There are many misconceptions and much incorrect information regarding the application of deadly force. You may survive a shooting and yet find yourself mired in a legal quagmire that could very easily and quite radically alter the rest of your life if you acted on flawed information. I would be extremely reticent to take the advice of someone with no practical background or knowledge of the legal system. Flawed knowledge is just that…flawed. I have testified or consulted in both Federal and Superior Courts across the United States as a deadly force expert, and continue to do so.
Qualifying for this requires a combination of background, experience, credibility, education and individual accomplishments in the area of deadly force. All of this is brought into question, literally, during the depositional phase of a court case, in the process known as voir-dire. The scrutiny occurs when the ‘expert’ is on the stand testifying and being subjected to questions regarding competence and qualifications regarding the specific area of expertise upon which they will subsequently testify. A good attorney will quickly shred to pieces a fraud or disingenuous individual purporting to be an expert in deadly force.
Suffice it to say that the subject of deadly force could be a book in itself. The primary intent of this section is to give the reader the bare essentials necessary to understand when and when not one should or can use deadly force to protect one’s self or others.
First and foremost, the courts expect you to know the laws regarding deadly force if you apply it. “I didn’t know” or, “I wasn’t aware” simply doesn’t cut it. You cannot plead ignorance of the law if you take another’s life or cause them serious injury.
Understand that deadly force is that force which when applied is likely to cause death and/or great bodily injury. Having said that, here are some basic deadly force legal concepts:
1. You must be in reasonable fear of death or great bodily injury. Death is self-explanatory.
Great bodily injury might encompass lacerations of a substantial nature, rape, permanent loss or impairment of certain bodily functions or organs, major fractures, mayhem (a cognate of maim), and loss of consciousness. The definition of reasonable however, is the most important part of this
concept. The ‘Reasonable Man Standard’ is how a like individual with a like amount of background training and knowledge prior to the incident, coupled with the individual’s understanding of the totality of the circumstances at the time of the incident would have acted at that time under those circumstances. In other words; if the person using deadly force had prior background training and knowledge of the law and his knowledge of the incident at the time dictated that this prior knowledge and training be put to use to preserve his life or save himself or another from death and/or grievous bodily harm, and it was reasonable that he use such deadly force to ensure either his or another’s safety and life, then the use of deadly force would be justified and reasonable. Many cases hinge on an individual’s perception of the threat he faced. This perception however, must also be reasonable and supported by verifiable evidence in one form or another from an objective viewpoint. For instance, deadly force might be used against an unarmed assailant if there were a great disparity in size or strength between the assailant and his intended victim, such as a diminutive female weighing 110 pounds versus a 6’ 2” ex-con who weighs in at 260lbs and can bench press 500 pounds. This concept of disparity of force might also come into play if the intended victim were faced with a number of threatening opponents.
2. The assailant must have the ability to inflict death and/or great bodily injury. This issue will be called into question in every case. A man standing 100 yards away threatening you with a
knife does not reasonably at that time have the ability to inflict injury; he must close the distance.
Threats alone, without the ability to carry them out, do not justify utilizing deadly force.
3. There must be intent to cause death or great bodily injury. A vehicle can surely cause either death and or great bodily injury, yet an automobile accident caused by another person would not in and of itself constitute that person’s intent to cause death or great bodily injury. The application of deadly force would not be justified in such a case. Intent will be formulated by a person’s actions or words coupled with his physical acts and ability.
The laws of deadly force are intentionally broad. Each deadly force incident is unique. The courts must adjudicate each case based on its own individual merits. For this reason trials involving use of deadly force are often complicated and protracted, sometimes spanning years. There will be questions on virtually every aspect of the case that the attorneys and experts will have to explain to a jury and both sides may have differing views and opinions. If prior history or aggravated
circumstances are involved, they will certainly become pivotal issues. Love triangles, neighbor or business disputes, prior histories with individuals etc. will come to the forefront whenever deadly force has been applied if applicable.
A thorough investigation of the case will reveal attempts to create a situation where there is a reasonable expectation that deadly force would eventually be applied. For instance, a dispute in a bar leads to one party exiting the establishment, acquiring a firearm, and then returning to the bar and confronting the individual with whom he had the dispute, resulting in a deadly force scenario. This might fall into the category of premeditation. He knew that he was now armed, that he had the ability to cause death or serious bodily injury to another and yet he elected to continue on this course of action with the full knowledge that he could in fact, apply such force to the other individual.
In some cases, there is an inherent legal duty, within reasonable limits, to retreat or to avoid a deadly force confrontation. An officer of the law does not necessarily have this same duty to retreat. It is his job to confront individuals and then use whatever means are at his disposal to
effectuate an arrest if one is required. However, even the law enforcement officer must use every reasonable means at his immediate disposal to avoid deadly force in order to effectuate such an arrest. In a shooting, the courts will critically examine actions taken with an eye towards what was reasonable and what, if anything, the shooter could have done to avoid the deadly conflict in the first place.
As we explain to ITTS students, carrying a firearm imposes the responsibility to avoid confrontations and use prudence in situations where they might occur. Ego, anger, rage and pride are not justification for deadly force no matter how enraged or offended one may be. In some instances, no matter what your intentions may be, another person’s actions can instantly vacate all other
reasonable and viable options for resolving a situation. For example, a charging man armed with a knife at close quarters leaves little room for dialogue or alternative means of neutralizing the threat.
An assailant engaging you with gunfire might fall into the same category as well. This being said, if there are any other reasonable alternative means available to avoid using deadly force then by all means avail yourself to such means.
Although there are exceptions, in most states deadly force may not be used to protect personal property. Were one to confront a thief and the thief escalates matters to where he poses a danger of death or great bodily injury this may now be an entirely different situation.
The law recognizes the sanctity of your personal home and the duty to protect yourself and
family. If you apply deadly force to a person within your home, the burden of proof may rest on that person regarding actions he took that placed him there. Some states have adopted a ‘stand your ground’ approach to the use of deadly force, also referred to as the ‘castle law.’ Such a philosophy may allow for someone to use deadly force as a first resort when threatened, as opposed to other means of resolving the conflict. Some may criticize this as a ‘shoot first-ask questions later’
philosophy; time will tell if it holds up within the courts. I recommend using other means first, if in fact they are reasonable, before applying deadly force. The laws of one state may vary greatly from those of another; do not expect one state to abide by the dictates of another. Understand the laws of your own state.
Closely related to the subject of using other means is the concept of force continuum. That is, an individual’s response to a threat should closely mirror that threat. It may also be thought of in the following terms; that force used must be that force necessary to neutralize a threat and no more.
This is not always an easy thing to gauge since situations can rapidly devolve from benign to deadly within seconds and then revert back again. Nonetheless this force continuum model is the benchmark, and you should strive to adhere to it.
Poorly trained individuals may develop the dangerous attitude that, rather than take any chances, they will shoot even though they may not be absolutely sure that it’s the right thing to do.
This almost always results in a bad shooting. Target identification, threat level assessment, and the decision to employ deadly force must be properly “trained to”. Again, if you have any doubt
whatsoever, do not shoot; wait to ensure that the decision you make is the morally and legally defensible one.
Some of the worst advice given by ‘armchair experts’ is how one might alter a crime scene to justify a shooting. Aside from moral and legal considerations, consider the fact that investigators do their job day in and day out. They are acutely aware of facts and investigative techniques that the everyday citizen would never dream of. The chances of, out-thinking them is remote. If in fact you have made an error in judgment, it is far better to get it out in the open and deal with it from there on.
Deceit only complicates the issue and lends itself towards building a case against you. We all make mistakes and this is far more understandable in the court’s eyes than lying about the facts of a case. As an expert witness, I can defend mistakes, but I cannot defend deceit and dishonesty.
Another complicating factor in shootings is prior knowledge. This usually comes into play when there is a history between two parties that turns deadly. Simple neighbor disputes, business disputes and personal relationships have erupted into gunfire and as always, the history between the two will eventually come forward one way or another. Perhaps one party knew the potential for
conflict was there and he allowed it to build knowing full well that the probability of gunfire was just around the corner. People talk, witnesses come forward, and in no time at all it is readily apparent that one party set up the other, resulting in a homicide. This would be a very hard case to defend, if indeed it could be defended at all.
Deadly force cases that I have been involved in are extremely thorough in the scope of their investigation. Officers have expressed astonishment at what facts have surfaced during the
preparation for court, some of which have nothing to do with the case at all. The facts of either a criminal or civil action that are discoverable through the courts can be quite an eye opener. Forensics will determine blood spray patterns, bullet trajectories, the history of discharged rounds, along with a myriad of other evidentiary facts and empirical data surrounding the case. Background investigations
will reveal the past history of the parties involved, past oral and written statements, perhaps photographs or videos of an incriminating nature, website history, criminal history and so on.
Witnesses and past relationships seem to come forward from out of the woodwork, and can harm an individual’s case through no fault of their own. The average citizen, and even average law
enforcement officer, has little or no comprehension of the depth to which a shooting can be investigated. It is worth keeping this in mind when tactical and deadly force decisions are made.
Some shooting cases may bifurcate due to circumstances. That is, there may be a criminal and a civil action. The criminal aspect deals with the lawfulness of a person’s actions. For example, was a shooting lawful and reasonably justifiable or was it not? The civil action weighs the actions of an individual and decides whether the individual has demonstrated civil negligence in applying
deadly force even though the actions may have been legally justifiable. The outcome of a criminal trial depends on a unanimous jury decision whereas that of a civil action is dependent on a majority jury decision. Either legal process can be very lengthy, drain finances, strain relationships, affect mental health, and derail careers. Before you act on the advice “It’s better to be tried by twelve than carried by six”, consider the consequences. I understand the basic concept behind this statement, but it must always be weighed within the context of, reasonably and legally sound actions.
Perhaps the better way to approach the question of deadly force as regards legal questions is to consider the following; ultimately your fate will be decided by the investigators, the detectives, the court, and the jury. Their actions and decisions will not be colored by the experiences or mindset that you have developed over your lifetime. They may not view the world as you do. Whether you like this or not, this is a very real fact of life that should not go ignored.
For every case that I take on as an expert witness, I turn down many, many more. I only take on cases that I truly believe in. They can demand hundreds of hours of investigation and effort on my behalf. As a result, there are many lessons learned that are applied in our ITTS classes whether the students are aware of them or not.
In summation, regarding the use of deadly force; keep in mind that you alone bear the moral and legal responsibilities for your actions. You will be questioned extensively about your actions and you must live with them. What has been done cannot be undone.