Use of Deadly Force: Justified or Homicide?

Scartelli Olszewski P.C.

By: Peter Paul Olszewski, Jr., Esq*People throughout northeastern Pennsylvania are buying handguns in record numbers. They also are obtaining licenses to carry those guns concealed. In Luzerne County, the number of concealed permits issued between 2009 and 2013 more than doubled; in 2013 alone, the Luzerne County Sheriff issued some 7,325 licenses. These trends are surely in response, at least in part, to rising levels of violent crime in the region. In 2013, Luzerne County reported 19 homicides. Most of them occurred in the City of Wilkes Barre, which saw a record number of 13 homicides. Anecdotally, it seems hardly a day goes by without shots being fired in the city. Violent crime in the United States has dropped steadily over the past 20 years, from a rate of 80 of every 1,000 people in 1993 to 23 of every 1,000 people in 2011, according to the Bureau of Justice Statistics. The Bureau’s latest National Crime Victimization Survey, however, shows the violent crime rate increased in 2012 to 26 of every 1,000 people. Law-abiding citizens perceive the need to own and carry a handgun to protect themselves and their families. The Second Amendment affords us the opportunity to own and carry a handgun. The right to actually use the weapon in self-defense, however, is highly circumscribed by state law. In Pennsylvania, deadly force may be used only when the shooter has a reasonable belief that deadly force is necessary to protect himself or another against death, serious injury, kidnapping or rape. In 2011, Pennsylvania enacted a version of the so-called “castle doctrine,” also known as “Stand Your Ground Law.” Remember the George Zimmerman trial in Florida? Generally, the Stand Your Ground Law provides that a person who legally owns a firearm and is attacked in a place where he or she has the right to be has no duty to retreat and instead has the right to stand his ground and use force, including deadly force. When deadly force is used, police and prosecutors closely scrutinize the circumstances of the shooting. The law-abiding citizen’s decision to shoot and kill a drug addict’s attempts to rob or steal clearly will be put to the test. The totality of the circumstances will be critically reviewed. Authorities will consider statements from the shooter, the “victim,” if he or she survived, and from witnesses. Video from security cameras will be searched for and reviewed. A forensic pathologist will provide an autopsy report. Ballistic analysis will be done in a laboratory. Given these circumstances, gun owners need to act responsibly. They need to know their weapon. They need to be able to shoot accurately. They need to know the law. All new gun owners need to enroll in and successfully complete firearm education from a certified instructor. The National Rifle Association regularly sponsors these classes, and, generally, they require only 12 hours. Shooting someone under improper circumstances will bring life-altering consequences to the shooter. Criminal charges can range from aggravated assault to first degree murder. Use of a gun in an aggravated assault could result in a mandatory minimum sentence of 5 years in a state correctional facility. A third degree murder conviction can carry a sentence of 20 to 40 years in prison. First degree murder brings a mandatory life sentence. The NRA has it right: The only thing that stops a bad guy with a gun is a good guy with a gun. But you need to be responsible: know your gun; know the law; be sure of your target, and don’t miss. Carrying a concealed gun may save your life, but using it improperly may end it. Bottom line: take advantage of the Second Amendment to protect yourself, your family and your home – just do it responsibly.*From 1992 to 1999, Peter Paul Olszewski was the District Attorney of Luzerne County, Pennsylvania. He investigated many cases involving the use of deadly force. He later was a Luzerne County Judge and presided over multiple trials involving deadly shootings. He has been a Life Member of the NRA for more than 30 years and is an avid hunter and expert marksman.