Monday, October 20, 2014

Firearms, Self-Defense, and the Law: Information for Writers Plotting a Gun Scene


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Your heroine is in a spot she could never -
would never - imagine finding herself. Sure, when she bought her gun  it was with the thought that it was for self-protection - but it was a distant thought, one that didn't comport real conviction. Now here she was loading her ten precious silver bullets into her magazine, sliding it into place, ready to take out the werewolf pacing outside her bedroom door.

In your fictional work, laws don't just go away. You will need to research the area in which your heroine lives and have her come to some decisions about her own conduct. In Janet Evanoviche's Stephanie Plum series, Plum disobeys the law by carrying a concealed gun - that she has no intention of shooting or even brandishing. Plum relies on the fact that she has dumb-luck (and a hunky police investigator boyfriend) on her side to keep out of jail.

What choices will your heroine make? 

Legal or Illegal? How does your heroine get a gun in her hand?
 * If she is buying a gun she must  fill out BATF form 4473. 
    This form includes information about the buyer, the serial
    number, and a description of the firearm. (Not applicable to
    private sales - obviously, if your heroine is getting it from 
    Crud Murphy in the back alley, she won't be filling out a form)
 * There are legal reasons why your heroine may not be able to
    follow the straight and narrow. It is illegal for her to buy a gun if 
    she :
     ^ Was convicted of domestic violence
     ^ Has ever had a court ordered restraint
     ^ Was a United States Citizens then renounced their
     ^ Was discharged from the armed forces dishonorably
     ^ Is addicted to a controlled substance
     ^ Is illegally in the U.S.
     ^ Is fugitive from the law
     ^ Was convicted of or under indictment for a crime that carries
        over a year in jail.

Legally possessing and legally transporting a gun are two different things.

Federal law prohibits guns in federal buildings such as
   post offices, some military installations, some public lands.
* The area your heroine lives will determine if she can open carry,
   conceal carry, whether she can only have her gun in her home or
   if she can have it in her yard/on her property.
* Gun safety laws are important to how you lay out your plot line.
   If your heroine's jurisdiction requires her to have a gun lock - can
   she get access to it in time? Especially under high-stress 
   circumstances? Remember that violent acts usually happen close 
   and quick. Did she prepare for that by having her bedroom set up
   like a safe room with steel doors? Does she decide to ignore the
   law and keep the gun under her pillow? You might just have her
   shoot the serial killer and have her butt dragged to jail. Isn't that 
   an interesting twist?

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The Use of Deadly Force in Self Defense

The "Reasonable Man" Standard - What would a reasonable man (or heroine) do in a given situation. This is the standard that is placed before a jury. What seems reasonable to a person in the heat of the moment - with tunnel vision and other physiological and psychological factors running amok - may not seem so reasonable to those 12 who are rendering a verdict.

Reasonable Force -  The amount of force your heroine uses to defend herself can't exceed what is called for to get out of the situation. If the heroine hit the guy on the noggin with her fry pan, she can't pull out her gun and shoot the unconscious villain in the head to have it over with. While she may feel it's a reasonable response after all the heartache he's caused her, the courts would disagree.

Use of Deadly Force 
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- In order to lawfully use deadly force. Your heroine must be the innocent victim of an imminent attack that threatens her life or the lives of those around her (her children for example). The threat has to be deadly and not about property. Sometimes other responses are requires by law - living outside of D.C. I would be required to attempt a retreat prior to using force, for example.

Brandishing - Is when your heroine displays her firearm in a threatening or aggressive manner; this action is illegal for the most part. Let's assume for a minute that your heroine is confronted by her crazy ex who hisses in her ear, "I'm coming after you. I'll toy with you then kill you and laugh as I burn your body." YIPES! Your heroine cannot pull out her gun and point it at him and say, "I'll be waiting." 1) that's brandishing and 2) that's provoking which means that if he does come after her, she is not an innocent party. So if anyone heard that exchange, she's in deep doo-doo if his body is splayed across her kitchen floor.

Castle Doctrine - "a man's home is his castle" and he has every right to defend it. This is the law in many jurisdictions such as Texas. In your home you are not required to retreat from an attacker. Also, in some places this law protects you wherever you are staying such as a hotel or friend's house.

Cessation of Threat - Your heroine is entitled to use deadly force against the attacker as long as she is still being threatened. If the zombie fled, surrendered, or collapsed in a pile of entrails, lethal force must stop.

So Your Heroine Shot the Bad Guy, Now What?

* In all jurisdictions if a shooting results in injury or death it will be
   investigated by the police.
* Anything your heroine says can be used against her
* She has the right to be quiet - though she may not have the right
   mental state to exercise her right. But sometimes less is more
   until she talks to her attorney. Yes, she is going to need one.
* If your heroine knew the person or quarreled with the person
   even if she was protecting herself - she may have acted illegally.
   (though many will say they'd rather be tried by 12 then carried by
   6) your heroine needs to think about that in advance and take
   precautions. In the trial was her only precaution to buy a gun and
   take one-on-one classes in quick draw? Uh-oh. Putting in a
   security system, getting a dog, putting up lights, filing for a 
   restraining order all of the OTHER steps she took to harden her 
   surrounding against attack will go in her favor.
* Your heroine is not going to get a pat on the back and a 
   handkerchief handed to her. She will probably be arrested, 
   booked, fingerprinted, and photographed. She will be put in a
   cell where she will wait until charges are dropped or bail posted. 
   This could take several days.
* The police may take the heroine's gun and any other gun in the 
   house since she is a suspect in a homicide (or if the villain lives
   she will have committed assault with a deadly weapon). And if
   the villain lives, his side of the story might be vastly different
   than your heroine's. (ballistic forensics LINK)
* They will probably fire her guns for ballistic impressions if they 
   are trying to make a case against her.

* An area where a shooting took place may (probably will be)
   treated as a crime scene. As the police run through their normal
   evidence collection (crime scene 101 information), they will
   cordon off the area and only the police will have access. This can
   go on for days or even weeks. Does your heroine have someplace
   else to stay?

* If your heroine carries in a state that requires a gun permit, she
   may have that permit suspended. Uh-oh. She killed the villain 
   and now his brothers are after her in retribution. Now what 
   choices is she going to make? 

* Criminal Trial - is possible

* Civil Suit is almost inevitable - as the family steps forward and
   tries to sue your heroine for killing their sweet baby. Just the
   legal bills will be thousands. (Check state law.)

I hope everything turns out great for your heroine and she gets to live happily ever after. 

Thank you so much for stopping by. And thank you for your support. When you buy my books, you make it possible for me to continue to bring you helpful articles and keep ThrillWriting free and accessible to all.

As always, this is a non-political site that is geared to help writers write it right. I am presenting information to help develop fictional characters and fictional scenes. In no way am I advocating any position or personal decision.
Information for this blog article comes from NRA Guide to the Basics of Personal Protection in the Home, (2000) National Rifle Association of America

1 comment:

  1. How long would her concealed carry permit be suspended, assuming she's justified in her actions? Just until the investigation is complete?

    It might make an interesting story to have her unable to post bail and have to deal with having to sit locked up in jail for a while.