Like most of us, probably your answer to “How would you respond in a defensive encounter?” is “Who Knows!” We wonder if it is even possible to plan our specific response ahead of a defensive encounter and the use of deadly force. Should we even take the time to think about all the “what-if” scenarios of an attack? Be careful now with your quick reply to this. Of course, we all recognize that there are many unknown variables and possibilities when some criminal violently assaults or threatens us with deadly harm and that we cannot specifically nor adequately plan ahead our exact response and reactions. We have heard and read stories and testimonies, the law enforcement interviews, and heard some new or fellow shooters say if I am in a defensive encounter “I’m shooting to kill the dirt bag before he kills me.” Or “If he comes at me with a weapon, I’m not hesitating to take him out and will not “wing him.” Or, “I’m going to keep shooting to put him down for good; he started it and I’ll finish it.” While others have said “I’m shooting him in the arm or leg just to wound him.” Do they really believe this and will they actually respond this way in their own real encounter? Let’s examine this.
Well, the way this non-lawyer sees it is that any bullet that leaves your muzzle and hits someone, whether it is in their leg, or arm, or center chest, whether you wound or kill them, IS the use of deadly force. Just think about it. Even a shot to anyone’s leg only to wound them can cause them to bleed to death. I believe and have seen it happen that you will be arrested, at least initially, most of the time when you fire your weapon and injure or kill someone. Now this may be the initial action and it may be expunged from your record later, as evidence, facts, and testimony emerges. But the job of law enforcement is not to analyze evidence and DETERMINE the guilt or innocence of perpetrators. The judges and juries make that determination. Further, from what I’ve read, experienced, and researched in the criminal and civil court cases and decisions, it seems you can get in just as much trouble legally, or even more so, if you just wound someone.
I’m sure most of us have heard some of these classic phrases:
- You shoot to neutralize the threat.
- If the dirt bag is still standing you can keep shooting to eliminate the threat.
- You shoot to kill, before the bad guy kills you.
- You only shoot to stop the threat.
- You shoot only to wound and not take the chance for excessive use of force; he may leave.
So what is a defender, a potential victim, to do? Well, first AVOID the encounter if you can and safely exit or leave, but also think through some things BEFORE the encounter. What mental preparation can you make before an actual encounter… to help stave off a prison term and strengthen your self-defense case? What fundamentals do you need to understand and implement? Of course, the specific facts of the situational encounter will make all the difference. Were you the aggressor? Was it an imminent threat? Were the elements of armed ability, opportunity and close proximity, and hostile action or words present? What about use of excessive force; does it even apply in self-defense? And that very important word “reasonable” enters into it.
We know that what is “reasonable” for one is not for another. What is “truth” for one is not for another. Judges and juries will decide what is reasonable for them at the time of the defensive encounter based on knowing what you the defender knew at the time of the deadly encounter, along with their own subjective interpretation of what is reasonable and the preponderance of evidence. One must understand that outcomes are uncontrollable to a large extent by you, even with righteous and legal intentions and existing evidence. Your life, your lifestyle and assets, and your career and financial future could very well be in jeopardy from your quick decision under stress to use deadly force. But, do you take a risk and NOT respond to a possible life-threatening criminal encounter with what you believe in a nanosecond is a borderline justifiable use of deadly force? This is a major, all-encompassing lifetime (and potentially devastating) decision for you… one way or the other. The most important decision of your life. So take some time to think about it before it happens.
So what about “beyond reasonable doubt?” In criminal proceedings, this standard to this non-attorney, is really about showing the proof that there is no plausible reason and no “real doubt” to believe otherwise… that you used deadly force appropriately. To this layman if there is a genuine doubt based upon reason and common sense after careful and impartial consideration of all evidence, or lack of evidence, then the level of proof probably has been met. Proof beyond reasonable doubt (to me a non-lawyer) means the existence of evidence of such a strong nature past moral certainty and beyond dispute that any reasonable alternative is even possible… that one would be willing to rely and act upon it without hesitation in one’s own situations. But to me, it does NOT mean absolute certainty and that no doubt exists about your proper use of deadly force. If the judge or juries have no doubts about your guilt or their doubts are unreasonable doubts, then your guilt beyond a reasonable doubt should exist and you the defendant probably will be pronounced guilty. After all, “facts” or truthful evidence are present and what is an acceptable truth varies greatly. Again, the subjective understanding, opinions, and interpretations by others significantly influence your critical defensive situation. The importance of this to all concealed carry license holders and justifiable defenders and possible victims is great and that is why I want to present it in my limited, non-lawyer way. I want really just to help you generally think about the considerations in advance before a defensive encounter, because I believe we want every possible advantage before a life-altering event.
To me, what follows below are the major considerations and guidelines for my pre-encounter thinking before a GENERAL defensive encounter. I want to save some time and anticipate some possibilities. Of course the laws, rules, interpretations, definitions, etc. vary so much by jurisdiction, so this is just a broad framework as part of the total picture. I hope it spurs you to think about what you believe and helps you pre-plan a general strategy that may save you from much grief and maybe jail time.
What guides YOU in a defensive situation? Remember I am a non-lawyer and I am NOT giving legal advice nor legal opinions, but offering some general education points to help you formulate your personal guidelines. After trying to first AVOID the situation, here are some general things that guide ME in a dangerous encounter.
1. Shoot ONLY to neutralize or STOP the threat and no more… NOT to KILL or ELIMINATE it.
2. Only use as much commensurate force as necessary to neutralize or stop the threat, e.g. non-deadly force for non-deadly attack or deadly force against deadly force.
3. Only continue to use appropriate force during the time the threat is imminent. If the aggressor turns and leaves, he is no longer the aggressor and the threat is not imminent. On the other hand, if you pursue the bad guy then as he is running away, there is a high probability that you will be viewed as the aggressor and be in legal trouble with a lot of uncertainty.
4. Shoot no more than is “reasonably” necessary to STOP the threat or you probably will go to jail.
5. Even though the law is specific, there is much subjective interpretation of what is “reasonable.” Do you want to gamble on the subjective outcome? Risk-Reward analysis and tradeoff. Rationality and not emotionality.
6. Remember that shooting to wound or to kill have BOTH been interpreted as the use of deadly force.
7. Shooting to wound may be evidence that you were NOT in fear of imminent death or great bodily harm to justify your use of deadly force, so you weren’t trying to “neutralize” the threat. Big trouble!
8. I keep asking myself “Is there any other option instead of shooting?” and “Do I really have to shoot in this situation?” It’s not that I am afraid, weak, have no power or confidence in my shooting abilities. I am not trying to prove anything, right all wrongs, or demonstrate my power, abilities, or manliness.
9. Is there really the possibility of excessive force in a self-defense situation? Some folks and lawyers think NOT. What about that one more shot fired that is not “necessary” and not “reasonable?” Is that not self defense then, but murder?
Because there are so many complex variables and options, we have to think about this in advance and try to narrow down our alternatives and responses in general before the 3 or 4 second encounter under stress. And not just the legal and life-or-death ramifications. One mental mistake of shooting to kill or just to wound and our whole life (and the lives of loved ones and others) is ruined. On the other hand, if we hesitate to shoot because we are so overly-concerned about legal outcomes, we may die. This can easily be a lose-lose result, rather than a win-win or win-lose one… either because of our quick reaction to shoot or our hesitation not to shoot. As Ollie said to Stanley “Well, here’s another nice mess you’ve got me into.”