What constitutes a Defensive Gun Use?

[beevul]

Now that January is over, I intend to try the "Defensive Gun Use for January" thread again, but first there are questions that need answers.

In an effort to avoid the thread being locked again, I am asking our mods for guidance.

Mods, is it ok to ask why the DGU thread was locked? The purpose being to identify the problem that caused it to be locked, so it can be avoided.

Second, and this is for everyone, I would like to get established what constitutes a defensive gun use.


So, folks, what constitutes a defensive gun use?

[ayeshahaqqiqa]

1. Ok

I think it is when you are being attacked by someone with something that could kill you (could be anything from a sledgehammer to a pistol to a vehicle), you show them your gun, give a verbal warning, and then a warning shot. Then if you shoot them, it can be considered self-defense, but I'd bet you'd still have to go to trial unless there were a ton of witnesses or it was on videotape.

[Dolomite]

42. Warning Shots = Always a Bad Idea

"Warning shots" are the reckless deployment of lethal force. You own every bullet that comes out of your gun forever and ever amen. In the scenario of defense of one's life or the life of an innocent, you either have the justification to deploy lethal force or you do not.

Further, it's a waste of a bullet, your attacker may begin to doubt that you'll be able to actually deploy lethal force to stop his attack, and if your "warning shot" bullet ends up in the head of some kid a quarter mile away, you will be charged with manslaughter.

And so boys and girls, that is why "warning shots" are a very, very bad idea.

[alwynsw]

43. A verbal warning is fine IF

you have several feet between you and the intruder/attacker AND he/she is clearly unarmed. Kinves, clubs, bats, ashtrays, etc. can be thrown. Firearms can be discharged. With experienced shooters, the sound of a firearms discharging inside a building can be both deafening and disorienting, even to the one firing the weapon. I don't trust my recovery time enough to think that I can fire a warning shot or shout a verbal warning and recover quickly enough to stop a thrown knife or club, much less a bullet.

See post #42 for the rest about warning shots. That's a 10 ring hit.

[thebaghwan]

2. You may use deadly force only when your life is in danger.

This is what I was taught in paralegal school.

[CO Liberal]

3. I Think We Know What It Isn't

It isn't shooting back at cops......

:-)

[beevul]

4. And if...

the cops have to defend themselves or others with a firearm?

Edited to add "or others"

[demsrule4life]

6. I hate to say it

I have to agree with CO here, keep the self defense stories to regular civilians. I have a 30 year LE background but guns used in defense should be kept to the avearage person using one to defend his or her life.

[MrBenchley]

7. Well, shooting back at cops was part of it last time.....

After all, they were going to restrict those gun owners' precious freedoms by locking them up for their various crimes....(snicker)

Evidently it was also indecent to even mention that most of the civilian defensive gun uses came about because the corrupt gun industry had done such a good job selling guns to criminals in the first place..

[enki23]

5. i don't know that it can be accurately tallied

because you can't (or shouldn't, if you're honest) simply assume that every situation a gun-carrying person found threatening enough to respond to really *was* sufficiently threatening to be considered a valid defense. it would seldom, especially in those events some call "brandishing," be possible to be certain what the situation would have been without the brandishing.

in other words, the simple occurrence of someone waving a gun about does very little to establish that there was threat worthy of such a counter-threat. people *feel* threatened all the time, and some are carrying guns and can respond to it. sometimes they likely stop some other aggressive action from happening. other times, *they* were the only ones perpetrating a truly aggressive action.

in other, other words... you can't count number of guns waved as "defenses." it's bullshit. that is, unless you establish some very strict criteria for what constitutes a "defensive" gun-waving, and make such criteria explicit in your reporting. then you'd have the beginning of such an argument.

otherwise... you're trying to predict alternate futures which never happened. you can't do that by assuming 100% success rate.

oh yeah... and that doesn't even begin to address the issue of self-reporting. the one near-certainty with self-reporting is that it's accuracy extremely uncertain. and you can't simply assume that the numbers are *under* reported either.

[CO Liberal]

8. The Innacuracites Of Self-Reporting

Could this explain why John Lott's conclusions are so bogus???

[demsrule4life]

9. The DOJ

states 70,000 defensive uses a year. Not a number to sneeze at. And if I must I will find it again though I have posted the link in the past.

[CO Liberal]

12. That's Quite a Bit Different...

...from the two million number I've seen quoted around here quite often.

[jimsteuben]

23. NIJ Gun Study Supports Kleck Research

http://www.saf.org/pub/rkba/hindsight/hs970810.html

Any study that relies on self-reporting is problematic, but it appears that there may be between one to three million annual defensive guns uses in the US.

[MrBenchley]

24. Briefly put

the guys at SAF are distorting and misquoting the report, which can be found online here.

http://www.ncjrs.org/txtfiles/165476.txt

Debunking the figures you quote:

"For example, in only a small fraction of rape and
robbery attempts do victims use guns in
self-defense. It does not make sense, then, that
the NSPOF estimate of the number of rapes in which
a woman defended herself with a gun was more than
the total number of rapes estimated from NCVS
(exhibit 8). For other crimes listed in exhibit 8,
the results are almost as absurd: the NSPOF
estimate of DGU robberies is 36 percent of all
NCVS-estimated robberies, while the NSPOF estimate
of DGU assaults is 19 percent of all aggravated
assaults. If those percentages were close to
accurate, crime would be a risky business indeed!
NSPOF estimates also suggest that 130,000 criminals
are wounded or killed by civilian gun defenders.
That number also appears completely out of line
with other, more reliable statistics on the number
of gunshot cases."

And adds this very pertinent passage:

"Respondents might falsely provide a positive
response to the DGU question for any of a number of
reasons:
o They may want to impress the interviewer by their
heroism and hence exaggerate a trivial event.
o They may be genuinely confused due to substance
abuse, mental illness, or simply less-than-accurate
memories.
o They may actually have used a gun defensively
within the last couple of years but falsely report
it as occurring in the previous year--a phenomenon
known as "telescoping." "

[CO Liberal]

29. SAF Has a Definite Agends

If this information was on a more mainstream site (such as the Newark Star-Ledger), it might be more believable.

[jimsteuben]

37. everyone has a bias

"If this information was on a more mainstream site (such as the Newark Star-Ledger), it might be more believable."

Everyone who makes pronouncements about firearms policy has a point of view - including the Newark Star-Ledger. Some of them have opinions which are quite a bit different from mine, but that doesn't mean that the information delivered is wrong. Maybe my beliefs are wrong. A priori rejection of the message just because the messengers happen to be outside the "mainstream" - whatever that means - is a fallacy. For all we know, a "mainstream" source might be 100% wrong. Best approach is to examine the study.

If you really want to delve into this question, I recommend the book_Armed: New Perspectives on Gun Control_ by Gary Kleck and Don B. Kates (Prometheus Book: 2001).

[CO Liberal]

40. And Some Sites Have Very Strong Biases, Jim

As I put in Guideline #3 for our daily "Guns In The News" threads:

Bear in mind that any links to extremely right-wing sites (such as Newsmax, CNS, or the Washington Times) or intentionally pro-gun or pro-control sites (such as the NRA or the Brady Campaign) are not considered reliable sources by many DU-ers. If at all possible, try to find a link for your story from a more mainstream source, such as a general-circulation newspaper or magazine site. If you choose to use a slanted site, be prepared for any negative feedback you may receive.

BTW - welcome to DU!!! :hi:

[jimsteuben]

48. biases

Glad to be aboard!

"link to intentionally pro-gun or pro-control sites (such as the NRA or the Brady Campaign) are not considered reliable sources by many DU-ers."

Well, would you take it a step further and not want to link to rigorous studies just because the scholars in questions are known as pro-gun or pro-gun control? That wouldn't really make sense to me. Best approach is to read the different points of view and just acknowledge that different sources are biased.

In 1776 it was considerably out of the mainstream to support the abolition of slavery.

[CO Liberal]

49. But When A Site Provides Nothing But Propaganda....

...it's best to avoid it.

[jimsteuben]

50. definition of propaganda

1. The systematic propagation of a doctrine or cause or of information reflecting the views and interests of those advocating such a doctrine or cause.
2. Material disseminated by the advocates or opponents of a doctrine or cause.

[iverglas]

10. well, where I'm at

It goes like this. Let's look at "self-defence" rather than "defence of property", to keep it simpler. (Keep in mind that robbery, armed or not, is an offence against the person, not just against property -- robbery consists of assault *and* theft -- and so the "self-defence" rules will apply there.)

"Self-defence" is a justification for committing an assault:

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

Now, threatening to assault someone can be an assault:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

So -- if someone came up to you, pointed a gun at you and demanded money or threatened to shoot you, or simply threatened - by doing something and not just by words - to harm you in some way, even if unarmed, and you reasonably believed that s/he was able to act on that threat right then, you would be in the position of having been "unlawfully assaulted" and be justified in using force to defend yourself.

The definition of assault then also applies to make the use of a firearm to threaten someone by whom one has been assaulted (or threatened) an assault. Like any other assault, it might be justified, as "self-defence".

The extent of the force that is permissible depends on the factors set out in the first provision quoted above -- whether the force used would qualify as "force used in self-defence" (which I'll assume to be equivalent to "defensive force") in the particular circumstances.

First, "if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself" it will always be justified.

Second, if the force s/he uses "causes death or grievous bodily harm" it will be justified if the two conditions are met: "reasonable apprehension of death or grievous bodily harm" *and* belief "on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm".


So, by those rules, waving a gun at someone who had done something threatening and who one believed had the ability to harm one, but not using the gun, might properly be seen as justified, as "self-defence".

Actually using the gun to harm or kill the other person would only be seen as justified, as "self-defence", if those other two conditions were met.

And yup, it isn't always easy to determine whether someone had a "reasonable apprehension" and "<belief> on reasonable grounds", but that's one of those things that courts are for.


So there you are, my definition of what constitutes a "defensive gun use" -- using a gun to the extent, and only to the extent, that is necessary to avert harm (where harm has been threatened) or defend against harm (where someone is causing or attempting to cause it). If the assault does not actually involve force (i.e. if it is a threat only), then whether actually using a firearm would be permissible, as opposed to just exhibiting it, would depend on the circumstances and the immediacy of the threat, I'd imagine.

.

[slackmaster]

15. iverglas, I have a purely semantic nit to pick with your post

...So, by those rules, waving a gun at someone who had done something threatening and who one believed had the ability to harm one, but not using the gun, might properly be seen as justified, as "self-defence"....

I cannot accept that "waving a gun at someone" does not qualify as "using the gun". A gun is a tool. Any application of a tool performed by a person, even if you argue that is not the primary intended function of that tool, constitutes use of the tool. Please don't try to claim that intimidation is not a proper use of a firearm. If firearms were used only to shoot people there would be a hell of a lot more people injured or killed by gunfire.

[iverglas]

18. my favourite kind of nit

Except that I don't think it's mine own. ;)

Isn't "waving a gun around" included in those "defensive uses" that people self-report about? That's the only reason I included it -- I thought it was assumed that it was included in what we wuz talking about.

... oh dear, your nit was so picky that I didn't even get it. Okay, I'll be honest; I misread what you wrote.

Yes, I was assuming that waving a gun around was "using" it, and when I said "waving a gun at someone who had done something threatening and who one believed had the ability to harm one, but not using the gun" I really really should have said "waving a gun at someone who had done something threatening and who one believed had the ability to harm one, but not firing the gun".

I'd regard waving a gun around at someone as "an assault", i.e., as defined in Cdn law:

attempt<ing> or threaten<ing>, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose

... so waving a gun around in order to avert grievous bodily harm or death would be an assault committed in self-defence; and it would presumably be justified under the first part of the justification for the use of force in self-defence:

Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

... rather than the parts about actually causing grievous bodily harm or death in self-defence. And yes, the gun would have been "used" to commit the assault.

I don't doubt at all that assaults (or robberies) have been defended against or averted (or deaths averted) by someone waving a gun around!

I also know that people are assaulted, and robbed, and killed by people who have guns and are not acting in self-defence, and don't just wave them around.

And I know that there loads of people who have been assaulted or robbed or killed, by people with guns, who were assaulted or robbed or killed despite having guns of their own, or in circumstances in which their having guns of their own would have had no effect at all, because they were assaulted or robbed or killed without the notice that would have enabled them to make effective use of a gun. Like liberalhistorian and her parking-lot robbery, and any kid caught in a crossfire and many women murdered by their partners, and my client who was shot dead by her sister's abusive partner when he "invaded" their home.

And in my view, and the consensus of my society, the very remote risk of someone being seriously injured or killed in a situation in which their having a firearm would have averted the injury or death - and of course where s/he had no other way of avoiding injury or death, say by not engaging in gang or organized crime activity in the first place - is not sufficient reason to tolerate all the other risks that come with, e.g., widespread possession and carrying around of handguns, or unsecured storage of firearms in homes, or unrestricted private transfers of lawfully owned firearms, or firearms in the possession of people who should be barred from having them who no one knows have them. Measures to reduce all *those* risks will also reduce the risk of people being in situations in which they "need" a firearm for self-defence.

The fact is that you'd be hard-pressed to find anyone in Canada who has used a firearm in self-defence (even by waving it around), outside the criminal subculture. And you also find that the rates of firearms crime, violence, accidental injury, suicide and homicide in Canada are fractions of the rates in the US.

As you know, I've been the victim of a particularly violent and frightening crime, and I do not believe that being in possession of a firearm would have prevented the crime and in fact believe that I would be more likely to be dead now had I had one, since the situation was such that one of us would almost certainly have got shot, and I can't guarantee it would have been him. Of course, I would unquestionably be dead now had the criminal in question had one, since his intent was quite obviously to kill me, and running away really fast from his car wouldn't likely have been an option for me if he had. I'm happy the way things were, and are.

But yeah yeah, that's all by the bye. Yes, waving a gun around is a "defensive use" of a firearm. Of course, if it were a toy gun ... or it were unloaded ... ?

.

[CO Liberal]

21. But I Thought "Brandishing" Was Illegal

Doesn't that jeopardize someone's CCW permit?

[RoeBear]

25. There's brandishing and then there's...

...brandishing.

If you cut me off in traffic (using one of your scenarios) and I shake a gun at you at the next light and say "you want a piece of this" - that's illegal brandishing.

If you were to come at me with an axe and I pull out a gun and you stop your attack- that's legal brandishing.

[slackmaster]

26. I assume a distinction between brandishing and unlawful brandishing

Don't you?

:shrug:

[RoeBear]

28. If brandishing were illegal regardless of circumstances...

...that would be quite a Catch 22 to ever being able to use a gun.

Almost as ridiculous as charging someone for discharging a weapon within city limits after using one for self defense.

[iverglas]

31. same as: assault is illegal - but justifiable

I'd guess, anyhow.

"Brandishing" doesn't seem to be an offence in Canadian criminal law (the index listings for "weapons" run to several pages ...). Using a weapon to commit an offence is, and threatening someone with a weapon ("brandishing", pretty much) would probably be an assault.

And then, like any other assault, it could be justified if it were committed in genuine self-defence.

That, of course, is something that an accused has to prove on a balance of probabilities, after it has been proved beyond a reasonable doubt that s/he did the thing that constituted the assault that s/he claims was in self-defence.

That lived in the house that Jack built.

.

[RoeBear]

32. FWIW

I've never heard of 'justifiable assault' it would seem that assault is an offensive act and not a defensive one. OTOH- there is homicide and there is justifiable homicide.

[iverglas]

34. well then

I've never heard of 'justifiable assault' it would seem that assault is an offensive act and not a defensive one. OTOH- there is homicide and there is justifiable homicide.

... you probably need to learn a little more law/understand the law a little better.

If you started punching me and the only way I could avoid getting my nose broken was to knock you down, would that not be a justified assault? "Defensive", yes, at least in my submission, but an assault all the same.

"Self-defence" is a justification for (and not a defence to) a charge of assault. Where the assault resulted in a death, it will of course usually be a charge of homicide, if the death were the intended or foreseeable consequence of the assault. That is why homicide in self-defence is called "justifiable homicide" (although really, it's "justified homicide".)

"Justifiable homicide" is just a term used for a homicide committed in self-defence. (I don't know what other homicide might be "justified" -- except, of course, in those strange jurisdictions that regard killing someone who has broken into one's home as justified, in which case it is "justified" as being "defence of residence" rather than "defence of self".)

You may never have heard of assault in self-defence simply because few prosecutors would bother trying to convict someone who had committed it, and people who argue self-defence to assault charges don't make the news much. Homicide, on the other hand, is more likely to make prosecutors want a court to decide the matter, rather than them deciding it by not prosecuting, and is more likely to make the news.

.

[RoeBear]

36. What I said was simply...

...that I had never heard of 'justifiable assault'.

A Google search of "justifiable homicide" got 14,300 hits

A Google search of "justifiable assault" got 104 hits

'nuff said

[brothermak]

51. It sure does!

During CCW class we were repeatedly and rightfully drilled with the fact that presenting your weapon, such as moving it from your place of concealment and laying it in plain sight of your "opponent", constituted Aggravated Assault. Thats a Class 3 felony, *POOF* CCW goodbye, hello tent city.

ARS
13-1203. Assault; classification

A. A person commits assault by
2. Intentionally placing another person in reasonable apprehension of imminent physical injury;

13-1204. Aggravated assault; classification; definition
2. If the person uses a deadly weapon or dangerous instrument

~B-MAK

[NorthernSpy]

11. lawful shootings

I think you can use deadly force in: 1, any home invasion; or 2, a situation in which a reasonable person (as they say) would believe that his attacker meant to do him or someone else serious physical harm. Some jurisdictions might require the attacked to try to retreat first.

I know of a guy who shot and killed three people who showed up at his house in the middle of the night armed with sticks and looking for a fight. He knew that they were looking for him, and went out onto his porch when they drove up. Each of the three men shot had a reputation for violence. The court found that each shooting was an act of lawful self-defense.

Of course, the laws and courts vary from place to place, so if this had happened somewhere else, the guy might be doing time now.


Mary

[lcordero]

14. I don't see anything wrong with what he did.

[iverglas]

17. one o' those jurisdictional things

In Canada, inmates in federal and provincial correctional institutions may vote, the Supreme Court of Canada having decided that imprisonment (let alone conviction for a crime) is not sufficient justification for interfering in the exercise of such a fundamentally important right, "in a free and democratic society", as the right to vote (the words used in the Cdn Constitution).

In most US states, not only are inmates denied the vote, but people on parole are denied the vote (and sometimes even people who have completed parole? although that becomes moot when things like drug possession entail lifetime parole ...).

Of course, some US states also kill people who are convicted of crimes; Canada and all other reasonable facsimiles of free and democratic societies do not. Different notions of what constitutes justification for violating rights; no universal agreement on how the principles apply. But heck, even if there might be some justification for executing people who kill people, I've never seen the justification for allowing private citizens to execute people who break into their homes.

I think you can use deadly force in: 1, any home invasion; ...

That is indeed so in some (not all) US jurisdictions. It definitely ain't so in Canada (where the law calls those things "breaking and entering a dwelling house", leaving "invasion" to be used for things to which it more accurately applies, like uninvited military incursions into someone else's country).

40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.


41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.

And that -- when the trespasser has committed an assault -- is when, and only when, "self-defence" comes into it, and then the self-defence rules apply: only the force necessary, and if grievous bodily harm or death is caused to the trespasser, there must have been reasonable grounds for the person defending him/herself to have believed s/he would otherwise suffer grievous bodily harm or death, and s/he must have reasonably believed there was no other way of averting grievous bodily harm or death.

The trespasser's presence in one's home does not necessarily, of itself, give reasonable grounds for believing one is going to suffer grievous bodily harm or death, and does not obviate the requirement that one reasonably believe there is no other way of avoiding grievous bodily harm or death before causing the trespasser grievous bodily harm or death. Breaking into a house does not in itself, necessarily meet the definition of assault: "attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose". Lots and lots of people break into houses and assault no one, and leave (or would be happy to leave) upon encountering someone who tells them to.

Nope, up here there will be no killing, or grievous injuring, of "home invaders". Not unless they have done something that constitutes an assault.

We have the notion that allowing people to kill or grievously injure burglars who have not committed an assault, and who could not be reasonably believed to be about to commit an otherwise unavoidable injury or death, would be a violation of their right to life.

I can kinda understand how it would have been justified at one time to allow farmers to kill livestock rustlers, since farmers might starve if people rustled their livestock, back when there were no food stamps. But I haven't yet understood how allowing the shooting of burglars on sight could possibly be justified in a society that recognizes and protects the right to life and not to be deprived thereof without due process, and the right to the equal protection of the law.

.

[RoeBear]

Once a felon is released from...

...a Canadian prison are his full rights restored, particularly gun ownership?

[iverglas]

33. it's just not a question that I can answer

In all seriousness, it's a question like "what colour is orange - true or false?"

I can't address questions about Canada that don't fit the Canadian paradigm, is the problem.

No one in Canada has rights taken away - any rights, ever. People may be deprived of liberty (imprisoned), but that doesn't mean that they don't have the right to liberty, for instance. They're just being prohibited from exercising that right.

That really is how it works in the US, too, it's just that you talk about it in a way that obscures the issues. If a person who were imprisoned for a crime were having his right to liberty taken away, then s/he could just be tied to a bunk and denied visitors, for instance, and we know that this isn't the case.

Rights are things that are inherent in human beings, and inalienable, right?

So while a person is in prison, s/he is being prevented from exercising various rights in various ways -- prevented from wandering around where s/he likes, prevented from associating with whomever s/he likes, prevented from speaking to whomever s/he likes. Not being prevented from practising his/her religion, or from seeking legal counsel if charged with an offence while in prison, or from having a fair trial, for instance. The only exercises of rights that are interfered with are those which society has justification for interfering with.

Anyone released from prison will be on parole or mandatory supervision. Parole comes after about 1/3 of the sentence; if someone is denied parole, s/he will still be released on mandatory supervision after about 2/3 of the sentence, except in really extraordinary cases that I'm not familiar enough with. Conditions of parole would always include not being in possession of firearms, where the person had been imprisoned for a violent offence.

Of course, we don't imprison a whole lot of people for non-violent offences. They would more often be placed on probation or given conditional sentences -- a newfangled thing that involves a prison sentence being imposed but served in the community -- and those orders would include firearms prohibition orders where appropriate:
http://www.canlii.org/ca/sta/c-46/sec109.html
http://www.canlii.org/ca/sta/c-46/sec110.html
Firearms prohibition orders may also be made against people who have not been convicted of offences:
http://www.canlii.org/ca/sta/c-46/sec111.html
and also lifted:
http://www.canlii.org/ca/sta/c-46/sec112.html
or not made for certain reasons:
http://www.canlii.org/ca/sta/c-46/sec113.html
(There are a bunch more sections about prohibition orders. Firearms offences - possession, trafficking, assembling, etc. - start at section 84. Here's a prose summary: http://www.cfc-ccaf.gc.ca/en/general_public/factsheets/peine.asp)

Once the sentence, including parole and probation and conditional sentence orders, was completed, the person would be free to apply for a firearms licence on the same basis as anyone else, just like s/he would be free to apply for a driver's licence or any other licence or permit that might be required in order to do something for which a licence or permit was required, like a taxi licence or a street vendor licence or a licence to sell insurance.

Licences are needed in order to acquire firearms in Canada. That's a fact of life that I think everyone here is aware of. The acquisition and possession of firearms is regulated just like the acquisition and possession of various other things, and the practice of various other activities, are regulated. No one has any more of a "right" to acquire and possess firearms than s/he has to do anything else, and all rights are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", as set out in section 1 of the Constitution, and which is decided by the courts.

So the usual requirements will have to be met by anyone; they're set out in the Firearms Act: http://www.canlii.org/ca/sta/f-11.6/

Basically, http://www.canlii.org/ca/sta/f-11.6/sec5.html --

Firearms Act
AUTHORIZED POSSESSION
Eligibility to Hold Licences
General Rules

Public safety

5. (1) A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.

Criteria

(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge shall have regard to whether the person, within the previous five years, ...

I won't all reproduce the criteria, but they include the commission of certain offences under the Criminal Code and the Controlled Drugs and Substances Act (I'd have to do some looking up to see exactly which ones they are), treatment for mental illness associated with violence, and a history of violent behaviour.

There is a form of appeal from a refusal of a firearms licence, in which the person applying for the licence must show that the refusal was not justified:
http://www.canlii.org/ca/sta/f-11.6/sec74.html

Firearms Act
LICENCES, REGISTRATION CERTIFICATES AND AUTHORIZATIONS
References to Provincial Court Judge

Reference to judge of refusal to issue or revocation, etc.

74. (1) Subject to subsection (2), where

(a) a chief firearms officer or the Registrar refuses to issue or revokes a licence, registration certificate, authorization to transport, authorization to export or authorization to import,

(b) a chief firearms officer decides under section 67 that a firearm possessed by an individual who holds a licence is not being used for

(i) the purpose for which the individual acquired the firearm, or

(ii) in the case of a firearm possessed by an individual on the commencement day, the purpose specified by the individual in the licence application, or

(c) a provincial minister refuses to approve or revokes the approval of a shooting club or shooting range for the purposes of this Act,

the applicant for or holder of the licence, registration certificate, authorization or approval may refer the matter to a provincial court judge in the territorial division in which the applicant or holder resides. ...

75. ...

Evidence

(2) At the hearing of the reference, the provincial court judge shall hear all relevant evidence presented by or on behalf of the chief firearms officer, Registrar or provincial minister and the applicant or holder.

Burden of proof

(3) At the hearing of the reference, the burden of proof is on the applicant or holder to satisfy the provincial court judge that the refusal to issue or revocation of the licence, registration certificate or authorization, the decision or the refusal to approve or revocation of the approval was not justified.

But of course anyone would always be free to apply again, and present new evidence or whatnot, I assume.

I've only encountered cases of refusal to issue licences when I surfed the net for them. I can't find it now, but I did see one where some upstanding citizen (and part-time firearms instructor for the Cdn Armed Forces) was refused a licence because of something he'd done, like brandish a gun at someone, but got it when he took his case to the provincial court.

Anyhow, I doubt that this answers your question -- but I can't tell you whether anyone's rights were restored when they were never taken away, and I can't tell you whether anyone has a "right" to possess firearms in the sense that I understand you to mean that, since no one has that "right" in that sense in Canada. But I hope this helped.

.

[RoeBear]

35. Come on Iverglas...

...you know I have a short attention span. Was that a yes, no or 'I don't know'? :)

If my inclusion of the word 'right' is what caused that fusillade of words let me re-phrase.

Can a Canadian who has served time in jail for a felony (please God don't let the word 'felony' cause another fusillade) own the same types of guns any other never imprisoned Canadian can own?

[iverglas]

38. maybe

If a person who has served a sentence for any kind of crime (indictable offence, summary conviction offence) can demonstrate to a firearms officer that issuing a firearms licence to him/her is justified in the public interest, exactly as any other individual has to do, s/he will be issued a firearms licence, exactly as any other individual will be.

Having been convicted for a firearms offence or a violent offence or certain drug offences will likely make this a little more difficult to do, as firearms officers are instructed by law that such convictions must be considered in deciding whether it is in the public interest to issue a firearms licene to someone.

At least that's my paraphrase & summary. Some people seem to prefer original sources, so I provided 'em.

.

[RoeBear]

39. Ok, I think I saw the answer...

...in there. It sounds like it might be easier to become a legal gunowner after incarceration in Canada than in the USA.

[iverglas]

44. I honestly just don't know

And the issue would never be whether someone had been incarcerated, anyhow -- it would be the conviction itself, not the sentence, that would have to be taken into consideration. That is, convictions for certain offences *must* be taken into consideration; convictions for other offences would just be part of the entire package of information that the firearms officer has to consider.

The law doesn't instruct the firearms officer what decision to make, just what to consider in making the decision. The test is "in the public interest".

So someone with a conviction for a violent offence might conceivably come along with an excellent report from a probation officer, recommendations from community elders (say the person was a member of a First Nations community) and statements by people in the community saying they were assisting the person in re-integrating into the community, and needing a firearm to engage in traditional hunting activities. And might get the licence.

The thing is that I honesty just don't know what has happened in various kinds of cases, because I just don't know anybody who has applied for a firearms licence in the last 20 years. This is to a large extent because I live in the downtown of a largish city, and virtually nobody in my vicinity would have any desire to own a firearm. If I lived in a small town or a rural area, I'd know people who owned firearms and I might have heard tales about people being granted or denied licences.

Btw, the rural/urban breakdown in Canada is pretty nearly the same as in the US, although Canada is slightly more urbanized. I live in the Montreal to Windsor (Detroit) corridor, the hwy 401 artery of urban eastern Canada, along with, I dunno, probably nearly half of the population of Canada. In the small towns north of the 401 along the way, people hunt. In the cities, people are just subway- and bus-riding service sector workers who have never seen a deer outside the petting zoo, just like in the cities in the US northeast. The only hunters I have ever known lived in the small eastern Ontario town where I lived for a summer, the lawyers who went off into the bush to hunt 'n drink for the weekend. And my beau, a court official, whose 13-year-old disabled son had killed himself with dad's hunting rifle.

http://imgs.maps.yahoo.com/mapimage?MAPData=xL21Dfhyzy097xQgbwEemCjsU3BiQQNXmwjfG.9g0cNEC9ZcHdlr2Wi7bViPM3z4vWjoxyAZuaMwMbGTBSUi3brmymCP_DwSxBddXa_DIXfNPSEcS_7xR4VDsjnNGEWU

Oh, and btw too -- is anybody watching Conan O'Brien in Toronto this week? (Or, as Mike Myers called him on the show, "yankee boy".) Hockey fans who didn't watch last night missed a chance to see him brawl with Ty Domi, who I gather is wont to brandish his fists.

.

[RoeBear]

45. Now you have me curious...

....about this: "This is to a large extent because I live in the downtown of a largish city, and virtually nobody in my vicinity would have any desire to own a firearm."

How large a 'vicinity' do you refer to and what percentage might you attach to 'virtually nobody'?

[iverglas]

46. the entire vicinity

That would be a metropolitan area of about 1,000,000. Medium-large sized city with a smaller "twin city" divided by a geographical feature with a separate economic and political structure and demographic features; surrounding bedroom communities and villages of the main city and the twin city that are part of the "urban agglomeration" and are all within a half-hour drive or so from downtown.

I have social assistance recipients, service industry and high tech industry workers and mid-level civil servants for neighbours. A pretty high proportion are immigrants -- some old-wave Italian, for instance, many newer-wave Asian, southeast Asian and African; there are francophones, anglophones and the odd First Nations household. And there are everything from large young low-income families to dual-income (and single) professionals w/o kids to retirees. I am personally acquainted with politicians at various levels, professionals, civil servants, social housing tenants, panhandlers, small businesspeople, non-profit organization managers and employees, the whole range. I don't know many industrial blue-collar workers, because there isn't much blue-collar industry in this vicinity.

Undoubtedly in the fringe areas of the metropolitan areas, and particularly in the twin city part of it where outdoor recreation, including hunting, is more of a feature of the geographical setting (adjacent to a large natural preserve area) and of the economy, people are more likely to own firearms, as they are more likely to hunt.

I wouldn't have any reason to know whether any of the people I don't know quite intimately own firearms, really -- but I know that people who do not hunt (and who don't live in rural areas where firearms are used for pest control or protection against predators) don't own firearms, as an almost universal rule. And nobody whom I know at all well -- none of my neighbours or friends or family -- hunts.

I don't know of any family member, including the uncles-aunts-cousins on both sides, who has owned firearms -- although I would expect that a couple of the cousin variety, who live in Northern Ontario, for instance, and whom I don't know well, might hunt. My brothers and sister and their partners, my parents, my partner's parents and brother, my siblings partners' parents -- none of them have ever owned firearms, to the best of my knowledge.

I knew that my friends and acquaintances in the small town where I briefly lived owned firearms, because I knew they hunted (and I knew of the child suicide by hunting rifle that I mentioned). I know that my friend/former tenant in town here -- whose residence with his wife was in the area of the natural preserve in the twin city) owned two firearms, because he told me for some reason (it was one of his eccentric-hobby affectations, from what I could tell).

Reliable figures are of course somewhat hard to obtain (registration of firearms being a new phenomenon), but a recent study, based on survey responses, concluded that 17% of Cdn households owned at least one firearm in 2001:
http://www.cfc-ccaf.gc.ca/en/general_public/news_releases/coverletter.asp

A Justice Canada site says 22% in 1996, and that "firearms ownership varied from 14% owning at least one gun in Ontario to 36% owning at least one gun in the Atlantic provinces":
http://canada.justice.gc.ca/en/ps/rs/rep/wd97-3a-e.html

In all countries, gun ownership was related to size of place of residence. Residents of the smallest communities were most likely to own a firearm and residents of the largest communities were least likely to own a firearm. This trend was particularly evident in Canada with respect to long gun ownership. Among Canadian respondents from small towns, 33.6% owned a long gun, in contrast to 1.2% owning a long gun in the largest cities.

(Handgun ownership would be quite rare.) I guess I was pretty much right -- 1.2% is what I'd call "virtually nobody"!

The idea of one of my neighbours or friends or acquaintances of colleagues or family members, who does not hunt, owning a firearm is just absurd. If I asked any of them whether they owned a gun, the most likely response would be something along the lines of "what would I want a gun for?" It would be akin to asking them whether they owned, I dunno, a dog sled, or a top hat.

And I'm sure that *that* sounds absurd to you, but that really is reality where I'm at. ;)

.

[slackmaster]

13. Any action along a spectrum from displaying a gun to firing it

As long as that action is lawful and done by an innocent person in defense of one's life, health, or the life or health of another innocent person (on edit:) or property.

The simplest form of defensive gun use, i.e. chasing off an assailant by simply displaying a gun, would be unlikely to be reported in the news, or to appear in police records in many places even when the incident is reported to police. Nobody knows how often that happens. IMO arguments about the frequency of those de minimis DGUs serve no useful purpose.

[Wickerman]

16. Jr. Mod checking in here

Mods, is it ok to ask why the DGU thread was locked? The purpose being to identify the problem that caused it to be locked, so it can be avoided.

I didn't discuss with my fellow mod why the last thread was locked, but I know I was troubled by the defensive use against police.

Both us mods hate threads that are longer than 100 posts - they are a bear for dial-up users. Therefore, I would request that at about 100 posts you start another. The first thread could be labeled ...#1, the next ...#2, and so forth.

Next, don't start this until you can get some sort of consensus as to what constitutes defensive gun use. It looks like you are a ways away from such. I'd suggest a poll when you have a good sampel of opinions.

thanks, and have fun. Its cold here in Minnesota - I'll look forward to the heat from the flames. :P

[beevul]

19. Clarification...

"I didn't discuss with my fellow mod why the last thread was locked, but I know I was troubled by the defensive use against police."

There was never claimed by myself any defensive use of guns against police.

My claim was that police were defending themselves with guns after being shot at.

For instance...(from the DGU thread)

""Iowa Barroom Brawl Ends in Fatal Shootings"


"DES MOINES, Iowa - Three men were shot — two fatally — in a barroom brawl early Saturday and two gunmen surrendered after a running gun battle with police investigating the violence."

"Shortly after police were called to the scene at the Casa Vallarta restaurant, two men in a white pickup truck opened fire on an officer who tried to pull them over, Des Moines police Sgt. Jeff Aldrich said. The officer was not hurt."

"Other officers then chased the truck until one squad car rammed into the fleeing vehicle. The officer in that squad car was treated and released for injuries suffered in the collision."


"The suspects then fired on police as they ran to a nearby apartment complex, but surrendered after officers shot and wounded them, Aldrich said. Their injuries were not life-threatening, he added."

That was from post # 88 of this thread:

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=118&topic_id=35900#36268



The claim of defensive use AGAINST police was made, but not by myself or any pro-gunner.

In any case, I appreciate your input on a concensus. I can't do a poll yet myself(no credit card for donation) but I'm working on that.

Your really making me miss MN too. It will always be home to me.

[Wickerman]

22. 'kay

yeah, I understand it after rereading the whole thing several times. uh, as far as the poll, maybe one of your fellow lunat... uh, RKBAers would volunteer to work with you on the poll?

(the sound of dozens of gun aficionados leaping to action...)

[RoeBear]

20. I had what may count as the mildest form of...

...a defensive gun use on Saturday night.

The wife and I were leaving a charity fund raiser. It's not held in the best area of town and we had to park several blocks away from the event. As we were walking back to the car, by ourselves, we were approached by three youths in the opposite direction. They started to cross the street toward us, as they did I stuck my hand inside my coat reaching to put my hand on my gun.

As I did that the kids inexplicably returned to their side of the street. Did they have any bad intentions? I don't know. Did they see my reaching in my coat as a threat? I don't know. Am I happy that I had my gun with me? Definitely.

Incidentally, my wife was completely oblivious to the situation. Partly because she was busy watching her footing on the slippery sidewalk and partly because that's just the way she is.

[beevul]

27. Establishing criteria...

Ok, what criteria should be used to classify an event as a DGU?

Since were going to leave out law enforcement DGU's(though I would think we could include a LEO in an off duty event) how about calling them Civilian DGU's to begin with.


What other criteria can we use to yardstick this issue?

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[alwynsw]

41. I tend to agree with both the Ky and AZ legislatures

Use of a weapon, including hands and feet for those trained to do so, is justified when one is reasonably in fear of being injured or killed by another. Such use of force is also justified when intervening to protect the life and limb of another. (One witnesses a holdup, assault, or other crime in progress wherein the assailant is brandishing or using a weapon ans uses physical force to stop the attacker/robber/etc.) This includes shooting to kill.

Courts in both states have found that the presence of an intruder in one's home is sufficient grounds for the use of deadly force because even though an intruder may have entered the home unarmed, or may appear to be unarmed, there are a multitude of weapons available within the home. These weapons range from household knives to heavy objects - even ashtrays - anything that can be used as a weapon. Hands and feet are also included because it is imposible to know if an intruder is skilled in the martial arts.

The best passive defense I recall is this: A burglar broke into a Gelndale, AZ home in the 80's. He ransacked the house, then paused to have a sandwich before leaving. Police found him dead on the front lawn. The idiot chose a house that was covered in plastic sheeting to burgle. The plastic sheeting was in place to contain poison gas being used to fumigate the home. Oops! Yes, Virginia, hydrogen sulfide gas kills burglars, too.

Another instance comes to mind: a vagrant in the Maryvale section Phoenix broke into a home looking for valuables and a meal during daylight hours. The homeowner, who worked nights, awoke to find the man carving a slice of ham with a kitchen knife. The homeowner shot and killed the intruder. There were no charges against the homeowner because the intruder had a weapon in his hand at the time he was shot.

[Name removed]

47. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Jimb100]

52. Defensive Gun Use

I applied for and received a concealed carry permit from the State of Florida. They provided a nice booklet that defined proper use of deadly force. The pamphlet was several pages long and gave numerous examples.

To summarize - If you believe with good reason that your life or the life of another is in danger from an attacker, you have the right to use deadly force.

If your attacker has a weapon, it will be easier for you to prove.

The law seemed quite straightforward in one respect - you absolutely cannot brandish a weapon to gain advantage in an argument. That will land you in jail.

Send for the pamphlet. I'm sure all states that issue carry permits have similar handouts available and I'm sure all states are a little different in the wording.