The use of deadly force

[This post was written over a year ago and shelved because I thought it wouldn't be of interest to anyone else. Considering the discussion over Thursday's post, I've decided to dust it off and bring it up to date.  This post should not be considered a substitute for knowing the laws in Israel regarding the use of guns.  You can find a nice summary of the laws here.]

This post was written by a 'gun toting settler'.  By this I mean that I make my home over the 'green line', and I carry a gun during pretty much every waking hour of the day. 

I really only started carrying a gun because my daily commute takes me through some potentially problematic areas at odd hours of the day and night.  But, once I was granted a gun license I decided that the safest place for the gun was tucked into the back of my pants and not sitting in the house.  Anyone who thinks that kids can't figure out how to get into a gun safe should read some statistics on accidental shootings. 

I also decided that I was every bit as likely to encounter a terrorist in Jerusalem or Tel Aviv (meaning not very likely... but a small chance, none-the-less) as in the south Hevron hills, so I decided to follow the advice of the instructor who administered the licensing test at the range.  He said that anyone who has a gun license should be a responsible citizen and carry all the time. 

As an aside, due to the fact that she is home alone for most of the day and that she has to drive alone (and with the kids) through potentially problematic areas, my wife also carries a gun (although you would never know it if you saw her on the street).

So yes, we are gun-toting settlers.  I'm just letting you know up front so you understand the source and weigh what you read here accordingly.

Lately there has been a lot of noise among the gun-toting settler crowd about the draconian rules of engagement associated with the use of deadly force here in Israel.   Oddly enough, there has also been a lot of noise from the anti-gun crowd about the alarming number of Israelis (I assume they mean people like me) who are walking around armed.

See?  Nobody's happy! 

But sadly there are a lot of people on both sides of the issue who aren't sufficiently informed to be able to argue the point intelligently.

The law says you can use your gun only if you, or someone nearby, is in imminent mortal danger.   That means a) There is someone who has a weapon (gun, hand grenade, Molotov cocktail, knife, etc.) that can be used to take your life or the life of someone nearby;  b) They have the clear intention of using that weapon immediately; and c) They have the ability to do so. 

Just as those late night investment fund ads usually caution: "Past performance is no guarantee of future results", one can't legally assume anything about the way an individual or group will act based on what you think you know about them.  You have to actually wait for them to act.  And to justify using deadly force, that 'act' must place you or someone else in imminent mortal danger.

Mortal Danger = the person(s) you are about to shoot must have the ability to kill (not just injure), and must give an unmistakable indication that they intend to do so.

Imminent =  Right this very second.  Not five seconds from now and not five seconds ago.  Now.

If you have time to yell instructions to someone... shoot warning shots in the air... aim and fire at their legs, etc., you are going to have a hell of a time convincing the police that the danger was imminent and that you had no other choice but to fire.

There is also the overriding requirement that there be no other way of preventing the other person(s) from trying to kill you and/or whoever is being threatened except by using deadly force.  Again, the full description of the laws can be found here, but for our purposes that should suffice.

Whenever I have renewed my pistol license and gone through my safety refresher course, I have been reminded by the instructor that I am not a policeman who can draw my gun and begin issuing instructions to a bad guy.  That is not why I'm allowed to carry a gun.  I can take out my gun and aim it at someone only when I have already arrived at the conclusion that I have no choice but to kill them. Full stop.  That means all the criteria above have already been met before I pull the thing out.

Another thing that I have been told every time I've gone to renew my gun license is that if, G-d forbid, I am ever forced to shoot someone - even a 100% clean/kosher/by-the-book justified shooting. - I'd better get myself a good lawyer because I am certainly going to be detained by the police... and jail time is not out of the question.

Here's where it becomes important to separate reality from the fantasy most people get from TV and films. 

Even in the wake of a real terror attack where you popped the bad guy and saved the day... the authorities aren't going to arrive on the scene, slap you on the back and congratulate you on your marksmanship.  They aren't going to take in the dead terrorist and decide you were justified and send you on your way.  They are going to take your gun... and likely take you into custody.  Because, guess what?  You are the primary suspect in a killing, and the cop on the street isn't authorized to decide if that killing was justified or not.

The way it was explained to me, a 'satisfactory' outcome will be that the authorities will have a strong suspicion that I had a choice, and will only pull my gun license for a year or two.  More likely I will have to do anywhere from a few months to a few years in prison if the evidence is ambiguous.  And if the evidence is in any way damning, serious jail time could be in the cards.

I hear you (some of you anyway)... this didn't seem particularly fair, right?   I was told to look at it from a different standpoint.  The nearly impossible burden that is placed on someone who has to decide whether or not to use deadly force is designed to do everything possible to discourage them from pulling the trigger. 

Given a choice between killing someone you perceive as a threat or not killing them, a person's prejudices, life experiences and fears can come into play far too easily.   What the law wants you to be thinking before you even raise your gun, much less pull the trigger, is 'would I rather be killed or be arrested, interrogated, sued and potentially sent to jail?'

Also, not every scenario takes place on Jaffa road in front of the media.  what if someone attacks you on a dark road... at night... when nobody else is around?  Worse... what if all of the potential witnesses are unsympathetic (i.e. Arabs or fellow attackers)?   When you put it like that, a lot of people will suddenly come to the conclusion that they don't really need to shoot... that they, and the people around them, have time to take cover or drive on... that the other person might only want to scare them and not necessarily kill them.   

Earlier this year the Knesset approved an amendment to the existing law which has become known as the 'Shai Dromi Bill'.  Here's a quote from the news that sums up the background nicely:

"The legislation, named for the Negev farmer who in January 2007 shot at a group of people who broke into his farm to steal livestock, killing Khaled el-Atrash. Dromi was charged with manslaughter, a move that caused a public uproar. In the ensuing year, bumper-stickers appeared on cars nationwide bearing the phrase "We are all Shai Dromi," expressing a lack of faith in the police's ability to stop property crime, particularly in rural areas. "

According to the published report:

"Unlike earlier restrictions on criminal liability in cases of self-defense, under the new law a property owner does not have to face "a real danger to his own or another person's life, freedom, bodily welfare or property" to justify shooting.  However, "the provision will not apply if the [property owner's] act was manifestly unreasonable under the circumstances in order to repel the intruder or enterer."

While the bill passed with a large majority (44-7), in fairness it should be pointed out that not everyone was happy with the outcome:

"MK Zehava Gal-On (Meretz) described the bill as "a death penalty for property crime".  "Thieves and robbers should be punished, but we should not allow property owners to determine an immediate death sentence," said MK Ahmed Tibi (United Arab List-Ta'al), who mounted a fiery opposition to the bill from the Knesset speaker's podium."

It may surprise you to know that I agree with MKs Gal-On and Tibi.   The law, as written, leaves a little too much wiggle room and lacks some important guidelines.  While I seldom refer to Jewish law when it comes to the laws of the modern state of Israel... I feel this is a case where Halachah provides some guiding wisdom from which this new law could have benefited. 

Under Jewish law, a clear differentiation is made between someone who breaks into a house during the day and one who does so during the night.  Someone who breaks in during the day cannot be automatically assumed to have violent intentions since the likelihood is that they expected to find an empty house.  But someone who breaks in at night MUST be assumed to have violent intentions since people are generally home asleep at night.  In the latter case Jewish law actually describes the night-time burgler as already having the status of having blood on their hands, and requires the home owner to kill them so as not to put himself or whoever else is in the house at risk.

I'm sure wiser people can elaborate on that so I won't flog an already overly-long post.

When I sit down and think about all the things I've written here, I question my sanity for walking around with a gun.  After all, who needs this?   The terrible responsibility that comes with the gun license seems to far outweigh any potential benefit.

But then I think about events like those that took place last week... or the attack earlier this year in the Dimona mall, and suddenly I realize that there is a compelling reason for as many responsible Israelis as possible to be armed (as stated in my last post). 

One of last week's commenters made reference to a terror attack from the mid '80s that took place on King George street.  It actually happened right in front of Richie's Pizza (where I was working back then).  A couple of terrorists had emerged from a store across the street with a shopping bag full of hand grenades.  They calmly walked out to the middle of the street and began tossing the grenades at the crowds on the sidewalks.  By some miracle none of the bystanders were killed.  Even more miraculous, within seconds of the first explosion the terrorists were both laying dead in the street.  They had been killed by armed bystanders.  One of them was even finished off by a civilian whose pistol had jammed and (foolishly, IMHO) decided to run out and club the terrorist to death with his jammed weapon.

I don't entertain the idea that the prospect of armed Israelis serves as a deterrent since most terrorists seem to be perfectly willing to die trying to carry out their attacks.  But you can't even compare the scale of the carnage between what has typically happened here in Israel, and if (G-d forbid) something similar were to be attempted in London or New York where the only people walking around with guns are the thinly stretched police.

So, for those who felt that my last post we too 'touchy feely', or that it 'nit-picked' about how to describe the killing of a terrorist instead of simply celebrating the terrorist's death... well, this one was for you.