July 08, 2015
The author, David Kenik, is not an attorney and this article is not legal advice. The following is simply a discussion of the considerations involved in the application of lethal force. Consult an attorney in your area for legal advice in regards to the laws pertaining to the use of lethal force in your jurisdiction.
With the Brown shooting in Missouri making national headlines, there has been lots of blather by the "lame-stream" media about shooting an unarmed person. As gun owners, we may find ourselves in that exact position. Bubba is heading right for you, smacking his fists together and yelling that he is going to beat you to death. You are scared for your life and rightfully so but he is unarmed. Can you use your firearm to defend yourself? The answer is 100 percent, unequivocally, positively; maybe.
The law typically allows for use of equal force; that is, you may defend yourself with the same level of force used against you, perhaps just a bit more. If you are insulted and no physical force is used, you cannot use physical force against the culprit; doing so may result in a charge of assault and/or excessive force; perhaps worse. If you are pushed, you can justify pushing back — if you must. Walking away from insults and minor shoves is far better than risking an escalation of the violence.
If you are punched, you are justified in using equal force; a punch. Perhaps a hitting a bit harder since you are, after all, trying to defend yourself and win the fight. If your assailant has a weapon, you may be able to use a weapon in your defense. If you are faced with lethal force, you may defend yourself with lethal force.
Before we get too far, let's define predominate terms in this discussion. Lethal force is that level of force likely to cause death or grave bodily harm. It is important to note that a weapon is not an element in the definition of lethal force; any force of that magnitude is equally considered lethal force. The assault may be with a firearm, knife, chair, baseball bat or even empty hands — so long as its application can be reasonably feared to cause death or grave bodily harm. Don't think an empty hands attack can be deadly? One only has to remember back to the infamous Hockey Dad case in 2000 where a player's father beat another man to death with his bare hands.
Another important definition is that of grave bodily harm. It is typically defined as a crippling injury, loss of an organ or a sense.
The level of force that you can justify to defend yourself depends on the totality of the circumstances. A baseball bat in the hands of an adult may be considered lethal force. The same bat in the hand of a small child may not be considered lethal force.
In defining levels of force, it is important to understand the concept of the aggressor and how it can change based on an escalation of force. Generally, the person who starts the altercation is considered the aggressor with the innocent party considered the victim. However, the party who unjustly escalates the level of force in an altercation — throws the first punch or is the first to involve a weapon — may see his role changed from victim to aggressor in the eyes of the law and jury.
In the above paragraph, note that I used the phrase "unjustly increases the level of force." They key to the proper level of force used in defense is whether or not it can be justified. While the law allows for equal force, the law also considers a disparity of force between the parties. That is if the attacker has a physical advantage over the victim, a greater level of force may be used in defense — perhaps even a weapon against an unarmed attacker.
Disparity of force includes consideration of size/strength, age, male vs. female, disabled vs. abled-bodied, force of numbers, an attacker of known fighting skill and prior acts.
If your attacker is considerably larger and/or stronger than you are, you may be able to justify using a greater level of force than you are facing. Same with age; an elderly person may be able to use a greater level of force if attacked by a significantly younger, and therefore stronger, person.
Since females are often smaller and weaker than their male attackers — criminals prefer choosing perceivably weaker victims as they are thought to be easy prey — a woman may be able to justify using a greater level of force than that used by her attacker. That's not to say that all women can use greater force against all male attackers as there are many women that are larger and stronger than many men. A greater level of force may only be used in defense if the victim is demonstrably slighted.
Another area of disparity of force is when a disabled victim is attacked by a virile assailant. If a young, strong person attacks someone in a wheelchair, greater defensive force may be justified. The disability of the victim need not be apparent or evident. You may have a shoulder injury that prevents you from blocking strikes or punching. A knee injury may prevent you from running away or limits your ability to fight back. The handicap does not need to be outwardly visible and the attacker need not be aware of a disability for the victim to be justified in using a greater level of force than which he faces.
Facing a single, unarmed attacker may require you to defend yourself with empty hands, but put more than one unarmed attacker together and you are now facing a gang. When faced with a force of numbers, you may be justified in using a weapon even if the attackers are unarmed. All members of the gang are responsible for the gang's action, and you may use the same level of force against all of them who are participating in the attack, even if only one of the gang has a weapon. Keep in mind though, if the gang disperses and you are faced with just one attacker, you must justify your actions and force level force based on the specific actions of the single attacker at that time and ignore past actions.
You may also be able to justify an increased level of force if you are facing an attacker of known fighting skill. If you know your attacker and you know that he is well-trained in martial arts, you may use that in your justification of your level of force. It is vital to understand that you must have that knowledge of his fighting skill at the time of the attack. Finding out about his training after the altercation will preclude you from using it in your defense. Likewise, if you know that your attacker has a violent history — for example, you know that he was recently involved in a knifing — that may be able to be taken into consideration as well.
The concept of disparity of force is a two-way street. If your attacker is weaker or smaller than you, you may not be able to use the same level of force that you are facing. As stated previously, facing a young child with a baseball bat is not the same threat level as facing an adult with a bat. Your responding force must reflect the actual threat.
I don't know why a weak, feeble youngster would want to attack a stronger person, but it does happen. Faced singularly, in that case, you may need to actually throttle down the force level of your response. However, put two or more weak, feeble youngsters together in a gang and they now have the ability to do you significant harm; thus, disparity of force may exist, which would allow you to elevate your level of force.
How do you decide what level of force with which to respond? Well, that's the million dollar question. You must do what is considered reasonable at the time of the threat. The prosecutor and jury — if it goes that far — will judge you by the Reasonable Man Doctrine: what would a reasonable person, with your knowledge, training and experience, do in that situation? While that premise may seem to simplify the decision making process, remember, you will mostly likely have only a fraction of a second to determine your response to an attack, but the jury will have as long as it wants to comb over every shred of evidence in excruciating detail in order to weigh the appropriateness your choice. It's the ultimate second guess with your freedom hanging in the balance. This is one of the prime reasons that it is often said that, "the more you know about gun fighting, the less you want to be in one."
In all cases, it is important to remember that whether you are facing an equal opponent or a disparity of force, the basic premises of ability, opportunity and jeopardy still applies. All three must be present simultaneously to justify the use of lethal force.
The best way to instill these concepts into your subconscious is to act them out in realistic training scenarios using either video simulations, shoot, no-shoot training or force-on-force exercises with airsoft or Simunitions equipment. Try to train in the environments that you may actually have to fight in; your home, car and office. The more realistic the situations, the better.
The concept of using defensive lethal force is extremely complicated, and it behooves you to be well-versed in all of the inherent issues. The time of the attack is not the time to question what responses are justified; you must have that knowledge already firmly ingrained. When it comes to defending your life, there is no such thing as too much training.