As I write this, it’s very late November 2014. We are in the immediate aftermath of the Grand Jury Verdict in the shooting of Michael Brown by Officer Darren Wilson. I suspect even years in the future you’ll be able to easily Google information about the shooting. The purpose if this post is not to rehash the past 3+ months of news stories about the incident, but rather to use it as a catalyst for a discussion with you. Why did you shoot?
I’m taking you to a – hopefully – fictitious future where you have used your defensive weapon to defend yourself against what you perceived as a deadly threat. Your use of force as resulted in the death of the attacker . . . and you have been asked to explain yourself.
First a few disclaimers. I am NOT an attorney, nor do I play one on TV. Nor am I a law enforcement officer either. Yet I have spent hundreds of hours on different parts of this specific topic. It is a topic you need to put on your “urgent to-do” list. The information I am about to present is but the tip of the iceberg of the things you will be expected to know. So why bother? Because everyone needs to start somewhere. Everyone needs to understand that simply saying the words “I was in fear for my life” get you bupkis! I want you to begin to really think how you would articulate (remember that word) your specific actions – beginning with why you carry a gun . . . all the way to why you pressed the trigger. While watching the allegations being made against Officer Wilson, the outright perjury that was offered to the grand jury and the 24/7 media hype – it should be apparent to all reading this that should you ever take a life in defense of yourself, your family or someone in your charge . . . you better be able to explain why. So, as you read through this article . . . picture yourself in one of the TV cop interrogation rooms – with your attorney – answering the many aspects of the question . . . Why did you shoot?
Why do you own or carry a gun?
Let’s start there. On the day you took a life you had a gun . . . why? Now, today, would be a good time to starting thinking of the answer to that. Perhaps you have been physically threatened by someone and you feel the need for protection. Perhaps your home has been broken into in the past, or you’ve already been physically attacked. Perhaps you were assaulted or raped in the past. Maybe crime is on the rise in your part of town. Something has moved you to purchase a defensive weapon. You need to be honest with yourself and clarify your answer so that should the need arise, you can clearly articulate why.
For me personally, I’ve chatted about this in many articles in the past. Even here in central Iowa, things have become frayed around the edges. Once quiet larger towns that now see weekly shootings, an increase in drug traffic, use of farm chemicals in the manufacture of Meth, folks stretched thin . . . thin enough for them to take shortcuts. The carrying of a defensive weapon doesn’t feel “out of line” but rather it just makes common sense.
Why did you choose that gun and ammunition?
Another questions that the gunny side of the house loves to talk on, and on, and on, and on about. But . . . really . . . should you be forced to defend yourself with the handgun on your side . . . why did you choose that gun? And, past that . . . can you shoot it? Can you show your training history – both course work presented by training professionals and your personal training that you do when you go to the range? How many hours did you spend on the range this year? What did you work on? How many rounds did that work require?
How about your defensive ammunition? What defensive round do you carry in your gun? Why? Do you have a round in the chamber? Why? Why not?
Let’s move forward to the “event”. You chose to use deadly force . . . why? Let’s talk a bit about definitions, your ability to articulate your choices and a few very specific things you need to keep in mind when thinking about your ability to defend your actions.
Use of Force
Most states allow an individual to use force to defend their own life, the lives of family members or individuals in their charge. However, there are limits. The amount of force used should meet the “Reasonable Man” test. Would a reasonable man, examining all the information pertaining to your specific use of force, determine that the amount of force was justified? Remember, you must only use the amount of force reasonable to protect yourself, your home, your property or to stop a crime.
There is a phrase that is used to describe this particular part of the examination of the “facts” . . . you may have only a handful of seconds or less to choose to use force . . . the jury has as much time as it wants to decide if you made the right choice.
Use of Deadly Force
The use of Deadly Force is limited to those instances where an individual is in imminent threat of the loss of their life or grave bodily harm and there is no other reasonable option available - either to escape or to use some other alternative other than the use of Deadly Force.
Remember, you must not be the person who had initiated the attack and there must be no other options available other than the use of Deadly Force. You must have a “Reasonable Belief” that your death was imminent or grave bodily harm would occur.
Many folks seem to see the words “deadly force” and automatically think of some type of firearm. In reality, there are a host of weapons from knives to ball bats that can easily fit the bill. For example, while handguns take a significant number of lives each year, hands, fists and feet claim over twice as many lives as do rifles.
Ability, Opportunity, Jeopardy and Preclusion
There are generally four specific aspects of a “threat” that are considered when you begin to look at defending your actions. These would be Ability, Opportunity, Jeopardy and Preclusion.
The use of lethal force that can end in homicide is justified in the situation of immediate, otherwise unavoidable danger of death or grave bodily harm to the innocent. — Massad Ayoob
“I had to shoot!!!” you say in court. The words “had too” are justified by your attacker having the Ability to attack you, the Opportunity to attack you, you – as a “reasonable person” had to believe you were in imminent danger of grave bodily harm or death – imminent Jeopardy and that the use of deadly force was your only available safe response – to the Preclusion of all other options available.
Ability, Opportunity, Jeopardy, Preclusion are the foundation of your justification for the use of deadly force.
The person attacking you has both the physical and practical ABILITY to inflict “immediate, otherwise unavoidable danger of death or grave bodily harm”. Remember, what a “reasonable man” would conclude, as well as context – comes into play. It is beyond what you think . . . can you convince a “reasonable man” that your attacker had the ability to kill you or do grave bodily harm.
A person with a gun has the Ability to inflict grave bodily harm or kill you throughout a broad range of distances. A person with a knife, a ball bat, a hatchet, a hammer, a screw driver when used as a weapon against you has the Ability to inflict grave bodily harm or kill you.
A very large man that is physically strong and determined has the Ability to beat you to death given the right circumstances.
You MUST be able to clearly articulate why you believed your attacker had the Ability to inflict “immediate, otherwise unavoidable danger of death or grave bodily harm”.
An attacker may well have the Ability to inflict “death or grave bodily harm”, but they must also have the Opportunity to do so – right now. They must present an “immediate, otherwise unavoidable danger of death or grave bodily harm”.
For example, while a person with a knife – a football field away has the Ability to inflict grave bodily harm or kill you – he does not have the immediate Opportunity – because he is 100 yards away.
A person with a knife – at a close distance – DOES have the Ability to inflict grave bodily harm or kill you and also has the immediate Opportunity as well because of the short amount of time it takes to cover the distance between you and them.
An armed intruder separated from you by a safe-room’s door has the Ability to inflict grave bodily harm or kill you, but lack the immediate Opportunity because of the door. A “reasonable man” may not believe you had the right to shoot them through the door. However, should the armed intruder break through the door and into the safe room – they now have the immediate Opportunity to inflict grave bodily harm or kill you.
Again - you MUST be able to clearly articulate why you believed your attacker had the Opportunity to inflict “immediate, otherwise unavoidable danger of death or grave bodily harm”.
Jeopardy is a very subjective component of the need to use deadly force. Would a “reasonable man”, in your exact situation, come to the same conclusion you did – that you were in immediate Jeopardy of “otherwise unavoidable danger of death or grave bodily harm”. Your situation is NOT Potentially dangerous . . . it has Actually Become dangerous. We are surrounded daily by people who could potentially harm us. Some carry knives, some carry guns, some drive cars – but without an action meant to do you harm – they remain a Potential threat
The person who draws a gun and shoots at us, pulls a knife and attacks us, raises a bat to strike us, they have become an Actual threat and have put us in immediate Jeopardy
And keep in mind, should your attacker break off the attack and leave – you are NO LONGER in immediate Jeopardy – and would no longer be justified in the use of deadly force against them as they leave.
Again - you MUST be able to clearly articulate why you believed you were in immediate Jeopardy of “immediate, otherwise unavoidable danger of death or grave bodily harm”.
Preclusion looks at the attack on you and your response through a “wide-angle lens”. We are expected to use only the amount of force necessary that a “reasonable man” would determine was necessary to stop the attack, protect our family or to protect our property. This “wide-angle” lens of the “reasonable man” would Preclude all other options – and determine that our only possible response to defend our self was our “tool of last resort” – the use of deadly force.
The word implies that there were no other safe options – you could not run away, you could not use a non-lethal weapon without placing yourself in “immediate, otherwise unavoidable danger of death or grave bodily harm “.
You MUST be able to clearly articulate why you believed you had no other choice but to use deadly force to protect yourself from “immediate, otherwise unavoidable danger of death or grave bodily harm”.
Ability, Opportunity, Jeopardy, Preclusion . . . all individual elements in your personal defense once the shooting stops and your second fight for survival begins – in the court system. If you’ve never taken any time to think about how you would defend your actions, please let this article prompt you to get more education on this topic.
My first recommendation would be to take Massad Ayoob’s MAG20 course. It’s a great starting point. He also has a number of books in print that also addresses this exact topic. Bottom line, training in this topic is every bit as important as the training you do on the firing line. You ignore it at your own risk.
Disparity of Force
Let’s talk a bit about something called Disparity of Force. A few examples may help to better explain the meaning of the term
The attacker has a significant size advantage. A 230 pound male attacks a 120 pound female with intent to do her grave physical harm. This is a “Disparity of Force and plays into the decision to use Deadly Force. Would a “Reasonable Man” decide that the use of Deadly Force was justified by the woman to defend herself.
Or, home owner is confronted by multiple individuals entering their home – some are armed. Here too the Disparity of Force comes into play. Would a “Reasonable Man” decide that the homeowner was justified in using Deadly Force to defend against multiple intruders – some of which were armed?
Perhaps you are the victim of the “knockout game” and suddenly find yourself down on the sidewalk with a handful of attackers doing their best to knock you unconscious.
This “disparity” between your ability to defend yourself and the amount of force brought to bear against you by multiple attackers is one more element to consider in your personal defense in the court system.
Local, State and Federal Law
The laws regarding personal defense and the use of Deadly Force can vary widely from community to community, county to county and state to state not to mention at the federal level. It is your responsibility to know the law in your community and the laws of any other community or state you may travel to as well as all Federal laws regarding the use and transportation of firearms.
Remember that word “articulate”? That is what you MUST be able to do, across the board, from the type of defensive weapon your carry, to why you carry it, to the type of ammunition your carry in it, to responding to the task explaining that the circumstances of Ability, Opportunity, Jeopardy and Preclusion were such that you had no other choice but to use your defensive weapon to save your life, the life of a family member or the life of someone in your charge. You must be able to clearly explain your actions in such a way that a “reasonable man” would agree with you.
It might make sense to begin to think about some of the answers now . . .