“When am I justified to use deadly force?”
This question, or any of the thousands of variations of it, is probably the most common question asked of police use-of-force trainers and concealed carry instructors. Whether asked outright, or hinted at through a variety of ‘what if’ and hypothetical questions, the intent is always the same – to lock the instructor into a concrete response, which the student believes he or she can depend on later. Many people seek to know exactly when, and under what circumstances, they will be safe from criminal and civil prosecution if they use deadly force. This game poses grave danger to all who participate. Whether teaching police officers or civilians, I never play this game because no one wins.
People fear criminal and civil liability (for good reason). Using any level of force will lead to heavy scrutiny by a judge, jury, and the public. Students ask specific questions about what is considered ‘justified’ because they lack experience. By asking questions of any and all possible scenarios, they are attempting to gain knowledge and experience, vicariously. But this is a futile activity because it is unlikely that a situation will ever occur exactly as imagined. The legality of any use of deadly force is typically determined by a case’s details and the ‘totality of the circumstances.’
Also see: Self Defense After Self Defense.
Below is a list of characteristics and considerations that might be used in determining the justification for the use of deadly force. Instead of focusing on specific scenarios where deadly force may or may not be justified, consider the broader picture - the totality of the circumstances. This list represents information that may be considered in court. It can be both beneficial, and harmful, to a defense. Advanced consideration of these factors may help guide individuals carrying a concealed weapon to understand how a judge and jury may look at various aspects of the event.
- Physical size – The disparity in size between the perpetrator and the victim is usually reviewed in use-of-force cases. A large disparity in size may carry with it the belief that the larger person had an advantage. (Unless the larger person was immobilized due to their size.)
- Skill – Any skills that the perpetrator or victim possess, or claim to possess, will likely be introduced into court. These skills can be a blessing or a curse. For example, a competition shooter might be portrayed as ‘trigger happy,’ or a martial artist may face the perception that they should have been able to achieve a weaponless resolution.
- Location – Where the incident occurred and the legitimacy of each party’s presence will be investigated and scrutinized. Depending on how both parties ended up at the location could determine the aggressor. It is also important to know the governing laws for that location. Is it covered under some form of castle doctrine or stand your ground law?
- Age / Overall health – The age and overall health of the individuals involved are important details. Take any use of force situation that on its face appears to be justified. Change the ages of those involved and envision one person as an elderly man who walks with a cane as compared to someone young. Many times, age and overall health factors into the reasonableness of the action taken.
- Availability/Possession of weapons –Was the aggressor or victim armed? Were they armed with a dangerous, or deadly weapon? Were there other weapons immediately available within the environment such as knives, rocks, a lighter, baseball bat, etc.?
- Presence of bystanders – Were other people around? What were they doing? Did you perceive them as a threat? Why?
- What was said – The courts would examine any dialog that occurs between the involved parties. Were warnings given before deadly force was employed? Did the aggressor threaten death or great bodily harm? Unless there are witnesses this is a he-said, she-said situation. With more video cameras being installed, even in private residences, this information is getting introduced more and more often.
Using a firearm for self-defense is intimidating, and unfamiliar territory for most people. Courts consider the totality of the circumstances in deciding the justification for the use of deadly force, but without experience in this area, it would be difficult to know what factors are examined. Familiarization and forethought of these factors allows for a general sense of when deadly force would be justified. It is far better mental preparation than formulating specific criteria and situations, which will never occur as imagined.