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The problem.

Explaining the Deadly Force Decision to the Customer

Part I: "The Problem"

The first in a ten part series; Ayoob erects the framework of what the law demands when a citizen decides to use deadly force.

This is heavy material. We are talking about what society calls the death of a citizen, and adjudicates as such, even if the citizen was the sort of person who made the lead male character in Silence of the Lambs look well-adjusted and copesetic.

Can this put the dealer in a trickbag? You bet. If one of your employees gives this customer some flip off-the-cuff BS like When in doubt, shoot, or Drag him inside and put a kitchen knife in his hand, or Look both ways for witnesses and leave, both he and you can wind up in the hotseat at the local hall of justice.

If the customer actually carries out any of that epidemic and stupid advice, he or she is quite likely to be criminally charged and civilly sued. He will, you must assume, go to a sharp defense lawyer who just might apply a creative variation of the doctrine of collateral estoppel. This defense, in essence, is saying "I did it because the authorities told me to."

The dealer, of course, is not the authorities. He is, however, an authority in the field. In a civil lawsuit, the dealer absolutely can and probably will be jointly and severally sued as one of the causers of the shooting in question. Criminal court? Well, if the gun buyer actually did something as stupid as dragging the shot suspect inside and planting a kitchen knife in his hand, and the shooter said "I did it because Joe's Gun Shop told me to," an aggressive DA absolutely can get the gun dealer indicted for subornation of perjury. He in essence told his customer to lie to the authorities and alter the evidence, and telling someone to lie under oath is the very definition of subornation of perjury. In many states, subornation of perjury is a felony. Enough said.

Where can one be certified to teach judicious use of deadly force? It is encompassed in the firearms instructor schools done by FBI, Smith & Wesson Academy, and state-level Peace Officer Standards and Training (POST) academies. The NRA's Police/Security instructor program touches on deadly force decision making, but not the standard rifle/pistol/shotgun instructor courses. The NRA Home Firearms Responsibility instructor program skirts the issue by requiring the instructor to bring in a police officer or an attorney to speak for an hour on the subject.

The key thing, of course, is that the advice you give be the correct advice. Let us, in this column and the next several, erect just the bare framework of what the law demands when a citizen takes up the power to kill a human being in self defense.

First, let us define the force we are talking about. Lethal force (or deadly force; the terms are interchangeable) is That degree of force which a reasonable and prudent person would consider capable of causing death or grave bodily harm.

Did your employee encourage the buyer to fire a warning shot if the suspected bad guy looked at the customer cross-eyed? Bad news. Firing a gun at a human being is an act of attempted murder. I just got off the phone with a defense lawyer who wanted me to help his client, who is charged with attempted murder because he allegedly struggled with a police officer for the cop's holstered weapon and the pistol went off. No one was hit and the drunken client was subdued. Given the details of the circumstances, there was nothing I could do for the guy. If the lawyer doesn't plea bargain him, I expect this man to be convicted for attempted murder. That's what it is when you fire a gun, or cause one to be fired, in the direction of someone you have no right to kill.

Did your employee tell the gun buyer, "If someone looks suspicious, just pull out the gun and show him you've got it. Yessirree, pulling a gun on a bad guy makes 'em just fold up and go away." Aargh. The pointing of a gun at a human being, or otherwise making it reasonably and prudently clear to that person that you were about to shoot him, constitutes the very serious felony of aggravated assault. If the poor dumb customer does what your clerk told him, about the best you can hope for will be the following headline in your town paper: "Man Takes Gunshop Advice, Is Sentenced to 2-7 Years." Quite apart from the human tragedy and other ramifications, that should do a whole lot of good for your business, and your credibility in the community, huh?

The mere flashing of a holstered weapon that is never drawn disturbs the peace, and can be interpreted by a prosecutor as "brandishing a firearm." Most people think you have to draw a gun to brandish it. Actually, a dictionary definition is, "1. To wave or flourish (a weapon, for example) menacingly. 2. To display ostentatiously."

Now, pulling back one's coat to reveal a .38 is about as ostentatious as a display gets. I say this from both common sense and experience. If you doubt that an aggressive district attorney can convince a jury that pulling back a coat to flash a handgun can be brandishing, you have not yet gotten wet in the shark-infested courtroom waters I've been swimming in for some time now.

Pause for a moment and look at it from the other side. You pull into a parking space, and some guy you didn't see starts screaming that the space was his. You try to ignore him. He pulls open his coat and you see a gun in his belt. Would you feel that he had brandished a gun at you? Would you be threatened by that? It doesn't take a shark to prosecute such a case.

Of course, flashing a gun -- or pointing one at a person -- or even shooting that person can be justifiable under certain circumstances. In the next issue, we'll begin to lay that situation out, in a manner that will be geared for the dealer and his staff explaining these facts to the customer who expects the knowledge to come with the gun he or she is buying.
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Title Annotation:explaining the deadly force decision to the customer, part 1; Massad Ayoob on Lethal Force
Author:Ayoob, Massad
Publication:Shooting Industry
Article Type:column
Date:Jun 1, 1991
Words:1070
Previous Article:What's selling.
Next Article:Zero in on profits with pre-finished stocks.
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