Category Archives: work

than to remove all doubt: entrapment

I hear this all the time. That’s entrapment! You cant to that..that’s entrapment. I’ll have your job, that’s entrapment. I’ll be on the street tomorrow, that’s entrapment. While the last one may be true, it probably wont be because you were entrapped by the Police.

Every State has different definitions and Laws, but in general entrapment is a practice whereby a law enforcement agent induces a person to commit a criminal offense that the person would have otherwise been unlikely or unwilling to commit.

A simple example. I put an unlocked bike on a street corner and watch it waiting for someone to steal it. That’s not entrapment. If I point it out to you and say “hey I’ll give you $200 if you swipe that bike over there.” then I arrest you when you take it…that’s entrapment.

Speed Traps are not entrapment. Unless I pull a Dukes of Hazzards (dating myself there) and put up a speed limit sign that flips from 70 MPH to 30 MPH at the push of a button.

Entrapment is associated with the common idea that an undercover cop has to identity him or herself as a LEO if asked, otherwise they are entrapping you. That’s simply not the case. Entrapment does NOT mean that you were duped into getting caught committing a crime you intended/wanted to commit . Entrapment means that the police persuaded or coerced you to commit a crime you had no intention of committing before they approached you.

If you intended to buy the drugs or exchange sex for money when you walked in you are not being entrapped. You just didn’t intend to get caught. And you have no Constitutional right to not get caught. What the police did was provide you with the “opportunity” to buy (or sell) sex or drugs, they did not to force you or convince you to do so.

than to speak and to remove all doubt: Miranda Warnings

You didn’t read me my rights!=I’m clueless about criminal procedure and really think that this means my arrest is invalid and you have to let me go.

If I had a dime for every time I heard it…..you need custody AND interrogation to require Miranda. That means Miranda only matters if I have arrested or detained you against your will AND I start asking you questions that I plan to use against you in court.

If you are free to go and/or I didn’t ask you a question, Miranda isn’t needed.

Anything you say to an officer before you’re taken into custody—and read your Miranda rights—can be used in a court of law, which includes interviews where a person is free to leave the premises, and things said at the scene of a crime.

Even if I interrogated you without Miranda, all that really means is that the stuff you said can’t be used as evidence. It doesn’t “make your arrest invalid”. If the words you said are essential to my case it can kill any chance of a conviction, but it’s not a “magic unarrester”. So..don’t embarrass yourself in Court by telling the Judge that he has to let you go and dismiss all charges because the Police Officer didn’t read your your rights.

The state of affairs

Well. After a little hiatus I’ve decided to start writing again. We will see how long it lasts. One of the last drafts I typed was over two years ago and you can read it below. Sadly, much of what I was trying to express in 2016 is still in play in early 2019.
 
Alright. This may be long and I don’t know if anyone is going to bother reading it but here it goes.
 
This week marks the 16th anniversary of the day I was sworn in as a police officer. I managed to work one year before the world changed in 2001 and almost 14 years before the shooting in Ferguson started the social/political/media narrative my profession currently finds itself in.
 
In that time I’ve seen many things, experienced many things, done many things, and have at least a small amount of insight into the LE side of the current “conversation”, if you can call it that. Unfortunately the media, the public (influenced by media) and the politicians seem to be the dominant voices.
 
First off, let me say unequivocally that there are “bad cops” out there and sometimes there are just inept cops…or what I call “delivering the mail” cops. There are poorly trained cops and there are cops that don’t take their training seriously. Anyone who has ever been in the military has seen the spectrum of “soldiers” that serve…anyone who has ever worked with any large group of people knows that no profession is immune from the “screw-ups”.
 
BUT. This whole “they”-thing and “THE Police” and all the other universal adjectives in play are a load of crap. A different conversation with words like “those people” or “your people” or “those types” associated with race or sexual preference would immediately be jumped on as racist, sexist, or some other “ist” and rightfully so. But everyone (seemingly) seems very willing to say “The Police” have some sort of universal responsibility for the actions of individuals, or even entire departments other than their own. It’s the bizarre “logic” that leads people to “understand” how a guy in Dallas winds up shooting PEOPLE for actions neither they nor their employer had any responsibility for.
 
It seems like folks believe “WE” are some sort of uniform, nationalized force…and that when one officer #$%&@’s up that somehow means we all do, or would do, the same thing. Police service is very local in terms of quality. Large Metro PD’s are nothing like my Mid-Size agency which is nothing like a small 8 man PD.
 
But. One thing people in LE do have in common is that we all have to deal with people in fairly similar situations. While how we may handle it may differ, taking an armed person into custody is what it is. Walking up to a car occupied by a guy you think may be an armed robbery suspect feels the same to a cop in Anchorage as it does to one in Miami.
 
Why do I say this? Hopefully to help people understand why most cops wont knee-jerk declare some of these recent shootings as “bad”. Many of us know that what we see on the television or the phone/computer screen (or in the Ferguson case simply a false narrative pumped out incessantly by the media)  is not the entire story. We (cops) can often times see how a shooting that appears unjustified to the uninitiated could POSSIBLY be justified.

Do you think you are special or something?

COPS (TV series)
COPS (TV series) (Photo credit: Wikipedia)

This is going to be sort of “free thought” and probably a bit disjointed so please bear with me as I try to put this together…

In the local news here a story was recently posted about an off duty LEO getting arrested by another agency for DWI. The social media comments then soon followed:

“Bet he gets off of it.”

“Good. They should be treated like everybody else.”

“They should be held to a higher standard.”

And so on….

Let me start out by saying that I think anybody who breaks the law should be prepared to face the consequences, regardless of your job or position in society. That’s the only way this system works. And I DO believe that we LEO’s have to hold ourselves to a higher standard simply because we are representatives of that system. Agreed. 110%.

However, there seems to be a Catch 22 in play here. Cops should be “treated just like anybody else” but they should also be treated differently (held to a higher standard) because they are cops. How does that work?

If you think every doctor, lawyer, nurse, etc who was ever arrested for DWI gets their names and profession paraded through the news you are sorely mistaken. Should we do so?

Never mind the issue of HOW this story made the news in the first place. Either the arresting agency contacted the media, the arrested officers department released it, the press heard something on a scanner or some disgruntled ex called the press. The stuff you see in the media is but a small fraction of the total number of arrests. Unless the PD or some other party has a particular interest in calling the media in, 99% of people locked up never have their story hit a major local outlet.

Of course there is the possibility that the off-duty was an ass and the arresting agency thought “screw him”. Or the arrested guys PD has been looking for a reason to can him and though the press could help “move him along”…who knows?

Treated like everybody else? That may kind of depend on the local PD or the individual cops involved. I have let many “non-cops” go with warnings. I’ve let people get rides home (all totally legal folks…if there was an accident or someone hurt they faced the music 100%). I’ve allowed that joint to get ground up and tossed in the gutter vs arrest (again…100% by the law). Should we treat cops with the same discretion? That’s a sticky question. Where do you draw the line? A cop with a joint is different from your college student daughter. But how do you balance “treat him/her like anyone else” with “hit him all the harder because he’s a cop”?

Do you just blindly let people off based on their LEO status? Do you let every auto-worker go simply because he works at the local factory? If you don’t, how is that fair? On the flip side, should I NEVER let your wife off with a warning for a brake light out or a one day expired registration? Should I never let a cop off with a warning for the same thing?

“Bet he gets off”…What? Like the 99% of other first time arrests who get sentenced to probation, or get a DWI reduced to an impaired and a fine? That would be getting treated “like everybody else”.

My thought’s (in general…there will always be exceptions)?  If we are going to treat cops “like anybody else” lets be consistent. If I’m not calling in the press on a surgeon locked up for DWI then I shouldn’t do it to a cop either. Certainly, someone from his/her PD should be notified so that they can deal with the repercussions of “being held to a higher standard”, but beyond that I don’t think airing non-felony arrests simply because it looks “transparent” is fair. For routine vehicle and traffic stops? If I can give a pass to your kid I shouldn’t be given grief for giving a pass to a cop. For routine stuff of course. If you find yourself giving passes for stuff you would NEVER give a pass to a non-LEO for that’s a sign of a problem.

In the end I guess I’m looking for a little clarification on expectations beyond the personal grudges people have against cops. Lets set aside all the baggage, name calling and “I remember when I was stopped” stories and discuss the facts and figures involved here.

Thoughts????

 

Tanks on American Streets

One of the “Police Militarization” tropes circulating around is the “OMG! LOOK! Cops are using TANKS on American streets!”. Some of the more militarily knowledgeable people may couch it as “Police are using weapons of war/military equipment/etc…” but the implications are the same.

What I think… is many folks are ignorant about what these vehicles are and what they are used for. Either that, or they are willfully ignoring what these trucks truly are.

First of all, lets be clear that American Law Enforcement has been using “military style weapons” and armored vehicles for YEARS.

NYPDriotbike_700

armored_car

coptank

bikegun

copgun

Just like back in the Prohibition days, when the “Mob” was running the streets with Tommy Guns, your Police Officers are expected to deal with situations like this:

All an Armored Truck does is protect people from bullets.

That being said. There seems to be a lot of confusion between MRAPS and other Armored Vehicles.

1391774718000-hamburg-swat

An MRAP is a Mine Resistant Ambush Protected vehicle. Used by the military, its really just a large truck with armor plating. It’s not a “Tank”, it isn’t built with any integral weapons. Weapons can be mounted on it, but weapons can be mounted on a pick-up truck too.

When the military decides it doesn’t need them any longer it has been offering them to LE vs scrapping them or putting them in a field somewhere to rust.

Another vehicle commonly used by American LE is the “Bearcat”, made by Lenco Armored Vehicles. The Bearcat is specifically made for LE and is purchased by an Agency outright or with the assistance of grant funds.

Nash_Bearcat

They are not the same vehicles, but I see Bearcats called “military vehicles” or MRAP’s all the time. IMO, the current “issue” with armored vehicles appears to be more about MRAPS being former “military Vehicles” than it is about what they are in essence, a vehicle that allows police to drive up to or through an area they know or suspect will have a high probability of weapons fire.

The appeal of the MRAP to LE is that, unlike having to come up with the 200+K for a BEARCAT, the government provides an armored vehicle, free of charge, to the municipality receiving it.

brinks

Armored cars routinely travel our roads to protect cash. Police armored vehicles protect people. My personal opinion is that the MRAP issue is more about how the vehicle “looks”…combined with peoples political leanings…I think that if we drove around in a Brinks Truck nobody would complain.

I even recently read some articles stating that “being a cop is dangerous…you are expected to accept risk to your life”…the implication being “we don’t think you should have armored vehicles so just accept the risk of getting shot”.

Just this year some officers near me had their squad cars shot up by rifle fire responding to a domestic. One was injured by glass. The SWAT Team that responded to the resulting armed barricade was also shot up. But because they were in a BEARCAT they were able to operate in the area and apprehend the guy.

So they should just accept the risk of having been shot there because some folks think having an armored vehicle is “militarization”? To be blunt…go @#$% yourself if that’s your opinion.

Yes, as a Cop, yes… I accept risking my life to protect others. I don’t accept risking my life over your politics or your tin hat fears that we are going to use these trucks to take your weapons and round you up for some FEMA camp.

If the real issue is that your local cops are using their equipment when it’s not necessary, you should be dealing with the decision makers at you local PD. Don’t put people at risk over hyped up fears about equipment.

K9 Abuse? Or Not?

This is getting a lot of internet traction lately. When I first watched it I was expecting something a LOT worse than what I saw. I think people are transferring the emotions they have for their family pet onto a working police dog.

While a person who has never been around Police K9’s may find this video shocking, because this is obviously something they would never do to their family pet, I’m not so quick to pass judgement on this officer. These Dogs can be exceedingly dominant and driven and are exceedingly tough. They do things your average dog would never do and are trained in ways your average dog is not.

In order to get some of these dogs to drop something from their mouths (which this dog had…watch the officer pick it up after) sometimes these handlers have to do things that may appear shocking to the unitiated because these dogs don’t pay attention to anything less. They are trained to drag fighting people to the ground after-all…they don’t scare easily and don’t even feel what may look like “abusive” blows. What good would a Police dog be if he was scared off by a suspect striking him?

Look. I’m not K9 trained…and I’m not defending the technique used here, If it’s determined that this was something more akin to he officer exhibiting frustration and anger at the dog than he deserves what he gets. Perhaps some handlers have less visually shocking methods to handle a highly driven dog and this PD should be looking into them, but for now I’m not 100% sold on the “OMG Animal Abuse” meme starting around this one. The dogs body language and wagging tail after he drops what he had tends to make me think the dog isn’t either.

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, then 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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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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