These elements make up what is referred to as “deadly force.” Shooting somebody is considered to be deadly force, and thus you may only use it to meet deadly force used against you. Once these elements are met, the law presumes that you are justified in defending yourself or (with some caveats) a third party. The next section is devoted entirely to explaining these elements, but there are two things that you need to understand before we get there. The first is how the claim will be evaluated, and the second is the process of evaluating the claim.
Most states codify what is commonly known as the “objective/subjective reasonableness test,” and this is the test police and the court system will use to evaluate your claim. In plain English, this test requires that you must satisfy both of the following elements:
1. You must genuinely believe that you are in imminent fear of death or great bodily harm; and
2. That belief must be reasonable in light of the totality of facts and circumstances of the situation
Your claim of belief of imminent death or great bodily harm cannot be pretextual. It must be genuine. Additionally, based on what actually happened, your belief must be credible. In other words, you shouldn’t shoot the kid who was holding a Nerf gun. The presence of a
per-se weapon (a knife, gun, bat, etc.) combined with aggressive behavior by the assailant generally satisfies this. The problem of the “unarmed” assailant is what gets most people in trouble. Again, I will discuss the framework how to evaluate the assailant’s actions in the following section. However, one thing that is noticeably absent from the above is this: a requirement that you be correct in your judgment of the situation. Self defense does not require that you be right, but only that you be reasonable.
The process of evaluating the self-defense claim is through a criminal investigation, which may lead to a criminal prosecution. A justifiable shooting is only that AFTER it has been reviewed. Until it's reviewed by:
• The responding officer • Crime scene investigators
• The investigators handling the potential major felony
• The investigators again reviewing the crime scene report, witness statements,
checking your Facebook page for the statements of how you were going stir up shit, etc. …
• Their superiors
• The prosecutor assigned to your case
• (Potentially, and in the worst case) A judge and, later, a jury
It's a homicide or aggravated assault under investigation or, in the worst case, a homicide or aggravated assault prosecution.
Note the transition I made from “investigation” to “prosecution.” The distinction is important because once you cross the bridge from an investigation to a prosecution your odds of losing increase significantly. Police investigators and their friends at the District Attorney’s Office serve as gatekeepers to the criminal justice system. They decide whether or not your case is deserving of prosecution. When the bridge from investigation to prosecution is crossed, it means that the police and the district attorney have reviewed your case and determined: 1) there exists probable cause to support a homicide/assault
prosecution, and 2) your self defense justification is not sufficient to avoid conviction. In other words, for whatever reason you have failed to convince the authorities of your side of the story and your fate is now in the hands of a judge and twelve people with driver’s licenses.
At this point, you are now “in the system.” You will be arrested and formally charged with a crime. If you have not already gotten a lawyer by this point you will need one now. And if you already had a lawyer with you, your costs just skyrocketed – litigating a criminal case is significantly more expensive than representing you during a police interrogation. Expect somewhere in the neighborhood of $10,000 as a minimum for doing a trial, and it only goes up from there once you start factoring in the expert witnesses you will want (need) to help you tell your story. And that’s if you win. Losing entails all of the costs above plus a prison sentence. Any post-conviction appeal will have you fighting on even more difficult ground, where the presumption of “innocent until proven guilty” is replaced by a presumption that the jury’s verdict is correct. In sum, this is an extremely high-stakes game that you do not want to play.
In order to avoid ending up as the next George Zimmerman (who “won,” and was left with a six figure legal tab, major media attention, protests, stress-induced mental issues, and a long series of death threats made against him) or Byron David Smith (who made a series of incredibly stupid, unreasonable, and illegal decisions and is now spending the rest of his life in prison because he was convicted of two counts of first degree murder), you need to know how to articulate to investigators that you were acting in lawful self defense. Remember that they are the gatekeepers to the criminal justice system: if you can convince them, you don’t have to go to trial.
To recap:
• Self defense is a justification defense which requires you admit to committing a crime in order to claim it (so get it right).
• Claiming self defense requires that you have a reasonable fear of imminent death or serious bodily harm for yourself or a third party.
• Your claim of self defense must arise from an honest belief or fear, and that fear must be credible.
• Self defense only requires that you be reasonable in your judgment and actions, rather than correct (but still try to get it right – it makes life much easier).
• Your self defense claim is not valid until it has been reviewed and judged to be so • Criminal trials are risky and expensive, so avoid becoming a defendant.