THE DEADLY FORCE PARADIGM : THE “MAY”

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

It should go without saying: Lawyers spend time in law school and many years practicing thereafter learning how to think like a lawyer, so just studying the above authorities does not magically transform you into a lawyer. Very important: Do not interject the SHOULD when analyzing the MAY.  (I find this occurs quite often in lectures by lawyers and firearms trainers who dispense or respond to questions containing a tactical/legal hypothetical scenario).  That is a buy-in to prosecutorial misbehavior, rare, but does occur.

Anther point noted previously, which I reiterate now: For the nonsworn, well north of most of the time when the MAY provides a green light, the SHOULD will not. Check back later for a stand alone post on the SHOULD.

Some legal concepts to investigate/consider when you study the law sources of your jurisdiction:

• Requirement (if any) for employment of nondeadly force first, and if/how reasonableness and necessity are statutory or judicially imposed limitations;
• Application of Stand Your Ground and retreat principles, and related not engaging in unlawful activity and being where lawfully entitled to be analyses;
• Statutory and common law “Castle Doctrine” application
• What is deadly force?  Is it determined by the judge or jury? What type injuries are considered great bodily harm or likely to cause death?
• What are the concepts of initial aggressor, mutual combat, and withdrawal, and are they applied? How?
• What principles and dynamics of combat (about which experts might testify) are allowed for jury consideration?
• If threatening the use of deadly force is lawful, when and how? Is it deadly or nondeadly force? Is a warning shot deadly force?
• What are the offense elements of murder, manslaughter, assault, battery, reckless/unlawful discharge, brandishing, and endangerment?
• How are criminal charges brought — direct prosecutor filing or by grand jury indictment?  Can a putative defendant demand to appear before the grand jury or have others (e.g., experts) submit evidence?
• How does the concept of “affirmative defense” play out in criminal proceedings and which party has what burden?
• What amount of evidence is needed for the justification defense (self-defense or defense of others) to get before the jury?
• Is there specific use of force law applicable to use of deadly force by an LEO, or one taking action to assist an LEO?
• Is the law of permitted deadly force different —  self-defense vs. defense of another?
• May deadly force be used to prevent the imminent commission of a crime or to terminate a crime in progress, when your life or the life of another is not in peril?  What crime(s)?
• May deadly force be used to protect property?
• Are there any evidentiary presumptions on intent? Whose? In what situations?
• Is the lawful use of deadly force “immunized” from criminal prosecution and/or civil suit for damages?

Legal research can be educational more than on the MAY. I often derive food for thought for defensive tactics and conflict avoidance (i.e., going to the CAN and SHOULD) from the recitation of facts contained in appellate court opinions.

Suggested Link:  A good primer on how to read a court’s opinion is HERE.

Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.