I’m writing this blog post because I’ve seen a lot of really ignorant comments from a lot of otherwise intelligent folks about some recent shootings. It is really easy to be swayed by knee jerk emotion, but luckily we live in America, where we have a justice system based on evidence and the rule of law. I’m not going to get into the Brown shooting too much because I wasn’t on the grand jury and haven’t read the evidence presented in that particular case, but I’m going to explain how use of force laws work so I don’t have to keep repeating myself.
This will vary state by state, but these are the fundamentals for most places in the US. There are some legal differences between police and regular folks shooting people, but basically the rules are similar. I’m not an attorney in your state, and this is not meant as legal advice for your state. Again, this isn’t meant as legal advice, rather as a primer to get people to not be so damned ignorant about the fundamentals of how the law works.
And the law usually does work.
I’m going to keep this simple. Before I became a novelist, I was a Utah Concealed Weapons instructor for many years. I’m condensing a few hours of lecture and discussion into one article. Again, this will vary state by state.
First off we must understand some terms.
Lethal Force is exercising an action against someone which may potentially take their life. If you shoot somebody and they don’t die, you still exercised Lethal Force. If you shoot somebody in the leg or arm, legally that is still Lethal Force, and contrary to the movies, you can still die if get shot in the arm or the leg (but we train to shoot for center of mass, more on why later).
Serious Bodily Harm (often called Grievous Bodily Harm) is any injury that is potentially life altering or life threatening. Rape is serious bodily harm. A beating is serious bodily harm. Anything that may render you unconscious is serious bodily harm.
Reasonable Man – I will often refer to this. The question isn’t whether the shooter perceives themselves to be justified, but whether a “reasonable man” would perceive you to be justified. Contrary to popular opinion, you can’t just say “he was coming right at me!” and be justified in shooting somebody. The evidence will be examined and the question will be if you made the assumptions a reasonable man would make, and acted in a manner which seems reasonable based on that evidence. This is where the jury comes in, because they are a group of reasonable people who are going to look at your actions and your situation and make a call. Basically, do your actions make sense to them? Would they believe similar things in the same situation?
To be legally justified in using lethal force against somebody you need to meet the following criteria.
- They have the Ability to cause you serious bodily harm.
- They have the Opportunity to cause you serious bodily harm.
- They are acting in a manner which suggests they are an Immediate Threat of serious bodily harm.
If your encounter fits these three criteria, then you are usually legally justified in using lethal force.
Let’s break each one down a bit.
Ability just means that they have the power to hurt you. A gun or a knife can obviously cause serious bodily harm. However, a person does not need a weapon to seriously hurt you. Any blow to the head sufficient to render you unconscious or cause internal bleeding is sufficient to kill you.
Opportunity means that they can reach you with their ability. A hundred yards away with a gun, they can still hit you, so they have the opportunity. A hundred yards away with a knife, pipe, or chain, and they aren’t a danger to you. However, thirty feet away with a contact weapon is easily within range to cause most people serious bodily harm before they are capable of using a firearm to neutralize the threat. I’ll talk more about distances later.
Immediacy (often called Jeopardy) means that they are acting in a manner that suggests they intend to cause serious bodily harm right now. Somebody can have the ability and opportunity, but if a reasonable person wouldn’t believe that they are acting like a threat, then they aren’t one.
Now let’s break this down in more depth.
Under Ability you will see self-defense experts refer to Disparity of Force, this is where there is such a physical disparity between two individuals that Ability is assumed. I’m 6’5, 300, and I’ve rendered people unconscious with my bare hands. If I’m unarmed, but I am attacking an average sized person, and they shoot me, then a reasonable person could assume that there was a disparity of force, and they were justified in shooting me. Usually when a man attacks a woman, or a fit strong young person attacks a frail old person, then disparity of force is assumed.
However, you don’t have to be bigger or stronger (it only helps convince the reasonable people you are justified). Regardless of size, if you knock someone down and are sitting on them and raining blows on their head, then you are demonstrating the ability to cause them serious bodily harm. A small woman could brain a big strong man over the head with a rock and proceed to beat them, thus demonstrating ability.
A person doesn’t need to even demonstrate that he’s got the ability, he just needs to act in a manner that would suggest to a reasonable person that he did. If you tell somebody, “Give me your purse or I’ll shoot you,” but you don’t show them your gun, a reasonable person would assume that you wouldn’t make that threat if you didn’t have the ability. You don’t need to wait to see the muzzle flash to confirm their gun is real. That’s suicidal.
On the distance someone can reasonably be a threat with just a contact weapon, you’d be surprised. It is easy to underestimate how much distance a human being can cover in a very short period of time. During my classes I used a series of role playing scenarios to demonstrate various issues and test the shoot/no shoot decision making process. While playing an aggressor I routinely covered in excess of twenty feet and caused serious bodily harm before most students could even draw their gun, let alone aim.
Gun people have all heard of the Tueller drill, which demonstrated that the average person could cover about 21 feet before the average police officer could draw and fire a shot (and as we’ll see later, one shot doesn’t often mean much, assuming it hits something vital). That’s average. Basically, without going into a whole lot of detail, the reasonable people are usually stunned to learn how much distance can be covered to provide opportunity.
The last one is the most complicated. Say a man with a gun has Ability and Opportunity, but if he is just minding his own business with the gun in the holster, slung, or being carried in a non-threatening manner then he’s not acting as an immediate threat. But if he is acting like he is going to use it or waving it around, now he is acting like an immediate threat. Again, it all comes down to how a reasonable person would perceive it.
This is why it is silly when anti-gun people start ranting about how they’re justified in harming people who are openly carrying firearms on their person. Nope. #3, unless they’re acting in a manner that suggests they’re an immediate threat, then they’re fine. Otherwise it would be legally justifiable to shoot everybody like me that shops at the Xtra Large Casual Male outlet because of disparity of force. You can’t just have Ability or Opportunity, they must be acting in a manner which a reasonable person would take to be a threat.
You’ve got to have all three.
In most states these rules apply to yourself or a third person being the potential recipient of serious bodily harm, however I believe there are still some states where it is only for you, and not a bystander. Some states suck.
You’ll hear people talking (usually ignorantly) about Castle Doctrine or Duty to Retreat. Some states require you to try and flee before exercising Lethal Force, and it allows the prosecution to question your inability to flee. Some states require you to flee your own home. Most states don’t have that.
Not that escaping or avoiding isn’t a great idea if given the opportunity, but it sucks to have a prosecutor second guessing your running ability.
Violent encounters are a triangle. There are three aspects to every violent encounter, the legal side (the decisions that keep you out of jail), the tactical side (the decisions that keep you alive), and the moral side (the decisions that let you sleep at night). These don’t always all match up neatly. There are times when you can be totally legally justified but tactically stupid.
Say somebody breaks into your house. Before you’ve even seen them you can make some assumptions, they came into your house while you are home, they probably wouldn’t do that if they didn’t have the ability, now they’ve certainly got the opportunity, and their presence is an immediate threat. So you’re legally justified, however you still need to identify the target before firing to make sure that it is actually a threat, and not some mistaken identity shooting, your drunk teenager, or the neighbors autistic kid.
I worked primarily with regular folks, and a little with the police. Their triangle is different. There are situations where a permit holder might be legally justified in getting involved, but tactically they are probably going to get killed, so their best bet is to run away. In fact, in most scenarios avoidance is the best answer, and in the vast majority of real life violent encounters involving a permit holder, no shots are fired, because simply producing the gun is enough to deter the attacker.
One thing the permit holders I taught needed to get through their heads was that they weren’t cops. Their permit was simply a license to carry a concealed firearm in order to defend themselves from violence. Luckily the vast majority of permit holders get that.
Cops on the other hand are expected to respond to violent people and apprehend them. As a result police have what is known as the Use of Force Pyramid. That means that they are to respond with the lowest amount of force necessary to stop any given situation. That is why they are expected to use tasers or pepper spray before they use physical force or guns. Their goal is to stop the situation, and they’ll try to respond with one level more force than the person they’re trying to stop. However, and this is a BIG damned however, just like the rules for regular people above, if they are in immediate danger of serious bodily harm, then they are justified in using lethal force.
Tasers and pepper spray are not magic. Most people’s understanding of these tools comes from TV and TV isn’t reality. Tasers don’t knock you unconscious. They stream electricity through your body which causes your muscles to lock up for a moment, and if the circuit ends (the tiny wires break or the barbs fall out) then you are back to normal and it is game on. (and I’m talking about air tasers, the little stun guns or “drive tasers” are useless toys. They feel like being pinched with a red hot pair of pliers, which sucks, but if you’re tough enough you can play tag with the damned things). Pepper spray hurts and makes it hard to see and breathe, but you can build up a resistance to it (ask anybody in prison) and it can also bounce back on the user. In reality these tools work sometimes and sometimes they don’t. You’ll note that when you see cops dealing with actual violent types and they use the less lethal tools, there is usually cop #2 standing there with a real gun in case Plan A doesn’t work.
Then there is going hands on, “pain compliance techniques” (arm bars, wrist locks, and wrestling until you say enough of this crap and let them put the cuffs on) but like anything in life that requires physical force one human being to another, these things are dangerous too, and bad things might happen. Bones break, arteries are cut off, people get hurt, sometimes they die.
But the cops are going to try to respond to their subject a level above what the subject is using, until they surrender or comply. Which means that if they think you are going to lethal force, they are going to go to lethal force, and the time it takes to switch gears is measured in fractions of a second.
When a cop shoots somebody, depending on the state, it now goes before whatever they use for Reasonable People.
If you try to wrestle away a cop’s gun, that demonstrates Ability, Opportunity, and Immediacy, because right after you get ahold of that firearm, the reasonable assumption is going to be that you’re intending to use it. If you fight a cop, and he thinks you’re going to lethal force, he’s going to repeatedly place bullets into your center of mass until you quit.
Everybody who carries a gun, whether they be police or not, are trained to shoot for the middle of the largest available target, which is normally the center of mass, and to do so repeatedly until the threat stops. Contrary to the movies, pistols aren’t death rays. A pistol bullet simply pokes a hole. Usually when somebody is stopped by being shot it is A. Psychological (as in holy crap! I’m shot! That hurt! I surrender), but if they keep going it is until B. Physiological (as in a drop in blood pressure sufficient for them to cease hostilities) If that hole poked is in a vital organ, then the attacker will stop faster. If it isn’t in a vital organ, they will stop slower. Pistols do not pick people up, nor do they throw people back. Pistol bullets are usually insufficiently powerful to break significant bones.
Shooting people who are actively trying to harm you while under pressure is actually very hard, which is why people often miss. This is why you aim for the biggest available target and continue shooting until they stop doing whatever it is that caused you to shoot them in the first place.
You’ll hear ignorant people say “why didn’t you just shoot them in the arm/leg?” That is foolishness. Legally and tactically, they’re both still lethal force. Only if they bleed to death in a minute because you severed their femoral artery, they’re not any less dead, only they had one more minute to continue trying to murder you. Basically limb hits are difficult to pull off with the added bonus of being terribly unreliable stoppers.
In a fatal shooting you’ll often hear someone say “there was only one side to the story told.” That is false.
In the aftermath of any shooting, whether it is police or the general public, there is going to be an investigation. There will be evidence gathered. There will be witnesses. There will be an autopsy. There is always multiple sides to any shooting, even if it is just the autopsy results.
Contrary to the media narrative, most police officers don’t want to shoot anyone, regardless of their skin color. Those of us who carry guns don’t want to shoot anybody. One big reason is that because after we had to make that awful shoot/no-shoot decision in a terrifying fraction of a second, then hundreds of people are going to spend thousands of man hours gathering evidence, then they are going to argue about our actions, analyze our every move, guess at our thoughts, and debate whether we were reasonable or not, all from the comfort of an air conditioned room, and if they get hungry, they’ll order pizza. When all is said and done, these people will have a million times longer to decide if what you did in those seconds was justified or not. No pressure.
Each state is different, but if there is any question as to the justification of the shooting, there is usually some form of grand jury, and if there is sufficient question or evidence of wrong doing, then the shooter will be indicted.
Now, an argument can be made as to how shootings—especially those committed by law enforcement officers who are expected to exercise a higher standard of care—should be investigated. However, no matter how the shooting is investigated, it should be done through our constitutional protections and our agreed upon legal system. No one should ever be convicted through the court of public opinion or the media.
In ten years of studying violent encounters and learning everything I could about every shooting I could, I never once found a newspaper article that got all the facts right. Usually they weren’t even close. In that same time period I offered free training in Use of Force to reporters or detractors, and never once had any of them take me up on it.
You may believe that grand juries are too soft on police involved shootings. That may be a valid argument. You may believe that prosecutors are too lenient on police officers because they both work for the government and there is an existing relationship between the prosecutors and the police. That may be a valid argument. Burning down Little Ceasers isn’t the answer.
There are stupid cops, and there are cops who make mistakes. As representatives of an extremely powerful state, they should be held to a higher standard. Just because somebody works for the government doesn’t make them infallible, and if they screw up and kill somebody for a stupid reason, they should have the book thrown at them, but damn if it doesn’t help to know what actually happened before you form up your angry lynch mob!
Violent encounters are complex, and the only thing they have in common is that they all suck. Going into any investigation with preconceived notions is foolish. Making decisions as to right or wrong before you’ve seen any of the evidence is asinine. If you are a nationally elected official, like say for example the President of the United States, who repeatedly feels the need to chime in on local crime issues before you know any facts, you are partly to blame for the resulting unrest, and should probably go have a Beer Summit.
You can’t complain about the bias in our justice system against some groups, and how the state unfairly prosecutes some more than others, and then immediately demand doing away with the burden of proof, so the state can more freely prosecute. Blacks are prosecuted more and sentenced more harshly, so your solution is to remove more of the restraints on the state’s prosecutorial powers, and you think that’ll make things better? You want people to be prosecuted based on feelings rather than evidence, and you think that’ll help? The burden of proof exists as a protection for the people from the state. We have a system for a reason. Angry mob rule based on an emotional fact-free version of events isn’t the answer.
So my request is this, at least learn how stuff works before forming a super strong opinion on it.