Thoughts and Considerations Before Your Defensive Encounter

Thoughts and Considerations Before Your Defensive Encounter

How Would You Respond in a Defensive Encounter?

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:

  1. You shoot to neutralize the threat.
  2. If the dirt bag is still standing you can keep shooting to eliminate the threat.
  3. You shoot to kill, before the bad guy kills you.
  4. You only shoot to stop the threat.
  5. 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.

Reasonable Doubt

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.”

Continued success!

Photo by author.
This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney in your state or jurisdiction for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense, stand your ground law, and concealed carry. This is not legal advice and not legal opinions. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever. 
© 2014 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at [email protected].

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  • Phil Luttrell

    While we are on the subject. A handgun license does not deputize you. You cannot take the law into your own hands. You must justify in your mind every time before you put your hand on your weapon and at all times as you hold it, where it will be pointing. You must justify the use of lethal force in the eyes of the law and the jury is the law. You are not legally or morally obligated to anything or anybody to use lethal force. Self defense of you and your family is all it allows you and you damn be certain that it is justified.

    Whether you carry or not, however or whatever you carry, the most important thing you need to train for is how to safely fall to the floor. “HIT THE DECK” You hear gun fire or see a person(s) wielding deadly weapons in a lethal manner, “HIT THE DECK”. Grab your loved ones and get them to the deck as fast as you can. Which is harder to hit, no matter the weapon, the tree standing or fallen?

    Do not interfere in a robbery as most likely the clerk has been trained to appease the perp(s) as best he can and get it over with as safe as possible. They have insurance and most likely you will only worsen the matter. Once the perp(s) use or threaten you lethally, then you can defend with lethal force.

    And as always, dial 911, give pertinent information, DO NOT HANG UP, and set the phone down. This will provide a legal recording of the situation. This is double true for home invasions or break-ins.

    • Ronin_84

      I can tell you from experience that clerks have NO TRAINING AT ALL on how to handle robbers. Policies state to give the robber money, but that’s it. Clerks do not receive negotiator training, they are clerks. If I were a clerk and was threatened, I would defend myself no matter what the store policy was. Insurance does not cover your injuries or death. Tell me, how is insurance going to prevent my extreme disfiguration or death – IT DOESN’T! Store clerks have been known to be stabbed or shot even after compliance, so I wouldn’t take my chances. An armed citizen interfering in a robbery could NOT make matters worse, BECAUSE THAT STORE’S INSURANCE WASN’T DOING A DAMN THING TO PROTECT ANYONE TO BEGIN WITH!!! Store management cares more about liability than the safety of it’s clerks! SHYSTERS!

      Self defense of myself or my family is NOT all that is allowed, using deadly force is permitted to prevent a felony against another, rape, or great bodily harm to another – and that’s whether you have a gun, or not!! These laws do not apply to the use of a gun, they apply to use of DEADLY FORCE. Using a gun is just one method to apply deadly force.

      “Hitting the deck” is another bad idea that I wouldn’t do. When you “hit the deck” you put yourself in a position where getting up quickly is difficult and your mobility is practically ZERO! Now all a shooter needs to do is aim at the large flat target laying on the floor – like shooting fish in a barrel.

      • syzito

        The primary objection to your argument is the fact that as a civilian you have absolutely “no” constitutional authority to interpose yourself into another persons fight.This makes you the aggressor and opens you up to both a Civil law suit and possible prosecution and jail time. A concealed permit is meant for your protection if needed not everyone else’s.

        • Ronin_84

          “constitutional authority,” lol, where are you getting that from? Pulling it out of your a**?? Don’t be ridiculous. I don’t need any Constitution or authority to defend myself or others. As the person I was replying to stated: I am not a cop – so I don’t need any authority, I don’t chase criminals, I only stop them when there is an imminent threat. I don’t need any “authority” to do that. A concealed permit is not meant for my protection or anyone else’s, it is meant so a person with a weapon can carry it concealed. The law pertaining to use of force is what gives me the right to defend myself or others, whether with or without weapon.

  • I would say it varies with jurisdictions. Some places have duty to retreat, even in one’s home, other places property can be defended outside of the home. It all depends and wherever you are, you need to understand the law and the politics of that jurisdiction. The best book I have read about this topic is In The Gravest Extreme by Massad Ayoob.

    • Butch

      Well put, Col. & Phil L. – & to you, James L. – “In the Gravest Extreme” may well be the the best CCW book you’ve ever read. As with me? Super-Ditto’s! I highly recommend that each & EVERY licensed CCW carrier grab this book & read it . . . over & over – talk about scenarios! – makes your head spin! – & for all of you who haven’t heard about or read it, I hope it’s still in print. Bought mine at Amazon. Be safe – be sane.

  • Cobrawing

    Great article and perfect reasoning. I was a law enforcement officer for well over 25 years and was always taught to shot to STOP the attack and not to kill as you recommend. You’ll be crucified in court if they get the feeling you were shooting to kill or even punish. I’m retired now but still carry. Your advice to get away from a bad situation whenever possible is absolutely spot on!

    One of the hardest things for an ex-cop to do (or even for a concealed carry civilian to do at times) is NOT get involved, but it is crucial that you do all you can to simply get away. Now if your life becomes threatened then you do whatever you need to do. Thanks again Col. for another finely laid out and reasoned article. The best weapon you have and will always have with you . . . is your brain.

    • libbydbone

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      Jacqueline implied I’m taken by surprise that a mom can earn $8130 in 1 month
      on the computer . see post C­a­s­h­f­i­g­.­C­O­M­

  • rayzer007

    Thou speakest well Ben; unfortunately it’s usually a mess no matter what we course of action we choose. No easy answers, but necessary to often think the scenarios through, and hope for the best decisions when it happens! Thanks!

    Ray

  • cubfan

    I too agree — great article. How would law enforcement or more so the court system consider the use of defensive rounds or hollow point ammo? I pocket carry a .380 or 9mm and use hollow point rounds to add a little more punch, so to speak, if I am required to use it in a defensive situation. Any thoughts or advice ?

  • syzito

    No matter the reason if you pull the trigger on another human being there will be legal consequences that you will have to face and you may come out of it ok or maybe not.

  • Cobra

    An article that makes a person think. You write that use of force should be commensurate with force being used against. First, you can’t predict intent. A threat with a crowbar could be either to kill or break some bones, (a threat of great bodily injury?) Can you retreat in a situation such as this? Some states have a no retreat clause. Secondly, you confuse the issue by saying that “shooting to wound or to kill have BOTH been interpreted as the use of deadly force.”
    ” Shoot ONLY to neutralize or STOP the threat and no more.” You’re not going to have much time to assess a particular situation, and what it really comes down to is no matter what you do, it’s going to be scrutinized. I think what really matters is what comes out of your mouth immediately afterwards. “I was in fear for my life and I shot to stop” – after you have”lawyered up.”

    • Col Ben

      So profound… we all individually behave in a way that makes sense to ourself… and we don’t know what we don’t know. Thanks for emphasizing the reality of confusion, uncertainty, and subjective interpretation and response in any quickly-occurring deadly force encounter, given the vastly different jurisdictions and their varied court rulings on the exact same issue, conflicting state laws and moral standards, etc. So best to AVOID the encounter if at all reasonable, safe and possible to do so. This does not mean that you are weak, afraid, or don’t have the power. Continued success!

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