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For the use of deadly force to be justifiable, the user must be in reasonable fear of death or great bodily harm to himself or to another innocent party he has the right to protect. You wouldn’t think otherwise intelligent people could get confused about this, but history shows that some do.

A few years ago, the Florida state legislature passed a law rescinding the previously existing requirement to retreat before using deadly force when attacked in public. Prior to that, retreat had only been demanded by Florida law if it could be accomplished with complete safety to oneself and others, and for well over a century U.S. Supreme Court case Beard v. United States had made it clear that innocent parties shouldn’t have to retreat from an unprovoked, unwarranted attack in any place where they had a right to be.

However, whether motivated by ignorance or intentional deception, at least one anti-gun lobbying group went to great pains to tell the world that now, anyone in Florida could shoot anyone they wanted and go unpunished if they merely claimed that they were afraid of the person they shot. Of course, any professional reading the state’s jury instructions realized that this was not the case. In fact, the new law—Florida Statute 776.013—spelled out rather clearly that the party who fired would have to show to a preponderance of evidence that they did indeed act in legitimate defense of self or others.

Alas, certain media editorialists picked up the false cry of “they can just claim fear and get away with killing you,” and a nation accustomed to instant headlines began to believe it. Unfortunately, some of those who wrongly believed this foolishness were otherwise law-abiding citizens who carried guns.

Inciting Fear

In 2010, Case One occurred in a suburb some 30 miles outside of Houston, Texas. A retired firefighter brought a neighborhood feud to a tragic end. Upset that a schoolteacher who lived down the street was hosting a party and playing music louder than he liked, Raul Rodriguez strapped on an exposed pistol, shouldered a video camera and headed to the neighbor’s house. Entering the neighbor’s property line, he proceeded to record an argument that he himself had obviously instigated.

The neighbor and the partygoers were upset and angered by Mr. Rodriguez’s apparent attempt to intimidate them with the openly carried gun. Open carry is not legal in Texas. Hostilities escalated. One man implied that he would go into the house and get a gun of his own, though he did not in fact carry out that act.

Rodriguez recorded himself saying repeatedly that he was in fear of his life and standing his ground. The homeowner and invited guests approached him. The video came to an abrupt, gunshot-crackling end as Rodriguez opened fire. Before he was overpowered and disarmed, he had killed the neighbor and wounded two other men.

After his trial in 2012, in which his defense lawyer vigorously attempted to establish a “stand your ground” defense, the jury found Rodriguez guilty of murder. He was sentenced to 40 years in prison.

Most legal analysts agree that the “stand your ground” defense did not work for Rodriguez because that defense is voided if the person trying to apply it started the confrontation himself. The circumstances apparently convinced the jury that Rodriguez intentionally provoked the incident.

Another exemption to the “stand your ground” defense is the defendant who is violating the law at the time. Rodriguez’s open carry of his pistol and trespass onto private property where he was not invited was indeed a violation of the law.

During the incident, Rodriguez was heard on the tape saying that he was “not losing to these people anymore.” That doesn’t sound like a victim defending himself—it’s more like a man on a mission of personal vengeance. One witness stated that Rodriguez had bragged earlier that he could kill anyone he wanted and get away with it, so long as he claimed to be afraid.

The outcome in Texas v. Rodriguez closed an incident that had brought tragedy to many people. It also brought important lessons. We must all remember that reasonable fear is an indispensable ingredient to a successful self-defense claim. If you start the fight, you are not within the law. If the defendant has committed a crime leading to him being afraid of retaliation, fear of being harmed as a result is not the kind of reasonable fear that warrants deadly force in self-defense. For that to happen, the person who originally started the fight must make some reasonable attempt to retreat from further conflict—that does not seem to have happened in this instance.

In her opening statements, the prosecutor mocked Rodriguez for using “CHL [Concealed Handgun License] buzzwords” in an attempt to give himself an excuse for shooting a neighbor he did not like. It is not hard to understand why the jury agreed with her assessment. Most shooters and advocates for self-defense rights and gun ownership who weighed in on the many forums discussing this case tended to agree with the verdict.

 

Crackpot Arrests

Case Two occurred in Tennessee. A man named Leonard Embody dressed up in camouflage and flaunted conspicuous guns in public places. One of several such displays led to a Sixth Circuit Court of Appeals decision in 2012, the case being Embody v. Ward. It stemmed from a lawsuit filed by Embody claiming damages because he had been detained while walking through a public park with a gun.

The gun was a semi-auto pistol built on an AK platform and resembling a short barrel AK-47 assault rifle with its stock removed. The flash suppressor had been painted orange by Embody, who admitted that he did so to make his gun look confusingly like a harmless airsoft pistol. It was, however, a fully functional firearm loaded with a 30-round magazine. He was released after police determined that his firearm was a legal one. Tennessee is an open carry state.

The appellate court ruled in favor of the officers and against Embody, who had stated on at least one forum that his intent was to provoke a police response that would give him grounds to sue and win a large amount of money. The decision includes the following powerful commentary:

“Tennessee law allows individuals with gun permits to carry handguns in public places owned or operated by the state such as ‘public park[s]’ and ‘natural area[s].’…The statute defines a ‘handgun’ as ‘any firearm with a barrel length of less than 12 inches’ that is ‘designed, made or adapted’ to be fired with one hand.

“Armed with knowledge of this law and one thing more—an AK pistol—Leonard Embody went to Radnor Lake State Natural Area, a state park near Nashville, Tennessee, on a Sunday afternoon. Dressed in camouflage, he slung the gun with its 11.5-inch barrel across his chest along with a fully loaded, 30-round magazine attached to it.

“Embody anticipated his appearance at the park would attract attention—he carried an audio-recording device with him—and it did. One passerby spontaneously held up his hands when he encountered Embody. Two park visitors reported to a park ranger that they were ‘very concerned’ about Embody and the AK. And an elderly couple reported to a ranger that a man was in the park with an ‘assault rifle.’

“Two more predictable things happened. A park ranger disarmed and detained Embody to determine whether the AK was a legitimate pistol under Tennessee law, releasing him only after determining it was. And Embody sued the park ranger, claiming he had violated his Second, Fourth and Fourteenth Amendment rights. Two more predictable things happened.

“For his troubles, Embody has done something rare: He has taken a position on the Second and Fourth Amendment that unites the Brady Center to Prevent Gun Violence and the Second Amendment Foundation. Both organizations think that the park ranger permissibly disarmed and detained Leonard Embody that day, notwithstanding his rights to possess the gun. So do we.”

Mr. Embody’s rights in the state of Tennessee allowed him to openly carry a firearm. He had done so in the past with conspicuously large handguns, a .44 Magnum revolver and a Desert Eagle, and complained that no one gave him sufficient notice, hence the escalation to the AK pistol. He had the right to free speech, which he later expressed by opening a gun business with the slogan “Where pigs pay more, because they should.”

However, he knew or should have known that walking around dressed in military gear and wearing what the public has been conditioned to see as an assault weapon was an aberration from normal behavior. An aberration of the norm combined with the power to kill can indeed create reasonable fear. That reasonable fear, first on the part of citizens observing him and then on the part of the first responding law enforcement officer, in turn made his detainment reasonable.

One may construe their right to free speech to allow them to walk around with a sign that says, “I am crazy and may kill you all at any moment.” However, one who does so only needs to recognize that others may take their word for that and respond accordingly. Those who act or dress up like potential mass murderers are unreasonable if they do not expect others to treat them as such.

My old friend, master tactical shooting instructor Clint Smith, is famous or saying “If you look like food, you will be eaten.” In the same vein, if we look or act like crackpots we can expect to be treated as crackpots. If we conspicuously flaunt deadly weapons in places where that is not normal, we can expect that behavior to create reasonable fear in others, which is likely to be followed by their reasonable action.

Common Sense

Basically, reasonable fear means, in essence, an apprehension of danger that any reasonable, prudent person would be expected to recognize in the same circumstances, and knowing what the person apprehending that danger knows at the time. It does not necessarily mean that the person is quaking in their boots or losing control of their sphincters. It comes down, really, to common sense.

For us to deploy a firearm, our fear of death or great bodily harm must be reasonable. If for no good reason we put others in that same degree of fear, history shows us that there will be unpleasant consequences.

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