Obligation to Render Aid to Shooting Victim…

Question:  I am in the Army National Guard, a combat vet, and need some help on this. I just took a job as a corrections officer and while going through the training on Pressure Point Control Tactics we were told that if we use these methods on someone in self defense we are required by law to provide aid to the person afterwards because we are trained. I have never heard anything about this in the Army and I carry a gun religiously. Does this mean I have to provide aid if I shoot someone in self defense just because I am trained professionally to use a firearm. If this is true could you please include the ARS and if not please provide proof so I can educate the rest on my class.
Thank You Very Much

Answer: There are a couple of different issues here that we need to separate and discuss.  Probably the first thing would be to help you understand the “Good Samaritan Law” in Arizona.  Under this law and in the absence of any “special relationship” with the injured party, a bystander has no duty or obligation to render assistance to an injured party,  regardless of the circumstances or the bystander’s ability to render aid or assistance.  This is further extended to say that if the bystander does render aid “gratuitously and in good faith” they cannot be held liable for civil or other damages unless they are guilty of ‘gross negligence’.  The full text of the law is provided at the end of this article.

To address your first question, as a corrections officer acting in an official capacity, are you obligated to render aid to someone under your care if they are injured or incapacitated?  The answer to this question is “Yes”.

An exception to the ‘Good Samaritan Law’ exists when there is a ‘special relationship’ which gives rise to a duty to aid or protect.  An example of that special relationship would be your role as a corrections officer.  As a corrections officer, you are required by law to take custody of another under person which may deprive them of their ‘normal opportunity for protection’.  In other words, you are responsible for the prisoners while they are in your custody and are therefore required to render aid should they be injured or become incapacitated.

In your second question, you asked if the fact that you had firearms training required you to render aid if you shot someone in self-defense.  I am assuming that you are asking this question as an armed private citizen, not as a law enforcement officer of any kind.  As a private citizen, you are under no legal obligation to render aid to a person that you had legal justification to shoot in self defense.  In a self defense shooting, I would call 911 and request assistance from law enforcement and emergency medical personnel, but would not attempt to render aid myself since to do so might put me at additional risk from my attacker.  Consider the possibility that the criminal could be feigning injury in an attempt to get you to approach so that they could attack and regain the initiative or escape.

I hope this clarified the differences in the two situations for you…

ARS 32-1471 – Health care provider and any other person; emergency aid; nonliability

Any health care provider licensed or certified to practice as such in this state or elsewhere, or a licensed ambulance attendant, driver or pilot as defined in section 41-1831, or any other person who renders emergency care at a public gathering or at the scene of an emergency occurrence gratuitously and in good faith shall not be liable for any civil or other damages as the result of any act or omission by such person rendering the emergency care, or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured persons, unless such person, while rendering such emergency care, is guilty of gross negligence.

What is the "Castle Doctrine" and does it apply in Arizona?

Question:  What is the “Castle Doctrine” and does it apply in Arizona?

Answer: The “Castle Doctrine” or “Defense of Habitation” laws are a legal concept that derive from English Common Law.  Under this concept, one’s place of residence is considered to be a place where a person is protected against illegal trespass and violent attack.  In most states, it provides for the legal right to use deadly force to defend one’s home and any innocent persons inside the home.  It also provides that this same deadly force can be used to defend against an illegal intrusion into the home that may lead to a violent attack.

In Arizona, we do have a “Castle Doctrine”.  It applies to a person’s residence or workplace, which may be either permanent or temporary.  The doctrine would apply not only to your permanent home, but would also apply to a hotel room that you might be temporarily treating as “home”.  In Arizona, the doctrine extends to your vehicle as well, if an attempt is being made to remove you from your vehicle by force.

Some have referred to this doctrine as the “Make My Day Law”.  This reference comes from the 1983 movie “Sudden Impact” and was part of a challenge delivered to a criminal about to be apprehended by Detective Harry Callahan, a character in the movie played by Clint Eastwood.

In general, the following conditions must apply if the Castle Doctrine is to be used in claiming justifiable homicide:

• The intruder must be attempting to or have made unlawful and forcible entry into an occupied home, business or vehicle.
• The occupants must have a reasonable belief that the intruder is entering with the intention of committing a felony crime such as burglary.
• The occupants must have a reasonable belief that they are in danger of serious injury or death at the hands of the intruder.
• The occupants must be innocent of any provocation and cannot have instigated the intrusion or initiated the event by a threat of deadly force.

Some states have stronger laws supporting a Castle Doctrine, while others have weaker ones.  Arizona has a strong Castle Law and follows the conditions above in applying their law.  Additionally, in Arizona, a person is legally able to “stand their ground” in the face of an attack and is under no obligation to retreat prior to using deadly force in self defense.

Currently Idaho, Illinois, Montana, New York, Pennsylvania and South Dakota have weaker positions on the Castle Doctrine.  A few states have no Castle Doctrine.  Those states include Iowa, Nebraska, New Mexico, Virginia and Washington, DC.

Elderly Homeowners, Attempted Burglary and the Castle Doctrine…

Question: My mother is over 65 and in ill health and has been tormented by numerous attempts by someone to either (peep) in her windows; tamper with the windows, etc.  She is thinking of purchasing a firearm for protection since my father, who is 73 and still works, travels away from the home 4 days a week.  I am afraid that if she does get a firearm and someone tries to break into her home she will be so terrified as to shoot and ask questions later.  Please advise.

Answer: It’s a sad commentary, but in many cases the elderly are targeted by criminals since they are generally one of the more weak and potentially helpless members of our community.  A former student of mine just told me about an incident where there was an attempted home invasion at his father’s house.  You mother should certainly take some steps to protect herself.  One thing she may want to consider is purchasing a burglar alarm that she can activate with a panic button remote that she can keep on her person when she is at home.

If she is intent on purchasing a gun, I’d recommend that she get some training with it and consider attending an Arizona Concealed Weapons Permit course, not so that she can carry concealed, but rather so that she has a better understanding of the laws that govern the use of deadly force and when it can justifiably be used.  We see a lot of older men and women in our courses for this reason.

If she did purchase a gun for her own protection, should someone break into her home she would be justified in using the firearm in self defense if the burglar entered her home illegally and she was in reasonable fear of serious injury, sexual assault or being killed.  As far as shooting first and asking questions later, as long as the criminal was inside her home, she would be on pretty firm legal ground.  If they were still outside, there is an argument that could be made that there was no ‘credible’ threat until the criminal entered her home and she was therefore not justified in using lethal force.  One of the reasons for taking the class is to understand under what circumstances she can legally defend herself.

Overall, I’d suggest the burglar alarm route first, but would have no problem with the firearm as long as she had proper training.

Using Mace or Pepper Spray on Trespassers…

Question: There have been burglaries in the area. We have mace.  If we are approached in our yard, can we use the mace for protection if we feel threatened?

Answer: Generally speaking, you could only use mace or pepper spray in response to an imminent physical threat.  You would need to be justified in using physical force to defend yourself.  This would mean that:

• There was a credible threat of physical force that might result in injury to you or a third party
• You were not the aggressor
• That a reasonable person would believe that physical force is immediately necessary to protect themselves against the use or attempted use of unlawful force.

Just someone being in your yard is not sufficient justification.  That is only trespass.  One or more of the factors above would have to exist before you could use pepper spray or mace.

Should you have to use mace or pepper spray against someone, you should not approach them as some people are capable of fighting through the effects of the spray.  After deploying the spray, I would immediately get to a safe place.  I would also suggest that you call 911 and ask that law enforcement be sent to your home immediately.  Explain to the operator that you were under threat of physical injury and used pepper spray or mace.  They may also wish to send emergency medical personnel.  If possible give a detailed description of your attacker as they may recover sufficiently to escape before the police arrive on scene.

Finally, if you do decide to deploy pepper spray or mace, understand that there is the possibility of being exposed to the spray yourself.  Most defensive sprays are oil-based and will not wash off with water alone.  In most cases you will need soap and water.  Even after washing, the effects of the spray may linger 15-20 minutes.

Shooting Aftermath – How much do I tell the 911 Operator?

Question:  I am looking for opinions on how much or what type of information should be told to a 911 operator during or after a shooting situation takes place.

Answer: This is a difficult question to answer and how to handle it could vary widely depending on the precise situation.  Assuming that the call is occurring after a justified shooting has happened I would probably recommend the following:

• First, make sure that you and any other innocent bystanders are safe from any further danger.  Try and remain as calm as possible.
• Make sure that any weapons that are within reach of an unconscious or otherwise incapacitated attacker have been kicked away and cannot be recovered by them if they regain consciousness.  (Do not touch the weapons).
• Call 911 and report the basic situational information (someone broke in, manifested a lethal threat, you acted to stop the threat, etc.) and request that they send law enforcement and emergency medical assistance.
• Identify yourself and describe yourself ( I am Joe Smith, I am the homeowner.  I am 5’10″ tall with short gray hair and glasses.  I am wearing a blue pullover sweater and blue jeans.)  This will hopefully help law enforcement identify you as the ‘good guy’ when they arrive on the scene.
• Stay on the line with 911 but resist the temptation to give them a full description or statement.  They will try and get you to answer questions since that is their job.  Remember the call is being recorded.
• Check on your family and keep an eye on the assailant.  They have been known to regain consciousness and attack a second time.
• When law enforcement arrives, DO NOT have a weapon your hands.  911 will tell you when they are on the scene.  Put any weapon you have down and be well away from it when the police enter.  Make sure they can see your hands.
• The police will immediately secure the scene and after doing so, emergency medical personnel will come in and start treating any injuries.
• The police will most likely separate all parties present and begin the process of questioning each person.
• Consider answering only the most basic situational questions until you have your attorney present.  You are NOT required to make a statement without your attorney present.
• Understand that due to your adrenalin response and extreme stress you may experience time distortion, sensory exclusion and other sensory anomalies that will make it difficult or impossible for you to accurately recount the course of recent events.  This is why you may not wish to make a statement until you have had a chance to calm down and talk to your attorney.
• Understand that some law enforcement agencies treat all shootings as a homicide and as a result they may arrest one or more persons that might be involved in the shooting, even though you may be justified.

While all situations can vary, the list above is a pretty good set of guidelines for most things that might occur.  It is a really good idea to have an existing relationship with a good criminal attorney.  You certainly don’t want to be looking for someone in the yellow pages while waiting for the police to arrive…

Responding to a Vehicle Break-In…

Question:  Someone recently broke into my vehicle and stole my emergency tool kit, a few dollars in change, some audio CDs, and a few other misc. items of little value. What they really took is my confidence in parking my vehicle in my apartment complex.  I am a highly trained military professional with no urge to use my weapons any more than I need to, but I’m very bothered by this occurrence.  I’ve decided to stake out my vehicle tonight (The night after the theft) and kill the person if they attempt to break into my vehicle again.  What issues do I face legally if I do this and I am successful?  I understand that this may not be the smartest course of action but I cannot post guard over my vehicle every night and I can’t bear the idea of someone breaking into it again, whether it be tomorrow, next week or next month.

PS: Does Arizona have an extension of domicile law similar to Louisiana? I’ve heard conflicting views on this matter.”

Answer: First, let me state right up front I know exactly how you feel.  I was in Salt Lake City to teach an NRA Instructor course recently and had my truck broken into my first night at the hotel.  They stole approximately $2000 worth of equipment and materials including my personal range bag (no firearms fortunately), a very nice EMT kit in a Pelican Case, an LCD projector, speakers, my instructor manuals and most of the materials for the class I was to teach.  Of course, my insurance did not cover it since I have my deductible set high.  In addition, there was the cost to repair the window ($500).

I had some of the same feelings as you.  I felt violated and angry.  I thought about staking out the hotel parking lot the next night too.  I thought about using pepper spray on them if I caught them.  It was fun to imagine the scumbags lying on the ground writhing in pain.

Upon more reflection, I decided it was a bad idea to do that and realized that it was just a random event that happened to me.  I have not had anyone break into a vehicle of mine for a very long time.  In thinking more about it, based on the fact they stole anything they could grab including boxes of books, they were probably just kids or gang members hoping to score something valuable.  With me they hit the proverbial jackpot.

I too am highly skilled with firearms and other hand-to-hand techniques that can visit mayhem and injury on those who would cross me.  But I won’t use those skills without proper cause.  It is not worth the long term ramifications on my life and the lives of those that depend on me and care for me.  I would submit that after cooling down and getting some perspective on the situation, you will probably agree with me.

As far as the legal issues if you followed through, you would potentially be committing first degree murder.  By lying in wait for them, you would be premeditating which makes it first degree murder.  In Arizona, that crime can carry the death penalty.  Frankly you sound like an intelligent individual whose life is worth much more than sitting jail because of some scumbag gang banger or delinquent.

Regarding your question on the extension of domicile, I believe you might be referring to the ‘castle doctrine’.  While Arizona does support the ‘castle doctrine’, you must actually be in your vehicle for it to apply.  It basically states that if someone is attempted to remove you from your vehicle by force, you can legally use force to prevent it.  If someone is attempting to remove you from your vehicle using potentially lethal force, you can then use lethal force to stop it.

I’d let it go.  Make it a point to part in a well lighted area of the apartment lot.  If you spot is assigned and not well lighted, complain to the complex management and get better lighting.  Don’t leave anything in your vehicle.  If you don’t have one, consider getting an alarm.  Make sure it has a flashing light so that people can see there is an alarm.

Threats and the Use of Lethal Force…

Question:  I have a question that I would like to throw your way and I know that you said that you were not a lawyer but I would like to bounce my situation off of you.  My father and I have a painting company and we work together on a daily basis.  He has an individual that used to be employed by us that has come to our job site on three occasions and harassed us the first two times and this last time has threatened to kill (by shooting) my father and I in front of several witnesses.  He said he would return in a month if the “dispute” is not resolved (he says we owe him money that is not owed).  It is coming up on a month and I’m just wondering if he produces a lethal weapon since he has threatened to use it on my father and I, I feel like I would be within my rights to use my weapon on him first? Additionally I think my father is getting a restraining order on the individual. Either way the authorities will be called next time he shows up but as you know we cannot expect the police to protect all individuals at all times.  Sorry for going on for so long but any input that you have on this subject will be appreciated.

Answer: Again, I have to state for the record that I cannot give you legal advice and that if you need it, you should talk to an attorney that you have hired.  That said, under the circumstances you describe, getting a restraining order is a good first step.  I don’t know the person in question, but many people out there, unless they have a history of violence, are more ‘blow’ than ‘go’.  The loud threatening ones are generally not the ones I worry about.  They are engaging in bullying behavior in an attempt to ‘get their way’.  Most of the time, a restraining order takes the wind out of their sails.  If you tell the judge that the subject of the proposed order owns firearms, they can also issue an order that prevents them from purchasing or possessing firearms during the period of the restraining order.

If he does show up and uses a firearm or knife to threaten or intimidate either you or your father, you are within your rights to defend yourself.  My guess it that as soon as you draw down on him he would crap his pants, but without knowing his history, I can’t be sure.  It is also a very good idea to immediately call the police if he shows up again.  Don’t wait, just call them immediately.  Make sure you tell the 911 operator that he is engaging in threatening behavior and may have a weapon in his possession if you believe that to be the case.

If you decide that you need to use your firearm, be absolutely sure that you or another person are being threatened with lethal force.  If that is the case, I would not hesitate to do whatever is necessary to eliminate the lethal threat.

Does the Use of Hollow Point Ammunition Increase Legal Liability in a Justified Shooting?

Question: During my CCW class the instructor was adamant about when to use deadly force to stop a life threatening event, however he made it clear not to hesitate when no other option is available.

This brings me to my question about Harold Fish and the use of hollow point bullets for self defense. On Dateline NBC and in an article on MSNBC details Mr. Fish and his trial here in Arizona. One of the points in finding him guilty was that he was using ammo that was hollow point (Hydro-Shok).

One of the points the CCW instructor made was that FMJ ammo (not hollow point) would be more dangerous to shoot in a self defense situation in that it would more than likely go through the bad guy and possibly injure or kill someone innocent.

What is the correct line of thinking where the law is concerned? Should we use JHP or FMJ ammo for personal protection? Are we at risk for a prosecutor arguing that we too used what is considered a deadlier round by using a JHP for self defense?
Answer: It sounds like you had a pretty good CCW instructor.  His observation on the use of lethal force to stop a life threatening event sounded like it was pretty much on target.  You reference the Harold Fish case and the issue raised with his use of hollow point ammunition.  From the way your question was phrased, I got the impression that you felt the fact that he used ‘hollow points’ was one of the major factors in his conviction.  In my view after reviewing the particulars of the case, it appeared to be a minor issue raised by the prosecution in a ‘piling on’ of issues designed to show that Fish was not justified in the use of lethal force.

To quickly review the major points of that case, at the time Fish was being tried, he had to mount an ‘affirmative defense’ having to prove he was justified in using lethal force.  This was a flaw in the law regarding lethal force and self-defense which was corrected by the AZ Legislature at the urging of many, including the AZ Citizen’s Defense League.  The change in law now places the burden of proof on the prosecuting attorney to prove that the defendant’s use of lethal force is NOT justified.  This change correctly placed the burden of proof back where it should have been all along.

This was not the case in Harold Fish’s situation.  Since he needed to prove that he was ‘justified’ at the time of the court case, the prosecutor pretty much tore him apart, largely on the basis that Kuenzli was unarmed.  I remember commenting to my wife at the time of the shooting that Mr. Fish was probably ‘toast’ because of the existing law and the circumstances surrounding the case.  Since your question did not really address the particulars of the Fish case, but simply the effect of the ‘hollow points’, I won’t comment further except to say that I think there has been a serious miscarriage of justice and that Mr. Fish should be granted a new trial as he has requested.

According to the MSNBC article the firearms investigator in the case is supposed to have testified “that Fish’s gun, a 10mm, is more powerful that what police officers use and is typically not used for personal protection”  He also stated that the ammunition Fish used was called a ‘hollow point bullet’ and is made to expand when it enters the body.

Personally, I’d like to take issue with the investigator on a couple of counts.  First, the 10mm is a more powerful cartridge that most police officers carry.  It is interesting to note that the FBI actually selected the cartridge for field use in the mid 1980s, but then decided against it due to the excessive recoil and the physical size of the pistols of that caliber.  The recoil was deemed to be excessive for the average agent and the guns too large for some small handed persons.  The FBI and later the entire DOJ adopted the .40 Smith & Wesson caliber as the standard.

Now, consider for a moment the following:  10mm is exactly .40 inches in diameter.  The only difference between a .40 and a 10mm is the length of the cartridge.  On average, the difference in muzzle velocity between a 10mm and a .40 caliber round is only about 200 fps.  (1300 for a 180 gr. 10mm, 1100 for a 180 gr. .40 caliber).  So, while the investigator is ‘technically’ correct, his testimony was misleading.  The diameter of the bullet expansion would be almost exactly the same for both calibers.  In short, the diameter of the holes punched in the victim by the two different calibers would be almost exactly the same.  It is also misleading that he didn’t mention that ALL police officers carry ‘hollow point bullets’ and that they are the standard ammunition for personal defense.

In my professional opinion, jacketed hollow point ammo is the ONLY ammo I would carry for personal defense.  I don’t feel that it is a legal liability in a justified shooting.  Any criminal defense attorney worth his fee would have made that very clear.  It may have been clear in the courtroom and MSNBC (read ‘liberal, anti gun media outlet’) was using a little editorial license in their account to scare those not firearms knowledgable and make Mr. Fish seem more culpable.

Concealed Carry of an Airsoft Gun vs. a "Real" Firearm

Question:  I recently took my AZ CCW and sent my passed exam and state application for acceptance. My question is: If one has an AZ CCW permit, can he or she carry a soft air gun without the red or orange tip attached to the gun. Reason for this question, is that many people want to have something for self defense but only wanting to use something that may scare or flee off the bad guy in a threat rather then disable them. Thank you for your response.

Answer: Federal law requires that the orange tip be present on the Airsoft guns to make them legal for commercial sale.  However, once sold, local laws vary on whether the orange tip may be removed.  Honestly, that is the least of issues with respect to the questions you are asking.

The more troubling question for me is the idea of using an Airsoft gun for “self defense” or “defensive display”.  I believe that by doing what you suggest you are placing yourself at grave personal risk.  Technically, the answer to your question is yes, but understand that by carrying a ‘toy firearm’ without the appropriate markings, you are making people think you have a ‘real’ firearm when in fact you don’t.  Should you find yourself in a situation where you are confronted by a person that has a ‘real’ weapon or that presents a ‘real’ lethal threat,  you will be defenseless against them and they will probably kill or seriously injure you.

You must understand that the only justification for your threat of lethal force or use of lethal force is when you are being immediately and illegally threatened in a way that would make you believe that you or another person are in danger of being seriously injured, permanently disabled or killed by the potential threat.  If you have sufficient cause to draw a ‘fake gun’ to attempt to ‘scare them off’, you have sufficient justification to draw a real firearm.  What would you do if they press the attack?  What happens if they shoot someone else?  What if they see you have a ‘weapon’ and start shooting at you?   I hope you see how potentially dangerous your proposal is…

If you are not prepared to carry a ‘real firearm’ and use true lethal force against an assailant that is manifesting a lethal threat against you or another person, you have no business carrying a firearm.  I know this may sound a bit harsh, but you will be a danger to yourself and others.

You speak about using the airsoft to ‘scare’ vs. using a real firearm to ‘disable’.  Again, let me clarify something that your CCW instructor should have taught you.  You NEVER shoot to disable someone who is issuing a lethal threat against your or another person.  You shoot to stop the threat.  This means that you should direct fire at your assailant using the largest target available to you which is their center of mass.  If you shoot to wound, you could have serious issues proving that the threat was immediate and unavoidable.  Similarly, by shooting to wound, you may not stop the threat at all.  Again, this would most likely result in serious injury or death on your part…

Based on what you have told me, I would STRONGLY CAUTION YOU TO AVOID CARRYING AN AIRSOFT PISTOL IN LIEU OF A REAL FIREARM.  If you are not prepared to use lethal force in the face of a lethal threat you should not carry a concealed weapon.

Use of Lethal Force to Stop Sexual Assault or Rape

Question:  I understood in the AZ CCW class I took that a child being sexually assaulted or raped by an adult could be stopped by even killing the adult.  True?  If so, what is the specific statute in Arizona law?

Answer: That is correct.  The specific statute is:  ARS 13-411.  If you read the statute, it does not limit the sexual assault or rape to a child.  The statute refers to any sexual assault or rape.  There is also a provision for sexual misconduct with a minor which specifically deals with sexual relationship between someone who is not above the age of consent (16) and someone who is over 18.  This statute applies whether the sex is consensual or not.

The specific law reads as follow:

13-411. Justification; use of force in crime prevention; applicability
A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other’s commission of arson of an occupied structure under section 13-1704, burglary in the second or first degree under section 13-1507 or 13-1508, kidnapping under section 13-1304, manslaughter under section 13-1103, second or first degree murder under section 13-1104 or 13-1105, sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, child molestation under section 13-1410, armed robbery under section 13-1904 or aggravated assault under section 13-1204, subsection A, paragraphs 1 and 2.
B. There is no duty to retreat before threatening or using physical force or deadly physical force justified by subsection A of this section.
C. A person is presumed to be acting reasonably for the purposes of this section if the person is acting to prevent the commission of any of the offenses listed in subsection A of this section.
D. This section is not limited to the use or threatened use of physical or deadly physical force in a person’s home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be.