Steve Munden



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. Or perhaps the two of them are resolving a disagreement about a drug buy.

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.

Worked Example

I received email from a person who told me that the previous night, someone was breaking into a neighbor's house with a 4-foot carpenter's level, battering the door down. Would he have been justified in shooting to protect his neighbors? According to the above criteria, he could certainly use deadly force to protect his innocent neighbors from serious injury or death if there were no alternative. So what could go wrong? Everything.

First, are his neighbors innocent? If the attacker was a burned drug customer, the picture changes. Now even criminals are protected by the law, which is why drug dealer A can be prosecuted for killing drug dealer B. But it certainly won't help your case any if you later learn that there was criminal activity on both sides.

Second, is there a threat of death or grave bodily harm? Battering a door down is the crime of breaking and entering in the nighttime, not assault. It seems reasonable to conclude that the breaking and entering will be followed by assault and battery, but it hasn't done so yet. If you shoot before it has done so, the anti-self-defense district attorney might question the need for shooting — and the attorney for the person you shot will certainly question it in the civil suit.

Third, is it even breaking and entering? Many years ago I witnessed a man breaking into an apartment across the street from my house in broad daylight. I ran outside and shouted at him, but the man was so brazen as to shout back that it was none of my business. I trotted over to a neighbor's house and called the cops (I didn't have a phone) and sat back to see what happened. The cops arrived in jig time and walked up to the criminal, spoke to him for a few minutes, then returned to their car and drove away while the criminal returned to his breaking and entering. Well! I went over to the man and introduced myself. Turned out that he was a recent immigrant with poor English, he was the owner of the 4-apartment building, one of his tenants had decamped, and he was gaining entry into his own property to clean up and change locks. His exact words to me after I yelled at him were "It is my business", not "none of your business" as I had paraphrased in my mind. He thanked me for watching the neighborhood and I walked away, grateful that I hadn't shot him.

So what to do? I would get on my cell phone to the cops as I walked toward the door being broken into, with my pistol concealed on my belt as always. I would have a bright light and would be making plenty of noise. I would be alert for another person, perhaps working on a door or window on another side of the house. I would not approach closer than 30 or 40 feet, and would be a lot happier with 60 or 80 feet; and still happier if there were large solid objects like parked cars between us. I would loudly announce that the cops were on their way. If the man ran away, I would walk in the same direction, to try to keep his route in sight as long as possible. I would stay on the line to the cops, and by the time the responding officers arrived I'd be in the middle of the street with my bright light on and my hands in view, describing myself to the dispatcher and obeying his instructions. Throughout, my goals would be to get the authorities on the scene as quickly as possible, and to minimize the chance that I would have to do anything except watch and admire as the professionals did their work.

Do I shoot to kill?

The answer to this common question is contained in the opening quote: "Deadly force is justifiable to prevent..." Your goal is not to kill your attacker, but to prevent his attack. The surest way to do that is to shoot for the largest, most vulnerable portion of his body which is visible to you, usually the chest. The fact that the portions of the body that are the most reliable fight-stoppers are also the most likely to result in the attacker's death is acceptable, but no more than that. If your attacker dies after completing the attack, you have failed. If he stops his attack you have succeeded, whether he lives or dies. The movie fantasy where you shoot him in the leg, or shoot his gun out of his hand, is just that: fantasy.

Remember this: You don't shoot to kill. You shoot to stay alive.

Is it wise to fire a warning shot?

It is not, for several reasons. First, it endangers others. If the bullet doesn't stop in your attacker, it'll stop some other place, possibly in some other person. Most unlikely, but there's no need for even that miniscule risk. Second, you now have one less round for use in the event you have to defend yourself. You have a very limited supply of ammunition. Don't waste it.

The most important reason that a warning shot is unwise is also the most annoying. If you can fire a round into the ground at your feet (eliminating the possibility of hitting an innocent person), thereby stopping the attack in its tracks, isn't that a good thing? You didn't get hurt, so the conservatives are happy; the attacker didn't get hurt, so the liberals are happy. Ah, not quite. The anti-self-defense district attorney will be happy because he can charge you with reckless endangerment for shooting when even you didn't believe the situation justified deadly force; if you had believed it, you would have shot the attacker rather than the ground. The attacker's lawyer will be happy when he files the civil suit against you based on the same reasoning.

Similarly, you shouldn't show the gun to the person you think is getting set to attack you, or mention that you are armed.

What about "stand your ground" laws?

Largely irrelevant. I write this in April 2012, a few weeks after Trayvon Martin was killed by George Zimmerman in Florida. Every comment I have seen about Florida's "stand your ground" law in the press since that shooting has been at least irrelevant and at worst flat wrong.

You can read Florida's so-called stand your ground law here. It is quite easy to understand. "Stand your ground" means this and this only: If I am attacked I do not have to attempt the risky and doubtful course of retreat. I may stay where I am and meet my attacker's prior force with force in my own defense.

It does not mean that I can stay put and exchange taunts with a potential (or imagined) attacker, or call him names, or demand an accounting for his presence, or follow him in a public area. Any of those actions would seriously undermine the presumption of innocence that I must have in order to justify the use of deadly force.

What do I say to the cops after the shooting?

Say as little as possible. A good start, and finish, would be something along the lines of "Officer, this has been extremely stressful. I do not wish to say anything until I have spoken to my lawyer. We will then make a full statement of what happened." Then shut up and say nothing else. If the police press you to answer questions, repeat your request to speak to a lawyer. Nothing else.

Why not tell the police what happened? You will do that, in due time. But realize that in times of great stress things get distorted as your mind focuses on the threat. That knife might appear much larger than it actually was. If you mention a huge knife to the cops, and it turns out that it was a penknife with a 1.5-inch blade, it will make you look bad. Likewise if the "crowd of robbers" turns out to be just two people swarming you. The 1.5-inch blade was still a deadly threat, and you have as much right to defend yourself against two knife-wielding thugs as against 20, but mistakes such as this will impugn your testimony in everything. Don't let it happen. Ask for a lawyer, shut up, and after talking calmly with an advocate, make a full statement.

How about routine encounters with police, such as traffic stops?

In many states, the concealed-carry law specifies that you must inform a law-enforcement officer upon first encounter that you are carrying a weapon. If that's the law in your state, your decision is made: Obey it. Where it is not the law, as in my home state of Massachusetts, you must decide how to handle it. My suggestion, based on the advice given in Massad Ayoob's Lethal Force Institute, is to not bring up the subject yourself. Provide your driver's license and registration when asked for them, do not lie about how fast you were going or that you rolled through that stop sign, accept the citation with resignation or the warning with thanks, and go on your way.

The only exception — again, in a jurisdiction which does not require that you inform the police about concealed weapons — is when the officer might see your gun before being told of it. For instance, if retrieving your license will expose your pistol, definitely inform the officer first and ask how he wants you to handle it. But if the traffic stop can be completed without reference to guns (or drugs, or kidnapping, or explosives, or...) then don't bring them up.