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.

 

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About Steven Harris

Steve Harris is an experienced attorney (member of Florida Bar, 1979) who has represented federal agents and local LEOs in duty related matters. He has written and lectured about officer involved shootings, self-defense, and use of force law, including "Stand Your Ground." Steve has been a seasoned and active competitive handgun shooter for over 20 years.

7 thoughts on “THE DEADLY FORCE PARADIGM : THE “MAY”

  1. Good info. To civilians seeking more information be careful where you get it. Some gun gurus (usually gun shop owners) in my State give out terrible information. Their interpretation of the law is often not what is the current practice in the Judicial system. NRA or State organizations like gun owners action league are usually a safe bet for quality information. Stay current and stay safe.

  2. I don’t get it. Where (what state) can you not use deadly force when your life is in danger? Is there ever a situation when your life is in danger and you’re legally better off turning your back on your attacker and getting killed? When does common sense enter the equation?

    • If you have no other choice, then do what is reasonable to survive. I believe what the author of this article wishes to distinguish, is that even though there are situations where you MAY use deadly force under the law, it’s probably better for you in the long run if you do not (especially if there are other viable options for you and your family to escape harm.)

    • Your comment goes mostly to the SHOULD of my deadly force paradigm — stay tuned for a post on that.

      To the first sentence of your comment. Note state laws permitting use of deadly force have more specific language than human “life is in danger.” Depending on the facts and circumstances of the incident and the particular state’s law, an attempt to retreat or use of lesser force first may be in play.

      As a general rule (as Tim comments here), always consider when the MUST is not present, the SHOULD (not) likely prevails, and de-escalation or disengagement will be the best response for those not a sworn LEO acting in his/her official capacity.

      • Shouldn’t de-escalation or disengagement also be the best response for the sworn LEO? Is it really OK for sworn LEOs to be able to shoot before civilians can? In my PERSONAL opinion there is no SHOULD or MAY, only MUST or MUST NOT. Say an unarmed person physically attacks an LEO, in MY opinion the LEO must use deadly force because of the simple fact that even a smaller individual can incapacitate the LEO, take his gun and blast the officer and other innocent people. As a civilian, why should I turn my back on a person who intends on causing me harm when an LEO can use force? I agree, lets try and follow the law to the best of our abilities and understanding. Lets also try to fix any crappy law that undermines our right to defend our gift of life.

        • Unfortunately, as much as we would like the world to be cut and dry, it is not always that simple. There is also an expectation for a police officer to stop a threat to public safety. For example, if there is an active shooter, we do not expect average citizens to seek out and engage the threat. Sometimes, it is tactically advisable for a police officer to disengage and regroup. Other times, societal expectation dictates otherwise. This is a complex issue and it is beyond the scope of a single blog article to discuss all possible scenarios. That said, it is a positive step forward for everyone to consider options ahead of time. Stay safe!

  3. Excellent series of articles. Living in PA, we have a “Castle Doctrine”, though the current State AG and her like have vowed to dismantle it. Just as noted in the article, current and ever evolving case law shows (certain/ specific) courts and prosecuting districts have an agenda to diminish protections of the sworn and non-sworn alike.

    I am no longer in an Army uniform, hunting bad people, but the MAY comes into play frequently with curren job. SHOULD carries even more weight, sometimes and I look forward to that article.

    My two cents: When I had time for the SHOULD, then I wasn’t in grave danger and could exercise my ability to move out of the area.

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