Where Even Prosecutors Can't Carry

Uncle links to a story about a man who fires some warning shots because a gang of, well, gang members was threatening him. The comments discuss the wisdom of warning shots and legal implications.

Here's some additional background. The Nassau County DA's Office is reeeaaaally anti-gun. The office has a policy of barring handgun ownership by its employees. That's in great contrast with a lot of places like Virginia, where prosecutors can carry concealed anywhere, even in bars while drinking, without the training necessary for a concealed handgun permit. Because they're like you and me, only better.

Here is the application for assistant district attorney, and here is the one for interns. Note the following in background questions:

Applicant Questionnaire: Yes or No
3. Have you ever had a license to possess a firearm in this state or any other state?
...
NOTE: AN AFFIRMATIVE RESPONSE WILL NOT NECESSARILY SERVE, IN AND OF ITSELF,
AS A DISQUALIFICATION FOR EMPLOYMENT

And the closing (signature-required) condition:
Gun ownership: I understand that assistant district attorneys are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney. Any exception to this policy must be in writing and approved by the District Attorney.

So, anybody think that this attitude may, even unconsciously, affect the judgment of the prosecutors in this case?

There's nothing so egregious as this in Virginia, but I discuss a lot of relevant self-defense considerations such as the standards for the use of deadly force in Virginia in my legal seminars. Next one is October 23, 2010; contact me to sign up.

Required Reading for Concealed Carry

Here is a good write-up of a self-defense shooting that went to court twice. HT Snowflakes in Hell

The defendant, Mr. Hickey, was involved in a self-defense shooting when he was attacked by three neighbors in his own driveway. He was charged with aggravated assault and spent 71 days in jail. Massad Ayoob gave expert testimony in the second trial, possibly saving Mr. Hickey's bacon.

One of the commenters notes that Mr. Hickey's wife might have been treated better by the police, and that's probably true. Hickey is a part-time firearms instructor and trains troops preparing to deploy.

The write-up is the September newsletter for the Armed Citizens' Legal Defense Network, an organization that provides legal assistance to members that have to defend their self-defense actions in court.

AR vs. Shotgun for Home Defense

James Rummel takes me to task for my first and second posts on whether an AR makes a good home defense firearm.

As he puts it:

In the second post, Dave devotes the very first paragraph to the issue of verpentration. After that it is rather pointedly ignored. Strange, as I think
that it is the one issue that should be discussed the most.

What I said was:

Let me start by saying that I'm not making a recommendation one way or the other. If you can intelligently explain your choice of defensive tools, then drive on with your bad self. If I decide to equip the hearth and home with an AR, I've got the fact that Uncle Sam spent a bunch of time and money teaching me how to use it, I've fought overseas with one, and there's simply no firearm that I perform better with. Apartments may not be ideal keeping AR rounds out of your neighbor's place, but according to the Box O' Truth, pistol rounds go through sheetrock pretty well too. So maybe the overpenetration concern is universal if sheetrock is all that separates you from next door. I wonder what separates townhouses from each other. Anyone
in construction have a line on this?

I'm not sure where James gets a lack of concern on my part on overpenetration liability in urban settings. I said that if you live in an apartment any round could punch through the walls. I wondered what the barriers are between townhouses, the norm in Northern Virginia. I don't have my place AR-equipped for the reasons he lays out - because I don't know what ballistically separates me from my neighbors. That's concern for overpenetration, and I asked about what separates me from shooting a neighbor. I'm not blowing the issue off.

'Cause houses come in different forms. The average NoVa townhouse was built in the late 1970's or so. If it were a slap-dash early 2000's structure there's no way I'd shoot an AR inside the house, but I don't know how much sturdier the older places are. New construction in parts of Florida is hurricane-resistant, so there's a cinderblock skeleton underneath that retro-Miami Vice adobe exterior. So go crazy down there. Here? My place? No idea.

Checking at The Box O' Truth reveals a few things. In Installment #1, we find out that pistol rounds and .223 penetrate pretty well. Here we discover that shotgun rounds penetrate to a varying degree - small shot not so much (but it doesn't do a good job of stopping a pissed off assailant) - slugs too much. 00 Buck may fit a sweet spot, who knows? In Installment #3, we find that 00 Buck penetrates 8 sheetrock boards, which is 4 walls.

As the folks at Box O' Truth put it:

But doesn't 00 Buck penetrate too much in interior walls to be a "safe" load in a home?
Yes, it does penetrate a lot. But any load that is going to be effective will need to penetrate walls to have enough power to penetrate bad guys. If our only concern was to be sure we didn't penetrate walls, we would use BB guns. However, BB guns will not stop bad guys.

And, as they said at the end of #2:

I have brick exterior on my home. I do not have to worry about any round exiting my home. The brick stopped all rounds tested.

So, we must use loads that will STOP bad guys, and this means that they will also penetrate walls. Be sure you hit the bad guy and do not shoot into walls where innocents are on the other side, because anything short of brick is really just concealment, not cover.

The guys in the comments at Snowflakes in Hell make the case for a short-barrelled and suppressed AR. Which, if you want to shoot a rifle indoors and reduce the overpenetration risk is a good way to go. So is frangible ammunition, as these guys point out. There's a spread of opinion at Uncle's place.

Bottom line:
1. What are the your exterior/dividing walls made of?
2. What bullet weight/type are you using, and through what length of barrel?
3. Will #2 punch through #1?

Calibrate your home defense rounds accordingly.

Shoot Him to the Ground - and Yourself in the Foot

Matthew Temkin has a video out he calls "Shoot Him to the Ground." I think that this is neither good shooting technique nor smart tactics, as Jason points out. Worse yet, it could help get you prosecuted. Here's the YouTube of the promo:



The tactical implications of charging one-handed at your assailant are bad enough. Guns are effective missile weapons because they take you out of melee distance. If you have to shoot someone at arm's length, so be it. Many self-defense encounters happen at spitting distance, but that's no excuse to put yourself there if you don't have to. It's worse with multiple assailants, where retreating to cover while firing, or sidestepping to "get off the x," may be the best course of action. Distance is your friend.

The legal implications, depending on the state, could be terrible. Some states, in spite of a strong "Castle Doctrine" statute, maintain a generalized duty to retreat (if possible) outside the home. I'm looking at you, North Carolina, California of the South. If you have a duty to retreat when possible, then charging your assailant and firing your last round while standing over him is a pretty bad idea. Witnesses may provide a less-than-flattering account of your actions. "Joe was just talkin' to this guy and reached in his pocket, when the defendant whipped out his gun, ran at Joe and blazed away, puttin' the last round in his eyeball!"

That defensive shootings outside the home that occur in North Carolina (and other states with a duty to retreat) where sumdood's intended victim didn't retreat is a testament to prosecutorial discretion, or at least prosecutors' recognition that the upstanding citizen defended herself against a violent assailant, and that no jury will convict on those facts. Like in this case.

Bottom line: I don't plan to buy Temkin's video, nor use his tactics.

More on the AR for Home Defense

My post yesterday on using an AR (or AK, I suppose) for home defense elicited a few comments worth discussion.

Let me start by saying that I'm not making a recommendation one way or the other. If you can intelligently explain your choice of defensive tools, then drive on with your bad self. If I decide to equip the hearth and home with an AR, I've got the fact that Uncle Sam spent a bunch of time and money teaching me how to use it, I've fought overseas with one, and there's simply no firearm that I perform better with. Apartments may not be ideal keeping AR rounds out of your neighbor's place, but according to the Box O' Truth, pistol rounds go through sheetrock pretty well too. So maybe the overpenetration concern is universal if sheetrock is all that separates you from next door. I wonder what separates townhouses from each other. Anyone in construction have a line on this?

As Tim pointed out, Harold Fish's prosecution for murder was an outlier, and not a good gauge of what to expect if you use force in self-defense. However, Arizona's laws at the time, where self-defense is an affirmative defense, remains the rule in the overwhelming majority of the states. That's IF you get prosecuted. Prosecutorial discretion is the factor that makes most self-defense shootings remain news stories and not court cases.

Frank W. James weighed in to point out that the castle doctrine makes the weapon a non-issue inside the home. That's true in certain instances. But all "castle doctrine" statutes are not created equal. Some are really "stand your ground" statutes that remove the duty to retreat outside the home. Some are just laws strengthening defense of habitation claims.

Take North Carolina, the California of the South in terms of gun laws. The Castle Doctrine statute is really a defense of habitation measure. If a lawful occupant is preventing or terminating unlawful entry that they reasonably believe is going to harm/kill someone inside or commit a felony, then the lawful occupant can use any level of force against the intruder. But once they are inside, then the proportionality of force requirement applies, but without the duty to retreat (if reasonable) that exists outside the home. If you come downstairs for a glass of milk at night and find an intruder already inside who does nothing to threaten you, then ejecting a trespasser is supposed to be done first with "gentle hands." The NRA-supported bill to change this state of affairs bogged down.

Virginia doesn't have a castle doctrine statute, but the case law on self-defense is such that you'd have to really screw up to get prosecuted for shooting someone in your own home. There's a lot more to that explanation, and it takes about three hours.

Frank also had some smart things to say about magazine retention and bugging out if society breaks down or the zombiepocalypse hits us. Then he said some more smart stuff. Good blog, now on the blogroll.

AR for Home Defense?

A reader (and attendee at one of last year's legal seminars) writes to ask about whether the Great Black Rifle Buying Spree of recent years has removed the stigma possibly associated with using an AR-15 in a self-defense scenario.

This is a good question to ask in Northern Virginia, since one of the few instances of using an automatic weapon (yes, I know that AR-15's are not fully automatic, but bear with me) in self-defense happened in Fairfax County a little over 25 years ago. Gary Fadden used an AC556, the select-fire version of the Ruger Mini-14, to defend himself against a belligerent assailant that chased Fadden and Fadden's fiancee until they had nowhere else to retreat to. Massad Ayoob's excellent write-up is here.

Fadden believes that if he had used a pump-action shotgun to kill his attacker, then he wouldn't have been prosecuted.

So, is it unwise to put your AR in the closet as a tool to use against home invaders?

Two things to note on this issue.

First, ANY gun can be demonized by a prosecutor to allege that the defendant acted outside the bounds of self-defense or was otherwise up to no good. Harold Fish was walking a trail in Arizona in an area where mountain lions roam, armed with a 10mm loaded with hollowpoint ammunition. If you were to ask me what gun to carry for mountain lion, I would tell you to carry what Fish had. Yet when he killed a man who charged him on the trail with (presumably) murderous intent, the prosecutor railed on about what an overpowered gun Fish had and how the bullets he carried would violate the Hague Regulations (not the Geneva Conventions, a popular misconception) if used on the battlefield. Never mind that the cops in Arizona (and everywhere else in America) carry hollowpoints for the same reasons Fish did.

Second, there is no solid answer as to whether your particular choice of carry gun or home defense longarm will strike a jury as evidence of murderous intent. Harold Fish was demonized as a vigilante and convicted of murder in Arizona, not San Francisco. The jury selection process makes a big difference in this regard, and you never know what you're going to get. I suspect that the concealed carry revolution of the 1990's and two Supreme Court decisions supporting a right to keep and bear arms for self-defense move the general direction of public support in favor of self-defense claims, but I also suspect that the urbanization of Northern Virginia makes it less gun-friendly than the rest of the Commonwealth.

If I decide to put a longarm (shotgun or black rifle) under the bed or in the closet, I'll use one of the action locks that GunVault produces: AR and shotgun versions available. And I'd put a light on it.

What are your thoughts on using an AR for self-defense?

By the way, I've scheduled two legal seminars for Saturday, October 23rd. If you want to get certified for a Virginia Concealed Handgun Permit, let me know and we can do range time afterwards, meeting the requirements for your permit AND giving you a good legal education on self-defense in the Commonwealth. Contact me if interested.

Security Guard Attacks Open Carrier

Yes, you read that right. An open carrier in Georgia gets attacked by a security guard at a big box store. The OC'er promptly knocked out the guard and the cops show. Reading through the posts (so you don't have to) the OC'er won't be charged with anything.

Self-Defense and Negligent Discharge Stories

A South Carolina resident gives his story on how a Glock 27 saved his bacon here. Pretty good write-up, warts and all. (H/T Sebastian)

Two men involved in a negligent discharge at a gun show get community service.

North Carolina case: would-be burglars chased off, man who fires shots at them as they are leaving is cited for discharging a firearm within city limits.

Asserting Your Rights

The excellent Flex Your Rights organization spells it out. Text at the link, video below:

Why You Shouldn't Talk to the Police

Here's a good law professor-cop duo spelling it out for you.

Negligent Discharge in Virginia = Class 1 Misdemeanor

I talk about this in my legal seminars, but you don't hear about too many of these incidents. A guy dropped his Glock, tried to catch it while it was falling, and caused a Negligent Discharge (ND). (H/T Uncle)

The posting at AR-15.com is already at eight pages of discussion, but the bottom line is that if you put a round through your wall and it goes through the next three townhouses, expect the law to get involved. Also, Glocks have internal safeties that prevent a discharge upon impact with the floor. Let it drop.

Don't Brandish in a Bank

You'd think this would go without saying, but some guy in Florida did so rather innocently. In an open carry state like Virginia this is less of a problem, but since Florida has no open carry even casual exposure of a concealed handgun is a big deal. Read the whole thing. (H/T Robb)

George the Travelling Salesman and the Joy of Go-Pants

A story about pants compelling enough to make Robb wear some.

A couple of weeks ago an odd fellow dropped by the house late on a Saturday night claiming to be a travelling salesman named George. He wasn't much of a salesman, and it seemed like a ruse to determine who was home that night and who wasn't. Plus, there was a white van trolling the neighborhood that was probably linked to George. Presumably it contained his accomplices who had plenty of cargo space in their vehicle to cart off televisions and the like.

I called the cops and suited up in my Go-Pants.

What are Go-Pants? Somewhere in between not being armed and strapping on a tactical vest and an AR-15 to survive the zombiepocalypse is a useful set of tools to deal with the problems that present themselves on a more regular basis. If you are out and about running errands, it may be a concealed handgun, a spare magazine, and a cell phone. When things go bump in the night it helps to have an emergency kit set up to deal with it. I'm a firm believer in being able to wear my emergency kit - my Go-Pants.

Go-Pants are what I have staged under my bedside gun safe. Handgun is locked up in a small safe, loaded and equipped with a rail-mounted light. Go-Pants have a retention holster, magazine pouch, two loaded magazines, and a separate flashlight with a neck lanyard. Plus plenty of pocket space to hold a cell phone, keys, and identification. If I have to leave the bedroom during a break-in (not Plan A) I'll be wearing them.

Picture of said Go-Pants below:



Yes, technically they are Go-Shorts - it's summer. I've played with a different name for them, but Readiness Trousers doesn't have the same ring.

Here is Clint Smith of Thunder Ranch describing a similar concept, a pouch with a neck lanyard to hold your spare magazine, cell phone, light, and keys:



The great thing about shooting competitively is that this is essentially my IDPA competition rig. So, all that time spent standing around with a gun on one hip and two magazines on the other isn't wasted - my magazines are where I am used to them being and I've got tools to deal with a lot more than I do with just a gun.

Back to George the Travelling Salesman. The police showed up and took him into custody for unlicensed soliciting. When they came to the door to take a statement from me, I stepped out on to the porch with my Go-Pants on. This is another advantage over carrying your defensive handgun around, a legal one. Open carry is legal in Virginia, but it ought to be done sensibly when the police are called to your location to investigate suspicious activity. A conversation with the police with a gun on your hip and one with a gun in your hand are two entirely different experiences. I'd bet there's a pretty clear change in tenor when you walk out of the front door with a gun in your hand.

Feedback from a friend in law enforcement advises me that I ought to add a cover garment to my kit to avoid being mistaken for the suspicious activity the police are looking for. This seems sensible, especially if something drew me out of the house while they were on their way. I can't think of what that might be, but it's a good reason to stage the whole IDPA kit, vest and all, under the nightstand.

Feel free to give some feedback on what I ought to add to the Go-Pants kit. Does anybody else keep a similar setup handy?

Hampton Roads Shooting Ruled Justified

The Hampton Roads shooting I posted about earlier prompted no prosecution. The store owner that shot the thief at his place of business will not be charged.