Category Archives: law enforcement

Occam’s Razor for shooters….

The Ockraz Logo
The Ockraz Logo (Photo credit: Wikipedia)

William of Ockham was an influential medieval philosopher who is recalled chiefly for the maxim attributed to him known as Ockham’s razor. Also spelled “Occam’s Razor”. The words attributed to him are, entia non sunt multiplicanda praeter necessitatem…or “entities must not be multiplied beyond necessity”.

I bring this up because I have just read a quote from the Dokkodo, the “The Solitary Path”, which is a short piece written by Miyamoto Musashi shortly before his death:

Do not collect weapons or practice with weapons beyond what can be of use to you.

I see a link between the philosophies of these two men and an application to weapon training. I will attempt to explain.

These philosophical issues come to mind because I was recently involved in a friendly conversation debating that “Less Filling. Tastes Great” topic of using the slide release vs “power stroking” the slide on a handgun during an emergency reload.

I have a post here regarding this very issue BTW.

Debate points that always seem to come up when discussing emergency reloads are:

“I use the power stroke because I may be using a weapon I am unfamiliar with and running the slide is fairly universal for all pistols while slide releases may vary.”

and

“I use the power stroke because the actions are similar to the manual of arms for clearing malfunctions.”

Being a fairly recent convert to the slide release method, Occam’s and Musashi’s quotes kind of cut me both ways.

I argue that the “It’s universal for all pistols” point either means you own too many pistols or you are saying you are going to be doing a combat pick up of a pistol…or a disarm.

Per Occam/Musashi…if you have so many different pistols that you may/may not be carrying at any one time, you are violating their precepts. I’m not against collecting guns, I’m not against having different pistols/rifles for different applications, but if you worry that you may not be able to “auto pilot” your weapon because you may be carrying something different on any given day, that’s a problem IMO. Pick one and make it a part of your hand.

The combat pick-up/disarm argument doesn’t hold much water for me either. I’m probably not going to disarm an attacker of his weapon and magazines and have to do an emergency reload with them. And the combat pick-up is such a statistically rare issue that I don’t see it as a valid point. Either way, if they worry you then do the power stroke method if that ever happens.

The second point…”I use the power stroke because the actions are similar to the manual of arms for clearing malfunctions.” Is a more valid argument when applying Occam (Musashi doesn’t really apply here). Having one way of operating the pistol regardless of reason (malfunction or running dry) is a stronger point IMO and I have much to agree with.

However I would counter that Occam said “…must not be multiplied beyond necessity” he didn’t say “never multiply”. The slide stop method has some things going for it; speed, efficiency, the weapon/hands stay more oriented to the threat, etc. The necessity of multiplying your manual of arms to gain those advantages may be debatable, but I would debate it.

Either way you choose I find Occam and Musashi’s points as interesting ways to analyze our choices when it comes to weaponcraft. What do you think?

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shoot to……what?

Grave awaiting its coffin.
Grave awaiting its coffin. (Photo credit: Wikipedia)

I was just reading Tiger McKee’s “The Book of Two Guns” where I came across this passage:

When engaging a threat with fire you are shooting to stop the threat-not kill them. Due to the areas we must shoot to stop the threat effectively-the center mass and head, the threat may die. But that isn’t the desired effect. Our job is to stop the threat as quickly as possible-or we hurt them enough that they decide to leave.

I entirely understand WHY we are taught this way…because of litigation. “So officer you are saying that you INTENDED TO KILL MY CLIENT?!?!”  And to combat the television educated critics that demand to know why we don’t just “shoot him in the leg” or knee.

There’s also the (IMO) silly argument that “shooting to kill” means that we execute incapacitated subjects or surrendering offenders.

However, I have always thought that this meme has some holes in it (so to speak).

If you draw your firearm and shoot someone in self defense, you are intending to use lethal force against them with legal justification. It’s called the “Use of DEADLY force” for a reason. It’s not called the “use of STOPPING force”. Death is not merely a side-effect of your actions, it is most likely going to be the natural consequence of them.

A lack of intent does nothing to establish the justification of self defense, yet somehow people have gotten the idea that they have to pretend that they had no intent when they pull the trigger.

“Stopping” is not a legal term in this context, but firearms trainers are determined to give it legal significance. I would bet an attorney would say that it has none and never has. You can try to dress up the use of lethal force anyway you want, but the bottom line is if you use it you had better be justified in intending to kill. “Shooting to stop” could easily include shooting the handgun out of their hand or shooting their leg. That’s a dangerous road to go down. If you could defend yourself by using less-than-lethal force, they you probably weren’t justified in using lethal force.

If some crook shoots me in an attempt to escape and I survive he is going to be charged with attempted MURDER not an illegal STOP with a firearm.

I will refer you to another post of mine where I addressed this. It was in reference to the tragic death of Police Officer Jonathan Schmidt.

Officer Schmidt was gunned down on a traffic stop while trying to arrest a man with a warrant for an unleashed dog. The man came out of the backseat of the car firing and Schmidt lost his life. A quote from a local news article reads:

Wounded in the neck and scrambling away from a gunman, a young Arkansas police officer managed to shove his sergeant out of harm’s way before dying in a shootout while pleading for his life, witnesses told The Associated Press on Wednesday.

The event transpired when Schmidt tried to remove the BG from the back seat.

According to Elumbaugh, when Schmidt opened the rear passenger door where Lard was sitting, Lard lunged at him and started shooting. Schmidt, hit in the neck by a bullet, turned away and pushed Overstreet toward safety.

Once Overstreet was behind Schmidt’s police car, Schmidt turned back toward Lard and began to return fire.

While he was shooting, Elumbaugh said, Lard was cursing Schmidt, saying “Die, (expletive)!”

“Please don’t shoot me. Please don’t shoot me,” Schmidt cried out, Elumbaugh said.

It’s my opinion that the “shoot to stop” meme so popular in our profession (and made necessary by attorneys) ingrains in us the mindset of “please stop..please let this stop him…God stop him!!”. In this sort of situation, where a gunman has hit you in the neck and is screaming “DIE F$%^#R!!!” at you…perhaps it should be entering into our minds that it’s KILL or BE KILLED! If he’s yelling “DIE MOTHER F#$@%R!!!” I’d prefer to see officers yelling “YOU FIRST A$$%^!E!!!” through a barrage of bullets.

It’s a difficult topic. On one hand I understand the reasoning behind the “shoot to stop” mentality, but on the other it seems more about semantics than tactics.

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i am not afraid. you will be….

Just came across this little nugget:

In the description it states:

Abduction is rampant, even in America. According to the FBI, Sex slavery is now the 2nd highest grossing criminal enterprise in the world (after Drugs). Watch this video to learn what to do and what not to do to avoid falling victim to this social epidemic. For more information, contact us at

Rampant eh? In his book Protecting the Gift, Gavin De Becker states that compared to a stranger kidnapping, a “child is vastly more likely to have a heart attack, and child heart attacks are so rare that most parents never even consider the risk.”

And juvenile kidnapping is a larger percentage of kidnapping statistics as a total than adult kidnapping.

The vid flashes up an assortment of crime statistics implying that you (the woman in a parking lot) are at a dangerous risk of abduction into the sex trade…like a scene right out of “Taken”.

Just critiquing the “facts” presented in this vid… Having been involved  (even if tangentially) in at least one successful Federally prosecuted human trafficking case, I can confidently claim that those statistics are not about the “average woman” being taken in a store parking lot. Women in the US being trafficked come from an entirely different set of life circumstances. Tragic circumstances all the same, but VERY few come form the movie set of “Taken”. Sex slavery is a very complicated crime to approach sensitively when trying to discuss who falls victim and how. While sex slavery may be the “2nd largest grossing criminal enterprise” in the world that does NOT mean that women are being tossed into vans in our suburban parking lots to fuel it. That’s too much movie watching there.

And of that 300,000 children “at risk” of abduction per the FBI stat shown in the vid. “At risk” means something entirely different from actually being abducted. A huge percentage of that number is the non-custodial parent abduction scenario. Depending on what set of statistics you look at juvenile kidnapping is as low as one tenth of a percent of all crimes against individuals.

Be alert, prepared and trained for any circumstance….absolutely. But I don’t know that I support selling martial arts training based on fear mongering founded on inaccurate portrayal of crime statistics.

Duluth Trading Flex Fire Hose Work Pants

Tradesmen out on the work-site are exposed to all sorts of extreme conditions, from the weather, the terrain and just plain ole rugged stuff like sharp edges, splinters, sparks and abrasion.

These folks seek out heavy duty clothes and a company called Duluth Trading is trying to answer the call. They have come out with, what I consider a very strong contender to replace my 5.11 Tactical Pant inventory…the Flex Fire Hose Work Pant.

45507-DEK-flex-fire-hose-work-pants-front

Made of 8 oz. Fire Hose cotton canvas that’s lighter, but as abrasion resistant, as Duluth’s original “11.5-ounce Fire Hose® Work Pants” , the “Fire Flex” Pants add in 3% spandex to provide softer wear and more flexibility over the stiffer originals. And at 8 oz these pants are even lighter than the 5.11 Tactical’s which are 8.5 oz.

fabric2The material is also Teflon®-treated to resist stains and water. I’m sure that wear and washing will eventually diminish this feature, but water still beads on them after a few weeks of wear and multiple washings. Duluth ships these things “pre washed” so they are comfortable right out of the bag.

The Flex Fire Work Pant has plenty of pocket space. Compared to the 5.11′s the differences I have noticed are that the cargo pockets are a bit higher, the Flex Fire’s don’t have that small magazine pocket (which I never carry a magazine in anyway) and the rear pocket has a more traditional flap closure vs the “slit style” rear pocket on the 5.11. +1 for the 5.11 there in terms of ease of rear pocket access.

2014-02-06 09.33.30

The placement of the belt loops are perfect for my belt slide holster(s). Often times pants have that inconvienent belt loop right on the hip, which leaves me with two options; not using the loop at all which feels odd and causes the belt to sag a bit on the hip, or I have to wrestle with threading the belt through one side of the holster, through the loop and out the other side of the holster.

What the Flex Fire’s have going for them in terms of storage is the multi pocket approach to the cargo pocket.

2014-02-06 10.03.28

Compared to the 5.11′s Cargo pockets, the Flex Fire’s provide more organizational options. The each leg sports one main/large pocket that has an additional two exterior pockets on top.  This lets you arrange stuff on the leg vs stuffing it all into one large pocket. And, whats neat with the design on the two outside pockets is that one is closed when the flap is down and one is open. The “Always open” pocket fits my portable radio perfectly and the closeable one holds my cellphone quite nicely.

You may also note what appears to be the “extra velcro” on the pocket flap. Inside the main cargo pocket are two tabs that let you secure the flap inside the pocket so that they can all remain open with the flap held securely against the leg.

stitching

velcro

I don’t have a photo of it, but there’s even a hidden pocket inside the pants at the left front waistband area. Great place to stash something like a hidden cuff key.

The waist closure is a traditional button/slot affair compared to the  5.11′s snap style closure.

button2 outbut inbutton

I’m not reccommending one style over the other in this department as either seems to work fine for me. I have seen some anecdotal reviews stating that Duluth’s buttons have (on occasion) been seen to fail by pulling out of the waistband material. From what I have seen that may have been more of an issue of too small a waist size being worn…I guess I will see but mine have had no issues.

At about $70.00 a pair you will be paying about $20.00 over the cost of a 5.11 and…as almost everything is these days…they are made in China. But so are 5.11′s (as well as other overseas manufacturers).

Light, tough, comfortable and practical. If you are seeking additional options for a tactical pant the Duluth Flex Fire Hose Work Pant’s are absolutely worth a test run. And with Duluth’s “No Bull” guarantee that they will refund your money if you are not satisfied, what do you have to lose?

lets see if this gets hearts racing

Anyone into LE/MIL training has heard of the book “Sharpening the Warriors Edge“. The core of the book is focused on the proposition that the human heart rate is a factor in combative performance under stress and that as the heart rate increases a person will loose motor function and other skills.

This book and author were picked up by Ltc David Grossman, who you all know, and this heart rate chart was propagated throughout MIL/LEcircles as proven science.

I have always been skeptical of the whole “heart rate chart” thing and how the TAC/LE community seems to have swallowed it without any sort of verification or peer review.

I don’t believe that HR in and of itself causes any significant motor loss.  I remember doing drills in SWAT school where I had to run in full gear and assemble a pistol while competing head to head. Since it wasn’t life or death it wasn’t exceedingly difficult. If anything, it would have been the mental stress of competition that caused any motor skill degradation. Conversely I’ve had some “oh shit” moments that left my hands shaking…Imo its adrenalin and mental factors that are whats in play here not HR at all. Saying heart rate is the cause is like saying that dilated pupils cause nodding out…not heroin in the bloodstream. Heart rate may be somewhat of an indicator of hormonal changes in the body but I see no proof that those indicators prove to be universal between all persons.

I note that in more recent versions of the HR chart it stipulates “HORMONAL Induced Heart Rate”. I don’t know if Siddle has altered his approach or if these charts are from a source other than Siddle, but when it first came out it seemed implied that heart rate ALONE was the factor and that’s how many LE/MIL/TAC trainers were regurgitating it to their students.

All the same I don’t know that HR should be used as a metric at all. I would think that people would have different symptoms at different heart rates under adrenaline/hormonal influences. Just because I may loose motor skills when scared at around 155 BPM doesn’t mean you are going to lose them at the same rate.

I wonder where these numbers came from…and so do others. That’s the core of the criticism as I see it.

Some other LE/MIL folks didn’t bite either. Hock Hochheim posted the following.

http://www.hockscqc.com/blogs/08-13/index.htm

Go to the bottom…August 1st post.

Of particular interest to this discussion from Hocks post is:

The professional look of the chart and its matter-of-fact presentation suggests some very serious, study work has been done. But by whom? The actual source is somewhat elusive these days. The source is usually just regurgitated as “Bruce Siddle’s work on,” or the “work of Bruce Siddle,” over and over again, as through Siddle himself was a renown heart surgeon or maybe a Distinguished Fellow, doctor at Houston’s Debakey Heart Center. Does anyone ask, just who this Siddle really is? Actually, Siddle has not graduated a college and has no psychology or medical degree or experience. He is essentially a self-proclaimed, martial arts grandmaster of his own style ” Fist of Dharma,” from a small, Illinois town. He had an idea at a very ripe time decades ago, to teach very non-violent, police courses. Many police administrations loved the programs because of the pressure-point approach. Many, many officers, including myself, did not like the program.

Siddle is also the guy behind the Pressure Point Control Tactics (PPCT) System that was so popular in LE circles for a while.

Its interesting how a self-proclaimed grandmaster can found a widely LE accepted DT system, leverage what many are now believing to be a mistaken idea into notoriety, and even get ownership of a handgun manufacturing outfit (with Grossman once again). The snake eating tail aspect of tactical experts endorsing/spouting each others work serves to ingrain concepts into our training and operations…some are good, but others we really should be taking a closer look at.

Grossman also used to hitch his training wagon to John Giduck who also is having some credibility issues of late.

This all goes to show the power of “getting an in” with LE and MIL circles. I don’t want to come off as “bashing” any of these authors but we in the LE/MIL communities seem to be having a “flavor of the day” issue with people and concepts. I think a dose of skepticism would serve us better than hero worship of authors and trainers we haven’t seriously investigated or vetted.

Do any of my readers have any additional information or expertise on this subject?

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when things go sideways

This post is going to try and explain one of the more difficult combat carbine concepts to comprehend (see what I did there ?).  That is the trajectory of a rifle round when firing from the “rollover” or “urban” prone position.

Before I try this, you need to review what the normal trajectory of a fired round is:

g4942

While the common phrase used when talking about a bullets flight is that a round “rises to the line of sight” after it exits the muzzle, the fact is the law of physics cannot be denied. Like water from a hose, gravity takes hold of a bullet the moment it exits the barrel.

If the bore line and your line of sight were the same, a bullets trajectory would look something like this:

Tragif

Tragif2

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So…your weapons sighting system is designed so that the barrel angles upwards in relation to your line of sight.

g4942

When the round exits the barrel gravity still takes immediate effect, but because of the upward angle of the barrel the bullet follows a curved trajectory.

When the rifle is held in this upright position, bullets will impact a target in more or less a vertical string depending on the distance to the target. Wind can impact the strike laterally but that’s for another discussion. Within the average engagement envelope of a combat carbine wind is not typically a major concern.

g4096

This whole relationship changes when the rifle is canted or held sideways.  One of the common positions in modern combat carbine application is the “rollover” or “urban” prone position.

To maximize cover and concealment, it may become necessary to hold your rifle on it’s side.

This is when trying to explain things becomes dicey, and if not explained well can leave the student scratching his/her head.

To start with remember these things.

  • The relationship of the boreline to the weapons sights remains the same. The barrel still angles “towards the sights”.
  • The bullets trajectory is no longer an arch. Because the barrel is no longer pointed “UP”, but to the left or right, the bullet exits the muzzle and starts to immediately drop.
  • There is no longer an “up and down” stringing of rounds on the target. Bullets will be low and to one side or the other dependent on which side the gun is on.

First. The angular relation between sight line and barrel is the same if it’s upright or sideways. What changes is the angular relationship between the barrel and the ground.

Normally the barrel points up and away from the ground:

g4942

On it’s side the barrel is more or less parallel to the ground. Seen from above, an M4 with it’s ejection port up would have a sight/bore/trajectory relationship somewhat like this:

g5144

Seen from the side the bullets drop would look more like this:

text3786-4-2-1

Not an “arch” but an immediate pull to the ground by gravity.

With the velocities involved this pull isn’t extremely “drastic” at shorter ranges (and you are not a surgical sniper). A rifle with a 50/200 zero will be about .5 to .75 inches “low” at 50 yards… 2 to 2.5 inches low at 100. BUT the differences will be drastic the further out you go. 4-5 inches low at 150 yards and at 200 yards you are looking at being 8-9 inches low. Remember, on its side the bullet is constantly being pulled down…no “arch”.

Because the barrel is pointed left or right in relation to what side you are laying on, the bullet will continue in that direction till it strikes the ground. A stringing of strikes on target will be similar to this (not mathematically accurate…more as an example):

path3867-4-5-0

Remember how at CQB ranges there can be a “sight over bore” issue? A head shot at room distance must be aimed at the hairline to strike in the “sunglasses zone”. This is due to the fact that the sights are above the barrel, and the angle of the barrel wont intersect the sight line till it reaches “close zero” which can be 50 yards away. In normal orientation, the rule of thumb is to aim about 2-2.5 inches high for surgical shots from 0-25 yards.

In sideways orientation, the round will NEVER be above your sight line, but left or right of it. The bullet will be striking on the “magazine side” of your weapon at short range by about the same distance as it would have been below your sights in upright orientation.

If you are in rollover prone, ejection port up, and trying to hit a BG between the eyes at 10 yards you will be 2-2.5 inches right (with a 50/200 zero).  So at CQB ranges at narrow targets like headshots or knees from under a vehicle it’s… “Aim AWAY from the magazine”.

g5740

For more general combative applications however (read..COM hits under most circumstances), the rule of thumb to remember when shooting rollover is “Aim High and to the Magazine Side“.

From 0 to about 75 yards just hold high on the center of the torso.

g5740

From 75 to about 150 hold high and to the magazine side around the targets pectoral.

g5740

From 150 to 200 hold high and to the magazine side on the targets shoulder

g5740

This will get you COM hits only needing to remember three holdovers; 0-75, over 75, and over 150.

There…that’s the best I can do. Please let me know if you are confused or if I can clarify anything for you.

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stop in the name of the law!

  • I am not an attorney. This is for informational purposes only and is
    arrested
    arrested (Photo credit: My Photo Journeys)

    NOT to be mistaken for legal or professional advise.

  • Any opinions I write here are my own and do not represent the views of any agency that employees me.
  • If you have any personal legal concerns, contact a qualified attorney. 
  • I’m from New York and am only familiar with NY Law. These writings are based on that experience. Other States have different laws but many similarities at the root.

The remainder of Article 35 is:

35.25 Justification; use of physical force to prevent or terminate larceny or criminal mischief. A person may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of larceny or of criminal mischief with respect to property other than premises.

This section covers the use of physical force (but not deadly physical force) to stop someone from stealing or damaging property. In typical “legal-eze” fashion, this was already covered “generally” back in 35.10, and in section 35.20 in regards to premises. This section spells out use of force to terminate larceny or criminal mischief “specifically”. You will note the “other than premises” part here. That is so this section doesn’t conflict with those other sections of law. Remember that section 35.20 authorizes the use of deadly physical force to stop arson of a dwelling or occupied building. You have to be careful that other sections of law don’t conflict.

This section is what is used frequently by store security and other security personnel to justify the use of force to apprehend/detain shoplifters, etc.

35.27 Justification; use of physical force in resisting arrest prohibited. A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.

If you know or should reasonably believe that a law enforcement officer is arresting you, you do not have legal authority to resist…even if you know you are innocent.

I know, this can sound unfair and there are many internet debates over if you should be allowed to fight a “rouge cop”. The fact of the matter is that cops have the authority to arrest on “probable cause”, not “proof beyond a reasonable doubt”. By and large most cops are arresting people because they have PC. Certainly some of those people may indeed be innocent. That’s why we have courts, a legal system and a burden of proof. The street is not the place to fight….court is.

35.30 Justification; use of physical force in making an arrest or in preventing an escape.

1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force; except that deadly physical force may be used for such purposes only when he or she reasonably believes that:

A police officer can use physical force, but not deadly physical force, to make an arrest or prevent escape from custody as long as that use of force is “reasonable”. Remember what was said about reasonableness in my previous post. The same standard applies to the Police. The use of force needs to be reasonable at the time it’s used and not necessarily proven correct down the road when facts not available at the time are discovered.

The Police are authorized to use deadly physical force under the same circumstances as everybody else as explained previously PLUS they have the legal authority to use deadly physical force to arrest or stop the escape of a person if the below factors are present:

(a) The offense committed by such person was:

(i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; or

(ii) kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or

(b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; or

(c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.

These conditions are specific to LE. Non-LE use of force in citizens arrest are covered further below.

2. The fact that a police officer or a peace officer is justified in using deadly physical force under circumstances prescribed in paragraphs (a) and (b) of subdivision one does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody.

Just because the police are authorized to use deadly physical force as described above does NOT mean they have the right to be reckless and a danger to people he/she is not attempting to arrest. I cant spray a crowd with gunfire to hit an escaping murderer.

3. A person who has been directed by a police officer or a peace officer to assist such police officer or peace officer to effect an arrest or to prevent an escape from custody may use physical force, other than deadly physical force, when and to the extent that he or she reasonably believes such to be necessary to carry out such police officer’s or peace officer’s direction, unless he or she knows that the arrest or prospective arrest is not or was not authorized and may use deadly physical force under such circumstances when:

If a LEO tells/orders/asks you to help in an arrest you can use physical force (not deadly force) to help him. If you KNOW (not “think”, “believe”, etc..but KNOW) the arrest is not authorized you will not be covered.

Under these circumstances YOU can use deadly force to assist the police in an arrest if the below conditions are met.

(a) He or she reasonably believes such to be necessary for self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or

(b) He or she is directed or authorized by such police officer or peace officer to use deadly physical force unless he or she knows that the police officer or peace officer is not authorized to use deadly physical force under the circumstances.

4. A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense; and may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:

This covers “citizen arrests”. The section above is almost exactly like that for the Cop in NY Penal Law except for one very important part, The part that states AND WHO IN FACT COMMITTED SUCH OFFENSE.

Police can arrest on probable cause. That’s probably the most important power given them by law. You do not have that power. You have to “reasonably believe” that the person you are arresting did indeed break the law AND that the person IN FACT COMMITTED THE CRIME. If afterwords its discovered that the person didn’t commit the crime the Cop is covered as long as he had probable cause at the time. If you are assisting an officer at his command you are covered. If you use physical force in a citizens arrest and you were wrong……well….you see what this means right?

You are authorized to use deadly force in the course of a citizens arrest if the below conditions are met:

(a) Defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or

(b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.

Notice that the list of crimes is very specific and doesn’t include many of the “fleeing felon” sections that the Police Officer specific section above had.

5. A guard, police officer or peace officer who is charged with the duty of guarding prisoners in a detention facility, as that term is defined in section 205.00, or while in transit to or from a detention facility, may use physical force when and to the extent that he or she reasonably believes such to be necessary to prevent the escape of a prisoner from a detention facility or from custody while in transit thereto or therefrom.

This last part is pretty easy to understand. Prison guards and cops transporting prisoners can use force to prevent escape.

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use of force and burglary

As always:

Cat Burglar
Cat Burglar (Photo credit: Feral Indeed!)
  • I am not an attorney. This is for informational purposes only and is NOT to be mistaken for legal or professional advise.
  • Any opinions I write here are my own and do not represent the views of any agency that employees me.
  • If you have any personal legal concerns, contact a qualified attorney. 
  • I’m from New York and am only familiar with NY Law. These writings are based on that experience. Other States have different laws but many similarities at the root.

As stated in my previous post, some burglary situations can authorize the use of Deadly Physical Force. Section 35.20 of Article 35 spells out the use of force in defense of “premises”.

Premises in general terms is defined as  land and the improvements on it, such as;  a building, store, shop, apartment, or other designated structure.

35.20 Justification; use of physical force in defense of premises and in defense of a person in the course of burglary.

1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.

Subsection 1 tells you that you can use “Physical Force” (not DPF) to stop someone from damaging your property. This means you cant shoot a kid who is spray painting the side of your house or egging your windows.

Arson however is another matter. Because burning down a building that contains or may contain people could result in their deaths or serious physical injury, Article 35 authorizes DPF to stop it.

 2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.

Before I get into this subsection it’s important to understand the difference between “trespass” and “burglary”.

Trespass

  • By legal definition, trespass is when: a person knowingly enters or remains unlawfully in or upon premises.
  • Simple trespass is only a violation. In NY a violation is not considered a “crime”. Crimes are misdemeanor’s and felonies.
  • Criminal Trespass of varying degrees are crimes. These occur when a person does things such as trespassing in a fenced in area, trespassing in a school, trespassing in a dwelling (which is different from burglary), or is trespassing while carrying a weapon.

Burglary

  • Burglary is defined as when someone knowingly enters or remains unlawfully in a building with intent to commit a crime therein.
  • Burglary in essence is: Trespassing Inside a Building + Criminal Intent=Burglary.
  • Burglary increases in criminal severity when participants are; armed, threaten someone with a weapon, injure somebody or burglarize a dwelling (which means a home/ place where people  usually sleep at night).

So….like as subsection 1 says about damage to property, this subsection says the exact same thing about trespass/criminal trespass. You can use any degree of “Physical Force” but not DPF to stop a trespasser. As in subsection 1, Arson is an exception but this subsection adds burglary as an exception as well…when the conditions in subsection 3 are met.

 3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

If you own, are in charge of or allowed to be in a dwelling (in simple terms…a home) OR any occupied building, you can use DPF if you reasonably believe it to be necessary to stop a burglary.

Note the subtleties…it says “a dwelling” OR an “occupied building“. It did not say “an occupied dwelling“. So if it’s a dwelling DPF is authorized regardless of your knowledge of it’s current occupancy. A building other than a dwelling and you have to know it is occupied.

A local incident illustrates this law in operation and is a case that showcases what “reasonably believes” means:

YNN has learned that 31-year-old David Park’s BAC was .18, more than twice the legal limit for drivers in New York state, when he walked into an Amherst home around 1 a.m. on March 28th.

According to Tom Burton, the home owner’s attorney, David D’Amico repeatedly warned Park to leave and even told him he had a gun and would use it. When he ignored the warning, D’Amico fired one shot. He told police he believed Park was a burglar.

- See more at:

In early 2013 a man from out of town was visiting friends at their home. He had been drinking and for whatever reason decided to leave the house. He later came back to what he most likely thought was the same house he left. When he found the front door locked and the lights out he went over the fence to the rear yard and entered through an unlocked rear patio door. The homeowner, hearing someone in his home, grabbed his shotgun. He states that the intruder came to the foot of the stairs and started climbing ignoring commands to stop and warnings that the homeowner was armed. It’s stated that the intruder said nothing at all. The homeowner shot and killed the intruder.

In the aftermath, as the truth is discovered that  the intruder was an unarmed school teacher with no criminal history, all sorts of second guessing the homeowner began. Some people seemed to believe that because the homeowner left his patio door unlocked, or that this was “just a lost drunk”, that somehow this was an unjustified use of force. To the contrary, this is exactly a situation this law was crafted for. Remember, reasonableness is defined as what an average person in similar circumstances might believe at the time of the event. The law requires only a reasonable, not necessarily correct, judgment of the situation.  An intruder in your home at 1 AM who advances on you while ignoring all warnings and commands is presumed to be committing a burglary by any reasonable person.

What the facts turn out to be later doesn’t change the justification to use force if ones actions are reasonable under the circumstances at the time the incident happened.

 4. As used in this section, the following terms have the following meanings:

(a) The terms “premises,” “building” and “dwelling” have the meanings prescribed in section 140.00;
(b) Persons “licensed or privileged” to be in buildings or upon other premises include, but are not limited to:

(i) police officers or peace officers acting in the performance of their duties; and
(ii) security personnel or employees of nuclear powered electric generating facilities located within the state who are employed as part of any security plan approved by the federal operating license agencies acting in the performance of their duties at such generating facilities. For purposes of this subparagraph, the term “nuclear powered electric generating facility” shall mean a facility that generates electricity using nuclear power for sale, directly or indirectly, to the public, including the land upon which the facility is located and the safety and security zones as defined under federal regulations.

This last section covers definitions and where they can be located elsewhere within the law. It also gives police and other security personnel the powers of “being licensed or privileged” to use DPF to stop a burglary of a dwelling or occupied building. Otherwise they wouldn’t have the legal authority to do that part of their job.

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defend yourself!

Standard disclaimer:

Fencers, McGill boxing, wrestling and fencing ...
Fencers, McGill boxing, wrestling and fencing club, Montreal, 1925 (Photo credit: Musée McCord Museum)
  • I am not an attorney. This is for informational purposes only and is NOT to be mistaken for legal or professional advise.
  • Any opinions I write here are my own and do not represent the views of any agency that employees me.
  • If you have any personal legal concerns, contact a qualified attorney. 
  • I’m from New York and am only familiar with NY Law. These writings are based on that experience. Other States have different laws but many similarities at the root.

Now we get to the heart of justified use of force in self-defense within the State of New York:

35.15 Justification; use of physical force in defense of a person.

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

When reading any enforcement sections of law its vital to look for all of the AND’s, OR’s and UNLESS-ES and its important to read any other subsections referenced before you jump to an erroneous conclusion.

This section states you can use “physical force” to defend yourself or a third person “subject to the provisions of subdivision two“. This means that the section with the (2.) in front of it will spell out limitations.

Also note the “reasonably believes” part…reasonableness is defined as what an average person in similar circumstances might believe at the time of the event. The law requires only a reasonable, not necessarily correct, judgment of the situation. If someone approaches you with a “finger gun” in their pocket and states that they will kill you if you don’t get in their car and you shoot him, it doesn’t matter that he didn’t have a real weapon.  Conversely, if a guy walks up to you on the street and asks you the time, you cant preemptively throat chop him because you “just know” that he was about to mug you.

The “unless” part is also very important. It tells you what situations you will NOT be justified to use force in.  If you are the person who initiated a confrontation (with an intent to cause physical injury) you can’t claim self-defense if he/she or someone defending him/her starts kicking your ass. However, if you back out of the confrontation and clearly communicate that you “give up” and the other person continues to attack you now THEY are no longer justified and you are justified in defending yourself from that point forward. This effectively means you BOTH are now in some form of trouble, but you don’t have to take a beating after withdrawing from a fight you may have started.

You also can’t hold “fight clubs” in your basement and expect to use self-defense as a claim if things go wrong and you get charged with injuring or killing someone.

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

Everything in part (1.) only justifies your use “physical force”, not “Deadly Physical Force”…unless the stuff below is true.

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or

If you reasonably believe someone is using or about to use “Deadly Physical Force”  against you you are justified in using DPF yourself, UNLESS you know you can retreat WITH COMPLETE SAFETY to yourself or others. You do not have to retreat if you are in your home (and you are not the person who started the fight).

Cops don’t have to flee from the threat of DPF even if safe to do so. It is often wise to do so, but all sorts of thorny work related exceptions would come into play if it were mandated by law.

This is the section that gets some people wrapped around the axle over “stand your ground” laws. While…from one perspective I can see the “if I’m in the right why should the law require I flee?” point, I also think that avoiding unnecessary confrontation is always going to work out better in the long run. This law is not saying “to run” if the guy can shoot you in the back…that would not be “complete safety”. But if some guy outside your car is stabbing at your window with a knife (without success of course) and you can drive away…do so.

(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or

If you reasonably believe someone is doing or about to do those heinous things you can use DPF to stop them.

(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

Some burglaries can authorize the use of DPF. This part refers to another section that explains what those circumstances are.

We will get to that later….

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