August 31, 2017
By Richard Nance
"Better to be tried by 12 than carried by six." Like many clichés, it has a nice ring to it. However, uttering such a nonsensical remark reveals a fundamental lack of knowledge. While most would agree that it's better to live with the consequences of our actions than to die, this overly simplistic, chest-thumping approach to self-defense leaves much to be desired.
Fortunately, there's a better solution — one that will help you make appropriate decisions during your darkest hour. Those decisions will do more than keep you on the right side of the law; they will actually enhance your safety. What's the solution? Education.
Long before strapping a pistol to your hip and developing skill at arms, you should consider the possible legal ramifications of shooting someone in self-defense. You should be able to articulate under what circumstances the use of deadly force in self-defense is authorized. Since laws tend to be written in "legalese," they can be confusing. If you don't understand something, ask someone who does. In some ways, shooting is the easy part. Understanding the legalities of self-defense can be far more challenging.
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Self-defense laws vary from one location to another, sometimes dramatically. There are federal, state and local laws on the books, and it behooves you to understand the laws governing the places you frequent. These laws are often intentionally vague, allowing for interpretation on a case-by-case basis. Still, by reading these laws and studying relevant court decisions, known as case law, you will better understand the factors a police officer, prosecutor, judge or juror will consider when deciding whether or not your response was appropriate.
Reasonable Force
To avoid arrest and possible criminal prosecution, the force you use to defend yourself (or another) must be deemed "reasonable." What is reasonable force? While the definition varies from state to state, the reasonable force litmus test is essentially: Would a reasonable person with similar training and experience have acted in a similar manner under the same set of circumstances?
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It's important to realize that what starts as a judicious use of force could take an ugly turn if your response doesn't remain proportionate to the threat you're facing. For example, if while minding your own business, you were suddenly accosted by an assailant who shoves you then cocks his clenched fist as if to strike, punching him would be a reasonable response. However, if your blow was to land solidly and render the assailant unconscious, stomping his head would clearly be unreasonable. In this scenario, even though you were the victim initially, by using such a high degree of force (stomping the head) when the assailant no longer posed a threat, you became the aggressor, aka the suspect.
Pre-emptive Striking
If you can articulate that a threat was imminent, striking pre-emptively is a tactically sound and legally defensible option.
If it's clear by an assailant's words or actions that he intends to harm you, you are under no legal obligation to wait to be struck, stabbed or shot before responding. Unlike schoolyard rules, where whoever threw the first punch was automatically deemed the culprit, in the real world your right to self-defense extends to before the assailant actually launches an attack.
However, if you strike pre-emptively, you must be able to articulate what made you believe the assailant was about to attack. Did he threaten to kick your ass? Did he assume a fighting stance, with knees slightly flexed and fists clenched? Was he looking around to see if there were any potential witnesses? Was one of his hands tucked under his shirt or hidden behind his leg as though he were concealing a weapon? Was there someone else with him who was another potential adversary? When one or more of these factors are present, along with a myriad of others, you would likely be justified in striking first. Keep in mind that this does not grant you carte blanche to beat the assailant relentlessly. Your response must be reasonable and proportionate to the threat.
Totality of the Circumstances
Whether or not a particular use of force will be considered reasonable is based on the totality of the circumstances. What this means is that all of the factors present must be taken into account. We've established that stomping an assailant's head when he's unconscious, and therefore no longer poses a threat, is unreasonable. However, under different circumstances, doing so may be completely justified. For instance, if the assailant you just decked remained conscious and, from the ground, attempted to draw a pistol from his waistband, stomping his head (likely considered deadly force) would be justified. The rationale in such a case is that if you don't immediately stop the threat, you will be in great peril. That brings us to the topic of deadly force.
Deadly Force
A typical definition of deadly force is "force likely to result in serious bodily injury or death." While death is clear-cut, defining serious bodily injury is ambiguous. As a rule of thumb, any injury that results in unconsciousness, a broken bone, the temporary or permanent loss of a motor function, a cut requiring sutures, etc., would constitute serious bodily injury, also referred to as great bodily injury (GBI).
Deadly force is authorized to prevent an imminent threat of death or GBI to you or a third party. Should you resort to deadly force when the threat of death or GBI is not present, you better have a good defense attorney!
One example of whether the threat of death or GBI is present arises from a scenario in which an assailant points a firearm at you. From a legal standpoint, anything you do to him at that moment would be justifiable because the threat of GBI (at least) is inarguably present. However, if you were able to wrest the firearm from the assailant, shooting him would not necessarily be warranted.
Let's assume that upon being disarmed, the assailant turned and sprinted away from you. Barring some other critical factors, such as the assailant being in your house and running toward your child's room, shooting him would likely not be deemed reasonable. The same could be said if the gunman, once disarmed, immediately puts his hands up and complies with your orders.
Let him go! The goal is not to apprehend the intruder but to protect yourself and your family.
On the other hand, if, after being disarmed, the assailant were to lunge toward you, shooting him would almost certainly be justified. That's because he showed deadly intent by pointing a gun at you to begin with. Then, after being disarmed, closing distance illustrates his intent to continue the assault. It's easy for a judge and jury to infer that if the assailant were to regain control of the gun, he would use it against you.
Disparity of Force
A disparity of force exists when a victim is placed in extreme peril due to any number of factors — such as being outnumbered, the attacker having access to a weapon, fighting from an inferior position, sustaining significant injury, experiencing exhaustion or being responsible for protecting a spouse or child. In such a case, the victim is granted more leeway with regard to the level of force authorized to thwart that attack.
Disparity of force was a key element in the highly publicized murder trial of George Zimmerman, who fatally shot Trayvon Martin, an unarmed teenager. Although Martin wasn't armed, evidence proved that he achieved a dominant position atop Zimmerman, who was on his back. (The fighter on top has a tremendous leverage advantage, and the fighter on the bottom, particularly when untrained, is extremely vulnerable to strikes. To make matters worse, this is a very difficult position from which to escape.) Ultimately, due in large part to disparity of force, Zimmerman was found to be legally justified in shooting Martin, even though Martin was unarmed.
Duty to Retreat
Some states have duty-to-retreat laws that require the victim to attempt to retreat or disengage prior to using deadly force, as long as doing so does not further endanger the victim. If you live in a duty-to-retreat state, using deadly force in self-defense won't be justifiable if it can be proven that you could have avoided being placed at risk of sustaining GBI or being killed by simply retreating.
Stand Your Ground
On the other side of the coin, states with Stand Your Ground laws do not require a victim to retreat before responding to a threat with force, so long as the victim had a lawful right to be where they were when attacked. Stand Your Ground applies to incidents that occur outside one's home. To address the use of deadly force inside one's home, many states ascribe to the Castle Doctrine.
Castle Doctrine
"Castle Doctrine derives from the ancient principle in the English Common Law which held that the individual's home is his castle; attacked there, he need not retreat," Massad Ayoob wrote in his book "Deadly Force: Understanding Your Right to Self Defense."
States with a Castle Doctrine presuppose that a person using deadly force against an intruder inside the person's residence feels that their life or the lives of others present is in imminent danger of suffering GBI or death. Therefore, the use of deadly force against an intruder inside one's home is legally justified (assuming the intruder is not also a resident of the home or a family member).
Castle Doctrine notwithstanding, it's important to realize that chasing an intruder outside the house with guns blazing is a bad idea. Dragging the intruder's lifeless body back inside your house is an even worse idea. From a legal standpoint, the Castle Doctrine does not apply outside the home. And from a tactical perspective, remember you're not a police officer whose job it is to apprehend criminals. If the intruder wants out of your house, by all means, let him go! Your job is to protect yourself and your family. If this is accomplished without the use of deadly force, that's an excellent outcome.
Do your research
Rather than cling to clichés about the legalities of self-defense, do your own research. Just because you're armed doesn't mean that drawing your firearm is the appropriate solution to every threat. By understanding the law, you will be more confident and therefore less hesitant when responding to an attack, both of which actually enhance your safety. Responding appropriately will minimize your odds of being tried by 12 or carried by six.
Post Shooting Do's and Don'ts:
DO:
Remain on the scene unless doing so would place you at risk. If you must leave, call the police as soon as you are safe.
Obey police commands. Expect to have firearms pointed your way. Anticipate being handcuffed.
Expect that your firearm will be seized as evidence.
DON'T:
Assume responding police officers know you're the "good guy."
Turn toward officers with a firearm pointing in their direction!
Provide a detailed statement to police. Immediately after a life-or-death encounter is not the best time to recount the details of what occurred. A better idea is to give a brief statement with such information as the description of the suspect and direction of flight (assuming he's no longer on scene), the direction you fired (so the police can make sure no one else is injured) and physical evidence or witnesses of which you are aware. Ask for an attorney.
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