***DISCLAIMER: This article is not to be treated as legal advice. The author is not an attorney. Neither survivalsullivan.com, its principals, owners, operators, contractors or employees, or the author of this article, claim any criminal or civil liability resulting from injury, death or legal action resulting from the use or misuse of the information contained in this article. Any comprehensive self defense plan will include preparing for the legal aftermath of any self-defense encounter. The reader should hire and consult with a competent attorney as part of your preparations. ***
[dropcap]T[/dropcap]he totality of defensive skills counts many elements, all of them important to ensure you survive, and more importantly, prevail over those who would harm you or someone else.
It is this author’s estimation that, regrettably, the most underdeveloped element for many practitioners is one of the most vital: that of Judgment. And what’s more, judgment in the terrifying context of a possibly lethal encounter with a possible assailant. It is the sincere hope of the author that this primer will convince the reader to seek to develop the necessary training, legal knowledge, skills and ethics necessary to make a critical decision in difficult circumstances, and do so correctly.
Introduction and Definitions
This article will not be a detailed accounting of what may or may not happen before, during or after a lethal force encounter. The mind-boggling amount of variables present in each of those phases would take up volumes. Instead, it will serve as a primer intended to relieve the reader of any erroneous bias or misinformation regarding when and where you may use lethal force, and the best practices for doing so, that the reader may harbor.
Your author is not an attorney, and he does not play one on TV. The insights in this article are derived from observed outcomes of lethal force legal cases, the opinions of other prominent trainers and legal advisers, and ethical considerations that a good and reasonable person would hold. With that understanding, read on below.
“Lethal force” is most often described in legal terms as “any amount of force likely to cause severe bodily harm, or death.” “Self-Defense” will for our purposes be defined as the right to prevent force or violence against oneself through the use of a sufficient level of counter force or violence. This definition is simple on its own, but like many such things raises more questions than it answers: What is sufficient force? What qualifies, legally, as force against oneself? Can force be used preemptively and self-defense still be claimed? When is lethal force an appropriate response to force?
All good questions, but that is only a fraction of the puzzle: what if the intended victim instigated the force? Must the victim retreat prior to using force? What about a threat that appears real to the victim, but was objectively not a threat in hindsight?
Take all of these considerations and multiply them according to the infinite number of emergent scenarios that one may be confronted with. Now imagine yourself having to make a use of force decision in an instant, if one is unlucky, or poorly trained. One may have the luxury of a few seconds if they are lucky or very aware and detected the threat early enough.
Now, take all of the above and filter it through the variations in state and local laws and legal precedent, to say nothing of prosecutorial and law enforcement attitudes toward self-defense, especially using lethal force. This is what one must consider, and take steps to prepare both your mind and legal response ahead of time. Anything else is completely insufficient at best and utterly negligent at worst. Before your trust your fate to the rabbit’s foot, remind yourself that it did not work for the rabbit.
Basis of Self-Defense
Considering the differences in state laws mentioned above, there is no truly consistent universal set of considerations for use of force in self-defense, but below the reader will find what are certainly the most common, and form the core of self-defense decision making. Considering the use of lethal force in self-defense, lethal force is only allowed when the intended victim is under reasonable belief of imminent lethal force being used against them.
When reading, take the time to stop and assess where these factors fit into a possible scenario, and how one might best identify and determine the severity or validity of each. Also understand that there may likely be other factors that prevent making a simple decision.
Imminence of Threat
Broadly, any kind of self-defense only allows the use of force, any level of force, against a threat that is immediate, and ongoing. The threat may be only words, so long as it carries with it an immediate, plausible risk of actually harming the victim.
For example, a cocked fist carried by a rapidly closing assailant with the promise of a vicious beating would typically warrant use of appropriate counter force in defense. Whatever happens, if the assailant ends his attack or threatening manner, and withdraws, the danger has passed and the use of force is no longer necessary. Any follow on use of force from the intended victim may be considered retaliation.
If an intended victim was standing in a boat in the middle of a river being threatened by an assailant 100 yards away on the shore brandishing a knife, the intended victim would not be justified in shooting the assailant with a rifle from the boat: the threat was not imminent as a knife cannot be used from 100 yards away, and certainly could not be brought to bear on the victim immediately across the water.
In an extreme example, if one received a video message from a person informing you that in three days time he was going to find you and beat you with a carpenter’s hammer, the intended victim would not be justified in seeking out the assailant and preemptively shooting them; the threat was not imminent. The intended victim would be justified in contacting law enforcement and seeking a restraining order. If the assailant later approached the victim with a hammer, use of force, in this case lethal force would in all likelihood be justified.
A threat must be imminent or ongoing for the legal, righteous use of force in self-defense.
Reasonable Fear of Harm or Death
Use of force is justifiable if the intended victim has a reasonable belief that the assailant actually intends to do them harm. This is best illustrated by using the “reasonable person” legal conceit: what would be expected of any reasonable person in that same situation?
If, unbeknownst to the victim, the assailant charging them in a mask was actually an actor being filmed for a series of YouTube prank videos, the victim would still likely be justified in the use of force; if the “assailant” had a weapon, or simulated weapon, the victim would likely have been justified in using lethal force- never mind that the assailant, in actuality, meant no harm. The fear of harm or death by the victim was reasonable.
Another extreme example: an intended victim being threatened with impalement by an assailant wielding a toy sword. The assailant is wearing a pirate costume. There is no reasonable fear of serious harm from a plastic sword. Lethal force would certainly not be authorized, and likely no use of force at all.
How about a similar scenario: the intended victim leaves a rowdy venue at night. It is overcast and moonless. The victim is confronted on the way to their vehicle, their path blocked, by a large person, who is brandishing something black toward them in the manner of a weapon. With slurred speech they mutter, “This is a robbery.” Is the fear of harm or death reasonable in this example? (Hold on to your answer.)
Fear of harm or death must be reasonable for the use of force in self-defense.
Level of Necessary Force
In self-defense, one may only use the minimum amount of force necessary to reduce or halt the threat. If an assailant threatens a victim with a punch, the victim would not be justified in drawing a gun and shooting the assailant: a punch is typically not legally considered lethal force.
In another scenario, if an assailant was brandishing a knife at the victim, the victim would be justified in drawing a gun and shooting the assailant if the assailant could close with and reach the victim, even though the assailant “only had a knife.” That brings us to an important precept: all lethal weapons carry with them the threat of lethal force, and lethal force may be met with lethal force in kind, but only enough to stop the threat. A hammer, pipe, piece of heavy lumber or baseball bat is not a lethal weapon by definition, but will certainly produce lethal force if used accordingly and so should be treated as lethal weapons if used in a threatening manner.
If an assailant produces a gun, whether or not loaded, and brandishes it at an intended victim, the victim is justified in using lethal force in response, as a firearm of any kind is always considered a lethal weapon. A knife at anything less than extreme range is considered a lethal threat as well.
When countering a threat, use only the necessary level of force to halt the attack. Excessive use of force may be forgiven, but is never permissible.
The preceding elements are all taken into account simultaneously, and all must be present in a threat to legally justify a response with force from an intended victim. To justify the use of lethal force, an intended victim must be in reasonable fear of imminent death or great bodily injury.
Additional Factors Affecting Use of Force Decision Making
The following factors vary by law, and ergo state to state, or even by locality. Ignorance is never an excuse in self-defense situations. One must know the laws of the land. The following may either ease or worsen your legal burden depending on their presence and exact wording. Again, the reader should seek legal counsel to be properly briefed on the law.
“Stand Your Ground” Laws
About three-quarters of the states in the U.S. have adopted some variation of Stand Your Ground laws, either legislatively or in practice through precedence. These laws generally mean that an intended victim has no legal duty to retreat or attempt to retreat from a threat before resorting to force in self-defense so long as they are anywhere they have a legal right to be. Note that these laws typically cover situations warranting non-lethal force; the states all vary on their precise interpretation when lethal force is involved. A few have Stand Your Ground laws that only apply if a person is in their vehicle or conveyance. One must have a detailed understanding of these laws.
The Castle Doctrine
Typically a component of the above Stand Your Ground laws, Castle Doctrine typically means that a person has no duty to retreat from a threat inside their own home or domicile before resorting to force. Additionally, some states specify that an intended victim can immediately resort to lethal force against an intruder, the presumption being that a home invasion is an inherently lethal act against an intended victim.
Duty to Retreat defined
Still law in a few states and localities, Duty to Retreat is the legal requirement to attempt to avoid violence before resorting to force. Note that just because a state may have no legal Duty to Retreat law in place, this does not mean escaping or avoiding a threat is not the best solution.
If one is carrying a gun, or any lethal weapon for self-defense, it is in one’s own best interest to achieve and maintain a high level of proficiency with their weapon, and also, more importantly awareness and conflict de-escalation skills.
Of course, some attacks are unavoidable: a proper ambush, a particularly deranged, persistent, desperate or violent criminal who cannot be dissuaded, or a threat that by skill or chance could not have been detected or avoided. But the mark of greatest proficiency for a civilian or police officer, in this author’s humble opinion, is not having to shoot, cut, or otherwise fight, their way out of a confrontation.
Early detection of a threat and situational awareness, crowd reading, listening and verbal skills, negotiation, (or verbal judo, whatever one might call it), along with body language interpretation and projection, empathy, and calm confidence will keep one out of harm’s way far more consistently than blundering around in a slouch, unfocused, head down, and utterly unaware of who may be paying attention to you, and intending to relieve you of either goods or life.
This heightened sense of things is a fundamental lifestyle change, but it is a skill! It can, indeed, must be learned, and then refined, practiced, until it is as automatic an action as breathing. Without this most foundational of skill sets, a lightning draw and hair-splitting accuracy will not serve as a guarantee against harm. Just as important, once in place, this awareness will alert you to a possible threat ahead of an attack, with time to spare.
Time that, well used, will enable avoidance, or if avoidance is impossible allow you to stack the deck in your favor, and think clearly, if only for a few precious seconds, about your response: does the assailant have a weapon in hand, if no, can I see his hands? Is there more than one of them? What positioning will put me at greatest advantage over him, can I get something between us, what will stop bullets? Is the attack certain to occur, and if so, should I preempt my attacker’s draw? If I must shoot is the attacker’s background clear of innocents, is there a backstop?
The preceding may sound like too many factors to consider in too little time. But considered they must be, and can be, if one lives in an appropriate state of awareness. Bear in mind that win, lose or draw, every action you make in an instant, every round one fires or stroke made with a knife will be scrutinized endlessly by law enforcement, by attorneys, by a judge and by a jury. The “cleared at the scene” use of lethal force is vanishingly rare.
One can expect to be detained, and probably arrested. Now is not the time to have to go shopping for an attorney. One can expect to spend over a year of life waiting on the ponderous legal system to finally bring the case to trial, and if not bailed out, this wait was endured in jail.
After a shorter or longer trial your fate is decided and that’s that: If found innocent, you can look forward to an absolute fortune in legal fees, and perhaps a follow-on civil trial. If found guilty, you will have to endure prison, while your entire life, family, children and friends, go on without you on the outside, and you’ll do your time thinking it was probably better to have died instead- no one who ever said , “it’s better to be judged by twelve than carried by six,” was, clearly, ever judged by twelve.
These are the stakes. Put to rest, permanently, any idea of personal glory resulting from a “clean” defensive shoot as a civilian. It may be absolutely necessary, and unavoidable, that much is true. But the cost, social and financial, will be nothing short of gargantuan. Your life will change in the aftermath, and it will not be for the better.
One legal myth that must be put down hard is the targeting of the head or limb on an assailant. Some people either believe or perpetuate the falsehood that one should shoot low or aim for a limb on an attacker so as to be less likely accused of excessive force, manslaughter or some such. The fact, mentioned above, is that firearms and ergo shooting is always lethal force. Aimed at foot or head makes no difference; lethal force is lethal force. One should target their adversary based on effectiveness and the probability of the landing a good hit. Do not let nonsense like that concern you.
A huge portion of readers have doubtless heard boasts and bravado from fellow gun owners or defensive-minded individuals regarding when and how they will engage an intruder, or potential intruder on their property with no mercy and without hesitation. “I’ll shoot him on the porch and drag him inside!” “If he’s even comin’ through the window I’m putting one in his head!” “Psh! Someone gets caught in my house, I’m not even hesitating to put him down…”
We can all talk as tough as they can, but it belies a very serious issue: some people do not care to know if someone is in actuality a threat so long as the law is on their side. They do not care to be certain or justified before their permanent maiming or taking of a human life.
This is not a bleeding-heart call for pity on the criminally wayward: actions have consequences, and this author would not himself, nor advocate any reader, risk their life or the lives of innocents if the threat is active or unavoidable. It is merely an admonishment to be sure that the threat is indeed real and imminent. If you can do so safely, it will always be better to drive off an intruder or let an attacker flee if they give up. Understand that you may not get any choice in the matter. This requires careful consideration.
Cases exist of homeowners confronting, or shooting, at a human figure in their homes at night after being awakened by sounds within. Sometimes tragedy occurs, and a child or relative is wounded or killed. There is no consolation for such a thing, save we all learn from their terrible mistake. Perhaps they felt as our boastful friends above did.
The author remembers well a case in Florida where a homeowner, after hearing a racket of pounding and glass breaking, then footsteps in their house, finally left the confines of their bedroom to discover a stranger, face down, asleep on their sofa. It turns out the stranger was drunk, and convinced they were at their own home and unable to open the front door, broke in!
This was no doubt terrifying for the poor homeowner, and they most certainly would have been justified if they used lethal force upon catching the lost drunkard in the act. But the objective question is this: did that pitiable, stupid drunkard need to die?
Other cases abound of mistaken identity , or a wrong perception of a situation have lead to plain-clothes police officers and innocents, sometimes having turned the tables on their would-be victimizers, being engaged with gunfire by over-eager citizens. Remember well this maxim:
“You will seldom have all the info needed to make a lethal force decision immediately.”
Even so, one may happen upon a situation involving others that could require intervention to prevent loss of life. The parties involved, if not uniformed personnel, will be strangers. The variables involved in deciding to intervene on an unknown person’s behalf are enormous, and beyond the scope of this essay.
But it is a fine idea to have a sincere heart to heart with the man or woman in the mirror, and mentally rehearse, if only to understand the possible tragic consequences you may be assuming on account of a stranger. Ultimately, you will involve yourself, or not, and live with the consequences. The author will always advocate avoidance of trouble if at all possible, but he also will not stand by and see evil done in his presence.
A significant number of attacks on citizens and police officers will occur in times or places of low light conditions. The responsibility one has to positively identify a threat before engaging with any lethal force is paramount. Think back to our homeowners who shot a loved one, or the example of the late night party-goer confronted with an unknown person threatening them. A flashlight in hand would have given either all the info needed to make a decision. Illumination is necessary, and this is best provided by a modern, high output flashlight, be it handheld, weapon-mounted or both.
The author carries both, daily: a handheld may be used by itself for identification and attempted control of an unknown or shady individual, besides its mundane uses, and without drawing the handgun or projecting force. The weapon mounted light ensures that there will be light available wherever the gun is aiming for the purposes of continued verification of threat status and backlighting of iron sights for accurate fire only when the decision to use lethal force is made. Both lights are completely controllable with one hand, and may be used in tandem.
Modern lights have terrific range, intensity and output, and can be used to overwhelm and reduce a possible threat’s vision at night or in the dark, giving additional advantage to the defender. That alone may halt an attack before it starts, and to the author’s knowledge of any state’s laws, shining a bright light in someone’s face is not considered force. Predators like to hunt in the dark, take that away from them and invest in a quality light. Keep it on your person.
Something the author believes every citizen should carry when permissible is quality pepper spray. Pepper spray is an excellent “intermediate force” option that may halt physical altercations before they begin, and if it does, can be typically counted on to degrade an attacker’s ability to see and fight. This is not without some risk, as blowback or cross-contamination may affect the defender or others, and there are some tough or intoxicated individuals who will only be angered or unaffected by pepper spray.
It pays to get training on pepper spray use, as there are few other self-defense tools that can reliably do what it does for such a small outlay of cost and belt space. Pepper spray also has the advantage of being seen consistently as “less lethal” force in the legal system, as barring an allergic reaction, or cracked skull from a blind fall, it will typically only cause considerable pain and discomfort while leaving no lasting injuries. Still, force is force in self-defense, so make sure one knows the laws on pepper and chemical spray usage for your locale. Do not think you can squirt someone to end a verbal altercation with no consequences.
Reader, I have little doubt that there are parts of this primer that you found either depressing, or very pessimistic. That’s understandable. My intention is not to scare you away from being prepared to defend your life or your family’s lives, it is instead to better prepare you for the certain eventualities that will occur after that fateful day.
A big part of the preparation is knowing exactly what conditions constitute legal use of force in a confrontation, and then training in discerning them at speed to make a shoot or no-shoot decision; in other words, honing your judgment. The other part is having the team and tools in place to hopefully turn the subsequent big, scary legal nightmare into a little, scary legal event.
Judgment is a skill that in all my years of training and consulting has been neglected by a large majority of defensively-minded citizens. I have watched training cycles time and time again always end with the gun coming out and shots fired. People train with targets on a drill that will never, ever require them to actually see what the target is doing, or even holding.
If we never actually practice determining if a person confronting us is worth shooting right now, that skill will atrophy. This is not to be taken that knowing when you are threatened or feeling afraid requires any special training, but it should be a strong recommendation to add more target discrimination drills into your practice cycles. You will be required to articulate why you felt threatened after an event.
This “all roads lead to gunfire-effect” is especially troubling in force-on-force or scenario training for citizens, which I do, by the way, heartily recommend and believe to be invaluable. If the only “win-condition” when confronted with an open-ended scenario is a gunfight or shooting, does that help or hinder the student?
Before I go too far against any trainer conducting force-on-force classes or citizen working hard to increase their armed proficiency, I acknowledge there are artificialities and constraints that are inherent to both the medium of paper and steel targets and the expectation of those attending advanced training classes: FoF training is expensive, and training time is limited. Students will especially want to work the “hard-skills” of movement, hand-to-hand and firearms against living, thinking opponents. That’s why they came to the class! Furthermore, a student goes into a scenario knowing that it will escalate into an attack, and ergo is keyed to respond to one.
I only want to make my readers aware of it, so they may better inoculate themselves against it. If you are a gun-carrier and have not made it a priority to attend a force on force training class hosted by a reputable instructor, start saving. If you are not implementing target discrimination training into your practice, get a training partner who can help you by setting up unknown (or multiple unknown) targets. Photo-realistic human figures are good, especially ones that have multiple poses or items in the target’s hands.
Good judgment and knowledge of the law are both critical skills for successfully navigating all phases of a self-defense encounter. You, as a citizen, must be able to identify precisely the specific threat you face and then articulate it to officials in the aftermath of a self-defense encounter. To support this, while commonly neglected, judgment training and comprehensive knowledge of use-of-force law must be incorporated into training at any level. This holistic approach will build the confidence, ethics and skills necessary to not merely survive, but prevail in a confrontation, during the fight and in the ensuing legal trial.
Website featuring interactive maps, legal overviews and concealed carry-specific considerations for all 50 states.
US Concealed Carry Association. Offers comprehensive insurance plans for bail and legal defense in the aftermath of a self-defense shooting. There are many others. Do your homework.