I now offer for your consideration a “final” installment on my paradigm for the use of deadly force.  The posts directly-related, in chronological order, are HERE, HERE, HERE, HERE, HERE, and HERE .

As previously defined, the MUST: If deadly force is not employed, you or someone you cannot live without will likely die.  Add, if you wish — the MAY permits, and the SHOULD will normally compel — or suffer great/serious bodily injury/harm. Sprinkle with the required dose of reasonable certainty that deadly force is necessary (something way north of even odds, as the use of deadly force invokes the decision process reserved to life’s most important questions) and imminence (usually meaning within a few seconds, but I often note how the certainty of suffering deadly force, might make much longer intervals considered imminent), and slip on the halo of the non-culpable, reasonable man acting in good faith.  (LEOs: I may write a post on your MUST at a later date).

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     “If your head tells you one thing, and your heart tells you another, before you do anything, you should first decide whether you have a better head or a better heart.”                                                                                     Marilyn Vos Savant

I framed the SHOULD element of my deadly force paradigm as — do you employ deadly force and risk everything you are/have and will ever be/have. It often presents as whether you should come to the aid of another person. As suggested in my prior paradigm posts, the SHOULD analysis likely goes to the “core of your being.”  So, don’t expect the answer from another (including me (HERE) ).  Moreover, your answer will be part of a complex split-second decision you will likely make alone. Thus, it behooves you to give it serious thought and make the necessary analyses ahead-of-time.  (If you’re an LEO, you have agency requirements and training imperatives — and case law trends — to factor in as well). The key is mental preparation. Before the event, you have one or more “plans” —  if this particular balloon goes up, I disengage/leave/summon help, or I respond with X, Y, and/or Z.

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Let’s revisit the MAY element in detail, as I promised in a recent MSW post on my use of deadly force paradigm. (HERE)

MAY: The inquiry — whether the use of deadly force is within the law.  (We live in political correctness infected and curious Rule of Law interpretation times; so, that inquiry is to be distinguished from the distinct and less easily answered —  can/will I be charged with a crime).  In earlier posts I urged the importance of knowing “the law” beforehand, what sources to study, and to be mindful of “trends” (the inclinations of prosecutors, juries, and judges . . . good luck with that) in the law of justified deadly force. Here’s sources, in my (but not necessary the only) order of research, usually available free — online or in every law school library:

• Current year state statutes (caveat, even unambiguous statutes can be subjected to surprising judicial interpretation these days)
• Jury instructions (often termed “pattern” or “standard,” possibly officially promulgated by state highest court, required or suggested in criminal cases and all trials, not always consistent with or limited to language of related statute)
• Appellate case law (including opinions of the court over your locale’s trial court, the state’s other intermediary appellate courts, and the state’s highest court for criminal appeals)
• Local prosecutor’s memoranda on use of deadly force by LEOs and nonsworn in cases not prosecuted
• Federal case law commentary on state statute or common law use of force principles, or on Constitutional rights bearing on state criminal proceedings
• State law legislative history and enactment commentary (may or may not exist)
• Other state(s) interpretation(s) (highest state court opinions) of similarly worded statutes

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In a 2012 year-end post, I offered a decision paradigm on the use of deadly force. (HERE). The paradigm consisted of four elements — usually considered ad seriatim.  My paradigm remains a work-in-progress. I write now to restate it in a stand alone post, and to add some broad thoughts on the elements.  (I expect to tackle the elements in more depth in future posts).

Deadly Force Paradigm

CAN –  do I possess (to a reasonable certainty) the necessary equipment, skills, and mindset to accomplish the task (i.e., WIN)? This element should be addressed objectively, long before the moment-of-decision presents. Common sense in “equipment” selection, and repeated training and practice are essential.  Being physically fit is definitely part of this element.  (HERE).  Have you done all you can to be truly prepared to respond in a deadly force encounter?  By the way, which is paramount — equipment, skill, or mindset? Always? Continue reading →