Sierra CCW Blog:
When Does "Fearing for One’s Life" Allow Self-Defense?
With so many officer-involved shootings these past few months, the public has rightly questioned whether deadly self-defense action was warranted by these officers. Although each case must be evaluated on its own set of circumstances, officers are allowed to defend themselves during the performance of their duties. But claiming self-defense is coming under greater scrutiny by the public, by local municipalities, and by police departments, as it well should.
With the proliferation of camera-equipped smart-phones, doorbell cameras, surveillance cameras, officer-worn body cameras, and automobile dash cameras, the chances of a self-defense situation being caught on camera, and presented in court as evidence, is much greater than ever before. We have seen several videos recently of officers shooting suspects in the back as the suspects flee. Those officers will almost certainly face criminal and civil trials as a result of their decisions.
In California, in order for civilian (non-law enforcement) victims to protect themselves using lethal force, several things must occur. The victim must have “bare fear” that the assailant is about to cause death or great bodily injury to the victim (or another person), that the attack is imminent, and that the level of self-defense action taken is appropriate to the level of threat offered against the victim.
In other words, if the victim could simply walk away from the situation and be fine, then the jury at trial will not likely believe that the victim had no choice but to shoot in self-defense. The mere threat of words by an assailant, such as “I am going to perpetrate great bodily injury upon your person”, does not, in and of itself, constitute an attack against which a victim can launch a lethal self-defense action. The attacker must intend to, and be capable of, carrying out the threat.
Also, if the victim produces a firearm in defending an attack, and the assailant aborts the attack, and runs away, the attack is then over. At that point, the victim can no longer claim self-defense, and shoot at a fleeing assailant. Once the attack is over, whether the assailant gives up, runs away, or for any reason can no longer carry out the attack against the victim, the lethal self-defense action must end.
For everyday citizens, the question of if-and-when a victim actually feared for their life when faced with an assailant, is a purely subjective set of circumstances. What might feel like a deadly threat to one person might not be a threat at all to another. The jury gets to decide whether the victim reasonably had “bare fear” or not.
A CCW permit in California does not confer any authority to enforce laws or act as an officer. Permit holders are held to the same self-defense limitations as any other citizen.
Nothing in this article constitutes legal advice or legal opinions. Consult a qualified attorney for any questions on the use of force in self-defense situations.
The Power-Vs-Liability Equation
People often show up to my CCW classes packing some very powerful firearms. I’ve seen many .357 magnum caliber revolvers, plenty of 10 mm semi-autos, and even a few .44 magnum pocket-canons. Why do they choose these firearms? Those students tell me they want more stopping power.
Stopping power means the projectile launched by the firearm (the bullet) will have enough energy to abruptly end an attack. So, how does it work?
A bullet stops a threat by delivering and transferring its kinetic energy into the target. That kinetic energy creates a shock wave, a wound channel, bleeding, organ disruption, etc. An appropriate round for self-defense should contain an adequate amount of energy to stop the threat, but no more energy than that.
If a cartridge contains more energy than necessary for an intended target at a given distance, then the projectile may have too much energy to stop inside the target. The bullet may just keep on going. That’s called over-penetration. If a bullet over-penetrates its target, it has not expended all of its energy in the target.
The excess energy of an over-penetrating projectile has been wasted, but more importantly, where will that projectile end up? It’s got to stop somewhere. It might destroy someone’s property, or it might stop in an innocent person behind your intended target. The jury at your trial is not going to care that you stopped a bad guy. The jury is going to care a lot about the little kid you killed behind the bad guy.
Handgun cartridges are manufactured in a huge range of energies, typically measured in foot-pounds. The lightest of these cartridges will be lacking in stopping power, although little .22s kill people all the time. Then there are those few cartridges that possess just enough stopping power for most situations, but no more. Here, you’re looking at .38 special, 9 mm, and .45 auto, most commonly. More powerful than that, you’ll see the bigger calibers: .40 caliber, .357 magnum, 10 mm, .44 magnum, and even .50 caliber.
Those more powerful cartridges actually only serve to increase your personal liability astronomically, without offering a proportional increase in the ability to stop the threat, assuming average attack distances. Those bigger cartridges are much more likely to over-penetrate the target, with their extra energy either wasted or causing unintended damage to innocent persons or property.
This power-versus-liability equation is why many police departments across the country are increasingly favoring 9 mm cartridges for all handguns issued to their officers. Those police departments, as well as many individual firearm owners, understand that once a projectile’s energy offers more liability than stopping power, the defender has no longer achieved any real advantage. There are certain circumstances where more powerful cartridges are appropriate. Most self-defense situations do not fall within those parameters.
Purchasing the Best Firearm For Home Defense
Unless you were born before 1918, living through a global pandemic of communicable disease is a new and terrifying event. It has raised extreme anxiety in many people. There has been a significant increase in the number of Americans buying guns and hoarding ammo.
Will the Coronavirus outbreak result in thousands of zombies walking your neighborhood, looking to steal your toilet paper and hand sanitizer? As of yet, there is little evidence to support that as an outcome. Abject fear is not always based on sound reasoning, and even reasonable people can be consumed by fear.
Lately, I have received phone calls from some very anxious people who believe purchasing a firearm might be the answer for home protection. “What’s the best gun for home defense?” is the question I am most often asked. There is no easy answer. A semi-automatic handgun might be a fine home defense firearm for one person, and completely useless for another.
For many people, a simple pump-action shotgun would provide more-than-adequate protection from an intruder. You don’t have to be a great shot, and the chances of a jam or misfire are minimal. A long firearm, such as a shotgun, may not be the best for a room-to-room search, but I would discourage such searches anyway. That’s for the police to do.
The home-defense firearm to absolutely avoid, though, is the one with too powerful a cartridge for the job. For most people interested in handguns for home defense, cartridges such as .38 special, 9 mm, and .45 caliber seem the most appropriate. And for the pistols that fire those cartridges, most people will be able to use revolvers without any major issues. Very few people can actually quickly clear a jam in a semi-automatic pistol, especially in a panic situation, without regular and rigorous training and practice. And all semi-autos will jam at some point.
Remember that firearms dealers are interested in moving product. They do not necessarily have your best interest in mind. They will often promote firearms that are cool, hot sellers, or bring the most profit. As a buyer, you need to critically evaluate a firearm’s utility, appropriateness, caliber, operation, reliability, ease of use, safety features, cost, and the learning curve to master its use.
A firearm may or may not be not be the right choice for your home protection needs. Choosing the wrong firearm will definitely increase your personal liability without much improving your odds at defending your castle.
Common Reasons for Misfires
Over the last several years, I have paid careful attention to how many of my students’ firearms fail to fire at the range. There are many common reasons a pistol does not go bang when expected, but most of the time the answer is simple. The person handling the firearm has done something inadvertently that causes the firearm to work improperly or to not work at all.
Sometimes, a firearm will fail to function as a result of something out of the shooter’s control, such as loading it with bad ammunition, or a mis-manufactured or poorly manufactured firearm, or a broken component. But those times are few and far between.
Among semi-automatic pistols fired at the range during my classes, just about 50 percent have experienced a failure of some kind. The sample size is substantial, several hundred, because almost all CCW-applicant students want to carry semi-autos. And it doesn’t take very many rounds for problems to start happening, usually within the first 15 rounds fired.
Admittedly, the sample size for revolvers is much smaller. Over the last several years, only a few dozen CCW applicants or other students have wanted to qualify with a revolver. Of the revolvers shot at the range during my classes, none has ever failed to fire. That doesn’t mean it can’t happen. Revolvers can break, and they can also be loaded with bad ammo. It just hasn’t happened yet in any of my classes.
However, the potential for a revolver to fail to fire because of how it is being handled is much lower than that of a semi-auto. With a revolver, you just point it and pull the trigger. Not much else has to happen. With a semi-auto, lots of things need to happen perfectly in order for it to work as designed. It’s just the physics of the machine.
So far, during qualifications at the range, here are the most common reasons semi-autos would not go bang when class participants pulled the trigger:
Thumb-safety was left on.
No round was chambered.
Limp-wristing resulted in stove-pipe or double-stack.
Student unable to recognize the firearm was out of ammo.
Improperly lubricated slide prevented proper operation.
Dirty firearm prevented proper operation.
Slide was gently moved forward, so that it failed to go into full battery.
Slide was released from the slide lock, so it failed to go into full battery.
Ramp would not reliably feed cartridges into breech.
Grip safety was not depressed adequately.
Student loaded wrong caliber ammo into magazine.
Internal safety-lock was left in locked position.
Before shooting, each student was extensively coached as to how to handle and shoot their firearm properly and effectively, and also how to recognize and remedy possible failures. However, when one of these problems arose at the range, only about 1 in 40 students was able to quickly determine the problem, take appropriate action (such as “Tap and Rack”) and then re-engage the target.
We tend to put a lot of faith in our firearms. Too much faith. It is likely driven by past experiences where the firearm had performed well, or by the constant mis-information we receive from media portrayals and advertising hype. Consequently, it would be wise for anyone carrying or shooting a semi-automatic, or really any firearm, to assume their firearm will misfire, thus ensuring readiness to take action if it does misfire.
When Not to Declare You Are Armed
I have heard several instructors tell their students, if a bad guy initiates an attack, you should first warn the attacker with something like “Stop! I have a gun and I am prepared to defend myself”. I have a real problem with this, and for many reasons.
First off, by announcing that you are armed, you are giving up your tactical advantage. That tactical advantage is very important to you. It may be your only ally in your fight to survive. By telling the attacker in advance that you have a gun, that attacker may then decide to step up or rush his attack. Seeing that you have no gun in your hand at the time of your proclamation, maybe he will decide to rush you. Maybe he is faster than you. Oh wait. He is faster than you.
Next, just how often in your day to day life are you being attacked by aggressors? My guess is probably not very often. Normally, CCW holders do not get very much practice at drawing against actual aggressors. At most, CCW holders go out to the range every once-in-a-while and plink at harmless pieces of paper. Without the instantaneous, unexpected, and altogether unpleasant infusion of adrenaline, engaging that piece of paper is not a problem. But trying to engage a terrifying monster that is coming at you and not holding still, all while shaking with adrenaline, is a very different skill.
Most, but not all, CCW students tend to overestimate their skill and speed. If you are going to be attacked by an aggressor, it will most likely be by surprise. Very few crooks will warn you of an impending attack from far away. You’re going to need all of the speed, skill, and mostly luck, that you can muster. Proclaiming “Stop! I have a gun and I am prepared to defend myself” takes valuable time away from your actual defense.
Go ahead, time yourself saying “Stop! I have a gun and I am prepared to defend myself”. It takes me about three seconds. That’s three seconds you desperately need to evaluate the threat, evaluate the totality of the circumstances, arrive at the conclusion that you are in imminent danger of death or great bodily injury, then decide to fight or flea, and then take physical action by moving clothing out of the way, properly drawing and presenting your firearm, aligning the sights on center mass, and stopping the threat.
When I practice at the range, I yell “STOP” very loudly as I am drawing. “Stop” does not come before I draw. It comes as I draw. It serves as both a warning to the bad guy, and as a proclamation to the world that I am the victim. There is no legal requirement in California that a CCW holder warn an attacker. Warning an attacker with a prolonged statement may just be the reason the CCW holder gets injured or killed.
“My Semi-Auto Has NEVER Misfired!”
Talk about famous last words. These just might be your last words.
Most people come to my classes bearing semi-automatic pistols. Striker-fired, hammer fired, single action, double action, Glocks, M&P’s, Walthers, Sigs, Berettas, and Springfields. Everyone loves their semi-autos. And why not. They’re cool, and they’re fun to shoot.
I spend some time in class talking about how to handle misfires. Invariably, students will chime in that their semi-auto has never mis-fired, not once in the 30 years they’ve owned it. “Terrific” I say. “But it can misfire, and if Murphy’s Law holds up, it probably will misfire at the worst possible time.” I then go on to assure my students that they will probably experience a misfire at the range during qualification. I say this because I am reasonably sure it will happen. It almost always happens.
Clearing a mis-fire is no big deal. Tap the magazine and rack the slide. The problem is you have to expect the gun to misfire. But even when I tell students to expect it, when it happens, it still catches them by surprise. The reaction from most students when their gun goes “click” instead of “bang”, is to stare at their firearm in bewilderment and disbelief.
In a real-world defensive situation, you as a CCW holder, will not have those precious seconds to figure out what is going wrong with your firearm. You have to react immediately, quickly, and decisively. Even then, you may not have enough time until the attacker hurts or kills you.
Semi-autos are wonderments of the laws of physics. But those same laws of physics make it reasonably certain that they will, at some point, misfire. And in a panic situation, which surely describes a defense to a sudden attack, shooting a semi-automatic in such a way that takes any substantial energy away from the slide can result in a malfunction of some sort.
Semi-automatic pistols are fine for self-defense. As long as you expect your gun to misfire.
Trendy and Cool Firearms That Don't Work
I get a lot of students that purchase firearms based only on the recommendation of the gun salesperson. Most often, the student regrets it. Salespeople are interested in moving merchandise, not what’s best for the buyer.
This week I had a student that bought two brand new firearms from a dealer who told her these were what she should buy. She came to class and was unable to load, unload, or make the gun safe. Obviously NOT the gun for her.
It’s a much better idea to take your time when choosing a firearm. Manipulate the controls, try some “natural point of aim” exercises, and check out several different models. Do not buy into the advertising hype of the manufacturer or the dealer. And don’t buy a firearm just because it looks cool or it’s trendy.
Why Appendix Carry is So Cool, and Why You Should Never Do It.
In my CCW classes, I sometimes like to show students film clips of how NOT to do things. You know, like self-professed CCW experts shooting themselves in the foot. That sort of thing. Many of the unintentional discharges taking place daily in the United States are because of one thing, the CCW holder has his or her finger on the trigger when it should not be there.
Drawing a firearm from a holster is a prime example. You can see film clips on YouTube all day long of people yanking firearms from holsters and firing off a round right into their own knee, or some other obviously not-very-valuable body part. These people are somehow unaware that one’s trigger finger should never be touching the trigger until the moment a shot needs to be launched.
But hey, it’s a free country. Do whatever you want, right? After all, it’s just a foot or a knee, and that means only a few hours in the ER of your local hospital, and just a few thousand bucks worth of medical bills. No big deal.
This brings us to “appendix carry”. Appendix carry is when a CCW permit holster tucks the firearm down into the front of the pants, leaving the grips just above the belt. People love appendix carry. It’s so cool. Superheroes do it all the time on TV and the big screen. Holster makers and gun magazines sing its praises because it sells a ton of product.
What many people fail to comprehend, however, is how appendix carry points the business end of the firearm at some very valuable real estate. For those who always draw their firearm with their finger on the trigger, and even for those who draw safely and correctly, this can present an obvious disadvantage. Plus, because it’s a cross-draw method, you will probably end up pointing your firearm at innocent people before engaging the target.
Even well-versed, well-trained, well-practiced CCW holders put their fingers on the trigger at inappropriate times. Most are not aware they are doing it. Being shot through the lower abdomen or through one’s reproductive bits is likely to sting a whole lot more than just shooting yourself in the leg. If you live through it at all, your life will be forever changed. Oh, and a minor point here, but if you severely injure yourself before stopping the violent threat from the bad guy, you lose, he wins.
Most of us, fortunately, never get to experience what it feels like to have a flood of adrenaline enter our bloodstreams. That stuff has some profound effects on people’s bodies, including loss of fine motor skills. That means the trigger finger may not behave as it always had before. If you are ever viciously attacked in real life, you will definitely have a rush of adrenaline, and you will very likely not preform the same way as you have practiced at the range.
So, believing you can keep your finger off the trigger until the appropriate time is really a best-of-all-scenarios pipe dream. Good luck with that. Concealed carry isn’t about being cool anyway. So instead of appendix carry, for most people, carrying on the strong side hip is the safest, most efficient, easiest to conceal, most reliable, most practical, and smoothest way to carry.
Are Kydex Holsters a Good Choice for Concealed Carry?
Thermoplastic holsters are all the rage. They come in lots of fun colors, and they are molded perfectly for your firearm. Advertisers are spending a fortune in print and TV ads to get you to buy them. From what I see coming through the door of my firearms training classroom, lots of Californians are scooping them up and singing their praises.
I have a Kydex holster that came with my 1911. After using it in the field, and watching so many of my students use them, it has become apparent that plastic holsters may present limitations to CCW permit holders.
Of primary concern for CCW is concealment. An inside-the-waistband plastic holster will conceal about as well as any leather holster, with the exception that the plastic holster may make lots of noise. If a Kydex holster bumps or rubs up against anything solid, like a car door, wall, or even a wrist watch, the bad guy might be on to you packing a pistol. A Kydex holster also makes a ton of noise as you draw and re-holster. Concealment is your biggest tactical advantage. Why have equipment that could compromise that advantage? For my own personal safety, I want a holster that is quiet and discreet.
Something no-one talks much about when discussing an actual attack, is that if a bad guy discovers you are packing a gun during a struggle, it’s a given that he’s going to try to take it from you. All of my leather holsters have thumb breaks for firearm retention. With my thumb-break holster, a bad guy would have an easier time pulling my pants up over my head before he is going to get my firearm. Yet, a thumb-break takes absolutely no effort at all on my part, and no added time, to draw my firearm. Very few Kydex holsters are offered with a thumb break as a retention system, relying merely on friction and fit to keep the firearm from falling out. Any attacker that forcibly yanks on a gun from a low-retention holster is going to now be armed with your gun, while you are left trying to poke him in the eye. Not a good situation.
A well-functioning holster must also offer some degree of protection for your expensive firearm. After holstering and re-holstering my brand new 1911 in its Kydex holster, and then examining the marks it left on the pistol, it became obvious that hard plastic wasn’t going to keep the gun in like-new condition. One “gotcha” with Kydex is when grit, sand, or dirt adheres to the inside of the holster. Re-holstering then can leave deep scratches on the firearm. On other other hand, Kydex does rinse off easily enough, and doesn’t retain moisture like a leather holster can. And yes, many CCW owners are proud that their firearms are all marked up, scratched up, and well-used. Well, OK then.
The last three jobs for a good holster on my list involve access, smooth draw, and safety. Access depends on where the holster is worn. I’m not a big fan of appendix carry, or behind-the-back carry, but that’s for another article. The ease of draw is dependent on how well the plastic holster fits the firearm, and how well the holster was manufactured. If your Kydex holster heats up close to 160 degrees, let’s say by leaving it in a hot car, it will start to deform. You’ll probably have to buy a new holster. Severe cold can also cause plastic holsters to crack or shatter.
Many Kydex holsters feature adjustable retention, which is typically just a tightening screw to increase friction. Remember “Smooth is Fast”. If your firearm gets hung up during the draw, that’s not smooth or fast. I’ve also seen some completely unsafe Kydex holsters, and leather ones too, for that matter, where the trigger is left open on the holster, allowing the untrained user to put the index finger on the trigger during the draw. Fine, if you’re into shooting yourself in the leg.
Concealed carry in California is for defending your life, or the life of another, during the most desperate situation imaginable. During a life-or-death encounter, Murphy’s Law will surely kick in, and you will need well-practiced skills, muscle memory, every tactical advantage possible, and a good bit of luck to prevail. Your holster is part of the CCW package. It can’t be the weak link.
The reality is that the majority of CCW applicants taking my classes are doing it because they think CCW is cool, not because they are super concerned about being attacked. If CCW is cool to you, carry whatever holster you want; camo-colored-Kydex, a paper bag, it doesn’t really matter. But, if you are carrying concealed because you have to, then your holster should give you every tactical advantage you can get. For me, anyway, a Kydex holster doesn't measure up to that standard.
Robert G. Scott is the lead instructor at Sierra CCW. Robert was “Top Gun” at his police academy. He has authored two books and published over one hundred articles.
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CCW is about protecting yourself and your family from a potentially lethal threat. At Sierra CCW, our classes are designed to give you the tools, facts, and techniques that are proven to increase the odds of surviving an attack, surviving the litigation that will likely follow, and to help you sift through all of the mis-information floating around.
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