Sunday, December 14, 2014

Conceal Carry and the Use of Deadly Force by Mike McDaniel

There are two primary bodies of law with which anyone carrying a concealed weapon must be intimately familiar: the specific laws of their state that regulate concealed carry and the laws regarding the use of deadly force–in general–and those specific to their state. 

Of particular concern are the places where concealed carry is prohibited as most people have their permits suspended for accidentally carrying their handguns into such places.  These restricted zones vary from state to state, so it’s always wise to carefully research this issue and avoid violating those laws… 

State LawsThese regulate who is allowed to carry, the related fees, forms and tests (usually written and shooting), terms of license validity and the means of renewal, specified manner of carry (open, concealed or both) and specific zones and places wherein firearms may not be carried by licensees.  

They also commonly list states with whom reciprocity is shared.  In other words, states that have entered into a compact of mutual respect for the concealed carry licenses of their respective citizens.

Most states–at last count, 39–are “shall issue” states.  In other words, if you meet the criteria for concealed carry under the law, no public official may deny you a license.  Illinois was the only state where concealed carry was absolutely prohibited, but recent court orders have drug the legislature and Chicago political machine kicking and screaming into new and at least tentative compliance with the Second Amendment, though that battle goes one.  

However, in others–such as California–a “may issue” system is in place where local sheriffs or state officials have absolute authority to decide who will be allowed a license.  In such states, licenses are normally granted only for the wealthy, well-connected, politicians, or similar worthies.  The National Rifle Association website maintains an up-to-date database of state laws under its Institute for Legislative Action tab…

Another vital state issue is preemption.  The legislatures of many states have passed preemption laws that prevent cities within those states from passing and enforcing different—usually more restrictive—firearm laws than those in the state statutes.  In the states that do not have preemption, one may be committing multiple crimes simply by driving across city limit boundaries. 

What is completely lawful on one side of an unmarked border is a crime on the opposite side.  New York City and New York State are obvious examples of this issue.  Again, it is vital to be fully aware of the law wherever you live and wherever you travel.  DO NOT, by any means, expect the police or prosecutors to be just or rational where firearms are concerned…

Reciprocity is likewise important.  Many states have entered into agreements with other states that allow concealed carry to mutually honor their licenses.  Circa March, 2013, a bill for national concealed carry reciprocity (H.R. 822) passed the house; however, it stalled in the Democrat-controlled Senate.  

Considering the current push for gun control in that body, passage is unlikely, certainly for Barack Obama’s second term. Obama promised in his most recent State of the Union address to use Congress-skirting executive orders and administrative regulations to impose gun control measures.  One may be reasonably certain that he will live up to this promise if no other…

Municipal laws may also have some bearing, but only in those states that lack a state preemption statute.  Ultimately, the point is to become very familiar with any state or local laws that might apply, not only where you live, but where you plan to travel.  Even those states with reciprocity agreements with your state are sure to have some significant differences in law, and you are required to follow the law wherever you are, even if it differs from the law in your home state.

The Doctrine of Deadly Force:

The laws of some states are more lenient than the general principles of the use of deadly force, while some are more restrictive.  The question is: when is the use of deadly force justified?  Answer: when necessary to halt the imminent threat of serious bodily harm or death to you or another person.

Andrew Branca definitive book, The Law of Self Defense,  is a must reading for anyone concerned about these issues and adds several other related criteria/concerns:

Innocence: the defender must not be the initial or unlawful aggressor. People engaging in mutual combat can’t claim innocence. They’re not engaging in self-defense.

Imminence: this is another way of expressing the concept of jeopardy. One can’t use deadly force against an attack that might happen at some time in the future. The danger must be real, clearly about to occur–within fractions of a second or seconds, or already occurring.

Proportionality: the threat can’t be humiliation or minor injury. If the only thing in jeopardy is hurt feelings, even a punch in the nose might not be proportional. A reasonable person must believe he or she is facing a threat of serious “grave” or bodily harm.

Reasonableness: A reasonable person of the same knowledge, abilities and in the same circumstances would be compelled to use deadly force.

State laws vary, using different terms, and it is everyone’s responsibility to be aware of the law in their state of residence. Some states particularly allow the use of force–even deadly force–under circumstances where others do not. What this basically means is that in any situation in which a reasonable person would believe that they–or another–was faced with the imminent–as opposed to possible or future–threat of serious bodily injury or death, deadly force is a reasonable response. 

Of course, running away might also be a wise and reasonable response, but only if it is reasonably possible.  In states that have enacted the Castle Doctrine or a “stand your ground” law–more about that later–it is not required, but it may still be a good idea.

It’s important to understand what “serious bodily injury” means. While the legal definition will tend to vary somewhat from state to state, it essentially refers to injury that, while not deadly, is crippling, seriously disfiguring; one that will have a continuing, negative impact on the quality and longevity of your life from the moment it is inflicted… 

Gunshot wounds are ugly, nasty and can be permanently debilitating.  Equally, cuts inflicted by edged weapons like swords or knives can be as debilitating and in many ways, far more horrific and ugly.  Many police officers that survive a gunshot wound may be physically healed, but never fully recover psychologically. Broken bones from a beating would also certainly qualify. The greatest problem is how do you know what injury the next blow delivered by hand or foot will cause?  Will you be merely bruised?  Will bones be shattered?  Will you be blinded, brain damaged, crippled, even killed?

…The means for determining–on the spot–if deadly force is necessary and justified is to apply the “means, opportunity, and jeopardy” test.  Keep in mind that this explanation assumes that you are the innocent party; you have not provoked or initiated the confrontation. It also assumes that a reasonable person of the same abilities in the same circumstances would be compelled to apply deadly force. There are a variety of similar terms/acronyms, but they all boil down to the same thing:

Means: Does your opponent have the means necessary to cause serious bodily injury or death?  If you are a 100 pound, five-foot woman, any man of average size and strength would almost certainly have the means necessary to cause serious bodily injury employing only his bare hands–if he is close enough.  Someone with a gun certainly would.  Someone with a knife, almost certainly, and someone holding a variety of other instruments would also pose such a threat.  Someone known to be highly skilled in a martial art, even if he or she is smaller than you, might also have the means.

Opportunity: Does your opponent have the opportunity to cause serious bodily injury or death?  An attacker armed with a handgun certainly does…, perhaps as much as 50 yards away, although there is always such a thing as a lucky shot even at greater ranges.  An attacker armed with a rifle has a much greater dangerous range.  Someone armed with a knife is dangerous to a minimum of 21 feet, perhaps even more, as practical experience demonstrates that even an average person with a knife can move 21 feet before he or she can be shot and/or stopped by a handgun-wielding victim.  Practicing for this possibility is commonly known as the Tueller Drill…  

If a knife-wielding opponent (at a greater than 21-foot distance) appears as though he or she will throw the knife, a reasonable person must assume that the attacker can cause serious injury or death at a distance with that knife.  Other tools such as hammers, bats, screwdrivers, etc. are also dangerous if the person wielding them is close enough and, arguably, throw them from a reasonably close distance…

Jeopardy: is an attacker acting in such a way as to indicate to a reasonable person that he or she might be in imminent danger of serious bodily injury or death?  …Someone standing across the street with a knife yelling threats is not putting you in jeopardy, but when they begin to run toward you, jeopardy increases enormously with each foot gained…

Shooting to Kill: YOU MUST NEVER SAY, OR EVEN THINK, THAT YOU SHOOT TO KILL.  You never shoot unless the requirements for means, opportunity, and jeopardy test have been satisfied… You shoot only to STOP the attacker from putting you in imminent danger of serious bodily injury or death.  To that end, you shoot as quickly and effectively as possible to immediately end the threat.

This might seem to be an exercise in semantics, but it is very important. If being investigated (or on trial for shooting another human being) regardless of how innocent you are and how reasonable and correct your actions, every word you utter and every intention you purport to have had will be vital to your freedom and future.

With that in mind, one shoots to stop an attacker, not because you wanted to kill someone but because you had no choice; because if you didn’t stop the attacker, you would have been seriously injured or killed. That they died as a result of being stopped is regrettable and a tragedy, but a tragedy they forced on you, an innocent person who had no intention of hurting them or anyone else. You are the innocent victim of a deadly attack, and you must say and do nothing to paint yourself as anything but an innocent, remorseful victim.

For the complete article, Click Here. 

Who is Mike McDaniel?

A veteran of the USAF and nearly two decades of police service, I served as a patrol officer, shift supervisor, division commander, juvenile detective, detective, crime scene photographer, firearm instructor, field training officer, and SWAT officer. These days I'm a high school English teacher and professional classical singer and guitarist/bassist. I compose and arrange as well. I'm also a fencer--European and Japanese--and bicyclist.


  1. It appears that the rules governing the use of deadly force are different if the one using the deadly force is white and the recipient of the use of deadly force is not.

    - Fred Klonsky