II. Laws

D. Relevant Literature

1. Judicious Use of Deadly Force

Massad Ayoob, 1991, Lethal Force Institute (800-624-9049)

Deadly Force/Lethal Force: that degree of force which a reasonable and prudent person would consider capable of causing death or grave bodily harm (a warning shot is, in many states, considered a use of deadly force). Grave bodily harm is defined as crippling injury. His advice: do not fire your weapon unless you are justified in killing.

Degrees of Homicide: the various types of homicide recognized in the law.

Justifiable homicide: i.e., you were right to kill; not obliged to, but right.

Excusable homicide: an increasingly archaic legal concept. When applied, it usually refers to situations wherein equipment has malfunctioned (you should not have killed, but anyone could have made the same mistake).

Manslaughter: the charge you are most likely to face as a result of a defensive shooting. It does not imply evil intent, but rather reckless and wanton disregard for human life (you did not intend to kill, but you acted so carelessly that someone got killed).

Murder implies evil or criminal intent.

1st degree murder is premeditated, planned.

2nd degree murder is not planned, but happened while something evil or wrong was being done.

Capital murder is not so much a question of what was done, as to whom. Assassination, killing a police officer, murder in conjunction with kidnapping, murder in conjunction with rape.

Felony murder refers to situations where, while committing a felony, someone died. (Two people hold up a convenience store and the clerk kills one robber. The other robber gets charged with felony murder.)

When is homicide justifiable? Ayoob begins with a lengthy discussion of the concepts of power and responsibility. He contends that the two must be held in absolute balance. Increased power, such as the power to end another human life, demands a commensurate increase in responsibility. He points out that the standard for police is necessary force (that amount of force necessary to apprehend a perpetrator). For civilians, the legal standard is equal force. Police can use a baton to break up a fight. If a civilian does that, he will be charged with assault.

In all fifty states (plus countries with legal codes based on English or Dutch common law, plus Russia), the following definition will cover you:

immediate, otherwise unavoidable danger of death or grave bodily harm to the innocent.

Ayoob then discusses each term of this definition in detail.

The criteria of justifiable homicide: ability, opportunity, and jeopardy.

Ability: the opponent posses the power to kill or cripple. This power may come in the form of a weapon (gun, knife, club, etc.) or through disparity of force. Disparity of force can be legally established in various ways.

force of numbers: you versus a gang

able-bodied versus the disabled: you on crutches, your attacker is able-bodied. Note that if you become disabled in the course of a previously equal encounter, this criteria can suddenly become applicable

male versus female: the courts view this as an issue of cultural predispositioning, and of the average size and upper body strength of men versus women. The specifics of the size of the man versus that of the woman are not typically relevant (if Woody Allen attacks a 200 pound female weight lifter, the female can use deadly force against him). Every state in the US views lethal force as a legitimate defense against rape.

A digression: Per Department of Justice statistics, in the average year, 79% of the attackers in successful rapes are unarmed. With 14% of successful rapes, the attackers are armed only with contact weapons (knife, club, rope, etc.). Only in 7% of successful rapes are attackers armed with firearms.

physical size and strength: no clear legal standard for when this disparity exists, more of a case-by-case matter. For the closest thing to a commonly accepted legal standard, see Juste David Myers in the John Peters book Defensive Flashlight Techniques.

The other person is known to you to be a highly trained fighter

Opportunity: capable of immediately employing the power to kill or cripple. Two components: distance and obstacles. Range typically not a factor with guns, but is with contact weapons. An unarmed home intruder who attempts to take away your weapon fulfills this criteria, even before he succeeds in taking your weapon away. Ayoob also discusses the research done by Sgt. Dennis Tueller on how close is too close. Tueller found that the average person can close 21 feet in 1.5 seconds. That is, an attacker armed with a knife who is seven yards away can be literally at your throat before you can draw and fire two rounds.

Jeopardy: acting in such a manner that a reasonable and prudent person would conclude he intended to kill or cripple.

Affirmative defense: unlike what you were taught in high school civics (innocent until proven guilty; prosecution has the burden of proof), justifiable homicide shifts the burden of proof to the shooter. He is saying: yes, I did it. I was right to take the life of another human being. The up side is that this is a perfect defense (the judge tells the jury: if you believe him, you must find him not guilty). The down side is that it shifts the burden of proof to you. You must prove that you were in immediate, otherwise unavoidable danger of death or grave bodily harm, and that you were an innocent. The defense of justifiablility is reserved for intentional acts.

Doctrine of competing harms/doctrine of necessity: a key concept to the affirmative defense of justifiable homicide. It comes from English common law and means you are allowed to break the law in the rare circumstance where following the law would cause more human injury than breaking it. Example: you and the family are driving on a two-lane mountain road, with steep embankments on either side and a big double yellow stripe running down the middle of the road. A pickup truck swerves into your lane. With seconds to decide, do you follow the law and not cross the yellow line, or break the law by swerving into the other lane?

Further reading: See the review of Ayoob's In the Gravest Extreme, article V.B.3. of the FAQ.