Overview of justification in the use of deadly force as stated by an owner of watchgeeks

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NAYTH WatchGeeks Owner Master WatchGeek

Overview of Justification in the Use of Deadly Force

In response to many PMs I have received asking me to cover this subject, here is a very basic overview. Please feel free to PM me with any specific questions.

STEALTh Institute Ltd: Bruce Nathan; President Specialized Training and Education Against Lethal Threat JUSTIFICATION in the USE OF DEADLY FORCE: An Overview Be advised that the following is a broad and general review of the topic. You MUST research specific provisions of your state’s Penal Codes regarding this subject. Specific issues such as “Castle Doctrine” (use of force in your home or place of business) and “requirement to retreat” vary greatly from state to state. For instance, Florida does not require any retreat, home or in public, if you are justified to use DF (Deadly Force). Other states absolutely require the defender to exhaust all avenues of safe retreat before engaging, even in your home. In my basic CCW course, I spend at least 90 minutes on Justification; I can only touch on the major points in this paper.

My first best recommendation to everyone who goes lawfully armed is to engage the services of a qualified criminal attorney in your state to review not only the Codes, but recent court interpretations of shootings. Document the meeting, and file the notes. CCW provides a level of security for ourselves and our loved ones that is second to none, but always remember that power and responsibility are one in the same. Virtually to a state and jurisdiction, if you shoot another human being you WILL end up in court. Criminal Liability has absolutely NO bearing on Civil Litigation (wrongful death, disability etc.) Only documented “Due Diligence” will provide a shield from Civil Litigation. Also, the Law does not allow you to defend your actions based on established parameters unless you can demonstrate “prior knowledge” of the same. I have spent many years in this discipline and know of virtually no civilian shootings that have not resulted in at least a civil trial. In 1985, the average legal costs for a citizen involved in a justified shooting exceeded $20,000!

You must seek qualified Training and avoid all the misinformation and old wife’s tales that surround this discipline. NOT a basic NRA Safety Course but a credentialed tactical Instructor familiar with local laws and provisions. All of your actions will be judged against the legal definition of “reasonable and prudent person”; which basically means you acted in a state of reasonable fear with prior knowledge.

Also, the following refers ONLY to citizens, NOT Law Enforcement! All agencies, State or Federal, have their own internal rules regarding “Continuum of Force” that have little bearing on the civilian use of DF. Civilians may only act when confronted with Immediate Justifiable Cause; Law Enforcement may act to apprehend and in Probable Cause.

Finally, I must give credit to Mr. Massad Ayoob for the following. Mr. Ayoob, in my opinion, has been and remains the most knowledgeable and well written author and instructor on this subject.

Justification in the Use of Deadly Force is defined by three major provisions which I will expand

on. All three MUST be in play when you display, draw or fire your weapon.

ABILITY: Referencing the ability of the attacker to cause “grave bodily harm or death”. I will expand on this in reference to weapons and “Disparity of Force”.

OPPORTUNITY: Or distance (proximity) of the threat. Specifics of this provision will surprise you.

JEAPORDY: Or is the attack active, immanent or occurring.

ABILITY: To justify your use of DF, there MUST be a clearly defined threat of grave bodily harm or death being forced upon the defender. This can be established by a weapon or “disparity of force”, which I will explain. This threat MUST be active at the point you bring your weapon to bear. You may NEVER fire on retreating or submissive assailant(s). Always bear in mind that justification must be present when you display your weapon or fire for effect. Displaying a weapon to settle an argument that does not constitute primary justification may and will be considered menacing at best! As a lawful defender, you may NEVER be found guilty of “escalation of force”! You may only act with equal and justifiable force in the face of an attack.

Weapons can be broken down into two categories: projectile capable and contact-distance. Of course, firearms are classified as projectile based weapons. So would be crossbows, traditional bows, throwing knives and the deadly ballistic knife, now federally outlawed. Also critical to this definition is “Disparity of Force”. This provision could fill a book by itself but here are some examples: Male attacker, female victim; two or more physically comparable attackers to one victim; physical disabilities of the victim in reference to his/her ability to defend themselves.

Improvised weapons have been documented in court to have established primary justification.

Baseball bats or any “bludgeon”, bricks, chains, or any “weapon of convenience” that the attacker may be bringing to bear and that is capable of causing grave harm or death in your reasonable and prudent judgment will establish justification.

Any form of arson being committed against an occupied dwelling (NOT vacant buildings) is considered justification in almost all states. Explosive devices are considered arson; if you desire to engage terrorists with your CCW weapon send me postcard and let me know how it works out (LOL)!

There is so much more to these general provisions; it is YOUR responsibility to become familiar with them all.

OPPORTUNITY: This is defined as the opportunity and proximity to the threat, or Reactionary Distance. Many will be surprised that the nationally accepted definition of contact weapon proximity is 21 feet! In my classes, I have students role-play (with “red” or inactive weapons) and time draw-and-fire reactions to full-on attacks from this distance; closure time is less than 2 seconds. This means that once you have prior knowledge of this provision, you may draw and fire for effect once an active attack has breached a 21 foot distance.

Projectile based weapons have no clearly defined Reactionary Distance, common sense must prevail. For instance, I would seriously question a court establishing justification if you engaged a handgun-wielding assailant at 150 yards with your .300 Winchester Magnum and 12X sniper scope!

National statistics establish the average distance in JUSTIFIED civilian shootings as follows: 90+% at less than 10 feet! Now you can see the need for correct Training in access from

concealment, voice commands and lateral/rearward movement while engaging.

JEAPORDY: Jeopardy is defined as the attack being active, immanent and/or underway. You may NEVER act to pre-empt an assault. Your justification ends IMMEDIATELY when the attacker(s) become passive, are down or retreat. This definition will always be evaluated in a courtroom based on your prior knowledge and reasonable/prudent judgment.

I will outline some old and dangerous myths about this discipline. They are an easy way to turn a justifiable shooting into a manslaughter (or worse) conviction.

“Always make sure your attacker is dead and then drag him into the house”.

First of all, if you can fire into a down and passive human being that no longer presents a threat, you are really no different than them! All justification ends at the point the threat is no longer active (remember Jeopardy as defined above). Secondly, any forensic pathologist in the country can quickly tell the difference between rounds fired at an active attacker and rounds fired into relaxed muscle tissue. Wound entry vectors will be vastly different in a downed assailant.

As far as relocating the attacker is concerned, let’s get real. The accepted definition of Castle Doctrine, as it exists in Sate Penal Codes, is that once an attacker has violated the immediate area of domicile, you may use DF to neutralize the attack with no regard to whether or not deadly weapons are present. This provision goes to “intent”. If you fire on an individual coming through a window and they fall back outside, LEAVE THEM THERE! Once you alter evidence with fiber and blood trails indicating alteration of evidence, you will most likely be facing criminal charges.

Always bear in mind the fact that Castle Doctrine refers to your immediate domicile (or any place where you are invited or have paid a fee for lodging). It absolutely DOES NOT mean your garage, barn or tool shed where your Shelby or cherished Harley might be resting. Once the attacker(s) have breached the interior of your living quarters, Castle Doctrine becomes effective. In many states Castle Doctrine applies to your business, but ONLY during business hours. Spending the night in your office or non-domicile place of business in the hopes of catching a burglar may be interpreted as “entrapment”. This provision has been extended to your vehicle, as in the case of carjacking. Once you have left the vehicle and the attacker is driving off, end of justification.

There are lengthy provisions and court rulings concerning when the “threat to life” is no longer active. It takes me the better part of an hour to go over them in class; do not have the time here.

Bottom line is you may ONLY use DF to protect life! Crimes against property do not constitute justification (exempting arson as mentioned above).

OK, so now you have a broad and sweeping general knowledge of what is considered Justification in the Use of Deadly Force on a national level. Actually, you haven’t even started!

When you carry a firearm legally on the street, once trained, you are for all purposes invincible.

You are legally carrying the difference between life and death on your hip. Act accordingly! Seek out the training and information you need to legitimately accept this awesome responsibility. __________________

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NAYTH View Public Profile Send a private message to NAYTH Find all posts by NAYTH Add NAYTH to Your Contacts #2 01-25-2010, 12:31 PM Join Date: May 2009 Location: Madison, WI Posts: 822

Watchinator Senior Member Veteran Geek

Excellent read, thank you!!

Watchinator View Public Profile Find all posts by Watchinator Add Watchinator to Your Contacts #3 01-25-2010, 12:40 PM Join Date: Jan 2009 Location: Staten Island New York Posts: 11,565 Real Name: Nick

Chief68 WatchGeeks Moderator True WatchGeek

As I would of expected from you excellent advice Bruce ,Great Job __________________

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CharlieB Senior Member True WatchGeek

Outstanding overview Bruce. Thank you. __________________

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steves02 Senior Member Senior Geek

Join Date: May 2009 Location: York, PA Posts: 230

I would suggest that you add....

Preclusion to your AOJ discussion.

Many jurisdictions in the US require the innocent party when in public to retreat before using force if it can be done so safely.

For those jurisdictions with said duty to retreat, failure to do so can result in an inability to claim justified self defense.

I teach it as AOJP and have been doing so for 20 years. steves02 View Public Profile Send a private message to steves02 Send email to steves02 Find all posts by steves02 Add steves02 to Your Contacts #6 02-05-2010, 07:36 AM

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NAYTH WatchGeeks Owner Master WatchGeek

But do you read before commenting?

Other states absolutely require the defender to exhaust all avenues of safe retreat before engaging, even in your home. In my basic CCW course, I spend at least 90 minutes on Justification; I can only touch on the major points in this paper.

I included the above disclaimer in the original Post. This provision varies greatly from state to state.

The key word here is "safe" retreat. Escalation or provocation can also go badly for the victim/defender.

Like I said, my basic course requires well over 90 minutes just to explain and discuss Justification. Penal Codes and specific court interpretations are outlined and discussed.

Nayth __________________

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JoeCB Senior Member Super Geek

Very good info Bruce... __________________

" Next hour I will whip something out your all gonna want to get your hands on" ; (quote from Jim Skelton, 05/14/09, 0144hrs.)

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El Esvee

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Excellent excellent information, Sir! Thank you!

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Gregg

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Bruce this information is so important for us to be educated as much possible in view of shrinking revenues to state and local jurisdictions. Crime does not or will not shrink or go away in a corresponding fashion as our ability to pay for adequate law enforcement goes South. More and more citizens will be looking for DF ways to protect themselves. I'm sure you are seeing an increased interest in the classes you teach. Good job, and thank you, Gregg Gregg

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blbarron Senior Member Master WatchGeek

Thanks Bruce, that's a great read. __________________

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ragingwolf66 Member Member Geek

Join Date: Mar 2008 Location: Fairbanks, AK Posts: 32 Real Name: Edward Reuther

The definition of Deadly Force as used by the United States Navy in Regards to protecting Nuclear Weopons and Reactors is: That force used for the purpose of causing or what he or she knows or should know would creat a substantial risk of causing death or serious bodily harm. Its use is justified under conditions of extreme necessity, as a Last resort when all lesser means have been used or cannot be reasonably employed.

There are additional circumstances as well. I really enjoyed the above read. The sad part is that there are so many people that carry guns and have no idea of the proper use in accordance with the eyes of the law. ragingwolf66 View Public Profile Send a private message to ragingwolf66 Find all posts by ragingwolf66 Add ragingwolf66 to Your Contacts #12 02-17-2010, 04:27 PM

retired goalie

Join Date: Jun 2009 Location: Waxahachie, Texas Posts: 141 Real Name: Mike Llorente

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Thanks for the good info and the trouble you took to make it available to us.

Back in '96 when I went through the Texas CCW class the FBI Uniform Crime Statistics (I think it was the '93 report) indicated that "hands, fists and/or feet" were one of the most common "weapons" used in attacks resulting in death of the victim.

Do you know if that's still the case? We (CCW holders) all seem to be spring loaded to to the thought of facing clubs, knives or even guns. Sometimes it seems that this proclivity extends almost to the exclusion of "hands, fists and/or feet" as potentially lethal "weapons" we might face someday. It doesn't take long for an empty handed attacker to cover 21 feet. Any thoughts on this would be much appreciated. retired goalie View Public Profile Send a private message to retired goalie Send email to retired goalie Find all posts by retired goalie Add retired goalie to Your Contacts #13 02-18-2010, 07:54 AM Join Date: Feb 2008 Posts: 2,885

NAYTH WatchGeeks Owner Master WatchGeek

Mike:

Please review this provision regarding Disparity of Force: Also critical to this definition is “Disparity of Force�. This provision could fill a book by itself but here are some examples: Male attacker, female victim; two or more physically comparable attackers to one victim; physical disabilities of the victim in reference to his/her ability to defend themselves.

A bare-handed threat of equal force usually DOES NOT establish Disparity of Force.

This provision has been interpreted to become justification if and when the barehanded attacker has access to your weapon. this complex provision usually means that the attack has started and you are being assaulted. At that point, unless you are highly trained in contact-distance drill and weapon retention, you are in BIG trouble.

Equal bare-handed force does NOT immediately justify the presentation of a weapon.

Disparity of Force is one of the most interpretive and "gray" areas in this definition and varies greatly from state to state.

Nayth __________________

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WatchHunter

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Nayth, Good general overview. I whole heartedly agree with your points and would hope that this stresses the importance of proper and continued training by all including those that hold CCW permits that are not specific of retraining or education.

Thanks for all you provide on the forum and in this regard.

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retired goalie

Join Date: Jun 2009 Location: Waxahachie, Texas Posts: 141 Real Name: Mike Llorente

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Nayth, Thanks again for your efforts to provide us with invaluable information. It is sincerely appreciated. Having faced intruders in my home on four occasions over the course of my lifetime I can say with absolute certainty you'd better have some good training behind you when the time comes. Even more importantly,you had better have a clear picture in your minds eye where you draw the line and what you are willing to do when that line is crossed. That is most assuredly not the time to "wing it". Massad Ayoob writes about tachy-something or other. It's the real deal. I marvel about how I could spend fifteen minutes telling the cops about something that happened in less than two or three seconds. BTW, on three of the four occasions the baddies chose to flee and I was more than willing to let them. The fourth guy got to enjoy some tasty hospital food on his way to prison. I'm proud of the fact that there's not a pile of corpses at my feet. All human life is priceless and even the baddies occasionally manage to turn it around and become "productive members of society". Never-theless, I am very grateful that Mr. Browning designed a large calibre semi-auto that actually fits my hand and that I live in a country that allows me to defend myself and my family. retired goalie View Public Profile Send a private message to retired goalie Send email to retired goalie Find all posts by retired goalie Add retired goalie to Your Contacts #16 02-18-2010, 10:10 AM Join Date: Feb 2008 Posts: 2,885

NAYTH WatchGeeks Owner Master WatchGeek

"Tachy-psychia" is a very real physiological change that occurs in almost all human

beings reacting to a lethal threat. As adrenaline is released in the system, we experience time compression, tunnel vision, auditory exclusion, increased strength and reduced logic. It is commonly referred to as "fight or flight" syndrome.

The end result is that an untrained individual will "freeze", as at this point we react as we have been trained and NOT from the ability to think through the situation.

I will be Posting another paper on this critical reaction shortly.

Nayth __________________

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Panda03Bear

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great info to reread for me. thanks for sharing the knowledge. makes me think twice about using my weapon in my home. __________________

- Family, that's what's up - Black Eye Dye Panda03Bear

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steves02 Senior Member Senior Geek

Quote:

Originally Posted by NAYTH But do you read before commenting?

Yes, I sometimes read.

My point was to ask if you've considered using the AOJP model (as opposed to AOJ), so that the retreat is in your easy to remember abbreviation. steves02 View Public Profile Send a private message to steves02 Send email to steves02 Find all posts by steves02 Add steves02 to Your Contacts #19 02-18-2010, 03:31 PM Join Date: Feb 2008 Posts: 14,769 Real Name: "Diamond Jim" Skelton

jskelton WatchGeeks Owner True WatchGeek

Steve, I'm sure you're trying to be helpful on the two topics you're replying to, and it is appreciated, but please try to offer your commentary as helpful additions to Bruce's information rather than an argument against him.

Bruce has far in excess of your 20 years of experience in this field including owning his own training schools, training under experts such as Massad Ayoob (as only one example), held positions in law enforcement as well as being called upon in his career as an expert witness in countless court trials.

And as such, his reference and commentary is admissable in court as an expert, and should be respected in this manner.

I have known Bruce personally for more than 12 years (we met when I worked in a gun range and at that range he owned the training center) and have witnessed his training sessions, trained with him, and been present at his lectures as well as witness him training with several police agencies including (but not limited to) Ft Lauderdale SWAT. Again, your commentary is appreciated, but Bruce is a proven expert in this field, and it can cause great confusion for others to read this constant back and forth with you, especially when no one here knows you personally to vouch for your credentials. As I'm sure you know from various gun forums on the 'net... everyone on a forum is an expert __________________

Quote:

Originally Posted by charleswatts Your candor in the explanation reveals the nature of the relationship you have formed with your viewers.

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steves02 Senior Member Senior Geek

Join Date: May 2009 Location: York, PA Posts: 230

Quote:

Originally Posted by jskelton Again, your commentary is appreciated, but Bruce is a proven expert in this field, and it can cause great confusion for others to read this constant back and forth with you, especially when no one here knows you personally to vouch for your credentials. As I'm sure you know from various gun forums on the 'net... everyone

on a forum is an expert I understand. So, here goes: Just for the record, I am also a *court recognized* (local, state and fed) firearms and use of force expert. I have had my training company for 25 years and have chewed the same training dirt as Ayoob, Givens, Higgenbotham, Chapman, Gochenour, Farnam, and others. Been there and done that. I've traveled across the US training military, SWAT, and civilians, etc for a loooooong time.

To make it relevant geographically for you, I've taught a reactivated MN National Guard unit prior to their deployment to the sandbox (when they were switched to an MP Unit) and my classes are approved by the state of MN for law enforcement continuing education.

I am currently finishing up my doctorate in Org Leadership and Org Training. My dissertation discusses the validity of police firearms training as it relates to performance in actual gunfights.

So, yes, the 'net is full of supposed experts. Fortunately, I really AM an expert in this field. steves02 View Public Profile Send a private message to steves02 Send email to steves02 Find all posts by steves02 Add steves02 to Your Contacts #21 02-20-2010, 08:03 AM Join Date: Feb 2008 Posts: 2,885

NAYTH WatchGeeks Owner Master WatchGeek

One would have to agree that if you are in fact such a credentialed expert in this discipline, then it would be to all our Members' benefit for you to share your knowledge as I have attempted to do, instead of attempting to discredit my information while touting all your qualifications.

Just a thought.

The dangerous void of facts and legalities surrounding the issue of civilian CCW is much better served by the knowledgeable providing useful information than just disputing other's facts and experience while claiming their own.

Nayth __________________