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24-04-2014, 08:50 #1
Self defence and the use of lethal force in effecting an arrest
I don’t want to use the corner for the purposes of pushing any particular agenda or bashing any organization or individual.
The purpose of the corner in my mind should be to provide information and guidance to people who are actively looking for information in some way relating to firearm ownership, and who want to positively contribute towards firearm ownership.
The purpose of me writing about SAGA was quite simply that there was already a thread running on Gunsite relating to concerns around SAGA and my article was intended to stimulate debate (as it did) and to provide information for that debate. I hope that people who read this little corner address their concerns directly to SAGA and that SAGA responds to those concerns in a meaningful manner.
My next topic has nothing to do with the politics of gun ownership and comes about as a result of something that I heard on the radio stated by a firearm instructor who should in fact know better.
This statement was a reflection of a common problem that exists in the minds not only of the Police in this country but civilian users of firearms. That problem is when may a person legitimately use a firearm for self defence and when may a person use a firearm including the use of lethal force in effecting an arrest.
The legal requirements for using a firearm for self defence are:
1. There must be an attack that has commenced or is about to commence.
2. That attack must be unlawful;
3. The attack must be of such a serious nature that you believe in the circumstances that your life or that of somebody else that you have an obligation to protect is in danger.
4. Your response must be proportional.
We were all taught this in our competency exams so we should all know the law.
However in the heat of the moment, it is difficult to apply legal principles coldly and unemotionally and assess the situation because in doing so you could probably end up dead or seriously injured.
Therefore to simplify the situation I try and explain the rights and wrongs of using a firearm to protect oneself as follows:
Firstly, if you have the opportunity to get out of the situation without using force and in so doing ensuring that everybody else remains safe then you should and must do so. As soon as you become the aggressor or attacker, you are no longer defending yourself and you may find yourself facing a charge of attempted murder or even murder. So it is better to run and live another day, and not be a hero.
The second rule is that if you don’t have time to think about your response, i.e. things happen so quickly that you literally grab your firearm and start firing, then the overwhelming probability is that circumstances allow you to use your firearm to protect yourself as long as the attack was lethal or potentially so. A concrete example would be you arrive at home and start opening your gate, a hijacker shoves a gun in your face and you respond by pulling out your gun and shooting him first, this would be quite justifiable. However, if he sees you pulling the gun and turns around and runs away, at that point, you are no longer defending yourself because the attack has ceased. Should you take any further action after that you may become the attacker.
I know that many of you are thinking, “Yes but I want to arrest/detain/catch, the hijacker”. Listen up, because I have some more advice in that respect.
Let’s go back to self defence for a few moments. The courts have often said it is not an armchair test and the court has to put itself in the mind and circumstances of the person who is the subject of the attack when it happened. These principles are tried and tested and we must bear in mind that the purpose of the rule is to establish the lawfulness of your actions and to prevent murder being disguised as self defence.
When it comes to effecting arrests, Section 49 of the Criminal Procedure Act applies. My general advice when people ask me questions about arrests is quite simply divided into two parts.
The first is as a civilian it is not your job to arrest anybody. It is the job of the Police to arrest criminals.
Many of you are going to say but the law says we can effect an arrest and I agree with you. However, the law particularly through Section 49 has recognized that there is a hierarchy of constitutional rights and the right to life is at the top of that hierarchy closely followed by the right of due process and thereafter other rights follow. To translate this into reality, the law does not want a person to become the judge, the jury and executioner all rolled into one by killing someone when trying to effect an arrest. The principles are that that person should not be killed because they just committed an offence and are escaping. The Constitution requires that they should be arrested, tried properly with a fair process and after the production of proper evidence and convicted if the evidence justifies it. Let’s try and look at some examples:
If someone breaks into your house and you come home and that person is in the house and they are in the bedroom and they have no means of escape except through you and the passage, then of course you can effect an arrest and hold them until the Police arrive. If they have broken in through a window, and jumped out of that window and you come home the offence has ceased, they are merely now escaping you cannot shoot them in the back to effect an arrest. The reason why you cannot shoot them in the back to effect an arrest is because there is no serious offence being committed in your presence and the right to life and due process trumps the offence of house breaking. Therefore no force is allowable.
Civilians should not try to arrest criminals and if you have to use force in a confrontation it is best to limit your use of force to self defence. In other words if you are trying to effect an arrest and that person attacks you in a manner that is in compliance with the principles above you are not trying to effect an arrest of that person but you are actually protecting or defending yourself and your use of force will be based upon self defence principles.
Furthermore, let me also stress that protecting your property is not a reason to kill somebody. If someone breaks into your house or car or steals something belonging to you, the right to life is greater than the right to property, and no force may be used.
If you happen upon a scene where a man is busy raping a woman and it is clear that that person is the aggressor and intends to kill that woman, you can intervene and you can stop the attack. If however the person stops the attack in your presence and walks away with his hands in the air and says, “I am no longer attacking this woman”, and he is no longer aggressive then there is no direct threat and if you do not know if that person can be identified at a later time (for example DNA), there is no way that person constitutes an imminent threat that cannot be dealt with by Police investigative processes, and as such, you cannot use lethal force to arrest them.
So you can see already from what is a complex situation (albeit quite simplified by me in my terms), the requirements to arrest are onerous and quite difficult to comprehend so rather stick to the basics, i.e. defend yourself and someone that you have an obligation to protect but don’t take it beyond that because you may find yourself on the wrong side of the law.
Last edited by Martin Hood; 24-04-2014 at 09:27.
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24-04-2014, 09:02 #2
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Re: Self defence and the use of lethal force in effecting an arrest
Thank you for your contribution. I look forward to more posts from you.
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24-04-2014, 09:09 #3
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Re: Self defence and the use of lethal force in effecting an arrest
My concerns are about this, being able to identify or prove that the attack was potentially lethal. If we take into account how quickly an attack can escalate and how people have been killed by people just using their hands and feet it's difficult to know.
Often people say that the attacker must be armed, but as I mentioned unarmed people have killed before.
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24-04-2014, 09:19 #4
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Re: Self defence and the use of lethal force in effecting an arrest
Many thanks Martin, its greatly appreciated.
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24-04-2014, 10:41 #5
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Re: Self defence and the use of lethal force in effecting an arrest
Thank you for your comments Mr Hood. It makes it very clear. However this law will only work in a well behaved society. (Referring to not using force by law to protect property not the rest of the law).
This current law would work in SA if criminals actually just stole property without murdering, raping and torturing their victims. Currently those who commit violent crime to steal property gets protected due to the few who actually steal and don't want to kill anyone.
It is due to the fact that we are not allowed to protect property by force and the lack of fear for the law that criminals have free reign in this country. They take by force, but cant by law, be deterred by force.
I am not saying go wild and shoot trespassers, but the Castle Law would be a great start.
I know it will never be passed. The law is the law and we have to live by it and be judged by it in the end.
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24-04-2014, 11:16 #6
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Re: Self defence and the use of lethal force in effecting an arrest
Thank you Martin.
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24-04-2014, 11:33 #7
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Re: Self defence and the use of lethal force in effecting an arrest
Thank you for this insert it was very informative.
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24-04-2014, 11:40 #8
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Re: Self defence and the use of lethal force in effecting an arrest
Excellent info, thank you!
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24-04-2014, 11:50 #9
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Re: Self defence and the use of lethal force in effecting an arrest
Thank you Mr Hood,
Every time someone goes to a gun shop a flyer with this information on should be handed to him/her
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24-04-2014, 11:56 #10
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Re: Self defence and the use of lethal force in effecting an arrest
Thanks Mr . Hood
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