"Justifiable Use" of Deadly Force, My Approach

[badkarma56]

In response to a recent post by a fellow member, I discussed the simple formula that I personally use to calculate whether or not to draw/use my carry weapon. I've read many accounts of self defense encounters, and I studied the issue personally prior to getting my CHL this past summer. As a lawyer, I'm aware of all the jargon and legalese surrounding this issue, and I consider the use of deadly force to be an absolute last resort on the streets. I might add that even if you are justified in using your carry weapon one day, you still must be concerned with potential civil liability arising from the encounter (sad, but very true, my fellow Texans). Thus, we must all take it upon ourselves to "know the law" and think these scenarios through very clearly prior to even "drawing-down" on a bad guy, let alone deciding to pull the trigger.

The approach I settled on was articulated recently by the host of a podcast that I enjoy called The Shooting Bench with Cope Reynolds. Cope is an experienced competition shooter, Army veteran, gun shop owner, and he's also certified by New Mexico and Utah to teach concealed carry courses for those states. His basic approach seems appropriate and it's easy to recall/utilize.

Essentially, to be justified in the use of deadly force, you must "reasonably believe" at the time of the shooting that the assailant had 1. the intent, 2. the ability and 3. the opportunity to cause you greivous bodily harm and/or death. If these three elements are satisfied, you'll likely be justified in the use of deadly force and avoid potential criminal liability for the shooting (potential civil liability is a separate issue that's much more difficult to determine in the abstract).

For the purposes of this three element formula, "intent to harm" equates to some sort of overt threat to your safety/well-being (i.e., "gimme your wallet or I'll blow your head off"). Likewise, "ability to harm" refers to the object(s) wielded by the "bad guy" at the time of the encounter (e.g., a firearm, knife, baseball bat, machete, bazooka, etc.). Finally, "opportunity to harm" refers roughly to considerations of proximity and distance. For example, a dude wielding a knife is a bona fide threat if he's standing next to/right behind you, however if the same guy with the knife is 100 feet away from you he won't be an immediate threat to your safety. The closer the bad guy is to you, the better, for the purposes of legal defense and post-shooting justification.

Conversely, if any of these three basic elements are missing from the scenario (i.e., you "reasonably" ascertain that the "bad guy" had the intent to cause you greivous harm but lacked the opportunity or the ability to do so, etc.), the shooting will likely not be justified and you'll risk criminal charges. Here's where shooting an assailant "through a closed door" or while he's "fleeing from the scene of a robbery" becomes problematic and very complex.

Of course, studies have shown that an assailant armed with a knife can realistically traverse a distance of 21 feet and inflict a fatal stab wound in less than two seconds...imagine that! Would you even be able to draw your carry weapon fast enough to defend yourself in that situation? Accordingly, weapons familiarity and accurate threat assessment are absolute necessities to say the least. Under stress, you've got to struggle to collect your thoughts quickly and truly "think through" the scenario...If you're wrong, and shoot someone who didn't pose an imminent threat, your lifestyle as you formerly knew it will likely be over!

What are your thoughts on the subject...

[fm2]

For the purposes of this three element formula, "intent to harm" equates to some sort of overt threat to your safety/well-being (i.e., "gimme your wallet or I'll blow your head off").

What are some other overt threats, like maybe body language or something else?

The reason I'm asking is that the BG may choose to be more covert. I have seen some videos where the BG lifts up his shirt and shows the gun. The camera only sees the shirt lift & not the weapon.

[badkarma56]

For the purposes of this three element formula, "intent to harm" equates to some sort of overt threat to your safety/well-being (i.e., "gimme your wallet or I'll blow your head off").

What are some other overt threats, like maybe body language or something else?

The reason I'm asking is that the BG may choose to be more covert. I have seen some videos where the BG lifts up his shirt and shows the gun. The camera only sees the shirt lift & not the weapon.

Good question, from my observations and experience, the display/brandishing of a weapon in an intimidating or purposefully threatening manner will reasonably equate to an intention to harm/cause harm. Remember, your perceptions/reaction must be defensible as "reasonable" under the circumstances...mere body language, foul language, or "puffing" will not suffice. Now, furtive movements, combined with threatening body language and the display of a weapon will generally constitute a legitimate intention/threat on the part of the assailant.

[flintknapper]

In response to a recent post by a fellow member, I discussed the simple formula that I personally use to calculate whether or not to draw/use my carry weapon. I've read many accounts of self defense encounters, and I studied the issue personally prior to getting my CHL this past summer. As a lawyer, I'm aware of all the jargon and legalese surrounding this issue, and I consider the use of deadly force to be an absolute last resort on the streets. I might add that even if you are justified in using your carry weapon one day, you still must be concerned with potential civil liability arising from the encounter (sad, but very true, my fellow Texans). Thus, we must all take it upon ourselves to "know the law" and think these scenarios through very clearly prior to even "drawing-down" on a bad guy, let alone deciding to pull the trigger.

The approach I settled on was articulated recently by the host of a podcast that I enjoy called The Shooting Bench with Cope Reynolds. Cope is an experienced competition shooter, Army veteran, gun shop owner, and he's also certified by New Mexico and Utah to teach concealed carry courses for those states. His basic approach seems appropriate and it's easy to recall/utilize.

Essentially, to be justified in the use of deadly force, you must "reasonably believe" at the time of the shooting that the assailant had 1. the intent, 2. the ability and 3. the opportunity to cause you greivous bodily harm and/or death. If these three elements are satisfied, you'll likely be justified in the use of deadly force and avoid potential criminal liability for the shooting (potential civil liability is a separate issue that's much more difficult to determine in the abstract).

For the purposes of this three element formula, "intent to harm" equates to some sort of overt threat to your safety/well-being (i.e., "gimme your wallet or I'll blow your head off"). Likewise, "ability to harm" refers to the object(s) wielded by the "bad guy" at the time of the encounter (e.g., a firearm, knife, baseball bat, machete, bazooka, etc.). Finally, "opportunity to harm" refers roughly to considerations of proximity and distance. For example, a dude wielding a knife is a bona fide threat if he's standing next to/right behind you, however if the same guy with the knife is 100 feet away from you he won't be an immediate threat to your safety. The closer the bad guy is to you, the better, for the purposes of legal defense and post-shooting justification.

Conversely, if any of these three basic elements are missing from the scenario (i.e., you "reasonably" ascertain that the "bad guy" had the intent to cause you greivous harm but lacked the opportunity or the ability to do so, etc.), the shooting will likely not be justified and you'll risk criminal charges. Here's where shooting an assailant "through a closed door" or while he's "fleeing from the scene of a robbery" becomes problematic and very complex.

Of course, studies have shown that an assailant armed with a knife can realistically traverse a distance of 21 feet and inflict a fatal stab wound in less than two seconds...imagine that! Would you even be able to draw your carry weapon fast enough to defend yourself in that situation? Accordingly, weapons familiarity and accurate threat assessment are absolute necessities to say the least. Under stress, you've got to struggle to collect your thoughts quickly and truly "think through" the scenario...If you're wrong, and shoot someone who didn't pose an imminent threat, your lifestyle as you formerly knew it will likely be over!

What are your thoughts on the subject...

That is a good start.

However, it doesn't take into consideration other ways a person "might" be justified in using deadly force (Castle doctrine, theft at night...etc).

So, we may be faced with making a "Moral" decision before taking action as well.

Within the confines of the law, my personal guideline is: When the consequences of another's illegal action(s) are no longer acceptable to me.

This varies widely from one person to the next.

[badkarma56]

In response to a recent post by a fellow member, I discussed the simple formula that I personally use to calculate whether or not to draw/use my carry weapon. I've read many accounts of self defense encounters, and I studied the issue personally prior to getting my CHL this past summer. As a lawyer, I'm aware of all the jargon and legalese surrounding this issue, and I consider the use of deadly force to be an absolute last resort on the streets. I might add that even if you are justified in using your carry weapon one day, you still must be concerned with potential civil liability arising from the encounter (sad, but very true, my fellow Texans). Thus, we must all take it upon ourselves to "know the law" and think these scenarios through very clearly prior to even "drawing-down" on a bad guy, let alone deciding to pull the trigger.

The approach I settled on was articulated recently by the host of a podcast that I enjoy called The Shooting Bench with Cope Reynolds. Cope is an experienced competition shooter, Army veteran, gun shop owner, and he's also certified by New Mexico and Utah to teach concealed carry courses for those states. His basic approach seems appropriate and it's easy to recall/utilize.

Essentially, to be justified in the use of deadly force, you must "reasonably believe" at the time of the shooting that the assailant had 1. the intent, 2. the ability and 3. the opportunity to cause you greivous bodily harm and/or death. If these three elements are satisfied, you'll likely be justified in the use of deadly force and avoid potential criminal liability for the shooting (potential civil liability is a separate issue that's much more difficult to determine in the abstract).

For the purposes of this three element formula, "intent to harm" equates to some sort of overt threat to your safety/well-being (i.e., "gimme your wallet or I'll blow your head off"). Likewise, "ability to harm" refers to the object(s) wielded by the "bad guy" at the time of the encounter (e.g., a firearm, knife, baseball bat, machete, bazooka, etc.). Finally, "opportunity to harm" refers roughly to considerations of proximity and distance. For example, a dude wielding a knife is a bona fide threat if he's standing next to/right behind you, however if the same guy with the knife is 100 feet away from you he won't be an immediate threat to your safety. The closer the bad guy is to you, the better, for the purposes of legal defense and post-shooting justification.

Conversely, if any of these three basic elements are missing from the scenario (i.e., you "reasonably" ascertain that the "bad guy" had the intent to cause you greivous harm but lacked the opportunity or the ability to do so, etc.), the shooting will likely not be justified and you'll risk criminal charges. Here's where shooting an assailant "through a closed door" or while he's "fleeing from the scene of a robbery" becomes problematic and very complex.

Of course, studies have shown that an assailant armed with a knife can realistically traverse a distance of 21 feet and inflict a fatal stab wound in less than two seconds...imagine that! Would you even be able to draw your carry weapon fast enough to defend yourself in that situation? Accordingly, weapons familiarity and accurate threat assessment are absolute necessities to say the least. Under stress, you've got to struggle to collect your thoughts quickly and truly "think through" the scenario...If you're wrong, and shoot someone who didn't pose an imminent threat, your lifestyle as you formerly knew it will likely be over!

What are your thoughts on the subject...

That is a good start.

However, it doesn't take into consideration other ways a person "might" be justified in using deadly force (Castle doctrine, theft at night...etc).

So, we may be faced with making a "Moral" decision before taking action as well.

Within the confines of the law, my personal guideline is: When the consequences of another's illegal action(s) are no longer acceptable to me.

This varies widely from one person to the next.

Very good points, Dude. I suppose that I was originally focusing on "street" scenarios as opposed to domestic situations. That said, one cannot mentally "divorce" him or herself from the moral and ethical ramifications of shooting another human being...even if you are legally justified in doing so. I know two people who've had to take a life during a self-defense situation, one is an LEO the other is an armed citizen.

In both situations, the hardest thing for them to overcome after-the-fact was the heavy emotional baggage of having to kill another person. This was the case for both of my friends even though they each wholeheartedly believed that the "bad guy" was going to kill them if they hadn't fired.

[frankie_the_yankee]

The criteria you outlined are pretty much applicable in every state. They are very similar to what Ayoob teaches in his renowned LFI-I course.

In TX under the Castle Doctrine we have civil immunity if the shooting meets the standards listed in the criminal code. Of course it will take some case law to determine the extent of this "umbrella".

TX law also allows for deadly force to be used in some circumstances that go beyond ability, intent, and opportunity. But in spite of this, my own standards are much closer to the "last resort" criteria.

[Supercat]

I am pretty clear in my own mind I would only fire if my life or the life of another is in jeopardy. Material items are not of value to me "not to the level of deadly force"

The one scenario I have always pondered on a legality level is the following:
Three large men corner you and your wife, saying there going to cause you harm etc...
I am carrying, They have come inside the zone while making threats at me and my wife. I make the call to display in an effort to end their advance "verbal warnings included" they do not stop.

At this point if I let the advance continue they could gain control of my firearm and bad goes to worse.

The question is even though there is no "Weapon" present how would a Jury likely (I know there are not absolutes) see this?
And how would you?

Do three large men aginst 1 large man and his wife of 110 pounds?

Intent and opertunity are met, but would the jury see ability?

[frankie_the_yankee]

At this point if I let the advance continue they could gain control of my firearm and bad goes to worse.

The question is even though there is no "Weapon" present how would a Jury likely (I know there are not absolutes) see this?
And how would you?

Do three large men aginst 1 large man and his wife of 110 pounds?

Intent and opertunity are met, but would the jury see ability?

Yes. It's the doctrine of "disparity of force". At 3 on 1 (or 1 + a small woman), the BG's clearly have the ability to inflict great bodily harm upon you and your wife.

[badkarma56]

At this point if I let the advance continue they could gain control of my firearm and bad goes to worse.

The question is even though there is no "Weapon" present how would a Jury likely (I know there are not absolutes) see this?
And how would you?

Do three large men aginst 1 large man and his wife of 110 pounds?

Intent and opertunity are met, but would the jury see ability?

Yes. It's the doctrine of "disparity of force". At 3 on 1 (or 1 + a small woman), the BG's clearly have the ability to inflict great bodily harm upon you and your wife.

I too find the "disparity of force" argument very persuasive under those facts. Of course, you'd want to be "armed" with as many legal precedents as possible to support this theory. I've read some of Mas Ayoob's work, and I've occasionally heard him discuss these issues via podcast. He's a definite authority on the subject of "justifiable" self defense and defensive handgun tactics.

[badkarma56]

The criteria you outlined are pretty much applicable in every state. They are very similar to what Ayoob teaches in his renowned LFI-I course.

In TX under the Castle Doctrine we have civil immunity if the shooting meets the standards listed in the criminal code. Of course it will take some case law to determine the extent of this "umbrella"...

Well said, hopefully none of us will be involved in a "test case" of that new civil liability umbrella!

[Skiprr]

As a lawyer...

Just clarifying, because this is brand new news. You are a board certified attorney?

[Supercat]

I appriciate your thoughts and have done a search for Mas Ayoob and found a wealth of info.

Thank you and have a great night

[badkarma56]

As a lawyer...

Just clarifying, because this is brand new news. You are a board certified attorney?

Hey there, Skiprr. I am a licensed attorney, and a member of the bar of a couple of jurisdictions, but I am not board certified nor are most attorneys that I know. The Texas Board of Legal Specialization (http://www.tbls.org/) offers "board certifications" in many "specialty areas" of state-law practice (i.e., juvenile law, civil trial law, civil appellate law, etc.). This certification is best considered as an extra credential for state law practitioners who wish to have it, it is not required in order to practice law in Texas or any other jurisdiction. The Board will also happily "certify" paralegals as well.

To become certified, you simply practice a given area of state-law for period of years, pay the state some cash for the initial exam/annual dues/re-certification fees, and pass the written certification exam. While the certification exam is focused on a specific area of state-law, I can assure you that it's nowhere near as rigourous as any state's Bar exam!

As the bulk of my practice experience has been in federal appellate law (i.e., civil rights and constitutional law, I also served as a law clerk for the U.S. Sixth Circuit Court of Appeals), I've never considered even seeking board certification from Texas! I freely admit that I'm no expert on Texas handgun laws, but I'm learnin' more about it all the time!

Tell you what, dude, if the Board ever decides to certify pistol-packin' "CHL Attorneys" I'll let you pay my certification fees!

[KD5NRH]

Of course, you'd want to be "armed" with as many legal precedents as possible to support this theory. I've read some of Mas Ayoob's work, and I've occasionally heard him discuss these issues via podcast. He's a definite authority on the subject of "justifiable" self defense and defensive handgun tactics.

Don't forget to have a way to document that you knew those things; if you say you shot the guy because he got within 21ft while brandishing a knife in a threatening manner and refusing commands to stop, a good prosecutor is going to want to know how you chose 21ft, and may try to claim that you read the Tueller drill information only after the fact. You want to establish prior knowledge of the facts and statistics you're using. (In the case of the Tueller drill, you'll also want to push the relevant fact that it was based on drawing from an unconcealed non-retention (or was it level 1 retention? guess I need to re-check) holster, which is a lot different than a tuckable IWB or SmartCarry, so that if the reconstruction shows you shot him at 30ft, you'll be able to refute the drill's results being used against you.)

Posting here and on other fora, while maybe not the sort of incontrovertible proof of prior knowledge you might want in that situation, could help to show familiarity with a concept, and discussing the issue shows an interest in improving said understanding. Buying the books can't hurt, since most online vendors could quickly get you a receipt copy showing that you had the book several months or more before the incident. Taking the classes is probably the best, and most documentable way of demonstrating knowledge of a particular fact, though; it would be hard to beat having your attorney call Mas Ayoob to the stand to testify that he personally taught you how to determine the appropriate response to that type of threat. (Incidentally, this could also be a good reason to avoid "Bruno Throatslitter's Masters of Death" type classes.)

[casingpoint]

My thoughts are it's not often one gets good free counsel from a lawyer.

I would also like your thoughts on the following self defense case where the shooter is now serving a ten year sentence pending appeal in the death of a man whom the shooter claims threatened to kill him while attacking the shooter in the remote Arizona wilderness. This case is sobering for anyone who may have occasion to defend themselves with deadly force. It has also said to have some affect on the choice of ball ammo over hollow points, and little guns over big guns. Lots of legal fodder in this one:
http://www.haroldfishdefense.org/