Legal Restrictions on Self-Defense
Deadly force is justifiable to prevent the imminent, otherwise unavoidable threat of death or grave bodily harm to the innocent.I don't know who composed that sentence. I first heard it in a class at Massad Ayoob's Lethal Force Institute. Whether that's the origin or not, I've heard it at classes and in conversations around the country. If it reminds you of the precise phrasing of a lawyer's advice, it should: Every phrase needs to be carefully considered.
First, deadly force. Deadly force obviously includes shooting, but it's more. It would include hitting the intruder with a stick of firewood, and running over the man who's attempting to force you out of your car at gunpoint. In discussion I usually say "shooting", but keep in mind that any use of force which is likely to cause or intended to cause death or grave bodily harm, is deadly force.
Justifiable is the real subject of discussion. If you have to use deadly force against an attacker, who decides whether it was justifiable? Your decision will be reviewed by a district attorney and, if that person deems it necessary, by a jury. Our object here is to ensure, as much as possible, that the district attorney won't find it necessary to bring you to trial. So what will the investigators be looking for?
Obviously you must be responding to a threat, and not just any threat. A threat which justifies the possibility of killing someone must be so serious that failure to stop it would subject you to death or grave bodily harm. Grave bodily harm would include rape, crippling injury, brain damage, or the like.
Furthermore, that threat must be imminent, meaning that you cannot wait any longer. If someone tells you that he's going to get a shotgun and return and kill you, that's certainly a deadly threat, but you would not be justified in gunning him down on the spot. You must wait until, if you wait any longer, the threat would be carried out. When exactly that tipping point occurs is impossible to say without knowing all the circumstances. But if the district attorney, and then the jury, decide that you reacted too quickly, the shooting will not be justifiable.
It is crucial that the shooting be otherwise unavoidable. Killing someone must be a last resort, when all alternatives have failed. If you can escape, then do it. If you can drive away and call the cops and let them handle it, do it. If you can give up the parking spot he thinks should be his, do it. If you can apologize for spilling the salad on his suit and offer to pay for the cleaning bill, do it. Your self-esteem and need to save face will not weigh heavily in the jury's deliberations; they should not weigh heavily in yours.
The need to avoid shooting, if possible, is not all-encompassing. You do not need to submit to a crime to avoid defending yourself. If someone points a gun at your chest and demands your wallet, you do not have to give it to him. You may decide that that is the prudent course of action, but it is not required of you. But if you do shoot it out with your attacker, be very clear in your mind why you're doing it. "Ladies and gentlemen of the jury, he didn't point that gun at my wallet. He pointed it at my chest. I believed my life to be in imminent danger and I acted to protect it."
In some circumstances and some jurisdictions you need not retreat to avoid the use of deadly force. In my home state of Massachusetts, if you are within the four walls of your own home, you may stand and confront a threat which, if it were outside, you would be required to avoid if possible.
You may use deadly force to prevent an attack. Once the attack is over — you gave the gunman your wallet, say, and now he's running away — any use of force on your part would not be in self-defense. There may be other laws which would allow you to use deadly force on a fleeing criminal, but self-defense cannot be the justification because there is now no threat which you could be defending against.
And finally, to the innocent. That phrase has two implications which can get you into serious trouble. First, you must be without fault. If the jerk in the car in the next lane cuts you off and you flip him off and pull over with him to settle the dispute, nothing which subsequently happens can justify your use of deadly force. You were a willing participant in the altercation, and we expect greater responsibility from armed citizens than you displayed. You killed a man because he changed lanes too close to suit you? Sorry, the district attorney isn't going to buy it and the jury probably won't either.
The second implication of to the innocent is that you can use deadly force to defend other innocent people. Those people do not have to be known to you. If that person could legally use deadly force to protect himself, you can use it on his behalf.
Be careful. When you see one man on the ground getting his head stomped and another doing the stomping, who's innocent? Maybe it's a mugging and we should stop the attacker before his victim gets killed. Maybe it's a mugging and the man on the ground, the one with the gun, is the mugger and the other is his intended victim who's trying to avoid getting shot by the still-armed mugger. Maybe both of them are drug dealers fighting over the money they just stole from the woman whose body is lying just out of sight.
How about the robber holding the clerk at gunpoint in the convenience store? The clerk could certainly shoot to protect himself, so you can shoot to protect him. Unless the man with the gun is the clerk, having turned the tables on the armed robber, and now holding him at gunpoint while waiting for the police to take him into custody.
So be careful. Remember that you have no legal obligation to act, but if you do act, you have the legal obligation to be right. Carrying a firearm for self-defense gives you great power. Society expects great responsibility from those with great power. Be prepared to exercise the responsibility along with the power.
Deadly force is justifiable to prevent the imminent, otherwise unavoidable threat of death or grave bodily harm to the innocent.