Citizen's Guide to Armed Defense (2015)
CHAPTER FOUR: THE REASONABLE PERSON
What can you legally do to protect yourself? The answer is, “what a reasonable person would do in like or similar circumstances.”
The Reasonable Person Doctrine: The standard against which your use of deadly force in self defense will be measured is called the standard of the reasonable person. This criterion asks, “Would a reasonable person under the same circumstances, knowing what you knew at the time, likely have used deadly force in self defense?” If you can convince the jury that they would have done the same thing, then you will walk free. On the other hand, if the members of the jury say to themselves, “No, I wouldn’t have pulled the trigger under those circumstances,” then the verdict will probably not be in your favor.
~Marty Hayes, J.D.
What Every Gun Owner Needs to Know About Self-Defense Law
Armed Citizen’s Educational Foundation, 2014
Reasonable Person: A hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others’ interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions. Also termed reasonable man; prudent person; ordinarily prudent person; reasonably prudent person; highly prudent person.
~Black’s Law Dictionary (8th ed. 2004) as quoted by Mitch Vilos,
Esq. and Evan Vilos in Self-Defense Laws Of All 50 States
(2nd Edition; Guns West Publishing, Inc.; 2013)
“Under traditional self-defense doctrine, also known as perfect self-defense, a defendant is justified in using a reasonable amount of force against another person if she honestly and reasonably believes that (1) she is in imminent or immediate danger of unlawful bodily harm from her aggressor, and (2) the use of such force is necessary to avoid the danger. Traditional self-defense doctrine requires necessity, imminence, and proportionality. Additionally, the threatened attack must be unlawful and the defendant must not have been the aggressor.”
~Cynthia Lee Murder and the Reasonable Man
(New York University Press; 2003)
Wayne was a law-abiding citizen. Working security for the United States government, he carried a handgun in his job. Wayne also carried concealed off duty. At that time, the state Wayne resided in did not have a concealed carry law in place. The law did allow for citizens to carry concealed when “reasonable men” would do so. As such, it was an affirmative defense, meaning that if you were arrested you could use as your defense the assertion that a reasonable man in your position would have done the same thing. This commonly pertained to merchants making bank deposits or transporting cash after hours or so. Wayne carried routinely on a daily basis. On the day in question, Wayne was confronted by a person whom he believed to be a deadly threat. He shot and wounded the man. But instead of staying on scene and articulating who he was, what he did for a living and more importantly, why he feared for his life and fired, he got scared and left the scene. Wayne was charged with felonious assault and sentenced to state prison.
As eminent trainer Mas Ayoob has said, and it certainly was true in this case, “flight equals guilt.” If Wayne had stayed on scene and his reasons for firing were legit, he may not have been charged with any crime. We will never know, and a good man went to prison.
It pays to know the law. Imagine as a concealed carry permit holder you elect to carry onto a premises which has a “No Guns” placard, such as a mall. In the event that you decide to carry into this location and get involved in a shooting and then leave the scene, your “flight” will definitely appear as “guilt” and “may” erase the lawful nature of your use of deadly force, even if you saved lives. Better to stay, articulate your actions with your attorney, and face whatever consequences come your way. In my state, carrying in a “no guns” area would be a misdemeanor (unless it’s a school safety zone) and possible revocation of your permit. It is true in most jurisdictions that fleeing the scene of a shooting, however righteous, would certainly equate to felony charges against you. Note, I am not suggesting that you carry onto premises with placards. Better to go elsewhere and deny these establishments your business. Always follow the law.
As we see with Wayne’s case and we think of George Zimmerman and his use of deadly force to save his life against Trayvon Martin, there are legal and political consequences to defending yourself and your loved ones.
It is certainly true, in police and citizen use of force cases, that there is a tremendous amount of work, clarification, explanation and active defense that must be done on the back end of even a completely lawful armed encounter. The law oftentimes refers to the “reasonable person” in self-defense situations without providing clear guidance as to what a reasonable person can and can’t do. The law may not be crystal clear as it pertains to your situation, think of the George Zimmerman defense case. Even incidents that are clearly proper uses of deadly force can develop political momentum, some examples of this are cross racial shootings, shooting a female or the shooting of a young offender. These incidents may be prosecuted for political reasons, i.e. to satisfy special interest groups who may be ignorant of the facts and circumstances but who clamor for prosecution. We need look no further than police uses of deadly force cases that have been prosecuted despite the facts of the case.
USE OF DEADLY FORCE: THE SCALE OF DEADLINESS
Some justifiable homicides or shootings in self-defense are more easily investigated and cleared than others by police and prosecutors.
Stranger firing at armed citizen, family member or another
Scenario: You are walking your dog in your neighborhood on a pleasant evening. As you walk down the sidewalk, a car slows down as it drives past you. The car pulls to the curb, and passenger, who you don’t know, exits the car, yells racial epithets at you, produces a handgun from behind his leg, and begins to fire at you. You draw your pistol and return fire, striking the attacker who falls to the ground. The vehicle takes off away from you. You take cover as you continue to cover the downed male attacker and scan the area in case the vehicle returns or other threats present themselves. You call 911 and await the police.
In this situation, you as an armed citizen are in public lawfully carrying concealed and are fired upon by a complete stranger. In other words, you are an innocent citizen who has been attacked with deadly force by someone unknown to you. It could be a mentally ill subject off his meds, a random act of senseless violence, a terrorist – whomever the attacker is, he has open fired on you and you are armed at the time or able to access a firearm and return fire, wounding or killing the attacker.
The threat posed by the assailant was obvious and deadly. Failure to use deadly force by you may have resulted in death to you or other innocent victims.
In these types of situations or armed encounters, witnesses may or may not be present who corroborate your story. In today’s day and age, do not expect to be hailed as a hero and certainly expect a full police investigation, as well as intense scrutiny into your background by the media. Names may or may not be released to the press. You should also have built a strategy for a civil suit for wrongful death or injuries sustained by the assailant. Unfortunately we live in a litigious society. We talk more about legal strategy later in the “Investigation” chapter.
Stranger attempting to stab, slash or cut with knife or edged weapon
Scenario: You and your family are walking through a downtown area headed back to the parking deck where you’ve parked your car. As your party comes adjacent to an alleyway, a deranged man with manic eyes, disheveled hair, tangled beard and wearing an oversized coat steps from the alleyway screaming, “I’ll kill you! I’ll kill you all!” You see the large military knife in his hand as he slashes the air and advances toward your family. You step in front of them, yell “Stop!” You draw your handgun as the maniac is now closing in and fire multiple shots into his torso as he stumbles, then falls to the pavement against a building.
Once again, this is a stranger attack at close range necessitating the deadly force (gunfire) by the armed citizen to save your life or the life of another. Amazingly, to some people a knife does not represent a deadly weapon, or at least the knife-armed man does not, in their view, warrant a deadly force response. Recently the Albuquerque Police Department came under scrutiny for a shooting involving a violent and long-term mentally ill subject armed with two knives. Citizen outcry such as, “Why did the police shoot the man, couldn’t they have just talked to him or let him go? Why did they shoot the man in the back? They should have tried over less-lethal means of force to control him.” Even though the police had tried several hours of negotiation and orders for the suspect to disarm, deployed flash-bangs as a distraction, attempted to control with Taser projectiles and then deployed a police K9, when the suspect moved toward the police officer/dog handler and was within several feet, he was shot several times and killed. The police had literally exhausted all their options: verbal persuasion, crisis intervention, officer presence, non-deadly attempts at control, the suspect refused to comply or disarm after several hours and made the voluntary action of threatening with two knives and moving toward an officer.
To an informed person, it is readily apparent that the suspect in the preceding scenario presented a deadly threat. Certainly turning and running or trying some martial arts move learned in a dojo years ago may result in being stabbed in the back or being seriously wounded or killed.
However, as we scale downward in threat levels it is important to note that armed encounters may require more articulation and explanation, as the threat may appear less immediate or the circumstances less threatening.
A diagram that I have used over the last few years was developed by Tom Aveni of The Police Policy Studies Council. This triangle, the strongest of all geometric shapes, refers to a reasonable amount of force based on reasonable perceptions and the totality of the circumstances.
In the two cases cited, we can easily see that firing in defense of one’s life or the life of another is a reasonable force response based on reasonable perceptions and the totality of the circumstances.
Stranger armed and threatening the use of deadly force against the armed citizen, family member or another
In this case the aggressor has produced a handgun and threatened the victim (armed citizen) or a member of his family, friends or another innocent citizen with death or in the commission of a crime of violence such as felonious assault, rape, robbery, burglary, carjacking, etc. Rounds are not being fired by the aggressor, nor is he not actively attempting to stab you. He is using his firearm, edged or impact weapon as a tool to commit a violent crime.
Not every case in which you could legally shoot means that you must shoot.
Although he is not actively attacking, he is a deadly threat. Whether you use deadly force in this or similar cases is a tactical question, not a legal one. The aggressor, by way of his actions, has placed you or another in reasonable fear of death based on the totality of the circumstances. Shooting the aggressor would be a reasonable use of force, but your ability to successfully draw your firearm without being shot and deliver accurate fire on target without endangering others must also be considered.
Scenario: You are in your vehicle alone driving home from work. Stopped in traffic at a red light, you look to your left to see a person armed with a handgun run up to the driver’s side door of your car. He attempts to open the door. Pointing his handgun at you, he yells, “Get out of the car or I’ll blow your f’ing brains out!” With no room to drive away to the front or rear of your car, the attacker has the drop on you. You put the car in Park, take off your seat belt with your left hand as you draw your handgun with your right, as you open the car door, you shoot the suspect multiple times stopping him.
In this case, the armed attacker threatened you with death or serious bodily harm and had the apparent means to follow through with his action. It is certainly a reasonable response to use deadly force to stop the violent actions based on the totality of the circumstances. In this case, it was simply waiting for an opportune moment to be able to access and deploy your self-defense handgun.
An armed subject threatening you is a deadly threat.
Scenario: You are at the counter of your bank making a deposit. At the next teller’s window a person in dark hat, wearing dark sunglasses, produces a handgun and tells the teller, “This is a robbery! Don’t touch the alarm! Put all the cash in this bag!” as he hands the teller a grocery sack. This person is obviously a deadly threat to the teller, you and anyone else in bank, coming into the bank or in the parking area after he leaves.
Do you attempt to draw your handgun and possibly get shot before you can do so? Do you engage in a shoot-out in the bank’s crowded lobby? Or do you attempt to be the best witness you can be and only plan on using deadly force as a last resort if the gunman attempts to harm someone or move the customers and staff into the back of the bank?
These are tough tactical questions that you must think about now, prior to becoming involved in such a scenario. Not every case in which you could legally shoot means that you must shoot.
Stranger brandishing a firearm, edged weapon, bludgeon or other weapon
In this case, the armed citizen is confronted with a person who has a firearm, edged weapon or bludgeon in their hand. No threats are articulated by the subject but the weapon is out.
Scenario: You are walking through the parking lot of the mall when you see a male subject walking towards you. As you look at his hands, he has a black pistol in his right hand partially concealed by his jacket. He continues to move toward you. You draw your handgun order him to stop but he continues to move toward you.
Scenario: You are in traffic when the motorist behind you begins to tailgate you, flashing his lights and beeping his horn. You pull over to the side of the road to allow the motorist to pass. He pulls in behind you. You exit your vehicle and say, “What’s the problem buddy!” The motorist gets out of his car with a baseball bat and begins to move aggressively toward you.
A subject threatening you at close range with an impact weapon, such as a crowbar or baseball bat, is a deadly threat.
In both cases, fearing for your life based on your reasonable perceptions of the totality of what is going on, the use of deadly force could be a reasonable response.
Life-threatening weaponless assault
Scenario: You are returning to your apartment building at night. As you enter the foyer and unlock your mailbox on the wall to get your mail, an unseen attacker steps in behind you and punches you in the face. Stunned and dazed, you fall to the floor. As you look up a large man with a hood over his face stands over you with balled fists and says, “Give me your f’ing money or I’ll f*ck you up!” As you turn to the left to reach into your left front pants pocket to grab your wallet, you reach to your right hip and draw your pistol. Turning you shove your pistol out and fire into your attacker’s torso.
Being beaten to death is not an appealing option. Here a student learns to fight off an unarmed by extremely violent assailant while accessing his pistol and responding.
Even though the attacker had no deadly weapon with which to attack, his weaponless attack was capable of killing you or causing you serious bodily injury. Your position on the floor with him looming and threatening above you was certainly a very dangerous and life threatening position and circumstance to be in. It could be that you were larger or stronger, but the element of surprise was against you and a serious attack already commenced.
It’s not required that the aggressor attack you. If in a similar circumstance above in that apartment foyer, a person larger or stronger slams you up against the wall, verbalizes a threat and criminal intent and, based on these reasonable perceptions, you believe that your life or the life of another is threatened, then deadly force may be a reasonable response.
Deadly force would not be a reasonable response to an aggressive panhandler who approached you, asking for money. Depending on the totality of the circumstances (low or subdued lighting, being alone) a reasonable response may be drawing your pepper spray or Taser, or even putting your hand on your holstered pistol, possibly even drawing to low ready if you feel threatened, but absent more aggressive/life threatening circumstances, deadly force is generally not called for when a stranger approaches.
Aggravated burglary and burglary
Seldom does the law in any state permit the use of deadly force to stop a property crime. That said, when can a homeowner fire on a burglar? The obvious answer is the same as when the armed citizen is outside of the home – when the citizen reasonably believes based on the totality of the circumstances that the subject poses a threat of death or serious bodily harm. But do you have a “duty to retreat” or a duty to attempt to avoid confrontation?
Attorney Andrew Branca writes, “Today the majority of jurisdictions – thirty-three – do not have an explicit duty to retreat, but a sizable minority – seventeen – are “Duty to Retreat” states that require that you take advantage of any safe avenue before using force in self defense. In “Duty to Retreat” jurisdictions the failure to retreat when it is safe is fatal to your self-defense claim.
Every state with a duty to retreat has exceptions to that duty. These exceptions make up the “Castle Doctrine” and include, at minimum, that you don’t need to retreat in your own home. This means even though you could go up your stairs into your bathroom, or out your back door, you do not have to do so.
Every state defines what makes up your “castle” a little differently.
Stand Your Ground – Today a large majority of states, thirty-three, don’t require you to retreat when it’s safe. Instead they allow innocent people who are in a place they are allowed to be to defend themselves, subject only to the other four principles *(Author’s note: Branca’s principles are: Innocence, Imminence, Proportionality and Avoidance). States that have held this “no retreat” rule for many decades call them “True Man” laws, while those that adopted them more recently call them “Stand Your Ground” laws.
Importantly, Stand Your Ground only applies to legitimate self-defense. If you fail on another principle – for example, if you used disproportionate force – Stand Your Ground is irrelevant, as you were not, under the conditions set by law, acting in self-defense at all.
The greatest value of Stand Your Ground from my perspective is that it limits the power of overreaching prosecutors.
What does the law say about dealing with threats such as this?
Be careful here, though. In some Stand Your Ground states, even though retreat isn’t required, not doing so can still fail the principle of reasonableness. In those states, a prosecutor can’t argue that you had a duty to retreat, but they can still argue that “retreat was so apparent that not doing so was unreasonable.” (Andrew Branca, The Law of Self-Defense: Second Edition (2013; Law of Self Defense publishers))
A violent and incoherent subject is actively breaking into your home despite your warnings. What can you do?
Barry, an off-duty county sheriff’s sergeant, was in his house at night when he heard commotion from the back patio area. Arming himself with his handgun, he asked his wife to call the police and then went to investigate. As Barry approached the patio door he looked out to see and hear a person growling and tearing the molding out from around the patio window. Barry gave verbal warnings to the male subject who continued to growl and rip at the window edging/molding. Fearing for his and his wife’s life if the subject burst through the window, Barry fired his handgun at the subject, killing him. The subject was unarmed at the time of the shooting. Barry and his police union maintained that at the moment Barry fired he was acting as a law enforcement officer attempting to apprehend a violent felony suspect. The county maintained that Barry was acting as a private citizen in his own home. After some fighting, the county finally was forced to represent Barry (they paid his attorney’s fees). The shooting was ruled a justifiable homicide by a law enforcement officer.
Multiple individuals attacking or threatening physical harm
Years ago, Rorion Gracie from the famous Gracie Jiu-Jitsu® was asked about his family’s ground fighting system and how, according to critics, it left practitioners open to attacks from multiple individuals. Mr. Gracie explained that attacks from two or more individuals were almost always a deadly force encounter. Rorion Gracie explained, “On your best day, could you beat two of you?” In other words, could you defeat two unarmed but attacking assailants your same size and weight? In an interview with James Williams and Stanley Pranin at Aikidojournal.com, Rorion Gracie states, “Basically, I don’t believe one person can fight two people effectively. Of course, I don’t want to grapple with one guy and let the second guy kick me in the head.” Mr. Gracie further goes on, “This is why even though I’ve been doing Jiu-Jitsu some forty years, I also have a gun.”
Multiple individuals violently attacking you is almost always a deadly force situation.
Fred is an off-duty police officer. He has a confrontation with a drunken and aggressive individual and is dealing with him while another assailant blindsides Fred, punching him in the head and dropping him to the ground where he is further attacked.
The sucker punch or a blind-side attack is a preferred method of attack by street criminals. Regardless of ones’ prowess in unarmed combatives, it is always possible that while dealing with one subject to your front, you can be hit from the side or rear.
Therefore, two or more attackers of decent size and weight, who are actively and aggressively threatening or attacking you with such force causing you to reasonably believe they are capable of causing your death or serious physical harm, are a deadly threat.
In 1992, 36-year-old construction truck driver Reginald Denny was driving near the Los Angeles intersection of Florence and Normandie. In the wake of acquittals of police officers charged with excessive force on Rodney King, riots spread through some areas of Los Angeles. Denny was driving a dump truck when he came upon rioters blocking the intersection. Several of the rioters pulled Mr. Denny from the cab of his truck; four of them beat and kicked him. As he was down on the ground incapacitated, Damian “Football” Williams, a 19-year-old member of the Crips street gang, threw a brick into the head of Reginald Denny from close range. Mr. Denny suffered permanent injuries and almost died from the attack.
Damian Williams was sentenced to 10 years in prison. He was released from prison in 1997 but was subsequently convicted and sentenced to life in prison for the 2000 murder of a dope dealer.
TOTALITY OF THE CIRCUMSTANCES
In law enforcement, the Supreme Court of the United States (SCOTUS) has applied the 4th Amendment of the Constitution to use of deadly and non-deadly force by police:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ~Amendment IV, U.S. Constitution
Part of the Bill of Rights of the first ten amendments to the Constitution, the 4th Amendment and the other amendments in the Bill of Rights guarantee personal freedoms and limit the government’s power.
The standard for the 4th Amendment is Objective Reasonableness. In the SCOTUS case Graham v. Connor, the Supreme Court noted: “the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Further the SCOTUS noted: “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”
Although law enforcement officers are empowered by state or federal law to enforce laws and use force to arrest, detain, and involuntarily commit subjects, as well as squelch riots and other official acts, the guidelines of use of force by law enforcement can be used to help describe, articulate and defend an armed citizen who threatens or uses force in self-defense.
In law enforcement, these components – severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and using force in circumstances which are tense, uncertain and rapidly evolving – help comprise the totality of the circumstances in use-of-force situations. They are not the only elements to be considered in the totality of the circumstances. Certainly an armed suspect firing at a police officer comprises the highest risk of threat an officer can face, same too with an armed private citizen being shot at.
Other issues and components that comprise the totality of the circumstances and may have an impact on the decision of an armed citizen to use deadly force include:
· Sympathetic Nervous System / “Fight or Flight” – The brain prepares the body for the fight, or to flee, in an instant. Although optimum performance is a branch of the SNS, it helps prepare us for combat, cognitive changes, perceptual distortions such as tunnel vision, and physiological changes impact our performance. We rarely think and perform at our highest level during fight or flight. The SNS explains why.
· Distance – As stated earlier, distance equals time. Almost everything at close range is perceived as an emergency. The brain perceives there is not enough time to respond. Further, distance drives tactics and technique. Those stances, tactics and firearms techniques that may work from 21 feet may not work at close range. It is entirely possible that the close quarters or extreme close quarters armed encounter may look more like a “fight with guns” than a traditional “gun fight.” Additionally, close range encounters may cause the armed citizen to slip into a Sympathetic Nervous System reaction more so than one where more distance (time) is available.
· Time – As just mentioned, time or the perception of little time to respond impacts performance. Imagine opening a stairway door in a parking deck and encountering what you believe is an armed man with gun in hand. The brain perceives the immediate threat and responds in SNS versus a more prolonged (longer) encounter where fight or flight may not impact as much. The more time available, the more options such as retreat or escape may be available.
· Lighting – Can you properly identify what is in a person’s hand? Is it a gun, knife, or an innocuous item such as a cell phone, wallet or keys? In very high profile police shootings, officers have misidentified the item in a subject’s or suspect’s hand(s). We have talked about SNS and the effects on performance, but night vision is also adversely impacted by fight or flight. Much in this realm has to do with context (how the item is wielded or held). In several shootings with LE personnel the officer did not have the item or the ability based on the suspect’s actions (holding the item with two hands like a handgun and pointing it at the officers) to withhold their fire.
In low or subdued lighting, a flashlight or weapon light is vital to properly identify a threat and prevent a tragedy.
· Injury – If you are injured in an initial attack or wounded by an assailant’s physical or armed attack, this will certainly have an impact on your ability to defend yourself or others, as well as to move, perform physical actions, etc. Injury, depending on scope and severity, can allow the armed citizen to escalate the use of force.
· Physical limitation or debilitation – A man confined to a wheelchair, using crutches, suffering from disease or recovering from surgery or an accident may lack the physical attributes of an uninjured or healthy person. This may severely affect self-defense options.
· Size – Relative size is a factor in confrontations and threats of confrontations. A 90 lb. armed citizen facing a 200+ pound man threatening physical harm may escalate sooner than a healthy person of the same size, considering the reasonable fear of the innocent citizen. Does this mean that a 200+ pound man cannot be in reasonable fear of a 120 lb. assailant? No, it is only one factor out of many to be considered.
· Gender – On average, a female citizen can use more force to defend herself against a male attacker than can a male citizen. Relative size and strength must be considered, but the norm is that most 16-year-old boys have more upper body strength and size than the average adult female.
· Skill level – If you knew that the assailant was a very skilled armed or unarmed fighter, it would impact how you approach or deal with him.
Age can be a factor in the use of deadly force.
· Criminal history – In law enforcement we deal with “frequent flyers,” or suspects who have a lot of experience as suspects in criminal cases. If you know that the attacker has a violent criminal history, you can factor that in your response and it may be introduced in your defense in court subsequently.
· Mental state – Rage, anger, suicidal thoughts, hallucinations, delusions, derangement – all of these and other mental states can affect your defense and can be indicated by a subject’s words and actions. All can potentially be perceived as a threat to cause harm to you or others, and possibly support the assertion that communication or a rational, non-violent confrontation was not an option.
· Presence of weapons – Prior knowledge of an attacker’s propensity to carry, have or use weapons, or perception at the time of an attack based on your observations, may be factored in to your decision to use force. In many cases, the mere presence of a weapon cannot be used as the sole justification for using deadly force. Absent other elements, such as threats or threatening or criminal behavior, it is entirely possible that the subject has every legal right to possess the firearm.
· Exhaustion – According to research by Bruce Siddle from Human Factor Research Group, most violent confrontations take place in less than two minutes. They can be properly classified as anaerobic activities. The primary fuel source used by the body in such confrontations is ATP/PC but it only lasts for around 15 seconds, once the ATP/PC system is exhausted, performance drops 45% within 30 seconds. Exhaustion in an armed confrontation can happen quickly and seriously impact cognitive and physical performance.
· Availability of other options – We strongly advise the armed citizen to have other lesser-force options available. You will probably have more need of non-deadly force tools such as pepper spray or the Taser than you will deadly force. Even if the tools could not possibly have affected or prevented an armed encounter, you can state that you had them available, if only the person had not presented a deadly threat.
The author is a big advocate of less-lethal options such as this OC spray or the Taser C2.
· Environment – Many environments we find ourselves in during emergency situations are not conducive to self-protection. If the environment provides physical perils to the armed citizen – such as from third parties, vehicle traffic, hostile crowds, cluttered rooms preventing movement or possibly causing a trip or stumble, stairs or other risks of falling, rain, snow or other hostile weather – then this must factor in to the totality of the circumstances. An armed encounter at the side of the road on a busy highway presents physical risks not present on a closed, flat, safe firearms training range.
Each of these and many more factors come into play when considering the totality of the circumstances. Remember, it is the totality of: who you are, who the attacker is, what type of threat is present, what’s been said and done by all parties, other assailants and innocent citizens present, how close or far, and the physical / environmental issues such as lighting, layout and threat.
*If you are interested in further reading on police use of force and the subsequent investigations involved, I would recommend a copy of my book, Use of Force Investigations: A Manual for Law Enforcement; (Responder Media; 2012).
Issues and elements that may complicate the investigation by authorities or muddy the waters are:
· He said / He said – Absent clear evidence that you are the innocent victim, it is entirely possible and very probable that the assailant will claim innocence and insist that you were the aggressive party and he was the victim. Absent clear evidence or witnesses of what actually occurred, uniformed police will frequently arrest both parties and let the investigators or courts figure it out. This is a problem when both parties know each other. As an example, on a domestic violence call, if both sides have equal injuries and conflicting stories, both may be arrested.
· Previous violent contact – This is not to say that you cannot use deadly force to stop a homicidal attack against you from a person you know. However, if you and victim had previous unreported violent contact (a dust-up, threats or physical altercation and the police were not called) then it can muddy the waters. The working hypothesis may become that this was a long-standing feud that finally erupted into gunfire and you are an equal part, not an innocent victim. If you’ve been threatened or assaulted by someone and are an innocent victim, report it to the police. You are building a defense in case that person presents a non-deadly or deadly threat to you in the future and you have to use force. If you engaged in mutual voluntary combat, i.e. a fistfight, and lost, that does not give you the right to resort to deadly force.
· Alcohol – You don’t lose the right to self-defense based on voluntary intoxication but police will examine the case more closely and question legitimate self-defense more vociferously. Police officers, especially in urban or busy jurisdictions, handle a large number of violent encounter calls – shootings, stabbings, etc. Many, if not most, are alcohol related. Intoxication brings up questions about your judgment and often equates to recklessness, i.e. “the subject while voluntarily intoxicated did recklessly fire his handgun at Mr. Doe…”
· Flight – As I pointed out with the story of Wayne in the beginning of this chapter, “flight equals guilt.” Even if you made a mistake. Even if you are innocent but scared, don’t leave the scene unless it is physically dangerous for you to stay. Even then, get on the phone as quick as possible and give police your situation and location.
· Incriminating spontaneous statements – “I didn’t mean to shoot him!” “It was an accident!” “The gun just went off!” These statements can be damning and seriously impact the subsequent investigation. I believe these statements are reactions to the shock of what just transpired. What you meant, based on never having to go through something as emotional and as traumatic as a shooting, is to say, “I didn’t want to shoot him but I had no choice,” or similar. Innocent victims have gone to trial in homicide cases and have even been convicted based on damning statements post incident. Take a deep breath, think before you speak. We cover the police response and investigation in other chapters.
· Manipulation of the crime scene and evidence – Any attempts to “clean-up” or somehow move or manipulate evidence can hurt you. Cleaning up can look like you’re a cold and calloused suspect more interested in saving your living room carpet than rendering aid to a man you just shot. Tampering with evidence is a crime, oftentimes a felony, and impacts your perceived motive and mindset.
· Profanity – The “language of the street” or profanity is oftentimes equated with loss of control and anger. Police have long understood that suspects don’t react to verbal orders such as “Get down on the ground!” or, “Show me your hands!” and use what have become known as “command intensifiers” which include profanity. Having pointed guns at hundreds of people during my SWAT career, I can say that oftentimes, “Get down on the f’ing ground!” was more effective. That said, articulated threats such as, “Don’t move or I’ll blow your f’ing head off!” tend to show the person was not in control of his/her emotions.
· Verbal parting shots – Police officers oftentimes hurt themselves with spontaneous statements after a use of force. It is usually emotions of the stressful encounter boiling over. In other words the officer is simply running off at the mouth. But imagine how the jury might react to a statement such as, “I hope you f’ing die!” post shooting? Or how about, “You deserved it you piece of sh*t!”
Once again these types of elements don’t turn a good shooting into a bad one, but they make it harder for you to prove your innocence.
SEGMENTATION AND THE DECISION POINT APPROACH
The court noted in Graham v. Connor that “The “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” This 20/20 hindsight is disastrous to officers, since their force is to be judged “at the moment” it is used.
The United States Department of Justice has recently begun using “segmentation” or what they refer to as the decision point approach, to examine police use of force. They then examine the incident as to the decision points an officer had along the way prior to the use of force and whether the officer through bad decision making or tactics, created the jeopardy that led to the shooting. This hindsight and Monday morning quarterbacking is contrary to the Graham case and poses a serious threat to law enforcement officers.
I believe that the armed private citizen should be very concerned with the decision point approach as it relates to armed encounters. Since the armed citizen, unlike police, is not to be judged “at the moment” the trigger is pulled, it is entirely possible that prosecutors will examine the timeframe and decisions that led up to the shooting.
Did the armed citizen have the time or ability to retreat, move to cover, call the police, veritable panoply of tactical options to avoid an armed encounter? Did the armed citizen create the jeopardy that led to the shooting?
This all leads to the obvious tactics of avoidance if at all possible and retreat from a potential threat if tactically feasible.
The legal and financial liabilities involved in using deadly force, here again, even if completely in the right, can expose you and your family to extreme financial hardships including possible depletion of savings and bankruptcy.
To those citizens who state, “It’s better to be tried by twelve than carried by six.” This is a simplistic notion that ignores the risks and perils involved in armed self-defense.
In an effort to instruct and explain the use of deadly force, some trainers use the following formula. In this formula for proper use of deadly force, all of the elements must be present.
Intent – Does the individual have the intent to cause you or another death or serious bodily harm?
Ability – Does the individual have the means by way of a firearm, other weapon or life threatening weaponless assault to kill or seriously hurt you or another?
Opportunity – Can the means of their attack get to you? Firearms have the ability to reach out at a line of sight distance and kill. But what of a knife, impact weapon such as a tire tool or crowbar, and a physical assault?
Jeopardy – Does the individual’s attack or actions place you or another in reasonable fear of death or serious bodily injury?
The IAOJ or AOJ standard is not required by law and can be confusing in an actual encounter.
My problem with this formula is that in many circumstances most of these elements cannot be absolutely proven, defined or ascertained. Let’s break these down a little.
It is not possible to ascertain or determine intent. We are not mind readers. Oftentimes, we cannot fathom why a subject would legally have a gun in hand or want to point or threaten us with it. It matters not, since absent a law enforcement operation or maybe a mistaken identity situation where the subject believes you are someone else who has threatened them, what matters is that they have pointed a gun at you and presented a threat of death or serious bodily harm. We can only base our decision on threat or manifest intent. In other words, based on our senses we believe, the subject’s actions are a threat to us or others. It is reasonable to believe that a man, unless he is a law officer in performance of his duty, who points or threatens us with a firearm or other weapon capable of causing death or serious bodily harm, has displayed deadly intent. We understand, based on action versus response time that we are under extreme threat by a man with gun in hand.
Because of the problems with determining another person’s intent, this part of the formula has been removed by some trainers and just AOJ is used.
Next up is ability. Do they have the means by which to kill or seriously hurt us or others? In most cases, however, what we are really quickly assessing is their perceived ability of deadly violence. Take for instance the bank robber who uses a BB gun or other non-firearm as a tool to commit robbery, or places his hand in his pocket and holds it out threatening a teller, as he announces a “stick-up.” In all actuality he does not have the ability to cause death, but under the totality of the circumstances and time frames it cannot be safely and correctly ascertained. When the crack addict attempted to rob me years ago armed only with a cigarette lighter, which looked like a small pistol, as I recounted at the beginning of this book, I could have lawfully used deadly force to stop him. It was a conscious decision to not shoot him, but lawfully it would have been a “good shoot” had I done so.
In the dynamics of real life encounters, opportunity is based on a victim’s perceptions as well. Does it reasonably appear that the individual can deliver his attack or threats? If a man has a gun, then it is certainly possible that at most confrontation ranges he can kill you.
A couple of years ago my wife and I were in the house on a fall evening. Gunfire in our suburban neighborhood is not unusual. We have become use to hearing the sounds of citizens target shooting. On this night, however, we heard a shot close-by toward the western edge of our property line approximately 100 yards away, then the sound of shotgun pellets whizzing through the trees above our house. I walked downstairs from my office and heard another shot and the pellets once again fly through the trees. I grabbed an Armalite M15 carbine from my bedroom safe and turned off all lights on the first floor. As I scanned the outside perimeter of our property, I could not see anyone. I called the local police department and continued scanning for threats. I grabbed a pistol and spare magazine and put them on my belt. As the police officer arrived, I went outside and met him in the drive and identified myself. He asked if I had walked back to check for suspects. I clapped him on the back and told him with a smile, I was off-duty and that it was his job. I did tell him that if he got in trouble to give me a call.
The young officer walked back and checked. Minutes later he informed me that the caretaker for the property owner next door had been shooting at squirrels. Since the man cannot discharge a firearm within 300 feet of another home, he was in violation of the law (and more importantly of common sense). That said, I did not ask that he be arrested, just warned.
If I had come downstairs and observed a man shooting into our house from off our property, could I have used deadly force to stop the threat? Absolutely, even though my wife and I could have taken cover and just called the police (hoping to not get shot). I could have used deadly force to stop what, based on reasonable perceptions and the totality of the circumstances, was clearly a deadly threat.
But what of the man with a knife or club who begins running at you from 30 feet away? Do you have to wait until he gets closer before you can use deadly force to stop him? No, as stated earlier, the average time for a subject to run 30 feet is 2.06 seconds. You only have one and one-half seconds before he can stab or strike you from 20 feet away.
The last element is jeopardy and refers to the “reasonable fear” you have for your or another’s life or debilitating injury. Once again, it is a reasonable fear that anyone armed with a gun and firing or pointing at you is a threat. But what of other weapons or situations you may encounter?
Good use-of-force decisions are based on solid training.
Scenario: You are in your home at night and hear a large commotion outside – shouting, profanity, tires screeching and screaming. You arm yourself with your pistol, turn on the front porch light and step outside onto the porch to see what’s going on as you tell your significant other to call the police. You see several assailants in the street with ball bats beating a man who is motionless on the ground. You yell out, “Hey! Stop that! The police are on their way!” The multiple assailants turn their attention to you, threaten you with profane acts of violence, and start running toward your house. You yell, “Stop or I’ll shoot?” Can you fire even though the distance is around 40 feet?
Based on the reasonable fear of multiple individuals who are not only armed and have threatened you, but considering the totality of the circumstances (you have seen these individuals viciously attack another person), I would say deadly force is lawful.
The IAOJ or AOJ formula seeks to give guidance as to the deployment of deadly force. In my opinion it may complicate the issue to use deadly force and burden the armed citizen’s decision making and is not required, since the standard is that you have a reasonable fear of death or serious bodily harm based on the totality of the circumstances. Post-shooting or in court you may be able to prove that the individual had all the elements of the formula, but out on the street, or in your own home in the middle of the night when you’re facing an immediate perceived threat, you don’t have to be perfect, you only have to be reasonable.
A COUPLE OF CONCERNING CASES
In research conducted for this manual, I looked at two cases, one in 1992 and one recent, in which home owners used deadly force on two young unarmed subjects.
In 1992, Yoshihiro “Yoshi” Hattori, a Japanese exchange student, was shot and killed in Baton Rouge, Louisiana, by home owner Rodney Peairs. Yoshi and the 16-year-old son of his American host family, Webb Haymaker, were headed out to a Halloween party at an address of 10131 on the street. Instead the two boys juxtaposed the numbers and seeing Halloween decorations at 10311, five doors down, stopped and approached the wrong house. Rodney Peairs, his wife Bonnie and her son from a previous marriage were in the home. Bonnie Peairs responded to the doorbell ringing at her front door by going to the side door, turning on the porch light and opening the side door. Bonnie first encountered Webb Haymaker who was dressed as an accident victim with a bandage on his head and wearing a neck brace from an actual medical issue. But Bonnie Peairs’ fears were raised when Yoshi, wearing a white Tux coat came quickly around the corner toward her. According to Bonnie Peairs’ statements she “instinctively” felt fear that something wasn’t right. She slammed the door and called out to her husband to, “Get the gun!” Rodney Peairs heard the terror in his wife’s voice and responded by grabbing his .44 magnum 8" barreled revolver with a hunting scope attached.
Rodney went to the side door and armed with his handgun looked out through the blinds. Seeing no one, he opened the door. The two boys were in the driveway, now walking away. Upon hearing the door behind them, Yoshi turned around and began walking quickly to toward the door and Peairs. As he entered the garage near the parked cars, Yoshi was smiling and laughing. Peairs stated he was terrified. Yoshi had a camera in his hand. Peairs ordered the teen to, “Freeze!” but Yoshi continued moving toward the homeowner getting as close as five feet from Rodney Peairs. Peairs stated that, “The adrenalin was so high in my system. It was just fear. I couldn’t see any alternative but to fire to stop this person.” Peairs fired one round from his revolver, which hit the young man in the chest. Yoshi Hattori died enroot to the hospital.
Rodney Peairs was indicted and tried but acquitted for the death of Yoshihiro Hattori. A deciding factor, according to a juror interviewed, was that Yoshi kept moving toward the homeowner, “He made no attempt to stop and he kept advancing.”
~Justice Files, TV Show, 12/23/95
Subsequently the Hattori family sued Rodney Peairs in civil court and won. According to reports the Hattori family won a judgment of $650,000 in damages and funeral expenses.
Certainly this was a tragedy. An unarmed youth who was a visitor to our country, lost on his way to a party, was shot and killed. There are no winners in this event that was the culmination of many different issues and circumstances.
Just because “you can shoot” does not mean “you must shoot.” Oftentimes, if the apparent threat is not imminent and time, distance and cover allow some protection, then waiting for the police is a better response.
As I write this, another man, homeowner and gun owner is on trial for the shooting death of an unarmed 19-year-old young woman. Theodore Wafer of Dearborn Heights, a suburb of Detroit, was asleep in a living-room recliner before 5:00 a.m. when Renisha McBride, disoriented and intoxicated from vodka and marijuana, began banging on his door after crashing her car into several parked vehicles six blocks from the homeowner’s residence. Wafer has testified that he fumbled to find his cell phone in the dark but could not. According to Mr. Wafer, he crawled on the floor from the living room to the kitchen and then bathroom looking for his cell phone but could not locate it. Mr. Wafer stated that, “I was upset. I had a lot of emotions. I was scared. I had fear. I was panicking.” Grabbing his 12 gauge the homeowner went to the front door and opened the steel inside door, firing through the screen door at a figure on the front porch. The shot hit the young woman in the face, killing her.
~Julie Bosman, New York Times, Man on Trial Over Killing on his Porch Speaks of Night Filled With Fear (Aug. 5, 2014)
Theodore Wafer is charged with 2nd Degree Murder, Manslaughter and related weapon charges. According to Michigan law:
780.951, Sect. 1, (1): “…an individual who uses deadly force or force other than deadly force under section 2 of the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing a home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).
On August 7, 2014, Theodore was found guilty of all charges.
Once again, like the Peairs case, we see a tragedy based on a confluence of circumstances. Could both of these cases have been prevented? My opinion is yes, based on knowledge of the law, proper training leading to competence and control of the SNS response, both of these young people might still be alive. Yes, Rodney Peairs was acquitted, but his family went through hell in the interim. Peairs may still believe it was the right thing to do “at that moment” but one wonders if he had it to do over again, would he?
“Because the necessity, imminence, and proportionality requirements turn on the reasonableness of the defendant’s perceptions, the reasonableness or unreasonableness of the defendant’s beliefs and actions becomes the key to whether or not the defendant is acquitted. Reasonableness, however, is a standard capable of different meanings.”
“Requiring the defendant to be right or correct about the existence of justifying circumstances is extremely problematic. First, in most cases it is impossible to know, after the fact, whether the victim was going to attack the defendant. One can only know the facts and circumstances that led the defendant to believe, reasonably or unreasonably, that he was being threatened with an imminent attack. Second, as a practical matter, requiring the defendant to be right would just about eviscerate self-defense as we know it. The defense would only be available to those defendants lucky enough to kill or assault individuals who were actually going to kill or attack them. However, requiring a reasonable act does not have to mean that the defendant is right about the existence of justifying circumstances.”
~Cynthia Lee Murder and the Reasonable Man (New York University Press; 2003)
Just because you can does not mean you must! There may be times when you could shoot and instead you make the tactical decision not to. As long as that decision is a conscious thought and does not recklessly place you or your loved ones at risk, cool deal.
Sadly, in my opinion, too many police agencies are burdening officers with policies and restrictions on use of force which leaves them feeling reluctant to use force period, even to use deadly force to stop an armed and deadly suspect.
Police training history has numerous examples of when officers could have but did not shoot, and lost their life or were seriously wounded as a result.
Several years ago, police trainer Pat Martin presented a program at the 2006 American Society of Law Enforcement Trainers annual conference. The program was titled “Shut Up and Shoot.” The central theme of Pat’s program was that officers are indecisive about deploying deadly force and unnecessarily expose themselves and others to death or serious bodily harm by verbalizing too much to a suspect who presents a deadly threat.
As part of Mr. Martin’s program he broke down the statistics of officers killed in the line of duty. I’ll do the same thing but update the stats using the ten-year stats of officers killed between 2003 and 2012 (the last ten year sampling available at this time).
According to the Federal Bureau of Investigations Officers Killed Summary, between 2003 – 2012:
· 535 officers were killed
· 115 officers were ambushed/killed
This means that 420 Officers were feloniously killed (in non-ambush altercations).
· 252 officers did not use or attempt to use their firearm
That means that 60% of Officers killed in non-ambush confrontations in that ten-year period did not use or attempt to use their own firearm!
Despite being confronted with men with gun in hand and similar armed encounters, these officers chose not to shoot, were uncertain if they could shoot, ignored the danger signs of an armed man or situation, were surprised or were completely caught off guard by the events.
How does this impact us? We must, to the greatest extent possible, educate ourselves on the legalities of using force – both deadly and non-deadly. We must train so that our skills do not require conscious thought, i.e. trying to draw from a holster we haven’t practiced with. And we must train in a style and method that teaches us how to control our SNS (fight or flight) response. This dynamic training gives us safe experience in stressful situations and confrontations so that we are not overcome by events and are able to function and operate efficiently.
To the greatest extent possible, we avoid and retreat whenever able and safe to do so. You want to protect yourself and your family but you want to show that shooting was a decision made based on the threat and actions from the assailant. That the assailant’s actions offered you no alternative and that a reasonable person when put in like or similar circumstances would have done as you did. Based on the Totality of the Circumstances and your Reasonable Perceptions as to the threat and actions of the individual(s), deadly force was a Reasonable Use of Force.
It is not as easy as simply carrying a gun. It is not as easy as going to a basic CCW permit course. The armed citizen to efficiently and legally operate, must continually train, study and educate him/herself to the vagaries and complexities of the law.
As an example of state law as it pertains to the use of deadly force when defending your life or the life of another, I submit the following from the Attorney General’s Office of the State of Ohio. This information was obtained from the online pamphlet Ohio’s Concealed Carry Laws and License Application (State of Ohio Attorney General; 2014) available at www.ohioattorneygeneral.gov.
In Ohio, deadly force can be used only to prevent serious bodily harm or death. Deadly force can never be used to protect property only. Depending on the specific facts and circumstances of the situation, use of deadly force may lead to criminal charges and/or civil liability.
Depending on the specific facts of the situation, an accused person may claim that use of deadly force was justified to excuse his actions, which would otherwise be a crime. Self-defense or the defense of another is an affirmative defense that an accused may assert against a criminal charge for an assault or homicide offense.
The term “affirmative defense” means the accused, not the prosecutor, must prove by a preponderance of the evidence that he acted in self-defense or in defense of another. In other words, the defendant must prove that it is more probable than not that his use of deadly force was necessary due to the circumstances of the situation.
Whether this affirmative defense applies to the situation or whether it will likely succeed against criminal charges depends heavily on the specific facts and circumstances of each situation. The Ohio Supreme Court has explained that a defendant must prove three conditions to establish that he acted in defense of himself or another.
Condition 1: Defendant is not at fault
First, the defendant must prove that he was not at fault for creating the situation. The defendant cannot be the first aggressor or initiator.
However, in proving the victim’s fault, a defendant cannot point to other unrelated situations in which the victim was the aggressor. Remember, the focus is on the specific facts of the situation at hand.
If you escalate a confrontation by throwing the first punch, attacking, or drawing your handgun, you are the aggressor. Most likely in this situation, you cannot legitimately claim self-defense nor would you likely succeed in proving your affirmative defense.
Condition 2: Reasonable and honest belief of danger
Second, the defendant must prove that, at the time, he had a real belief that he was in immediate danger of death or great bodily harm and that his use of deadly force was the only way to escape that danger. Bear in mind that deadly force may only be used to protect against serious bodily harm or death. The key word is “serious.”
In deciding whether the bodily harm was serious, the judge or jury can consider how the victim attacked the defendant, any weapon the victim had, and how he used it against the defendant. Minor bruises or bumps from a scuffle probably do not meet the legal definition of “serious.” In court cases, rape has been determined to be serious bodily harm, as has being attacked with scissors. Serious bodily harm also may result from being struck with an object that can cause damage, such as a baseball bat or a wooden club.
The defendant’s belief that he is in immediate serious danger is important. The defendant’s belief must be reasonable, not purely speculative. In deciding if the belief was reasonable and honest, the judge or jury will envision themselves standing in the defendant’s shoes and consider his physical characteristics, emotional state, mental status, and knowledge; the victim’s actions and words; and all other facts regarding the encounter. The victim must have acted in a threatening manner. Words alone, regardless of how abusive or provoking, or threats of future harm (“I’m going to kill you tomorrow”) do not justify the use of deadly force.
Condition 3: Duty to retreat
A defendant must show that he did not have a duty to retreat or avoid the danger. A person must retreat or avoid danger by leaving or voicing his intention to leave and ending his participation in the confrontation. If one person retreats and the other continues to fight, the person who left the confrontation may later be justified in using deadly force when he can prove all three conditions of self-defense existed. You should always try to retreat from a confrontation before using deadly force if retreating does not endanger yourself or others.
If the person can escape danger by means such as leaving or using less than deadly force, he must use those means. If you have no means to escape the other person’s attack and you reasonably, honestly believe that you are about to be killed or receive serious bodily harm, you may be able to use deadly force if that is the only way for you to escape that danger.”
“Castle Doctrine” generally encompasses the idea that a person does not have a duty to retreat from the residence he lawfully occupies before using force in self-defense or defense of another. Additionally, there is no duty to retreat if a person is lawfully in his vehicle or is lawfully an occupant in a vehicle owned by an immediate family member of that person.
However, being a lawful occupant of a residence or vehicle is not a license to use deadly force against an attacker. The person who is attacked, without fault of his own, may use deadly force only if he reasonably and honestly believed that deadly force was necessary to prevent serious bodily harm or death. If the person does not have this belief, he should not use deadly force. Again, if it does not put your life or the life of others in danger, you should withdraw from the confrontation if it is safe for you to do so.
The law presumes you to have acted in self-defense or defense of another when using deadly force if the victim had unlawfully and without privilege entered or was in the process of entering the residence or vehicle you occupy. The presumption does not apply if the defendant was unlawfully in that residence or vehicle. The presumption does not apply if the victim had a right to be in, or was a lawful resident of, the residence or vehicle.
The presumption of self-defense is a rebuttable presumption. The term “rebuttable presumption” means the prosecutor, and not the defendant, carries the burden of producing evidence contrary to the facts that the law presumes. However, a rebuttable presumption does not relieve the defendant of the burden of proof. If the prosecutor provides sufficient evidence to prove that the defendant created the confrontation or that the use of deadly force was not reasonably necessary to prevent death or great bodily harm, then the presumption of self-defense no longer exists.
Statutory Reference(s): ORC 2901.05 sets forth the rebuttable presumption.
ORC 2901.09(B) establishes that there is no duty to retreat before using force if a person is a lawful occupant of his vehicle or a lawful occupant in a vehicle owned by an immediate family member.
Defense of others
A person may defend another only if the protected person would have had the right to use deadly force in self-defense himself. Under Ohio law, a person may defend family members, friends, or strangers. However, just as if he were protecting himself, a person cannot use any more force than is reasonable and necessary to prevent the harm threatened.
A defendant who claims he used deadly force to protect another has to prove that he reasonably and honestly believed that the person he protected was in immediate danger of serious bodily harm or death and that deadly force was the only way to protect the person from that danger. Furthermore, the defendant also must show that the protected person was not at fault for creating the situation and did not have a duty to leave or avoid the situation.
WARNING: The law specifically discourages citizens from taking matters into their own hands and acting as law enforcement. This is true even if you think you are performing a good deed by protecting someone or helping law enforcement. The Ohio Supreme Court has ruled that a person risks criminal charges if he interferes in a struggle and protects the person who was at fault, even if he mistakenly believed that person did not create the situation.
In other words, if you misinterpret a situation and interfere, you may face criminal charges because your use of deadly force is not justified. If you do not know all the facts and interfere, you will not be justified to use force. It does not matter that you mistakenly believed another was in danger and not at fault.
Of greater concern than risking criminal charges is the fact that you may be putting yourself and others in danger. If you use your handgun to interfere in a situation and an officer arrives on the scene, the officer will not be able to tell if you are the criminal or if you are the Good Samaritan.
Ohio law does not encourage vigilantism. A license to carry a concealed handgun does not deputize you as a law enforcement agent. Officers are trained to protect members of the community, handle all types of situations, and enforce the law. Do not allow the license to carry a concealed handgun to give you a false sense of security or empowerment. Let law enforcement officers do their job. If you want to be a Good Samaritan, call the police.
Conclusion: Self-defense issues
If the defendant fails to prove any one of the three conditions for self-defense or defense of another, he fails to justify his use of deadly force. If the presumptions of deadly force in the home or vehicle are removed and the defendant is unable to prove that he did not create the situation or that the use of deadly force was reasonably necessary, he fails to justify his use of deadly force. Under either condition, if convicted, an individual will be sentenced accordingly.
Defense of property
There must be immediate threat of serious bodily harm or death in order to use deadly force. Protecting property alone does not allow for the use of deadly force. A property owner may use reasonable, but never deadly, force when he honestly believes that the force will protect his property from harm.
If a person’s property is being attacked or threatened, he may not use deadly force unless he reasonably believes it was the only way to protect himself or another from being killed or receiving serious bodily harm. Deadly force can never be used solely to protect property no matter where the threat to the property occurs.
A license to carry a concealed handgun does not bring with it the automatic right to use deadly force. The appropriateness of using any force depends on the specific facts of each and every situation.
The author would like to thank Marie D’Amico, Esquire, for her assistance with this chapter.