Examining the Baseline for Use of Force

by Vern Evans

Welcome to the digital edition of Personal Defense World magazine. By way of introduction to new readers, my name is Massad Ayoob. I’ve been teaching judicious use of lethal force to police since 1972 and to law-abiding armed citizens since 1981. Likewise, I have been an expert witness for the Courts on issues such as weapons, homicide investigation protocols, dynamics of violent encounters, and deadly force training standards since 1979. In today’s Self-Defense and the Law column, I will be discussing the baselines for the justified use of lethal force.

Examining the Justified Use of Lethal Force

Over the years, I have served two terms as co-vice chair of the Forensic Evidence Committee of the National Association of Criminal Defense Lawyers. Additionally, I have nineteen years chairing the Firearms/Deadly Force Training Committee of the American Society of Law Enforcement Trainers.

From 2003 to present, I served on the Advisory Board of the International Law Enforcement Educators and Trainers Association. Finally, I’ve spent 2008 to present on the Advisory Board of the Armed Citizens Legal Defense Network. I teach on this topic full-time around the country through Massad Ayoob Group.

For many years, I’ve written the Self-Defense and the Law column for Combat Handguns’ print edition. And now, I am continuing it here. Editor Linas Cernauskas and I agreed that there will be many new readers of this electronic edition. So, we should start with the baseline rules governing the use of lethal force by law-abiding armed American citizens.

Bear in mind that we do not give legal advice. That is the purview of an attorney licensed to practice law in the jurisdiction where your incident occurs. What we will offer here is practical advice.

Baselines of Lethal Force

Deadly force (or lethal force, the terms are interchangeable) is the degree of force that a reasonable, prudent person would expect to cause death or grave bodily harm. That serious bodily harm is defined differently in different states’ laws. However, basically, it means severe or crippling injury.

This level of force is only justified in situations of immediate, otherwise unavoidable danger of death or great bodily harm to oneself or another innocent party. Those situations are created by the simultaneous presence of three criteria. Again, different states will use different terminology, but the most common are ability, opportunity, and jeopardy.

It is often called the “AOJ triad.”

Ability

Ability means that the opponent has the power to kill or cripple. This is most obviously manifested when your assailant is armed with a deadly weapon: a gun, knife, bludgeon, etc. But it can also be created by disparity of force.

This means that an ostensibly unarmed person viciously attacking you has so great a physical advantage that if the attack is allowed to continue, it is likely to cause death or great bodily harm.

Disparity of force situations include many variables. For example, a much larger and stronger attacker or multiple assailants. Likewise, (usually but not always) a male violently attacking a female.

It can also include force of numbers or a handicapped person attacked by the able-bodied. Similarly, it can include a savage assailant who has you in a position from which you can’t fight back. Finally, it can be an assailant known or obviously recognizable to possess high skill in unarmed combat (pro boxer, cage fighter, etc.).

Opportunity

Opportunity means that—in what the Courts call The Totality of the Circumstances—the opponent can bring that power to kill to bear against you in the immediate here and now. A man who threatens to kill you tomorrow is not a deadly threat today.

Likewise, a man with a knife a few steps away has Opportunity. However, that wouldn’t be true if he was a hundred yards from you. But that same man 100 yards away with an AK-47 rifle most certainly does have Opportunity.

Jeopardy

Jeopardy is the manifest intent element. Specifically, the opponent must be manifesting, by words and/or actions, an intent to unlawfully kill or cripple you or another innocent victim you have a right to protect.

From Your Side of Things

If you unlawfully start the fight, you can’t expect to successfully claim justifiability. The same is true if you agree to fight your opponent and suddenly find yourself losing. That’s called “mutual combat,” and for centuries in the English common law and the American law that derives from it, the brutal short answer is, “the loser goes in the meat wagon, and the winner goes in the paddy wagon.”

Some states have a retreat requirement, meaning that if one can retreat, one should do so before using deadly force. However, no state, past or present, has ever required retreat unless it can be accomplished with complete safety for oneself or other innocent parties. The law does not demand you to attempt to outrun a bullet before defending yourself and your loved ones.

Standards of Judgment

In both the criminal and civil court aftermath of a use of force, you can expect the judge to instruct the jury on the Reasonable Person Standard. The instruction will sound like, “You must ask yourselves: what would a reasonable, prudent person have done in this exact same situation, knowing what the defendant knew at the time.”

There are two standards of reasonableness that must be met to establish justifiability: objective reasonableness and subjective reasonableness. Objective reasonableness means that any reasonable person with the same input would have come to the same conclusion as you.

Let’s say an armed robber pointed a realistic toy gun at you, threatening to kill you, and you shot him. If your defense team could show the replica gun was so realistic, anyone would have believed it was a real gun; you would have met the objective reasonableness standard.

QUICK – which works with gunpowder and which works with air? Realistic “non-guns” can create both objective and subjective reasonable belief that your opponent is armed with a lethal weapon.

There is also the subjective standard: did you sincerely believe you were looking death in the face? Let’s say you looked at that fake gun, saw only a pinpoint muzzle, and saw water dripping out of it. This would likely cause you to realize it was a squirt gun. So, shooting the person holding it would not be subjectively reasonable.

Suggested Reading for a Further Examination of the Justified Use of Lethal Force

There are seldom simple answers to complicated questions, and that is certainly true in this area. You may not have the time or resources to take a course in judicious use of lethal force. However, you should, at the very least, read up on the topic.

The two books I most often recommend are my own Deadly Force: Understanding Your Right to Self-Defense. It is available in print or audio from Digest Books and is available from Amazon in hard copy or audio. In addition, is Law of Self-Defense, by my friend and colleague Attorney Andrew Branca.

The author recommended books on justified lethal use of force.

Please stay tuned here. In future columns, we’ll continue what I’ve been doing for decades with Self-Defense and the Law in the print edition of Combat Handguns. Likewise, I will continue to focus on relevant elements with case examples to prove the points offered.

Make sure to expand your knowledge base by reading all of Massad’s Self-Defense and the Law columns.

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