defense

Legal Issues In The Use of Force
By Tom Crawford
Copyright 2012 By The Author

Since the concept of “resistance” normally implies the use of some level of force, it is necessary for us to
consider that since almost the dawn of civilization, societies have put in place rules for the use of such
force by one human against another. Such restraints are necessary for the peace and good order of any
society, and ours is no different. Without such restraints, each person would be a law unto themselves, and
anarchy would be the result. Think of the outlaw days of the Old West and I believe you will get the idea.

In the United States, our laws governing the use of force in self-defense largely stem from concepts of
British common law, unless you happen to live in Louisiana, which derives its ideas from the Napoleonic
Code. Both sets of rules can trace their lineage to Biblical Old Testament law, and for our purposes are
remarkably similar. Although we are a nation of 50 states and multiple territories, the rules for the use of
force in self-defense are reasonably uniform throughout the country. Having said that, you should be aware
that how these rules are construed and enforced from place to place in America can be quite different. I like
to think of it this way…football is football with the same rules in every college in the country, but the
referees are all different!

One thing that is universal is this, and please, remember it well. The use of force, or even the threat of
force against another person, without a legal justification, is a crime. Read that sentence again. The legal
system in the United States has no sense of humor whatever with regard to people who threaten or use
force against others inappropriately for no good reason, especially when the force threatened or used
involves a firearm. Only if you can articulate why such threat or use of force was absolutely necessary and
within the confines of law can you generally escape punishment for such actions. This articulated
explanation in a legal forum of some kind is called a “justification”. Justification does not imply that you did
not do the thing charged, such as using force, but rather that under the particular set of facts and
circumstances, it was not a crime for you to do so.

When you take an action that places another in fear of bodily harm without just cause, at the very least you
have committed the crime of assault. If you place them in a high level of fear that they are about to suffer
grievous bodily harm or perhaps even death, your actions may rise to the level of aggravated assault, for
which penalties are more severe. With regard to your self-defense firearm, the mere intentional display of
the weapon for the purpose of threatening another or placing them in fear without just cause on your part
is, at the very least, punishable under statutes that prohibit brandishing a firearm. If we move from threats
by word or action to actual use of force against another, you should know that the nonconsensual touching
of another person’s body with malicious intent constitutes the crime of battery. Criminal penalties for
assault, aggravated assault, brandishing a firearm, and battery can range from probation, to monetary
fines, to jail time, or even a felony conviction in some cases. Inappropriate discharges of your firearm in
public normally have their own set of penalties, and should you shoot another person without the proper
justification, depending on the circumstances and outcomes, you could be facing serious charges such as
murder, voluntary or involuntary manslaughter, negligent homicide, attempted murder, malicious wounding
or even a combination of these charges. All have serious legal consequences and include incredibly high
expenses for your legal defense in both the criminal and civil settings.

None of this is designed to scare you so badly that you won’t take the necessary steps to defend yourself
or your family when that becomes necessary. I bring these matters up simply because I feel you need to
know, in advance, what some of the consequences are of bad decisions, hasty actions, losses of temper,
or being guided by poor advice. Such advice is often given by police officers, gun shop clerks, well-
intentioned friends, and blowhard radio talk show hosts who can take on a somewhat cavalier attitude to
the business of using force, especially the level of force represented by firearms. Quite frankly, I am sick to
death of hearing people make light of the concept of pointing a deadly weapon at another human being
and potentially discharging that tool in such a way that it can take a human life without having completely
thought through the consequences. These idiots use cute little euphemisms like, “bust a cap”, “fire him up”,
“drop him”, “take him out” and many others when discussing what is potentially the most serious action one
human can take against another. Even certain statements about how you would do such things, taken out
of context and repeated, can come back to haunt you later. I guess for some it is easier to contemplate the
potential taking of life if the terminology seems cute or fun. Although the vast majority of private citizen self-
defense scenarios do not involve shots fired, and rarely does anyone die, please understand that when we
are talking about carrying and potentially using a deadly weapon such as a handgun, we are talking about
the possible taking of another’s life. Please accord that the serious consideration it deserves.

Before we get into specific tools and techniques for the use of force at various levels, I think we had better
discuss what the rules are for the use of force at its two distinct levels, known as “lesser force” and “deadly
force”, as well as what does and does not constitute legal justification for the use or display of a firearm,
and examine some common misconceptions and frequently asked questions. Because proper
interpretation of self-defense law requires knowledge of statutory law (where available), common
law, and court decisions, please understand that what follows on the next few pages is not intended
as a substitute for legal advice from a competent attorney!

JUSTIFIABLE USE OF DEADLY FORCE

1. Definition of “Deadly Force”

Deadly force is that force which causes or is likely to cause death or grievous bodily harm. This level of
force is distinguished from Lesser Force by the degree of severity, violence, or reasonably expected
outcome.

2. Deadly Force Only For Protection of Innocent Human Life

Instruments of deadly force, such as handguns should never be used for defense of anything other than
your life or the life of another innocent person. You must not display or fire your handgun at another
person in response to an insult or even a threat that does not itself rise to the level of probable deadly
force being used against you.

3. Deadly Force Is Not For The Protection of Property

Never use an instrument of deadly force to protect mere property. You may however use deadly force to
protect your own life if attacked while protecting your property by other less extreme means, provided all
conditions for the justifiable use of deadly force are satisfied.

4. Self-Defense Justification Only Available to Innocent Parties

To be considered “innocent”, you must be somewhere you have a right to be, doing something you have a
right to do, not breaking the law and not improperly giving offense to others. You may not instigate,
escalate, or continue a conflict with another person. Should you do so, no use of force that results from
such behavior will be considered justifiable.

Essential Elements of Self-Defense

All of the following elements of the self-defense justification as a legal argument must be in place in order
for you to mount a successful claim of self-defense. These elements are like the legs of a three-legged
stool, in that if any one of the “legs” is missing, the whole stool, or legal argument collapses. The self-
defense argument is known as a “necessity defense”, meaning that if what you did was not truly necessary,
it will generally be deemed unlawful. In many states, the burden is largely on you to make your case for
justification.

Obviously, in order for a self-defense claim to be valid, your assertions must be true. Do not think that the
various finders of fact will not uncover untruthful statements, or that they have not heard bogus claims of
self-defense in the past. Generally, you will not be able to construct a workable self-defense claim if the
facts do not support your position. In some extreme cases, even if you were justified in using deadly force,
you may have a hard time getting others to accept your position, so it is always best to avoid using force in
the first place if you can.

THE LEGS OF THE STOOL

JEOPARDY – Does reasonable fear of a credible, immediate threat to one’s safety exist that can only
reasonably be managed by the threat or use of deadly force? You must be in a situation that would induce
reasonable fear for life or limb in the minds of other people of “ordinary firmness”…not battle hardened
combat veterans, or at the other extreme, Nervous Nellies. Generally, you must be in fear that you or
another innocent person is about to be killed, seriously injured, or forcibly raped.

ABILITY – You must believe that the attacker is currently capable, by virtue of position or mobility to carry
out his threat and to be a real danger to you right now, not merely at some future date, or if only he should
come a great deal closer. In other words, is he a threat yet? Can you extend the distance through flight? If
you can, you certainly should.

MEANS – Is it your sincere belief that your attacker has the instrument of your injury or death available and
close at hand, or is attempting to get it? If so, then that instrument is the “means” for the attack. Please
note that it is not essential that you actually see a weapon, but you must have a sincere belief that such
means exists. This belief could be formed by the visual identification of a deadly weapon, the assailant’s
statement that he has such a weapon, a furtive movement consistent with producing a weapon, some
device or item that visually appears to be a weapon (even if it is later shown not to have been, such as a
realistic looking toy gun). In some cases even multiple attacker’s strength in numbers or a gender-based
disparity of force could serve to satisfy the requirement for the means to be present, but such cases are
intensely fact-specific.

Note – The reader should be aware that there are several sets of terminology that are used by a number of
sources to identify the three elements of the self-defense justification. The above terms, Jeopardy, Ability,
and Means (known as the JAM acronym) were first popularized by the National Rifle Association in civilian-
oriented defense materials and are quite easy to remember. Some law enforcement oriented sources use
the terms “Manifest Jeopardy” or “Imminent Threat” in place of the term “Jeopardy” as used here. These
same sources use the term “Ability” when referring to the instrument of the injury, and use the word
“Opportunity” when referring to the concept of “Ability”, the proximity or mobility of the attacker. Don’t worry
too much about the terminology, everyone agrees on the three concepts whatever they call them.

EXCESSIVE USE OF FORCE-HOW MUCH IS TOO MUCH?

You must only use the level of force needed to repel or escape an attack. When your adversary stops his
aggression against you, your privilege to use deadly force ends, even if this means that your attacker
escapes. When reasonable fear is gone, so is the necessity for the use of force and the self-defense
justification ends.

Example – You are accosted by a mugger in a dark parking lot. You draw your legally concealed
handgun to defend your life, not your possessions, since he has threatened you and placed you in
fear. Seeing your gun, your would-be attacker suddenly remembers pressing business elsewhere,
turns, and runs away. You are obliged to allow him safe retreat, even if he is leaving with your
wallet. You must not fire. An act of robbery, no matter how offensive, does not warrant the death
penalty in our legal system…

There is no specific amount of force specified in law that may be used against an attacker. Rather, the
general principle of a limited and roughly proportional response applies. Generally speaking, gratuitous
violence, or acts that seem morally shocking are going to be considered improper and criminal. Just
remember, if it wasn’t necessary, it wasn’t lawful.

FREQUENTLY ASKED QUESTIONS ON SELF-DEFENSE

Q. May I use my handgun to protect other people?

A. Generally, yes, with conditions. You may typically protect spouses, children, traveling companions and
other associates, and even sometimes perfect strangers with deadly force, provided that all conditions are
met for lawful self-defense, and provided the party you are defending is “innocent” in the legal sense, which
we have previously explained. Generally, your legal ability to defend others is the same as their legal ability
to protect themselves. Be very, very careful about intervening in cases involving total strangers, since you
will not often immediately grasp the actual situation. Also remember that your legally concealed handgun
does not confer police powers. Law enforcement officers will likely consider a civilian with a pistol in hand a
threat, rather than a “Good Samaritan” in crisis situations.

Q. If I am attacked, must I retreat rather than use my pistol to protect myself?

A. As a practical matter, it is always best to retreat from trouble if you safely can rather than use deadly
force. However, generally, if you are attacked in your home, you are under no obligation to flee. However, if
outnumbered or outgunned while at home and retreat is feasible, I think I’d prefer to jump out of the window
and run away rather than stand on the letter of the law and die in place. If you are attacked by another
while in some public place where you have a right to be, doing something you have a right to do, in many
places, retreat is not strictly required provided that you have had no part in instigating, escalating, or
continuing a conflict with another person. In other words, if you are completely blameless, you may not
need to retreat, but this is by no means universal. It is still probably smarter to leave the scene if you can
safely do so, taking with you anyone you must protect. If the choice is running or shooting, it’s generally
better to run.

If you have unwisely had a part in making a conflict with another person, even at a low level, you are
absolutely required to retreat if you safely can rather than use deadly force. However, if you have made it
clear that you don’t want to fight, but are not allowed to retreat and then must use deadly force, your
actions may be seen later as “excusable”, which is distinctly different from “justifiable”. Cases of excusable
homicide always have unpredictable outcomes in both criminal and civil forums and are best avoided. If you
carry a firearm, it is supremely important that you control your words and actions (not to mention that
middle finger) and never allow yourself to be drawn into a fight, or even a shouting match. Either leave your
temper at home, or your pistol!

Q. I’ve been told that if someone breaks into my home, that I can shoot them no matter what the
circumstances. Is this really true?

A. No, it is emphatically not true! Basic principles of self-defense law are still in force, although it is well-
recognized since Biblical times that ascertaining an intruder’s true purpose, especially under conditions of
darkness or cases of what is known in common law as “violent and tumultuous entry” can be quite difficult.
Under such conditions, the home defender is afforded more latitude in decision-making.

It is also well established that attempts by the defender to challenge an intruder surprised in the home, or
worse yet, to attempt to hold one for the police can be deadly for the citizen. Therefore, some shootings
may be seen as justifiable under these stressful conditions that would not be kindly viewed by the legal
system if they were to have occurred in a well-lit public place. Having said that, you need to know that even
in your home, there are no “free fire zones”, and if you truly do not have to shoot to get someone out of
your home, you should hold your fire.

Q. I recently heard a radio talk show host tell his listeners that in a self-defense shooting, the citizen
should, “make damned sure that the bad guy is dead, even if you have to take a few more shots…if
he is outside of your house, move his body inside…if he hasn’t got a weapon, put a knife in his
hand…you should be the only one with a story to tell!” Is this good advice?

A. No, this is not good advice at all. In fact, doing this sort of thing will land you in prison in a hot second!
Aside from being immoral, it’s illegal, fully detectable by skilled investigators, and changes your status from
that of legal defender to just another criminal like the person you shot. In addition, there’s no possible
advantage to it for you as you can clearly see once you understand the principles of legal self-defense. As
far as there only being “one story to tell”, be aware that at any shooting, there are always at least two
stories, yours, and the one told by the crime scene, which does not lie. So, don’t even think about altering
the shooting scene, adding a weapon, moving a body, or concocting a false story. Some media
personalities unwisely go too far in attempting to entertain with such “advice”, not realizing that it may be
taken seriously. Some others truly believe this advice to be correct, and they are the most dangerous.

WHAT TO DO AND SAY WHEN THE SMOKE CLEARS

In any shooting scenario, there are two stages that involve your survival. Stage One survival steps are the
actions you take to remain alive and well during and immediately following the perceived end of the attack.
Stage Two is everything that follows. Issues of cover, concealment, point of aim, the number of shots fired,
distances, etc. are all Stage One issues, but there is another Stage One element that perhaps you have
not thought about, which is the arrival of the police, who simply must be called to the scene. There is no
such thing in our country as a “private shooting”. What will you do (Stage One) and say (Stage Two) when
they get there?

First off, watch out for your non-verbal communication, like that pistol in your hand! Keep in mind that while
you consider yourself innocent and one of the “good guys”, the police, if they were called to a public place,
are responding now to a “man with a gun call” and you are the guest of honor! They consider you a
suspect and a threat until proven otherwise, so after you are satisfied that the scene is secure, GET THAT
PISTOL DOWN OR OUT OF YOUR HAND! Never meet the police with your firearm visible, although you
should tell them you have it in a non-threatening way. If the police approach while you are still armed,
FREEZE! Do not turn around or gesture in any way, or even attempt to explain matters at this point. Just do
what the officers tell you to do, following their instructions to the letter. Prepare yourself for the reality that
you may well be placed on the ground and handcuffed until everything is sorted out. At this point, Stage
One is over and Stage Two begins, but if you do not follow my instructions on this very important point, the
police may misinterpret your actions and discussing Stage Two may be academic.

Now the questioning begins, and there are some few things you must tell the police at the scene, starting
with who you are, as well as the location of the person you may have shot, if you know it, so that medical
care can be provided. Beyond these basic points, it is always better not to make a statement of any kind to
the police or anyone else until you have spoken with your attorney, even in cases that seem cut and dried.
Be friendly but firm on this point, since it is the essence of Stage Two shooting survival. Insist on your rights
to remain silent and to confer with an attorney before questioning. To do otherwise is foolish, since you will
be under the greatest stress of your life, and your recollection of events will be clouded by the effects of
the “chemical cocktail” which I introduced you to in the section dealing with human reactions to stress.
These chemically induced effects will normally take 24-48 hours to subside to the point where you have a
clear memory of major events, and some details will forever remain a mystery. It poorly serves the truth of
an investigation for you to make an inaccurate statement at the scene, which you will later have to retract at
the expense of your credibility. After consultation with a number of attorneys, prosecutors, and even a
judge or two, I suggest you use the following response to all police questions beyond your identity:

“This was self-defense. I want to cooperate, but I can’t give you any statement until I
speak with my attorney”.

Trust me, there is a reason for every word in this statement. Initially, your opening assertion of self-defense
is important on two levels. First, an interesting quirk of law often makes it impossible to assert a claim of self-
defense later, if you have claimed something else earlier. You really can’t say, “Well, now that I think about
it, I guess I really did shoot that guy, but it was self-defense”. Asserting self-defense right up front resolves
this issue and gives the police some idea of what may have gone on, without limiting your rights in the
matter. Making the statement also fulfills an incredible personal need you will feel to justify yourself, without
going into too much detail.

The next part, where you say you want to cooperate, is more than mere window dressing. It lets the police
know that at the appropriate time, you WILL be making a statement, which you almost certainly will be, just
not now. Then, you say, “I can’t” rather than “I won’t” when referring to your need to remain silent at this
point. Go ahead and imply that your attorney won’t let you talk, and that your hands are tied. He or she
would surely give you that advice if they were on the scene. Finally, making it clear that you wish to speak
with an attorney first is a clear and unequivocal demand to exercise your right to counsel. As long as you
remain firm on this point, any further questioning of you at the scene is out of bounds, and the police know
this.

Also please watch your tone and demeanor. Police, like most other humans, reflect the attitude displayed to
them. There is a huge difference in how you will be treated should you say something like, “You’re not
getting squat from me, you lousy Copper” rather than simply politely repeating the statement above as
closely as you can. The police have a job to do, but don’t make the mistake of thinking they have your best
interests at heart at this moment. Repeat the statement above verbatim in response to all police questions,
and don’t even think about talking with reporters, your spouse, your significant other, your neighbor, your
preacher, EMS personnel or your buddy who happens to be a cop. The first person who hears your story
should be your attorney in a confidential interview. He or she will then challenge your statement for
accuracy and the two of you will reduce it to writing for submission to prosecutors. If you find yourself in a
police station in the aftermath of a shooting, with your lawyer by your side, and he is allowing you to talk
like you may have seen on TV, you’ve probably made a mistake in selecting your attorney.

POST–SHOOTING AFTERMATH

In the aftermath of a self-defense shooting, a chain of events will likely commence that is bewildering for the
uninitiated, and perhaps the second most stressful event in the life of the individual self-defender. This
chain of events may include legal, financial, social, and physical consequences, none of which are positive
for you. I cannot stress enough that about the only good thing about even the most successful self-defense
shooting is that in the end, you are still breathing. What could happen next is just barely preferable to
having been shot yourself. Most instructors are what I call “Gun Guys” who really don’t know too much
about law and don’t cover this, and even some of the country’s best known and most expensive shooting
schools almost completely ignore this material. I think that’s a shame.

Understand at the outset, that under most circumstances, using a gun on another person is a serious
crime. In the context of legitimate self-defense, it is not considered a crime, but it is up to you to provide a
full and truthful explanation of your actions, at the right time of course, through your attorney. Competent
representation at the earliest possible time following the end of the fight is absolutely essential in today’s
legal environment, just as it is essential that you make no substantive statements to anyone about the
matter until represented by counsel. Next, you should understand that this event is going to be expensive,
no matter what. Proper legal representation for the early stages of a relatively uncomplicated self-defense
shooting in which there is no criminal prosecution can easily cost in excess of $5,000.00, and you should
think in terms of ten times that amount or more for a case that ends up in a courtroom. Add in a like amount
for representation in a subsequent civil action after criminal matters have been disposed of. I don’t tell you
this to keep you from defending yourself or your family when necessary, I mention it just so you know that
from a purely financial perspective, not to mention a moral one, using deadly force against another person
is a measure that should be reserved for only the most extreme and desperate situations.

Be aware that in addition to courts of law, there is always the “court of public opinion”, and many factors
which have little to do with the technical legality of what you did with your pistol come into play when
decisions are made about what happens in any given case. For example, you may encounter a politically
motivated prosecutor who feels that citizen self-defense amounts to, “taking the law into one’s own hands”
and who decides to use your case to, “send a message” to the public about this issue. You may live in a
jurisdiction that is not friendly to the concept of an armed public, and prosecutes all shooting cases fully,
regardless of the facts. Your shooting may be cross-racial and opportunistic activists may choose to use it
to make a point, or the case may involve a young criminal that the local media chooses to characterize as a
“child”. Given that the majority of people shot with handguns do not die, you can count on the other party
telling a very different story about what happened, with which you will have to contend. One thing that you
can absolutely count on is that people, with or without the aid of the press, will misunderstand your actions.

Another point to consider is this. For centuries, ever since Cain murdered his brother Abel, civilized
societies have reserved the most serious disapproval and subsequent stigma for those who take the life of
another human. Some misguided souls have misinterpreted the prohibition against murder found in the Ten
Commandments to read, “Thou Shalt Not Kill”, believing it to mean that taking another human life, even in
self-defense, is never justified. Rest assured that at least some people you thought were your friends will
see you in a different light once you have shot another person, especially if you have taken life in the
process. The reaction may be subtle or overt. Many will no longer allow their children to spend time with
your kids. Others will no longer have anything to do with you in a social setting. Some will simply eye you
with suspicion from the moment of the event on, perceiving you as an inherently violent, hotheaded, or
racist person, or all three. Even your spouse and children, if they were not part of the event, may
misunderstand what you did, and if they were part of the event, be emotionally scarred by it as much or
more as you.

If you work for another person or entity, your employment may be terminated due to fear of public backlash
stemming from the event, or for unspoken reasons that are simply termed “poor performance”, or
“cutbacks”. Your name and photo, and perhaps even your address may be published in the paper,
probably under lurid and misleading headlines. In the end, you may have to move from the community
where you lived at the time of the event. And, let’s not forget about friends and relatives of the person you
shot, some of whom may threaten or even try to exact revenge.

A lot has been made of the emotional trauma experienced by a person who shoots another in self-defense,
including assertions that you will never again have a normal night’s sleep, eat normal meals, be able to
keep a job, sustain a relationship, or enjoy life in any way until you complete years of intensive and
expensive therapy. Horsefeathers. In my experience and that of others, there will be some temporary
disturbance of normal routines and sleep patterns due to the extreme but temporary stress of the
encounter, followed by cumulative incident stress caused by the factors we’ve already looked at involving
the media and the legal system. But, once those are over, in a truly justified self-defense shooting, rest
assured that life will return to normal. It just probably won’t happen immediately. Much of the wailing and
gnashing of teeth some have experienced in these cases stems from doubts about the real necessity for
what they did in all too questionable cases, guilt and fear based on deceptive statements made to police
and others, and in some cases, the simple idea planted in one’s head by society that you are some kind of
monster if you don’t grieve for years for the criminal you sent to meet his Maker. Don’t let anyone make
you feel guilty because you defended yourself or your family. In a truly justified self-defense shooting that
produces a death, your attacker is effectively dead by choice, just as surely as if he had committed suicide.

Of course, none of this may happen. You may live in a self-defense friendly place, with an honest
prosecutor and law enforcement officials who see you as a citizen who merely defended life and limb. They
may arrive at the scene, recognize the dead body at the bottom of the stairs in your home or in the parking
lot as a long-time criminal, and realize instantly that what has happened here is an acute failure of the
victim selection process and that in this case, nature has thinned the herd by one crook. They may ask a
few simple questions, pat you on the back, and leave you at the scene safe in the bosom of your family.
You might find a pro-gun lawyer who will represent you for free when the prosecutor calls to ask a few
simple questions, all simply routine. You might be written up in the local paper as a hero, and the NRA may
even do a blurb on you in their “Armed Citizen” column. Who knows, you might even become the temporary
Poster Child for Citizen Self-Defense and appear on a couple of talk shows. Yeah, I suppose all that could
happen, but I wouldn’t count on it. Elements of the first scenario I outlined are the more likely outcome, and
I just want you to consider them when making your self-defense plans. Maybe then you will realize why I’m
so big on the avoidance of armed conflict.

Friends, don’t let the possible consequences of the self-defense shooting aftermath keep you from
defending yourself and your family, up to and including the use of deadly force if that is what is truly
necessary. Just make sure that when you do act, it is in a situation where the danger is so real and so
grave to you or a loved one, that those possible consequences seem pretty insignificant by comparison. If
you can remember that and only that from what you have read here, I will have done my job with this
section.