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If you carry a firearm in Alaska, know when you’re legally justified to use it

  • Author: Val Van Brocklin
    | Opinion
  • Updated: December 3, 2017
  • Published December 1, 2017

Recently, the ADN helped me share Alaska laws governing when and where you can carry a firearm open and concealed. One online reader suggested:

"Perhaps Ms. Van Brocklin can write another article of what to expect when someone does use their weapon in an act of self-defense. Legal ramifications are always taught in a concealed carry course, but because Alaska no longer requires these courses most of those carrying (no) longer get these lessons, and it's not necessarily common sense."

My reader is right. Few legal issues are common sense. If they were, we'd have fewer lawyers.

Permit me two disclaimers. This article is not intended nor should it be taken as legal advice. Nor am I advocating for or against gun rights or control. But I am an advocate for people being informed.

(Pixabay)

Because my reader asked about using a firearm in self-defense, we'll look at Alaska's law on deadly force. Be aware there are separate statutes governing nondeadly force and force in defense of property or premises.

AS 11.81.335 says a person may use deadly force in self-defense when the person reasonably believes deadly force is necessary for self-defense against:

1.     death;

2.     serious physical injury;

3.     kidnapping;

4.     sexual assault in the first degree;

5.     sexual assault in the second degree;

6.     sexual abuse of a minor in the first degree; or

7.     robbery in any degree.

(Note: Robbery requires the use of force or threat of immediate force in taking or attempting to take property from the presence or control of a person. Taking property from a person without any force or threat of force, like pickpocketing, is theft.)

The deadly force statute next says a person may not use deadly force if the person knows that, with complete personal safety and safety of others being defended, the person can avoid using deadly force by leaving the area of the encounter. There are some listed exceptions, for example if you were on your property, at your work, or protecting a child or member of your household.

In 2013, the Legislature passed a "stand your ground" law that said you have no duty to retreat from any place you have a right to be before using deadly force. But instead of getting rid of the duty to retreat language and its listed exceptions, they just tacked the no duty to retreat from any place you "have a right to be" language on at the end. Poor housekeeping that makes for confusing reading.

Alaska law also says you can use deadly force to defend someone else under the same circumstances you could use it to defend yourself.

The "stand your ground" law significantly changed the landscape for using deadly force to defend yourself or others. Opponents said it promotes vigilante justice. Proponents said it protects the innocent by not requiring them to assess whether they could safely retreat.

As for me, if I can determine I can safely retreat without using deadly force, I will do so. I don't have the skill, or courage and selflessness of our women and men behind the badge who willingly place themselves in harm's way to protect strangers. Deadly force will remain a last resort for me.

If you use a firearm in defense of yourself or another, your conduct will likely be reviewed by a prosecutor to see if it was legally justified. If the prosecutor decides it was, you won't be charged with any crimes. If the prosecutor decides it wasn't, you may face criminal charges ranging from a misdemeanor "reckless endangerment" to murder in the second degree, various assault charges in between, and possibly misconduct involving weapons offenses.

The prosecutor's decision would depend, in part, on whether you "reasonably believed" deadly force was necessary. Our Supreme Court has said that when a defendant claims their use of deadly force was justified as self-defense:

"(The) defendant must satisfy both an objective and subjective standard; he must have actually believed deadly force was necessary to protect himself, and his belief must be one that a reasonable person would have held under the circumstances."

Separate from the prosecutor's decision, you may also face a civil lawsuit by anyone you endangered, frightened or injured, or by the estate of anyone you killed. In a civil lawsuit you're not entitled to an attorney at government expense if you can't afford one, and you don't have a Fifth Amendment right not to testify.

Knowing the law on when you can use deadly force isn't enough. You need to be able to apply that knowledge to unpredictable, quickly changing, stressful circumstances, make a decision, and act (or not). To do this effectively requires training.

I've had more than 80 hours of formal firearms training that included countless shoot/don't shoot scenarios. In them, I've killed innocent bystanders, an undercover cop, and unarmed people I thought were armed. I've learned a lot — including how much I still don't know and am not prepared for. I intend to continue training and learning.

If you want a taste, Google "use of force training for civilians," "deadly force scenarios" and "shoot/don't shoot." Don't fool yourself into thinking that watching some videos can substitute for training and preparing yourself.

Also, consider self-defense devices other than a firearm — pepper spray or gel, a taser or stun gun, a tactical flashlight, a personal alarm, or a cellphone app like PANIK. For these, too, invest time learning about and practicing how to use them. They can be carried in place of or in combination with a firearm.

We're not cops and we shouldn't be vigilantes. Self-defense is about protecting yourself or another from death, serious injury or the other listed dangerous crimes. It's a right and a responsibility.

Val Van Brocklin is a former state and federal prosecutor in Alaska who now trains and writes on criminal justice topics nationwide. She lives in Anchorage — where she carries open and concealed, depending on the circumstances.

The views expressed here are the writer's and are not necessarily endorsed by the Anchorage Daily News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@adn.com. Send submissions shorter than 200 words to letters@adn.com or click here to submit via any web browser.

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