I recently learned (hat tip, Claude Werner, The Tactical Professor, his blog is HERE) that in the firearms and self-defense training community, there is a four-to-five year publishing cycle for the rehashing of subject matter.  I authored a post which included a discussion of “warning shots” back in 2014 — HERE.  So, I now unabashedly revisit the subject.  But, I plead not guilty to the pardonable sin of rehashing —  I actually do have fresh thoughts/material on the subject.

Prior MSW post takeaway:  “Except (perhaps) in the retaking of escaping prisoners, to fend off a dangerous “protected” species threatening at distance, or certain maritime encounters, a warning shot is so universally frowned upon it likely cannot be “justified” to a prosecutor, judge, and jury.  But, Bob Dylan might just be correct, the times they are (maybe) a-changin’.  For better or worse, see how a recent Florida “warning” shot incident is described here.  [Link expired]. Here’s another, a New Hampshire no prosecution report on a self-defense shooting.  The report favorably notes that a warning shot was first taken.”

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“Great losses are great lessons.”
― Amit Kalantri

     When I introduced the CAN paradigm element (2012, see HERE, and 2015, see HERE), I identified three components: mindset; equipment; skill. In various MSW posts I offered related concepts, including: advance planning; physical conditioning; tactics; competence under pressure; reliable, mission appropriate equipment; training; practice; retreat; disengage; challenge; threatening deadly force; gun-pointing; less lethal. Whether LEO or nonsworn, employing deadly force when wrong; when appropriate, but done negligently, or; failing to employ it when needed (the MUST), can be immediately and/or long-lastingly painful to the mistake maker or other innocents (loved ones, strangers, K9 partner, or citizens you are sworn to “protect and serve”).

    CAN failures engender SHOULD misjudgments, and often beget an unwelcome response from the legal system (the MAY).  Of timely and particular note: (1) Regardless of a “win” in the hearing room or courtroom, complete “vindication” and a return to the status quo ante are nevertheless rarely attained; (2) For LEOs who make ugly mistakes, the landscape of policing has changed.  You are no longer practically immune from criminal prosecution for CAN failures. Prosecutors will charge assault, battery, manslaughter, or culpable negligence when they come upon an LEO who has injured or killed and comes up short on their view of the MAY. Although quite rare, the specter of dual federal/state prosecution has a special impact of its own. (See HERE). Continue reading →

A bit more than three years ago (November 2013), I wrote (applying the four elements of my deadly force paradigm) on armed response to a home invasion.  See “‘CASTLE’ DEFENSE: WHAT CAN–MAY–SHOULD–MUST YOU DO.”  [See also other active links in the text below, and related MSW posts referenced below].  For our purposes here, “home invasion” is defined as an unlawful and forceful entry by stranger(s) into the enclosed confines (fenced or walled grounds, or building interior) of an occupied residential dwelling.

In the prior post, I offered for consideration on the SHOULD and MUST: “The legally recognized sanctuary  of your “castle” has been invaded. The presence of criminal-minded strangers who have made forceful entry often ends in great bodily harm or death, and such heinous crimes carry long prison sentences.  Innocent lives (yours included) are clearly in extreme peril.  Escape is often impossible or impractical, as an attempt to do so may put innocent life in increased danger.  You have issued a verbal challenge or decided to do so would be tactically unsound, and have a target at gunpoint or are at your favorite ready position.  The home invaders are now aware the castle is occupied and their presence is known, but have chosen not to make a hasty exit.  If not now, when?” (Italics added here for emphasis). Continue reading →

[Photo Credit: Alan Diaz, Pulitzer winner, for the AP (2000)]

Merriam-Webster (online): “at gunpoint – under a threat of death by being shot.”

Executive Summary: Why are guns pointed at people? On occasion, to shoot them. More often, to compel compliance with the gun pointer’s command (to cease unlawful or threatening activity and/or to initiate directed activity). Gunpoint command/compliance as a “technique” or “tactic” is frequently unsuitable, as a failure to comply (mere flight included) ought not be responded to with the use of deadly force.  [Because the MAY and SHOULD (elements of my deadly force paradigm — see related links below) are not satisfied].  For LEOs sued for “excessive force,” the propriety of gun-pointing will increasingly be a jury question. For the non-sworn, gun-pointing is strongly disfavored even when lawful, as it requires significant training, skill, and discipline..

Recent incidents of gun-pointing revived one of my long-held (about 15 years) firearm related observations:  Guns are pointed at people way more than they need to or should be pointed — by LEOs and the non-sworn.  (For a related MSW post, click: “CONSIDERATIONS FOR THE NON-SWORN : HOLDING SOMEONE AT GUNPOINT.”  I touched on the subject for LEOs as well, click: “THREATENING DEADLY FORCE : MUSINGS ON “BRANDISHING” AND “WARNING” SHOTS.” For my thoughts on gun fighting and shooting people (who need to be shot), click: “A SHORT ESSAY : WINNING IS EVERYTHING . . . AND THE ONLY THING,” and “MAY/MUST QUESTIONS ANSWERED CORRECTLY. . .SHOOT FIRST, LIVE”). Continue reading →

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 →