an intermediary between the individual parties.
Carriers vary in the types of firearms they are willing to transport, and in the specific rules they impose. Taylor added, “With all carriers, federal law requires you to declare that your package contains an unloaded firearm. To be safe, always consult your carrier in advance about its regulations for shipping firearms.”
5: Family Transfers of Meaningful Firearms
During the holiday season, many families want to pass down meaningful firearms to the next generation. What if you want to give a family firearm to your son or daughter?
Of course you can, Taylor said, but she points out that some states require even inter-family transfers to go through a licensed retailer.
“It’s worth emphasizing,” Taylor said, “that you can never transfer a firearm directly to another person who is a resident of a different state. In that case, you must transfer the firearm through a licensed retailer in the state where the person receiving the gift resides.”
If you do it right, giving someone a hunting rifle, a waterfowling shotgun, a plinking handgun, or many other types of firearms can be rewarding gifts. Just keep in mind there are right ways to make the exchange, and wrong ways. It’s better to know the law and follow it closely so the gift-giving is above board and completely legal. — Texas & U.S. Law Shield Staff
During the holidays, many people will be looking to travel this winter, driving across state lines to visit family and friends in other states. Whether you have a concealed carry license or not, if you will be traveling cross-country with your firearms, particularly through states that may not be as “firearms friendly” as your home state, you’ll be happy to know that the federal Firearm Owners Protection Act, or FOPA, allows you to legally transport your firearms in your vehicle while you drive, so long as you comply with a short list of requirements found in what is known as the “Safe Passage” provision, or 18 U.S.C. § 926A.
There Are Three Conditions You Must Meet to Take Your Firearms With You
The first condition is that any firearms you are transporting must be unloaded and locked in the trunk of the vehicle or in another container that is out of reach or not immediately accessible. Any ammunition must also be locked in the trunk or another container. This does not include the glove box or center console!
Second, your journey must begin and end in states where your possession of the firearms is legal. So, for example, if you begin your journey in your home state of Texas and are looking to drive to Grandma’s house in Kansas, where permitless concealed carry is legal, you will be protected as long as you meet the other two conditions. However, if you begin your journey in Texas and are driving to New Jersey for vacation, where a state-issued license is required to even own a firearm, you will not be protected under the Safe Passage provision.
Last, you must be “traveling.” This applies especially while going through a firearms-hostile state. Unfortunately, the term “traveling” is not defined in federal law. Courts have interpreted it narrowly to indicate that a person must not stop in one place for “too long.” Unfortunately, how long is “too long” is not entirely clear. In an actual case decided in 2013, a man was convicted for illegal possession of his shotguns and rifles secured in zippered cases, after he stopped for a brief nap in New Jersey while moving from Maine to Texas. The best course of action is to get through firearms-hostile states as quickly as possible.
Safe Passage Protection May Not Always Prevent an Arrest!
A word of warning: even if you qualify for Safe Passage protection, some states, such as New York and New Jersey, treat Safe Passage protection as a mere affirmative defense instead of a protection from arrest and prosecution, meaning that police in these states may still arrest you if you are pulled over with firearms in your vehicle, despite meeting all of the conditions of the federal statute. To beat potential charges of illegal possession of firearms and/or assault weapons, you would then need to assert your Safe Passage protection as a defense in court. This could involve substantial court costs and inconvenience, not to mention putting a halt to your vacation plans.
Trump’s victory might have slowed guns sales overall, but in California people are scrambling to get into gun stores before January first, here’s why…
Source: Los Angeles Times
Governor Jerry Brown’s approval of sweeping gun control legislation in July has triggered a run on firearms in California, with some stores reporting that sales have doubled since that law passed.
Under this new law signed by the governor, starting January 1, the general public in California can no longer buy a semi-automatic rifle equipped with a “bullet-button” that allows for the quick removal and replacement of ammunition magazines. [Senate Bill 880 and Assembly Bill 1135]
Guns purchased before January 1 can be kept as long as the owner registers the gun with the state as an assault weapon. As a result, sales have at least doubled at many California gun stores, store owners report.
“When Governor Brown signed that bill, the first 30 days in July were just insane,” said Joshua Deaser, owner of Just Guns in Sacramento. “It died down for a while but now we are back with everyone trying to get what they can before the end of the year.”
Terry McGuire, owner of the Get Loaded gun store in the city of Grand Terrace in San Bernardino County, said people are clamoring to buy semi-automatic rifles before midmonth, given that the state background check process takes about 10 days. McGuire: “We have people lined up out the door and around the block.”
State officials confirm there has been a surge in gun sales. The number of semi-automatic rifles registered this year with the state has more than doubled over last year, according to the California state Department of Justice. In the less than six months since the July 1 signing of the legislation, 257,895 semi-automatic rifles have been purchased, eclipsing the 153,931 rifle purchases reported to the state in all of 2015, the state agency said.
Purchases of all firearms, including handguns, have jumped 40-percent over last year, to nearly 1 million in 2016 year, according to the state agency.
“We expected this,” said Sam Paredes, executive director of Gun Owners of California. “Any time the government comes up with a ban on guns, the public rushes to buy them to make sure they have at least one.”
Assemblyman Phil Ting (D-San Francisco), a coauthor of the bill, said military-style weapons “enable shooters to take the most lives in the least amount of time” and there is no place for them on California’s streets.
“All of us should be able to go to work and send our kids to school free from the fear of becoming a mass shooting victim,” Ting said. “The bullet-button loophole undermined California’s assault weapons ban and the shocking loss of life in San Bernardino last year revealed the subsequent threat to public safety.”
Assemblyman Marc Levine (D-San Rafael), another coauthor of the bill, said the new law is important. “We raise our children in communities, not war zones,” he said. Levine downplayed the increase in gun sales currently being experienced by California stores. “Gun sales have trended up for a while now,” he said. “Anxiety and strife are being sowed throughout American society. The Legislature acted to limit bloodshed in our communities.”
In addition to the rifle ban, gun owners are anxious about a law by Senate leader Kevin de León (D-Los Angeles) that will require ammunition purchasers to undergo background checks in 2019, and the recently approved initiative by Lt. Gov. Gavin Newsom that included gun control measures such as a ban on possessing magazines that can hold more than 10 rounds.
“It’s like Gavin Newsom, Kevin de León, and Jerry Brown are the biggest marketing and sales guys for AR-15 and AK-47-style rifles in the state of California,” Gun Owners of California’s Paredes said. “Because of their actions, people are buying them any way they can.”
Brown, Newsom, and De León did not respond to requests for comment on the run on guns.
Customers who are buying the guns are as upset as store owners, according to Pete Brown, the retail sales manager at American Gun Works in Glendale, where he said sales are “way up.” “People are angry,” Brown said. “They are angry with the Legislature because [the law] doesn’t address crime. Nothing in the law addresses criminals. It’s another way of cutting back on what’s available to law-abiding citizens, and that’s why they are angry.”
Alex Lopez, the owner of Western Firearms in Bell, confirmed that gun buyers don’t like the direction the new laws are taking the state. “They can’t figure out how this is going to affect criminals from getting access to firearms,” Lopez said.
In addition to the rifle ban, gun owners are anxious about a law by Senate leader Kevin de León (D-Los Angeles) that will require ammunition purchasers to undergo background checks in 2019, and the recently approved initiative by Lt. Gov. Gavin Newsom that included gun control measures such as a ban on possessing magazines that can hold more than 10 rounds.
Background: A “bullet-button” is a device used to remove a magazine in a semi-automatic rifle, replacing the standard magazine release with a block which forces the user to remove the magazine by using a tool to depress a small plunger, as opposed to his or her finger. This allows rifles to comply with California’s firearms law. The name came about due to a 1999 California State law which said that a “bullet or ammunition cartridge is considered a tool.” The bullet button was invented and named by Darin Prince of California in January 2007. The 2012 court case Haynie v Pleasanton validated that a bullet-button is legal and rifles that have one installed are not considered assault weapons.
Folks, don’t rest easy… There’s an old and true saying: All politics is local… Laws exist at all levels of government, not just the Federal, and these laws most decidedly can have at least the same impact, and more, on American citizens as anything done across-the-board nationally.
A California Appellate Court has reversed the Fresno Superior Court’s dismissal of the NSSF and SAAMI lawsuit seeking an injunction to block enforcement of the state’s ammunition microstamping law and remanded the case back to the lower court to hear arguments. Keep reading…
Source: NSSF Government Relations Update
Gun manufacturers have the right to present evidence supporting their claim that technology does not exist to comply with a California law requiring new models of semi-automatic handguns to stamp identifying information on bullet casings, a state appeals court said Thursday [Dec. 1].
The ruling by the 5th District Court of Appeals in Fresno overturned a lower court ruling rejecting a lawsuit by two firearms trade associations [NSSF and SAAMI] that challenged the law. The appeals court sent the case back to the lower court for further consideration. “It would be illogical to uphold a requirement that is currently impossible to accomplish,” Justice Herbert Levy wrote for the appeals court.
Larry Keane, NSSF Senior Vice President and General Counsel: “We are pleased by today’s ruling because it means we will now be able to prove in court that this ill-considered law must be enjoined, because it is literally impossible to comply with its requirements, and the law never requires the impossible. We have long maintained that this nascent, unproven, and unreliable technology should not have been mandated.”
Supporters of the law signed by Gov. Arnold Schwarzenegger in 2007 touted it as a help to law enforcement in soliving gun crimes by allowing them to link bullet casings to specific guns. Hannah Shearer, a staff attorney at the San Francisco-based Law Center to Prevent Gun Violence, said that the argument that gun manufacturers can’t comply with the law is bogus and will be rejected by the trial court. “California’s microstamping law gives law enforcement a strong tool to investigate and solve gun crimes and also combat gun trafficking,” she said.
The law requires new handgun models to have a microscopic array of characters in two spots that identify the gun’s make, model, and serial number and that are transferred by imprinting on each cartridge case when the gun is fired.
State officials said gun manufacturers could comply with the law by putting two stamps on the firing pin. But the appeals court said the Legislature required dual microstamping to prevent criminals from defeating the process by defacing or removing the firing pin. Allowing two stamps on the firing pin would not serve that purpose, Justice Levy wrote.
Gun rights groups say it is not possible to microstamp two areas of a gun. Only the tip of the firing pin can be microstamped, and current technology doesn’t allow the stamp to reliably, consistently, and legibly imprint on the cartridge primer from that part of the gun, they claim.
The law was supposed to take effect in 2010 but was delayed because of patents on the technology, including at least one that had been bought up by a gun rights group to delay the law’s implementation.
The law doesn’t impact guns already on the state’s official firearm roster. Only new or modified semi-automatic handguns sold in California must be equipped with the technology. NSSF Senior Vice President Larry Keane said no new models of pistols have been introduced in California since the law took effect, and hundreds of pistols have been taken off the state’s firearm roster because even slight changes render the gun a new model. “When we ultimately prevail in this case, law-abiding consumers in California will once again be able to purchase new models of pistols this law currently prevents our industry members from selling in the state,” Keane said.
A separate lawsuit challenging the law on constitutional grounds is pending before a federal appeals court in San Francisco.
Gun enthusiasts and hobbyists have long been building their own firearms by purchasing lower receivers or kits and other parts needed to assemble a firearm.
The lower receiver is a small block of metal about the size of a deck of cards where the trigger mechanism is housed and where bullets pass through. A gun cannot function without it. A finished lower receiver is the piece of the firearm regulated by federal law and must contain a serial number stamped into it.
Technology today and the hundreds or even thousands of websites selling lower receivers, kits, and parts over the internet makes it even easier. There are no background checks required to purchase these lower receivers or kits.
There are no federal restrictions on an individual making a firearm for personal use, so long as it does not violate the National Firearms Act (NFA), according to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
The ATF has long held that items such as receiver blanks, “castings” or “machined bodies” in which the fire-control cavity area is completely solid and un-machined have not reached the “stage of manufacture” which would result in the classification of a firearm per the Gun Control Act of 1934 (GCA). That stage is “80 percent complete.” ATF regulations hold that receiver blanks that do not meet the definition of a “firearm” are not subject to regulation under the GCA.
Furthermore, under federal law, no serial numbers are needed on firearms that are built for personal use, making them untraceable by law enforcement.
By leaving the lower receiver unfinished— meaning only partially drilled — it fails to meet the ATF’s requirement of being more than 80 percent complete and is therefore not considered a “firearm” subject to regulations. Buyers can finish the receivers at home by finishing the drilling.
The ATF refers to such guns as unfinished receivers, though they’re also called 80 percent receivers, home built firearms, or “ghost guns.”
And it’s all perfectly legal.
These self-assembled and untraceable “ghost guns” are becoming increasingly more popular amongst gun enthusiasts across the country and is becoming big business for parts manufacturers and for dealers selling kits.
Elite Custom Railing in Holly Hill, Florida, for example, specializes in unfinished lower receivers for a do-it-yourself AR-15. A company spokesperson said they sell between 100 and 150 lower receivers each day.
It is just one of six companies in Volusia County alone engaged in manufacturing and/or selling kits or unfinished receivers that allow buyers to assemble military-style, semi-automatic rifles at home.
Another Volusia County company, Stone Mountain Gold ‘n Guns in DeLand, will sell the “80% receivers” to a customer only in person and not over the internet as others in the county do. A manager said he will complete the sale only if he feels comfortable with the person buying the receiver. Stone Mountain sells about 20 a month, according to the manager.
The ATF and some law enforcement agencies have expressed a concern about these homemade firearms, believing that the availability of the untraceable receivers will encourage criminals and terrorists to start building their own weapons.
Port Orange Police Chief Thomas Grimaldi said in an interview in the Daytona Beach News-Journal,“We’re making it easy for the criminals. I have a concern — a huge concern over that.”
Mary Salter, ATF Tampa Field Division public information officer, believes some criminals are purchasing non-serialized and therefore untraceable firearms because their intent is to commit crimes.
“ATF, and law enforcement, in general is seeing homemade firearms without serial numbers at crime scenes,” Salter said. “Tracing firearms found at crime scenes to the original purchaser is a valuable tool in law enforcement,” Salter added. “When a homemade firearm is found at a crime scene, investigators are left with a dead end, where a trace of a firearm may generate valuable investigative leads.”
“With advancements in technology in regards to 3D printers,” Salter said, “CNC milling machines, and the availability of receiver blanks, it has become much easier for a person to build a firearm. “When a “homemade firearm is found at a crime scene, it means investigators are virtually left with a dead end,” said Salter.
And in California, Graham Barlowe, resident agent in charge at the ATF’s Sacramento Field Office, said he started seeing crimes involving untraceable guns about two years ago. In November of this year, Barlowe’s undercover agents arrested eight men for manufacturing and selling illegal firearms, seizing about 90 un-serialized firearms out of the more than 230 illegal firearms found. His agents have also found electronic mills that carve a complete receiver in 12 minutes.
“It is one of the biggest problems in Northern California for our office, if not the biggest problem,” Barlowe says. He estimates that his office has seized about 500 un-serialized receivers since 2013.
The Santa Monica shooter, John Zawahri, used a rifle made from parts he purchased online to kill himself and five others on June 7, 2013.
And in neighboring Arizona, between 2009 to 2011, ATF reported that it seized 191 of the 80 percent receivers in Tucson that were headed to Mexico to be assembled, possibly by cartels.
In Florida, law enforcement officials claim the unregistered guns can make it easy for criminals to arm themselves with untraceable weapons.
However, others disagree with that assessment, claiming the skill and equipment necessary to build the firearms is anything but easy and, therefore, makes this approach more costly and time-consuming than simply acquiring an already completed firearm. A milling machine (or at least a milling guide kit), for example, can cost around $1,500, and it could take weeks to complete an AR-15 kit.
And to complete an unfinished lower receiver, a person must carefully mill or drill out a portion of the inside of the receiver, which can take many painstaking hours. Without a properly milled lower received, a functioning firearm would be impossible to produce.
Many believe manufacturing a homemade weapon is generally too costly, too troublesome, and too expensive for criminals.
Furthermore, FBI statistics indicate semi-automatic weapons are used in less than one percent of crimes in the U.S. Most criminals use handguns, and most guns used in crimes are stolen. Criminals looking to buy a weapon can get them from private sales without a background check and do not have to go through the trouble and expense of building their own rifle.
Rob Dunaway, President of American Spirit Arms in Scottsdale, Arizona, says most of the customers who buy the incomplete receivers are people who like to personalize their semi-automatic rifle and or more worried about changes to the gun laws.
“Some people buy them to store them for potential future use,” Dunaway said.
Previous attempts to regulate “ghost guns” in California failed, when a bill that would have allowed the manufacture or assembly of homemade weapons but required the makers to first apply to the state Department of Justice for a serial number that would be given only after the applicants underwent a background check, was vetoed by Governor Jerry Brown in 2014.
However, earlier this year, Gov. Brown did sign a bill requiring people who build guns from these 80% receivers to register them and get a serial number. That law takes full effect in 2019. — by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield Blog
Do you believe “ghost guns” or the 80 percent receivers pose a serious problem? Should you have to undergo a background check to even buy an 80 percent receiver or kit before you are allowed to build your own firearm for your own personal use? Should you have to register a firearm you build yourself and obtain a serial number? Let us know what you think.
Originally written by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield for the U.S. Law Shield Blog.
We’ve all seen the news reports of the mob scenes and riots across the country following recent police shootings and now the election. We feel that it is important that you understand your rights should you find yourself unintentionally caught up in such a situation where an angry mob blocks the roadway.
As a real-life example, we received a call to the emergency hotline from a member who was traveling and found himself and his family confronted by angry rioters in a major city out west. With the threatening mob descending upon his vehicle, the member turned around to make a hasty exit. However, as he was trying to get his family out of harm’s way, one screaming rioter charged toward the member’s car and was struck, landing on the hood before rolling off. Fortunately, the member and his family safely escaped the melee.
To figure out if the member’s act of running into a rioter was legal, we turned to Texas & U.S. Law Shield Independent Program Attorney Michele Byington with the question: Are you justified in hitting or “running over” someone in this scenario?
“The answer? It depends!” Byington said. “Don’t you hate that answer?”
Let’s look at whether an act of running down a rioter would be lawful as a justified act of self-defense.
To begin the analysis, she said we treat this situation just as we would any other use of deadly force in self-defense. Let’s start with some general concepts, and then analyze how the specifics of the law will apply in these scenarios. The concepts to focus on are imminence, reasonableness, and not being the aggressor.
Imminence. Prosecutors love to attack the imminence prong. Does a group of people blocking a roadway pose an imminent threat of death or serious bodily injury to you inside of the vehicle? Blocking a roadway, normally, cannot cause death or serious bodily injury to those inside the vehicle, much less pose an imminent or immediate threat. As a result, using a vehicle to “run them down,” or even to physically push them aside, is unlikely to be justified. However, if there is additional threatening conduct such as the protestors attempting to enter the vehicle, or say, charging toward you with a baseball bat, that is a completely different scenario. If you are placed in reasonable fear of imminent deadly force, you would be legally entitled to use deadly force in self-defense, including the use of your vehicle to neutralize the unlawful deadly force threat.
Reasonableness. What would be required to generate a reasonable fear of imminent death or serious bodily injury? The key here is that it doesn’t matter what your personal beliefs are if a jury would not believe that your fear was reasonable under the circumstances. There are extremes where your conduct will almost always be viewed as reasonable, such as attempts to set your car on fire or flip it over. On the other hand, under many circumstances, it will be extremely difficult to convince a jury that you acted reasonably if you use deadly force against protestors. One example would be injuring or attempting to injure a group of peaceful protestors who are merely blocking a roadway. If the protestors attempt, or reasonably appear to attempt, to forcibly enter blockaded vehicles, you will gain a presumption of reasonableness under the laws of many, but not all, states. You will also have a much better argument that you had reasonable grounds to fear an imminent attack with deadly force. Such conduct could include the smashing of windows or attempts to open doors. Also, you do not necessarily need to wait until the protestors have turned violent against your vehicle if you see it happening to someone else. Remember, you must have a reasonable belief from what you are seeing and hearing around you and not merely speculating about what might occur.”
Byington also noted, “Keep in mind, here in Texas, you may also use deadly force to protect a third party as long as you would be justified in using deadly force to protect yourself in that same situation.
If you intend to use your vehicle against a rioter, it will almost always constitute the use of deadly force – that is, force capable of causing death or serious bodily injury. Deadly force can be used in self-defense to the extent the force with which you are threatened also constitutes deadly force. In other words, deadly force can be met with deadly force, she said. If you are faced with anything less than deadly force, you will face an uphill battle in arguing that your actions were reasonable. To make matters worse, if you respond to a threat that is non-deadly in nature with unlawful deadly force, it would allow the other person to lawfully respond in kind with deadly force against you.
Not the Aggressor. Is the person seeking justification for the use of deadly force in self-defense a victim, or is he the aggressor? State laws may vary, but generally, the defense of justification is not available to the individual who starts the fight and does not stop to convey to the other person their intention to stop the aggression.
So, how might this apply in a protest or riot situation? Byington noted, “Say you are stuck for an hour in the middle of a protest and decide to ‘nudge’ one of these folks with your vehicle so that you can get out of the traffic snarl. If the otherwise peaceful protestor then becomes violent, and you use deadly force to protect yourself, a prosecutor, judge, or jury could easily argue that you were the initial aggressor. You may lose a number of legal protections, and on top of that, appear like the aggressor during the investigation or trial.
Suppose you yell out “Sorry! Didn’t mean to bump you, it won’t happen again!” If the other person continues the assault after having been informed of your intention to stop, at that point you may regain the right of self-defense, although the protestor will almost certainly argue that he/she could not hear you due to the noise of the protest.
A Few Practical Tips:
So, what should you do if you come across such a mob?
STOP. Don’t go any farther. Do whatever is necessary to change direction and get out of the area. If you are alert, hopefully you will see these masses of people far enough in advance so that you can completely avoid the situation, long before being surrounded.
Remember, you can’t legally run people over just because they are in the road. You may think the safest action to take in a situation like this is to keep moving, which may result in hitting people with your car to get them out of the way. That isn’t legal! It could easily be considered an aggravated assault, or worse! Even if people are illegally blocking the road, you will go to jail. It is that simple. Avoidance is key.
However, once the rioters attack you or attempt to enter the vehicle, the game changes, and your legal justification kicks in. With your vehicle surrounded so that you can’t escape and attackers trying to burn your car, flip it over, or attempt to drag you out of it, it is reasonable to assume that you will suffer imminent serious bodily injury or death. It is at this point you may use deadly force. In this moment of adrenaline and pure fear, you must keep your common sense. Do not get out and try to shoot your way out of the mob! You will quickly be overtaken and perhaps have your gun stripped from you. Instead, use your vehicle to get out of that situation by driving away from the surrounding rioters.
An additional point to remember is, should your vehicle come under attack, roll your windows down about half an inch. Experts say it is harder to break a window that is partly down than one that is fully closed. Turn off your ventilation system so you do not draw in any outside air in the event there is tear gas or smoke present. Further, if surrounded and moving slowly, you may want to take off your seat belt to allow a quick exit from the vehicle should it be overturned or set on fire.
“Once again, it is evident that your best course of action is to avoid these, often, pre-planned demonstrations altogether and drive away quickly should you come upon one,” she said.
The law is different in every state. For example, Texas has the “Castle Doctrine,” which gives a person the presumption of reasonableness if he or she uses deadly force against a person attempting to enter or entering their vehicle. Byington said, “It is a HUGE legal tool. Unfortunately, other states may not expand their Castle Doctrine to the vehicle [New Jersey]. With that in mind, I hope everyone can stay safe – and also stay legal! – if you find yourself in any protest or riot situation.”
To help Members in other states, we contacted U.S. Law Shield Independent Program Attorneys to get additional insights. Their comments appear below.
Independent Program Attorney Doug Richards offered this explanation on Colorado’s the law on self-defense. In the book Colorado Gun Law: Armed And Educated, co-authored by Richards, Stanley Marks, and Christopher Ferrero, Richards points out that “a person is justified in using physical force upon another person in order to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
“Importantly,” Richards adds, “a person is not justified in using any degree of physical force if he provokes the other person into the use of unlawful force with the intent of using that as a justification to cause the other person bodily injury or death.
Richards also points out that “[D]eadly physical force may be used only if a person reasonably believes that a lesser degree of force is inadequate, and he has reasonable grounds to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury.”
For more specific information on this and other Colorado gun laws, click the Colorado Gun Law: Armed And Educated book link at the bottom of this post to order your copy.
For the law on self-defense in Virginia, we turned to U.S. Law Shield of Virginia Independent Program Attorneys Mitchell Wells and W. Edward Riley of Riley & Wells. In the upcoming book, Virginia Gun Law: Armed And Educated, co-authored by Riley and Wells, they point out that a person caught in a demonstration that’s turning violent must reasonably fear that they are in imminent danger of suffering serious bodily injury or death to be justified in the use of deadly force. For more specific information on this and other Virginia gun laws, look for the upcoming announcement as to when Virginia Gun Law: Armed And Educated will be published and available.
Independent Program Attorney Robert Robles added “[T]hat the laws in Oklahoma regarding the use of deadly force in a self-defense situation are pretty well in line with the laws in the neighboring state to the south [Texas] and can be found in the Oklahoma Self-Defense Act, Title 21, Oklahoma Statutes, Section 1290.1, et seq.”
“In Oklahoma, the law gives the presumption that a person held a reasonable fear of imminent peril of death or great bodily harm and therefore deadly force was necessary, if it is used against an individual who was unlawfully or forcibly in the process of entering or entered into an occupied vehicle; or is attempting to forcibly remove another against his or her will from an occupied vehicle. Deadly force is also presumed to be justified to prevent the commission or attempted commission of forcible felonies including murder, burglary, carjacking, and home invasion robberies,” he said.
“Furthermore,” Robles added, “if people are present in any place where they have a right to be, they have no duty to retreat and have the right to meet force with force, including deadly force, if they reasonably believe that it is necessary to prevent death or great bodily harm to themselves or another, or to prevent the commission of a forcible felony.”
For more specific information on this and other Oklahoma gun laws, click the Oklahoma Gun Law: Armed And Educated book link at the bottom of this post to order your copy.
Independent Program Attorney Deborah Alessi summarized Missouri’s law as, “A person cannot use deadly force upon another person unless he or she reasonably believes that such deadly force is necessary to protect himself, or another against death, serious physical injury, or any forcible felony, and is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a vehicle lawfully occupied by such person.”
Alessi added that “a person does not have the duty to retreat from their occupied vehicle before using deadly force under the circumstances described, and these laws can be found in RSMo Chapter 563 Defense of Justification, Section 563.0031.1.”
Independent Program Attorney Matt Kilgo expands upon the Texas law to explain how the law of self-defense would apply in Georgia under these circumstances.
Innocence. Is the person seeking justification for the use of deadly force in self-defense an innocent victim, or is he or she the instigator of the confrontation? In Georgia an individual may not claim as justified a use of force against another when he or she initially provokes the initial force as an excuse to commit an act of force; at any time when committing (or attempting to commit) or fleeing the commission of a felony; or anytime he or she was the initial aggressor in a situation or was engaged in mutual “combat by agreement”, unless or until withdrawing from combat and making that decision known to the other individual. See O.C.G.A. §16-13-21(b). If the other party continues an assault after having been informed of your intention to stop, then you may “reacquire” the right of self-defense.
Imminence. Does a group of people blocking the roadway pose an imminent threat of death or serious bodily harm to you inside your vehicle? Simply blocking a roadway cannot normally cause death or serious bodily harm to those inside a vehicle. As a result, using one’s vehicle to “run them down,” or even to physically push them aside, is unlikely to be legally justified unless there is some additional threatening conduct. But suppose the mob begins more direct threats or the use of actual force against you? If you are now placed in reasonable fear of an imminent deadly force attack, then you could be legally entitled to use deadly force in self-defense, including the use of your vehicle to neutralize the unlawful deadly force threat. Remember, the use of force is justified in Georgia when a party “reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force. . . .” Imminence is vitally important, especially when using a weapon as deadly as a car: the threat must be real and immediate.
Proportionality. Keep in mind, however— should you intend to use your vehicle against anyone— this will almost certainly constitute deadly force, that force “which is intended or likely to cause death or great bodily harm.” Deadly force may only be used to protect yourself or another person when “necessary to prevent death or great bodily injury. . . or to prevent the commission of a forcible felony.” O.C.G.A. §16-3-21(a). Should you respond to a threat that is non-deadly in nature with deadly force (or one that does not constitute a forcible felony, such as murder, rape, armed robbery, or aggravated assault; any felony that contains an element of force), it would allow the other person to respond in kind with deadly force against you. Additionally, you may be the one charged.
Reasonableness. What action would be required of a mob or any of its members to generate a fear of death or great bodily injury that justifies the use of a weapon like a car in the eyes of police, prosecutors, judges, and juries? If the protestors attempt (or reasonably appear to attempt) to forcibly enter your vehicle or the vehicle of others, this could certainly constitute reasonable grounds to fear an imminent deadly force attack. Such conduct would include the smashing of windows or attempts to force open doors. The same applies to attempts to set vehicles on fire, or to flip vehicles over. Generally, a defender need not necessarily wait until the protestors have turned violent against his particular vehicle: If members of a mob have begun threatening or using deadly force against other blockaded vehicles, it could be considered reasonable to believe your own vehicle is likely to be next — you are, after all, legally entitled to defend yourself not just against the danger already occurring to you but also against the danger that is about to occur, that is imminent. But you must draw a reasonable belief from actual evidence around you, not merely speculate what might happen.
Kilgo went on to add, “If you find yourself in a mob situation, remember, you can’t just run anyone over with your car. It’s best to just keep moving, which may result in your bumping people out of the way with your car. However, this may be considered battery on your part, which is a crime. You may be arrested if you strike someone with your car, absent a legitimate threat to your life or the life of others. So it’s best to avoid those situations.”
“Perhaps most importantly,” Kilgo went on to say, “familiarize yourself with Georgia’s laws on the use of force, as well as such important legal concepts as the ‘Castle Doctrine’ and Georgia’s stand your ground law. The law can and does protect you in situations such as this, but you must be aware of what your rights are. While your best course of action is to avoid these often pre-planned demonstrations altogether and drive away quickly should you come upon one, knowing what you may legally do to protect yourself and your family in such a situation is your best protection.”
Independent Program Attorneys David Katz and James Phillips offered this summary of the law regarding the use of deadly force in Florida.
“Under Florida Statute Chapter 776, Section 776.012(2),” says Katz, “A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”
Phillips added, “If you use or threaten to use deadly force in accordance with this subsection, you do not have a duty to retreat and have the right to stand your ground, so long as you are not engaged in a criminal activity and are in a place where you have a right to be.”
“You are presumed to have held a reasonable fear of imminent peril of death or great bodily harm if the other person was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered your occupied vehicle, or if that person had removed or was attempting to remove you against your will from your occupied vehicle,” Katz pointed out.
For more specific information on this and other Florida gun laws, click the Florida Gun Law: Armed And Educated book link at the bottom of this post to order your copy.
According to Independent Program Attorney Justine McShane, the law of self-defense in the Keystone State is similar to the law in Texas, but different in significant ways.
“The Pennsylvania self-defense statute provides that use of force is ‘justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.’ 18 Pa.C.S. § 505.”
In fact, McShane has written a blog that addresses self-defense law in Pennsylvania. It can be found here.
For more specific information on this and other Pennsylvania gun laws, click the Pennsylvania Gun Law: Armed And Educated book link at the bottom of this post to order your copy.
To learn more, we also encourage you to attend a Gun Law Seminar and get further instructions from our Independent Program Attorneys in your state. Click here to find a seminar in your state.