Firearms and Self-Defense Law - Part 3

This is the third in a multi-part series on Firearms and Self-defense Law. To reiterate, I am not an attorney and anything written in these articles should not be construed as legal advice. While I have taken a number of law classes and done extensive research, I am not an expert and in no way should be considered one. If you have any questions regarding what I have written or desire legal advice, I recommend you seek a competent firearms and self-defense attorney. Furthermore, if any attorney reads these articles and would like to add their input, please feel free and I will pass on the information in subsequent articles. I only ask that you include legal references with your comments so we may all learn. These articles are intended to help educate current and future gun owners so they can make better and more informed decisions regarding gun ownership and the application of force in self-defense.

In this article, we will introduce the legalities surrounding the citizen’s right to self-defense and right to use deadly force. If you have a NC concealed carry permit, much of this article should be old news as much of this material is mandated by the NC Department of Justice as part of the permit certification class. If you have not been through the NC concealed carry class, do not fret. This material applies equally to you.

As I discussed in P1 of this series, there are two types of laws that frame the totality of our legal constraints; Common Law and Statutory Law. Extensive writings from both of these types of laws hold that the individual has the right to defend themselves from attack. As a matter of fact, this belief can be traced back to English law and was embodied in our Declaration of Independence. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (bold by author)

However, as with all rights, the right to defend oneself is not unlimited and legislatures and courts have placed restrictions particularly on the level of force that is appropriate when defending oneself from attack. It is these limitations that as citizens we must be aware of in order to make good and proper decisions in the event of an attack.

So, let’s first establish the framework within which we must operate. That is defined in NC statute G.S. 14-51.3. “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.” This provides the foundation for use of force to protect oneself or another against attack.

Did you notice that the above statute says “except deadly force”? If the statue stopped there, then we would be prohibited from using a gun to stop a deadly force attack. Thankfully, the statute continues; “However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:

He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.
Under the circumstances permitted pursuant to G.S. 14-51.2. (Castle Doctrine)

We now have the statutory justification for use of force and deadly force with restrictions (imminent death or great bodily harm). Common Law, however, goes further in defining the acceptable parameters regarding use of force and deadly force. In Common Law, there are four criteria that must be met in order for the law to authorize the use of deadly force (remember, it’s not about the tool, it’s about the force). These are:

The individual being attacked believes that they are under imminent threat of death, great bodily harm, or sexual assault.
Other individuals, being of sound mind, would hold the same belief.
The individual claiming self-defense was not the instigator or aggressor in the situation.
The defender used only such force as necessary to stop the attack and did not use excessive force.

All four of these must be fulfilled for the defender to be able to satisfy the Imminence threshold for claiming self-defense. (There are 4 additional components that must be fulfilled and will be discussed in an upcoming article.)

For a minute, let’s go back to G.S. 14-51.3. The statute says that “…a person is justified in the use of deadly force and does not have a duty to retreat…”. Please note the highlighted word deadly. This restricts the authorization to
“stand your ground” only to engagements that rise to the level of deadly force. The inclusion of the Castle Doctrine (number 2) expands “stand your ground” to what is termed Special Locations such as the home. In NC v. Squires, the court held; “When confronted with an assault that does not threaten the person assaulted with death or great bodily harm, a party claiming self-defense is required to retreat if there is any way of escape open to him, although he is permitted to repel force by force and blow for blow. There is no duty to retreat when the person assaulted is confronted with an assault that threatens death or great bodily harm.” Thus, an individual not facing imminent threat of death, great bodily harm, or sexual assault and not in a Special Location must attempt to disengage from the fight!

As regards the right to protect another, the law provides that an individual has the right to defend another to the extent that that person has a legal right to defend themselves. This places the burden of proper execution on the individual providing defensive force. In short, you MUST know the situation to determine if you have the legal right to defend the other person. If not, you may be charged with a crime.

Additional restrictions to the use of deadly force (but maybe not force) are:

To stop a simple Assault;
Because a person uses violent language;
Because of past violence and / or fear of future violence;
To stop theft of property;
To evict a trespasser;
To arrest or prevent a criminal’s escape;

One last point, if you are committing a criminal offence, you immediately lose your right to claim self-defense. These laws are intended to permit the law-abiding citizen the ability to defend oneself or another from harm. I hope this has given you some things to think about. In the next article, I will go into detail on the Castle Doctrine and why many people are incorrect in their interpretation of the statute. The series will then conclude with the criteria for claiming self-defense as a legal defense. If you have friends or know of someone that would benefit from these articles, feel free to pass them along.

Wake Firearms Training

Firearms and Self-Defense Law – Part 3