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Think Twice: Before you fire that licensed firearm

Published:Sunday | April 5, 2015 | 4:00 AM
Shena Stubbs-Gibson
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Recently, I had a discussion with one of these CEO types, who was adamant that a licensed firearm holder could not discharge his firearm to protect property at all, and that if discharged, then the firearm holder would be well advised to have a spare, rusty machete to plant on the would-be assailant or the firearm holder may find himself facing a charge of murder.

Humour aside, how correct was the CEO type, though?

To answer this question, it is necessary to look at the Firearms Act.

Section 23 of the Firearms Act clearly permits the holder of a licensed firearm to discharge said firearm within or about a public place, not only in the lawful protection of his own person or property, but also in the lawful protection of the person or property of others. It is instructive to note, however, that the protection of life or property has to be lawful.

 

Lawful protection of person or property

 

What does lawful protection of person/property mean, in any event? Let me paint a scenario. It is 2 a.m. and you are in your bedroom asleep with your spouse, your kids are in an adjoining bedroom when something triggers you to the possible presence of an intruder in your house.

You grab your licensed firearm, remove the safety and cautiously approach the source of the disturbance. As you approach your dining room, you spy a masked intruder some distance away from you. You do not see a gun but you see a glint which you believe may be a knife.

You honestly believe that had you not had the element of surprise on your side, this intruder would have pounced upon you and your family in your bedrooms unawares and would not have hesitated to slice your collective throats.

Angered at the thought of what could have been, you take aim and shoot, not caring if death is the outcome. To spice things up a bit, I should add that the intruder, having been startled by you and realising that you were armed, had not taken a single step towards you before you discharged your firearm.

You later realise that the glint in his hand had been from a flashlight, and that otherwise, he appeared not to have been armed. In a situation such as this, could the police even charge the homeowner? After all, the intruder had breached the privacy of his home and additionally, the homeowner had genuinely believed that the intruder was armed with a knife. Further, if charged by the police, what are the odds that the homeowner would be convicted by a court of law?

 

Case Law

 

In Jamaica, whether or not you will be charged turns largely on what you say to the police. If you admit that the intruder never made a move towards you before you discharged your firearm, and worst, since the glint in his hand was from a flashlight, then you may well be charged and have to prove to a court of law that your reaction was reasonable in all the circumstances.

However, if the ability to spin a tale is not a shortcoming you suffer from, then you would tell the police that the intruder attacked you or approached you in a very menacing manner, and feeling imminent fear for your life, you discharged your firearm.

And, if your moral compass is really off centre, the rusty machete that was heretofore under your bed would be firmly clasped in the fingers of the deceased by the time the police arrive. While the police - arguably - should still charge you, even in the latter scenario, I doubt the licensed firearm holder who 'embellishes' the circumstances to suit himself would be charged in Jamaica. If charged, the next question becomes, is the homeowner likely to be convicted, having regard to the circumstances set out in the scenario presented before (the truthful version, that is).

It is clear from the case law on this area that the homeowner does not have the right to determine what constitutes lawful force. If he did have such a right, the defendant in such cases would never be guilty. The determination as to what is a lawful use of one's firearm to defend life or property will be a matter for a jury.

 

Factors a jury will look at

 

A jury assessing whether a firearm has been discharged lawfully will look at all the circumstances to determine if the discharge of the firearm was lawful or 'reasonable'.

The case law appreciates that the licensed firearm holder who discharges his firearm to protect life or property may not have had time to make entirely rational decisions, given all the circumstances of the particular case; however, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable.

Here is an extract from the judgment in the Australian case of Palmer v The Queen (1971) which nicely summarises how the court will determine whether the use of force was lawful or excessive:

"If the moment is one of crisis for someone in imminent danger he may have (to) avert the

danger by some instant reaction. If the attack is all over and no sort of peril remains, then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression ... .

"If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been

taken ... ."

In the case of R v Lindsay, for instance, the defendant, who picked up a sword in self-defence when attacked in his home by three masked intruders armed with loaded handguns, killed one of them by slashing him repeatedly. The prosecution case was that, although he had initially acted in self-defence, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder. The Court of Appeal confirmed an eight-year term of imprisonment.

To conclude, in the scenario outlined above, the homeowner may well be charged, depending on his statement to the police. Likewise, to justify the shooting as lawful, the homeowner would have to satisfy a jury, not that he was angry at the nerve of the intruder, but rather that he felt himself in imminent danger. A word to the wise, therefore: do not discharge your firearm unless the situation is such that discharge was reasonable in all the circumstances or you may end up doing time.

- Shena Stubbs is an attorney-at-law and legal commentator. Send feedback to: Email: shena.stubbs@gleanerjm.com Twitter:@shenastubbs