Guest Post: Defensive Gun Use - Self-Defense and the Rule of Law

By Bruce Lawlor

One talks about how often people use firearms in self-defense at great peril. It is a name your poison debate. The studies are all over the place, ranging from a low of between 55,000 to 80,000 incidents per year1 to a high of 4.7 million incidents per year.2  Both sides of the gun control argument cite the need for self-defense, or the lack thereof, in support of their respective positions, and both sides twist the numbers to mean what they want them to mean. Mark Twain was right. There are three kinds of lies: lies, damn lies, and statistics.3

Still, the studies provide some insight into the exercise of self-defense if one is willing to accept the research’s unsettled state. Except for true believers in the anti- and pro- gun crowds, few people think the number of defensive gun incidents each year is as low as 55,000 or as high as 4.7 million. In this discussion, it's best to avoid focusing on a specific number and just accept Mark Twain's admonition, unless you like spending countless hours wading through false assumptions, questionable extrapolations, and card-stacking conclusions in search of agenda based opinions.

A good place to look for trends versus numerical certainty is a paper published in 2013 by the Centers for Disease Control and Prevention entitled “Priorities For Research to Reduce the Threat of Firearm-Related Violence.” An Obama Administration initiative, the paper surveyed the current literature and highlighted areas where its authors felt more research would be valuable. It was pretty much what one would expect from a federal agency advocating for more money, but some of its findings contradicted the administration’s preferred narrative about gun violence. The departure from Obama orthodoxy brought praise from proponents of the 2d Amendment, and criticism from gun control advocates. In fairness, had the report's findings been just the opposite, that is, supportive of the administration's view, the only difference in the praise and criticism would have been its originators. Such is the gun control debate.

The CDC's paper found that “almost all national survey estimates indicate that defensive gun uses by victims are at least as common as offensive uses by criminals, with estimates of annual uses ranging from about 500,000 to more than 3 million per year.”4  It also found that people who use firearms to protect themselves had lower injury rates then “victims who used other self-protective strategies.”5 These two findings are relevant to the law of self-defense because, even if the lowest estimate of defensive gun use is accepted as the right one, a lot of Americans are using firearms to protect themselves from danger every year. Moreover, the paper seems to say that for those inclined to fight back, firearms are the most effective means to avoid or reduce injury.

Couple these findings with the fact that four of every ten U.S. households has a gun, and sixty-three percent of Americans believe that having a gun in the house makes it a safer place6, and it underscores the need for people to better understand how the law treats self-defense shootings. The rule of law exists to control behavior, but it also exists to protect ordinary people from the arbitrary abuse of power by those who are simply powerful, including those who would use unlawful force to threaten their lives and well-being. Regardless of the exact number, people in the United States use firearms to defend themselves thousands and thousands of times each year, and we need to do a better job of helping them to understand what the law says they can and cannot do.

(Bruce Lawlor is the author of a new book When Deadly Force is Involved.  In the book Lawlor explains the legal concepts that have become duty to retreat, castle doctrine and stand your ground.)
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1 David Hemenway, Survey Research and Self Defense Gun Use: An Explanation of Extreme Overestimates, 87J. CRIM. L. & CRIMINOLOGY 1430 (1997).
2 Philip J. Cook and Jens Ludwig, "Guns in America: National Survey on Private Ownership and Use of Firearms", NIJ Research in Brief, May 1997.
3 Mark Twain, "Lies," http://www.twainquotes.com/Lies.html
4 Institute of Medicine and National Research Council of the National Academies, Priorities for Research to Reduce the Threat of Firearm Related Violence, (Washington, D.C.: The National Acadamies Press, 2013) p. 15, https://www.nap.edu/read/18319/chapter/3#15
5 Ibid, p. 16.
6 Justin McCarthy, "More Than Six in 10 Americans Say Guns Make Homes Safer," GallupNovember 7, 2014, http://www.gallup.com/poll/179213/six-americans-say-guns-homes-safer.aspx

When Deadly Force is Involved

There is a new book by Major General (Ret.) Bruce Lawlor titled: When Deadly Force is Involved: A look at the legal side of Stand Your Ground, Duty to Retreat and other questions of Self Defense.  He shared pre-publication portions of the book with VSSA Board Members earlier this year and now that the book is out, John Caile of USCCA has done a review.  From Caile's review:

“[This book] describes a legal framework for thinking about self-defense that is applicable everywhere. It doesn’t focus on the laws of any one state, nor does it compare the laws of one state with those of another.”

This is where Mr. Lawlor’s approach is especially effective. Most self-defense writers spend time dissecting particular court rulings with their arcane and often confusing legal jargon. In addition, too often the results of one case are used to predict that a defendant in a different but similar case will “surely be acquitted” (or just as surely “convicted”).

Instead, Mr. Lawlor creates intriguing fictional “composite” cases, drawn from his considerable experience, each of which highlights a particular aspect of self-defense law (provocation, imminent harm, reasonableness of fear, retreat, etc.), as well as covering how laws such as “Castle Doctrine” or “Stand Your Ground” are interpreted by judges and juries.

This approach allows the author to use his excellent storytelling skills to, like a good novelist, create much deeper and more complex images of the various participants involved. We get to know them intimately, their histories, their views, even their emotions. We know not just what they did, but what they were thinking when they did it. This makes the cases more memorable, and the legal realities we are likely to face that much easier to understand.

Lawlor is currently the Director of the Center for Technology, Security, and Public Policy at Virginia Tech. When he met with the VSSA Board, he was asked why he wrote a book about self-defense, a subject usually thought of as being about guns. He explained, “While I confess to being pro 2nd Amendment, that is not what made me write the book. Rather it came from thinking about homeland security, and about the individual’s responsibility for his or her own protection.”

The book takes on each element of the use of deadly force and explains what happens after a person uses deadly force to avoid being killed or seriously injured. It is based on actual shootings. There are fifteen chapters that discuss the major legal issues that surface in virtually every self-defense case. Each chapter describes a different shooting incident, how the authorities handled it, and most importantly, why it was decided the way it was. When Deadly Force is Involved provides a practical working knowledge of how the law of self-defense works, removing some of the mystery that surrounds what appears to be a hodgepodge of statutes and court decisions.

Lawlor was also interviewed earlier today by NRATV's Cam Edwards.  He spoke about why he wrote the book and the approach he took.