“Is the use of force different than deadly force? How so? If force is authorized by law, and a defense to a crime, where is the line crossed to allow justified deadly force? Does this legal justification, to do what is otherwise unlawful and criminal, limited to circumstances where firearms are used?”
These questions raise exceedingly complex, obscured questions of fact and/or law, and are always overshadowed by a political dimension. Ultimately, the answers are elusive and unable to be determined until after the fact. A police officer, prosecutor, grand jury, judge, and/or jury of one’s peers make this determination.
At Ciyou & Dixon, P.C., principal and attorney Bryan L. Ciyou has engaged these questions across a myriad of circumstances. He has a lifelong interest in firearms. As a law student, he clerked in a blended urban-to-rural prosecutor’s office and sometimes researched these matters in the course of his work.
While engaged in private practice, he has represented individuals facing gun charges, including excessive use of deadly force, ranging from FFL holders and small to large local gun builders to gun shows. In addition, he has written three books on the topic that are in daily use throughout the State and also are reference books used throughout the U.S.
Attorney Ciyou has also briefed gun cases in appellate courts. Most recently, during the 2011 session of the General Assembly, he was called upon to testify about proposed gun legislation and help harmonize bills between the Senate and House. Such professional experiences have been, and continue to be augmented, by his personal experiences in attending some of the most notable firearms and tactical medicine training programs available.
A frequent lecturer on these topics, including the topic of deadly force, Bryan Ciyou and Ciyou & Dixon, P.C. accept cases involving firearms (or other deadly instruments, ranging from a knife to an automobile) and may act as a consultant or expert witness in certain deadly-force cases. The firm submits a good place to understand its apolitical, but engaged, focus in considering how it analyzes the initial questions.
Broadly, at Ciyou & Dixon, P.C., we begin by helping focus the force continuum. At one end, minimal or no force is allowed in response to the application of unlawful force. For instance, a rude, angry or insolent touch may constitute the crime of battery. However, little or no force is allowed to be applied in response. Generally, this is embodied in the adage “two wrongs do not make a right.”
Nevertheless, there is an indeterminate point where the application of this force increases and allows proportional, lawful defensive response. A good example is found in a person who attempts to commit the crime of battery by slapping a victim. This victim may be justified in blocking the slap, and this, standing alone, would not create a cross criminal battery.
Determining these thresholds is where Ciyou & Dixon, P.C. spends a considerable amount of professional time and focus. Justified use of force in response to illegal, but less than deadly, force is clearly outside the parameters of deadly force. A slap may not be stopped by application of deadly force against the criminal. This is not proportional.
Beyond this point, the law and facts require a very close review to determine if the force applied is deadly in nature; the risk inherent in the illegal use of force must objectively (or subjectively, or a blend of the two) rise to serious bodily injury or imminent death. In addition, with a careful analysis and synthesis of the facts, it may demonstrate that deadly force is justified in use to terminate a forcible felony or protect a dwelling or curtilage.
Within this analysis, there may be a number of other clear to not-so-apparent variables. These include a jurisdiction’s given legal position on retreat, standing one’s ground, and/or the castle doctrine. Into this complicated mix may be added the dimension of the defense of a third party, politics and information that is received and maintained at the subconscious or unconscious level.
The greatest of care and diligence are needed by a civil litigant or criminal defense attorney or prosecutor to distill the case to make a legally prudent judgment or set a proper course for defense. Ciyou & Dixon, P.C. attorneys understand that this analysis is neither always easy nor straightforward, and may also be obscured by emotional distress to media attention.
Nevertheless, a comprehensive, systematic approach must be engaged and be taken with every such case. Without it, the due process and fundamental fairness that the court system exists to ensure may not be reached. Indeed, a failure on this account may result in wrongful conviction, even given the requisite burden (beyond a reasonable doubt) and deprivation of life or freedom to civil loss of assets and social stigmatism.
This background frames every deadly-force case. In cases with simultaneous civil and criminal proceedings, the courses that the criminal defense counsel may take, such as asserting the Fifth Amendment Privilege against self-incrimination, may directly compete with prudent civil choices, such as cooperating with any potential insurer; this generally involves making a statement, which is generally incongruous with a criminal defense.
Where the criminal dimension is not in play, the case is still rarely simple or straightforward. By way of example, a person who exercises deadly force may face a civil tort action, ranging from battery to wrongful death, while, at the same time, have to fight a declaratory judgment action by any potential insurer who seeks exclusion from coverage as a matter of law.
The legal landscape is no less complex for a plaintiff’s lawyer. There are always comparative fault issues and bars or limits on the litigation’s recovery. For instance, under federal law, namely the Protection of Lawful Commerce in Arms Act, civil litigation is prohibited against gun manufacturers.
At the state level, a statute of repose may also come into play based on the time the firearm has been in commerce. Additionally, many states have civil litigation bars for stolen guns causing injury and statutory caps for torts of children.
This is the legal and factual complexity embraced by Ciyou & Dixon, P.C. counsels. As such, they routinely consult with other civil or criminal attorneys, who may be oriented as plaintiff/prosecution or those tasked with a defensive posture. In some situations, this also involves administrative matters, such as suspension or revocation of a License to Carry a Handgun.
Ciyou & Dixon, P.C. also represents and/or co-counsels in specific cases. In narrower orientation, Attorney Ciyou may be able to act as an expert as to the propriety force in a defensive situation. Deadly force is deadly force. However, the many given components vary over time and from place to place (locale and state to state) depending on the factual/legal mix.
Perhaps Ciyou & Dixon, P.C. may be a considered deadly-force resource in your case? Alternatively, Ciyou & Dixon, P.C. may work to help assess the type of expert needed and relevant in a given case. This may range from a ballistician or mechanical engineer to a police officer, attorney, or similar person understanding the factual/legal ingredients in the lawful/unlawful use of deadly force.
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