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I came across an interesting article today:
As usual, the media seems to get the legal terminology a little bit wrong. “Stand your ground” law best refers to “no duty to retreat,” which is in Sections C and D of LA R.S. 14:19 and 14:20, respectively. All that says is that the jury is not allowed to consider the possibility of a peaceful retreat as a factor in whether or not you acted in self-defense (if you were not engaged in unlawful activity yourself at the time of the shooting). Prior to this, the possibility of a peaceful retreat was a factor which was traditionally considered by the courts (though there was still no unqualified duty to retreat).
The problem faced by the shooter in this case is that there were plenty of factors that were against him without even having to consider the duty to retreat, so whether or not the duty to retreat was considered was almost certainly not the deciding factor. In this case, while deadly force was certainly justified while the robber was in his house actively robbing his family, by the time the robber was fleeing in his car there was no longer a threat. Further, since both the robber and the shooter were outside of the dwelling at the time of the shooting, the presumptions that the force was necessary were no longer present under 14:19(B).
It is strange that he (almost certainly) would have been lawfully allowed to kill this guy during most of the encounter, but he didn’t actually shoot until the threat had ended. It is hard to blame the shooter, considering what his state of mind must have been at the time, but it is an important lesson nonetheless. Once there is no longer a threat, the use of force is no longer justified. This is why regular mental/legal training is important – you will not have time to think hard about the circumstances when you are in the heat of the moment and will default to your internalized training.
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An armed robber was shot to death in Baton Rouge last weekend by an armed citizen after he attempted to rob the victim in front of a convenience store.
According to the news report, the robber was standing outside of the convenience store and asked the victim/defender for money. The victim said that he would give him some change on the way out of the store, which he did. Even after giving him some money, the robber decided that it was not enough. He pulled a gun and demanded more. The victim defended himself, drew his own pistol, and killed the robber.
Fortunately for the victim, the scene was captured on the store’s surveillance camera, which appears to be enough for police to believe that he acted in self-defense.
This sort of scenario is, unfortunately, all to common. I’m sure everyone has, at one point or another, been approached at a gas station or convenience store and asked for money. It happens to me all the time, and as a concealed carrier, it is one of the most frightening situations. While I have never been robbed, this story makes clear that this is always a possibility, and it is always a concern of mine when approached under similar circumstances. What makes it extra frightening for a concealed carrier is how quickly it can go from innocent to deadly, and how quickly you may be forced to make a life-or-death decision. You can’t pull a gun on someone simply for asking you for money. You are often boxed in between your car and the pump, and they can maneuver themselves to prevent your escape. Essentially, there are many such encounters where, no matter how aware you are of the situation, you simply cannot prevent a possible attacker from having the upper hand. This is precisely why criminals often choose these tactics. You can’t know if drawing your gun is justifiable until after a gun has been drawn on you, and you may have very limited options for escape.
In this case, even though the defender had to draw on a drawn gun, he was still able to defend himself successfully. However, it could very easily go the other way, so think very hard about that decision. If you choose to draw against someone who already has you at gunpoint, make sure to utilize movement and cover to the best of your ability – a moving target is harder to hit, and running and drawing are not mutually exclusive – they can be done together.
Finally, avoidance is important. However, as I stated before, I have not been able to avoid parking lot beggars many times, despite my best efforts. Sometimes you just have to go somewhere. Sometimes they aren’t there until you are leaving. In larger parking lots, there are many places to hide. If you drive up to a store and see a suspicious person in the parking lot, maybe the best plan is to keep driving and try the next store. But what if they appear after you’re in the store? You can’t just stay in the store forever, waiting to see if they leave. Calling the police may be an option, but most of the time a suspicious looking person is not actually suspicious and is not doing anything wrong. There are just so many reasons that total avoidance of this scenario is simply not practical.
Even so, it is important to make your best effort to both stay aware and stay collected. You don’t want to get ambushed at the gas pump or coming out of a store, but you also don’t want to be so afraid that you pull a gun on anyone who walks by and end up committing a crime yourself. Try your best to go to safer, well-lit stores and parking lots, and try to go when there are plenty of other customers around. However, unless you shut yourself inside forever, there is no guarantee that all of these situations can be avoided. So far, I’ve had a 100% success rate in dealing with these situations by simply telling people that I don’t carry cash. However, because I do carry a gun, it is important that I make my best effort to ensure that, if I have to use it, that I do so as responsibly and effectively as possible.
Yesterday, a Jefferson Parish Jury reached a verdict in this highly publicized case, sentencing the shooter to 30 years in prison for manslaughter. Take a moment to read this article.
I believe that the court reached the correct result in this case under our laws, at least based on the information I have. I have only read the news articles. I have not pulled the court records or anything. It will be interesting to see if this is appealed and reported as caselaw, in which case it may be very useful indeed.
But for the time being, here is what I believe happened, legally speaking. For the purposes of this discussion, I am assuming that the law was applied properly, and that neither the judge nor the attorneys made a grievous error of any kind.
As you can see from the article, “the trial showed [defendant Gasser] passed up many opportunities to defuse the situation by pulling off the road, calling 911 or even rolling up his car window.” This may, of course, cause one with any familiarity with Louisiana self-defense laws to ask: “but wait, I thought we had no duty to retreat!”
It does seem like the court imposed a duty to retreat on Gasser in determining whether or not he held the reasonable fear for his life that would justify a homicide. But why? After all, the justifiable homicide statute says, among other things, that “no finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.”
I believe it is the previous statement in that same statute that decided this case against Gasser (or, if it did not, could have anyway, which is what matters for the purposes of this discussion): “A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.”
I think this “engaged in unlawful activity” language likely vitiated Gasser’s “no duty to retreat” protections. Gasser apparently made a statement to police that he became irritated and set off after McKnight and they continued a “tit-for-tat” argument arguing as they drove. So it seems like Gasser, in engaging in a rolling car chase argument, was probably doing at least something unlawful during the course of the encounter. This was likely enough to remove his protections under the statute and allow the jury to consider his opportunities to retreat, which were many, in determining whether or not he held a reasonable fear. Being allowed to consider those facts probably made all the difference, as someone who truly feels threatened would take an easy opportunity to escape if presented with one, or would call the police.
I don’t think that a determination of who was the aggressor made the difference here, despite how much it was talked about in previous news articles, though it may have. I base this pretty much solely on the fact that they don’t mention it in this article with specificity, and don’t seem to discuss the law or trial in a way that would necessarily be consistent with the outcome relying on that determination. But, for the sake of this article, let’s run through some analysis of how it could have come into play. In Louisiana, the aggressor cannot claim self-defense at all unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. In this article, they were discussing whether or not his fear was reasonable, not whether he had the right to self-defense whatsoever, leading me to believe this was not the core issue.
However, it could have been important. The jury may have been considering his duty to retreat in terms of trying to decide if he was the aggressor or not. Had they found him to be the aggressor at any point, they would have to determine whether or not he had, prior to the shooting, withdrawn from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. This requirement of withdrawal from the conflict is, essentially, a duty to retreat. As I state in my classes, an aggressor does have a duty to retreat (withdraw) before he can claim self-defense.
So again, whether or not you look at it as “unlawful activity” or Gasser’s status as the aggressor that provided a duty to retreat, it seems like the court got this one right. It is a great example of why I call my operation “PaciFIST Firearms” and why I have my PaciFIST Principles. Even if the law does not impose a duty to retreat on you, if retreat is the better option (as it seemed to be in this case) retreat is a good idea. Even if McKnight started the altercation, this result goes to show you why taking the bait and choosing to engage further in an altercation, even if you didn’t “start it,” is never a good idea.
Piece be with you,
Everett C. Baudean
PaciFIST Firearms LLC
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