By Tom Feledy, Retired SFPD
In August, I wrote about carrying a concealed weapon as a retired officer, mostly focusing on the CCW rules involved. I got several questions via email after writing the article, so this month I want to explore the issue of liability for retired police officers who carry concealed firearms.
The NRA's Wayne LaPierre said, after the Newtown massacre, “the only thing that stops a bad guy with a gun is a good guy with a gun.” This article is about some things to consider if you intend to be that "good guy," once you are retired.
- The NRA's "Armed Citizen" blog says, “Studies indicate that firearms are used over 2 million times a year for personal protection, and that the presence of a firearm, without a shot being fired, prevents crime in many instances.”
- A paper by the Violence Policy Center says that, based on Bureau of Justice statistics, that number should be more like about 68,000.
- Of the 8275 gun homicides in 2010, only 230 (2.8%) were justifiable homicides by citizens.
- The VPC concludes, "Guns are rarely used to kill criminals or to stop crimes." You might say, even if it's "rarely," as long as it just once when I need it, that's good enough reason for me to carry.
This is just an example of the ongoing debate in this country about the value of guns as defensive weapons. An Internet search of "defensive gun use" will bring up 3 categories of results: (1) pro-gun groups and firearms trainers saying, "guns save lives." (2) Anti-gun groups that want to reduce the prevalence of guns in society, and (3) a small amount of actual research by universities and health organizations on how guns are used for defensive purposes.
You may recall the George Zimmerman case out of Florida. George Zimmerman was not a peace officer engaged in official duties. He was a private citizen with a gun confronting another citizen, whom he eventually shot and killed. In this article I will try to show how close your situation as a retired officer with a CCW is to that of someone like George Zimmerman, so you can more clearly see the liability facing you, and take the steps you feel are necessary to avoid it.
Why Carry? Police officers are issued firearms to defend against deadly threats to themselves and others, and to effect arrests. When an officer retires, they are no longer required to make arrests of violent criminals and so the only remaining reason to carry a gun is because they believe it will help them defend themselves or others.
Retired Officer = Citizen. As a retired officer, your rights are no greater than that of any average citizen with a CCW permit. A search of the Penal Code for the word "retired" shows there is no exemption from the rules for self-defense for retired officers. Once you retire, all the rules for the average citizen apply to you. You face much the same situation as George Zimmerman, in that your actions could lead to criminal prosecution or civil liability, or both. With that in mind, what issues might you want to consider when choosing to carry a concealed weapon to minimize your chances of ending up in court?
Defense of Self, Defense of Others. These rules are the same for officers and those who are retired. In essence, the force used must be reasonable. Here are some example situations and the rules that may help you decide how to handle them. (Note: I have made the situations simple and extreme, merely for the purpose of discussion, to better illustrate the rules involved.)
Situation #1: A disoriented man stands in your way holding a knife, blocking your path as you walk down the street. Do you have to get out of his way? Can you continue walk toward him until you are close enough so that the knife is a threat to you and then be justified in using your firearm to defend yourself? Explanation: In California, as in Florida and other "stand your ground states," you are not obliged to retreat before using deadly force. (According to the jury instruction given in such cases, you are even allowed, if reasonably necessary, to pursue the assailant until the danger of death or great bodily injury has passed, even if safety could have been achieved by retreating.)
Situation #2: You are driving at night, when a car pulls up alongside, and a passenger inside starts shooting at you. You return fire as you drive evasively and the vehicle speeds off. Are you liable for killing a pedestrian standing on the sidewalk with one of your stray rounds? Explanation: A defender is not liable for injury or death of third party as a result of his defense, unless the defender was reckless, in which case he may be liable for battery or if the person is killed, manslaughter.
Situation #3: You are walking down the street in a rough neighborhood when suddenly a group of young men come running at you screaming. You are alone and fear for your life. May you use your firearm to defend yourself? Explanation: To justify killing someone in self-defense, your belief in the danger facing you must be reasonable, the force you use must be reasonable, and you must not be responsible for the encounter. If you kill someone with none of these defenses, you will likely be prosecuted for murder. If either your belief in the danger or your response is unreasonable, or you are somehow responsible for the encounter, you may still be held liable, but probably only for manslaughter rather than murder.
Defense of others. The basic principle is that you are entitled to use the same amount of force in defense of others as if you were the one being attacked.
Situation #4: You are walking down the street when you see a fierce fight between two men. One has a tire iron and is about to hit the other guy holding a broken beer bottle. May you use your firearm to stop the attack and defend the other fighter? Does it matter if it turns out that the other man started the fight? Explanation: Reasonable force may be justified in defense of others, even strangers, when you reasonably believe they are in immediate danger of unlawful bodily harm, and that such force is necessary to avoid this danger. In some states, you "step into the shoes" of the person you are defending and must actually have the right to self-defense. So, if it turned out that the guy with the bottle that you were defending was the aggressor, you'd be liable if you shot the guy with the tire iron, in spite of the fact you didn't know who was who. Fortunately, California allows for a reasonable mistake in this area, so the harsher rule won't add to your liability.
Situation #5: You're at a bar and a drunk insults your partner. You stand up to defend his or her honor and start fighting with the drunk. If you find yourself losing the fight, can you draw your firearm to "even the odds?" Explanation: One who provokes the use of force against himself for the purpose of causing serious bodily harm may not defend himself against the force he has provoked.
Situation #6: A rowdy man on the street sucker punches you and then backs off laughing. Upset at this rude behavior, you draw your concealed firearm. If you end up shooting the man, will your force be considered unjustified because the rowdy man’s force was (1) non-deadly, and (2) he withdrew by backing off? Explanation: An aggressor has a right of self-defense when (1) his attack with non-deadly force is countered by the victim's deadly force, or (2) in good faith effectively withdraws and so notifies his victim.
Defense of Property. Can you use your gun to defend your property?
Situation #7: You return to your parked car and find several youth sitting on it. You ask them to move and they curse and refuse. Should you take out your gun and order them to cease and desist, or should you just try to get in your car and drive off? Explanation: You are justified in using reasonable force to defend your property from trespassers (including people sitting on your car) or theft, when you reasonably believe your property is in immediate danger of such interference, and that such force is necessary to avoid that danger.
Situation #8: An inebriated man climbs in an open window of your house at night while you're asleep and helps himself to the beer in your fridge. His stumbling around downstairs wakes you up. You find him staggering around your kitchen, holding a can of your beer, and peeing in a corner. May you use your firearm to get him out of your house? Alternatively, if he tries to walk out of your house, can you use your firearm to arrest him and hold him for the police? What if all this happens not in your house, but your friend's house where you're spending the night? Explanation: Deadly force is only reasonable if the danger to property is accompanied by a threat of deadly force, or the danger involves the invasion of your home under circumstances causing you to reasonably believe the invaders have the intent to commit a felony therein, or do serious bodily harm to the occupants. In this state, you are entitled to a legal presumption that anyone entering your residence forcibly and unlawfully is a threat to your life and safety.
Brandishing. Earlier this year, Emeryville, CA Police Chief Ken James told the public that the gun as a defensive weapon is "a myth." In the YouTube video, you can hear him say officers carry guns to do their jobs safely, and "to intimidate and to show power, and to overcome any obstacles they may come upon." What happens when you try to use your gun as a retired officer to "overcome obstacles?"
Situation #9: You are driving through a bad part of town when a car full of youth begins to follow you, and continues to follow you for some distance, driving aggressive toward your vehicle at each stop. When you come to the next light, may you get out and walk up to their vehicle with your gun in your hand for protection, as you tell them to leave you alone? Explanation: PC 417 makes it a misdemeanor to exhibit a firearm in a rude, angry, or threatening manner, or in any manner, unlawfully use a firearm in any fight or quarrel.
Arrests. At some point, you may come upon a situation that you recognize from your earlier days being a cop as being a crime, one that offends your sense of justice to such an extent that you feel compelled to act and bring the perpetrator to justice by making an arrest.
SFPD's Rules on Use of Force. Let me repeat what I said in my last article, that the Department has a right to suspend or revoke your CCW rights if you don't follow these rules. If you used your gun and didn't escalate your use of force according to Department rules, you can also bet that the attorney for the person you injured can use that against you in a civil suit to convince the judge or jury you acted either with negligence or malice.
Differences between police and citizens. You may recall from your Academy days that there is a basic difference in the powers of arrest between private persons and police. The citizen may arrest only if the felony has in fact been committed, or for any offense committed in their presence, whereas a police officer needs only reasonable grounds to believe a felony was committed and the arrestee committed it. As mentioned above, a retired officer is considered a "citizen" for purposes of arrest, etc.
- Per PC 834a, a person being arrested by an officer has a duty to not resist arrest. The Penal Code is silent on resisting citizen arrests. However, a citizen may use reasonable force to affect an arrest.
- A citizen may seize weapons and evidence in plain view, but may not search for evidence, unless the citizen is a merchant making a limited search to recover property inside a container (i.e. bag, etc) stolen from their store. A citizen making an arrest may not search incident to arrest.
- A Citizen must call police subsequent to the arrest, since the citizen has no way to cite or book the suspect. Arriving officers may do as the citizen requests and either cite or book the suspect, or they may choose to let the suspect go if insufficient grounds exist for a criminal complaint.
Penal Code 835a allows officers to use force to prevent escape or overcome resistance; officers do not lose their right of self-defense, or become the aggressor when using such force. However, the Penal Code does not extend these same rights to citizens. The issue of excessive force or becoming the aggressor is left to a judge or jury to decide, if the person you injured raises them when they sue you for damages you caused in making the arrest.
Society is aware that an active duty officer is being paid to expose themselves to risks in the course of their duties that may necessitate the use of deadly force, such as when observing a person committing a crime of violence. The active officer generally has a duty to make an arrest under the appropriate circumstances. Under such circumstances, a citizen, in addition to making an arrest, has at least two other choices: calling 9-1-1, or doing nothing. Because the citizen is not under the same duty to act as the police officer, taking a more aggressive act that injures or kills the other party may result in a court finding the citizen acted beyond the bounds of the law, where an officer would not be so liable.
Situation #10: You are walking down the street when you see a young man snatch a woman's purse and run off with it. May you use your firearm to apprehend the fleeing crook? If you manage to catch up to the thief, because you have been good about getting that 30 minutes of daily exercise like the doctor told you, but in the ensuing struggle, your gun goes off, will the DA charge you for killing the guy? Explanation. Deadly force may only be used for the arrest of a person who has committed a crime involving death or great bodily injury, or who presents an immediate danger of death or great bodily injury to the public or law enforcement. A private person is justified to use deadly force only if a felony has in fact been committed. Police officers are allowed to make reasonable mistakes, but generally a private person is not.
Identification. The longer you're retired, the less likely anyone on-duty in the City, especially during evening hours, is likely to recognize you as a former officer. This is not helped by the fact that you probably don't look much like that officer who posed for a retirement party photo around his or her last day at work.
Situation #11: Armed terrorists hijack the tour bus on which you and your are partner are riding to visit the place you've always dreamed of: Graceland. Assessing the grave situation faced by you and other passengers on the bus, you commence to do your best Bruce Willis impression and shoot them all dead without injuring any but the hijackers. In the midst of all the carnage and gun smoke, how do you plan to identify yourself to the arriving officers or to other bus passengers, some of whom may also be armed? In other words, what is your plan to avoid getting shot by someone who thinks you are one of the bad guys? Can you rely upon your badge as identification even though you're retired? Explanation: In spite of the fact that most every retired officer I know carries their old badge in their wallet, Penal Code 538d makes it a misdemeanor to use the identification of an officer with the intent to inducing others to believe you are one, regardless of the reason. Penal Code 538d(d)(1) provides a solution by authorizing the Chief to issue badges to officers that say, "Retired," but I don't know that SFPD has ever done that. So, although flashing your old star may get you the attention and recognition you want, it may also be used against you because it violates the law. In the same way, if you make an arrest using your badge as if you had the authority of a police officer, you could be liable under Penal Code 146 for the misdemeanor of false arrest. Are you starting to get the picture, that in the eyes of the law, a retired officer is no longer an "officer" but just an ordinary citizen?
Communication. Most every defense situation involving a firearm and all arrest situations require that you communicate at once with local law enforcement. The days of the old West, where people settled things with guns and went about their business are long gone. Nearly everything requires a report.
Exercise #1: Try holding a gun on someone with one hand and dialing for help on your cell phone. If you have a smart phone and have taken the advice to lock it with a code so crooks won't be able to use it or get to all the private numbers and info you have stored in there, you must enter that code, unless you know how to make emergency calls. Now try doing all that at night, after you've run a block or so…(think Specialist tryouts!)
Liability. Among the various situations that you might encounter, there is a unique one involving a fellow-officer. Some have heard that if you come to the aid of an officer, the local jurisdiction will indemnify you. I'm not so sure.
Situation #12: You come upon a scene where someone is shooting at a uniformed officer. You take several shots at the shooter and some of them find their mark, but one misses and hits an innocent bystander. Discussion: I know this would never happen. But just ask yourself how many rounds you missed in your last session with the Academy's firearms simulator -- and you knew that was just training. Then ask yourself why any City Attorney would agree to accept the liability of your actions. And how would they do that? A city's insurance policy covers only its own employees. The insured cannot unilaterally change the policy to obligate the insurer to cover third parties. Could the City Attorney provide you with legal representation? Again the answer is no, because to do so would conflict with their own interests in defending themselves. Remember, a city attorney's client is the city, not you. So in a lawsuit caused by your having shot someone coming to the aid of a City employee, the city must look for ways to relieve the liability, and one way is to put the blame on you. The city attorney cannot effectively represent both the city and you, so they just won't do it. You may recall from your days on duty, if you were ever called to speak with a Deputy City Attorney, that prior to the start of their interview, they told you they were not your attorneys and they were not representing you. That is because they had a legal duty only to their client, the City. Your only other hope is that the political climate so favors you and the actions you took that the Board of Supervisors passes a resolution to have the City pay the judgment resulting from your losing the court case the San Francisco jury decided against you.
Liability Protection: One way to shield yourself from liability is to get a $1 million rider on your home insurance policy. I'm told they're not that expensive. A better way is to do as retired member Rene LaPrevotte has done. (I thank him for the following info.) He tells me that even though the SFPD is no longer a member of PORAC, we as retirees can join as "RAM" members (Retired Associate Membership) for just $25 a year. Once you are a member, you can sign-up for the LDF (Legal Defense Fund) coverage for an additional $48 a year. In all, the annual premium works out to $73 a year. Rene says this coverage not only gets you legal representation in the event you are involved in a shooting, but also affords you representation for any problems arising from HR-218, the LEOSA 50-State carry statute. You may find yourself in such a situation when traveling through a less enlightened jurisdiction that hasn't yet heard that retirees may carry concealed weapons in all 50 states. You can go to http://porac.org/ram-firearms-coverage/ for more info, or to join RAM and LDF. As with all contracts, read the fine print to make sure you are clear on what is provided and that it meets your needs.
Conclusion. Here are some more issues for you to ponder. Maybe I'll write about them next month, once I find some good explanations for them.
Issue #1: What responsibility do you have for rendering aid to the person you just shot, who may have been trying to hurt or kill you? Can you let them bleed out or do you have to do CPR on them to save their squandered lives so they can then get a lawyer to sue you when they recover? Or is it enough to just call 9-1-1 and wait for the paramedics to show up?
Issue #2: What if the suspect's family members show up, or a crowd of anarchists forms and decides they don't like you, and regard you as the aggressor, and therefore the bad guy? Do you "stand your ground" and defend yourself against the hostility of the crowd until police arrive, or do you take a hike and call 9-1-1 from somewhere safe?
Issue #3: What will you do about the cell phone video that shows you standing over the suspect's body holding your gun? How will you explain the fact that the video shows the suspect had no gun (It's in the gutter, just out of view of the helpful citizen shooting the video, but before the cops arrive, someone's snatched it, but you don't know that.)?
Issue #4: Will you always carry a set of handcuffs with you to make your citizen's arrest? After all, if you are justified in using deadly force, the perpetrator must have been committing a serious, violent felony, so why wouldn't you follow that up with an arrest? If you don't are you liable?
Issue #5: What if your shot didn't hit the suspect at all and he ran off down the street? Are you obligated to run after him to arrest him? What if your shot hits him and injures him, but he is still mobile? Are you obligated to physically stop and restrain him, as you would when you were working, so you can get emergency medical treatment? What if the person you shot is a bystander, whose family members don't want to wait for the paramedics to arrive?
(For feedback on this article, please send email to lt.feledy@dslextreme.com)
