A PRIMER ON USE OF DEADLY FORCE (PART ONE)

“Can I shoot someone if (hypothetical scenario then provided by questioner).”  I suspect that is the most common question posed to classroom trainers having legal expertise or law enforcement agency risk management responsibility.   My usual answer sounds like that of a smart aleck lawyer, but actually it isn’t:  “I don’t know, can you?” If prior to the question I have not explained my use of deadly force paradigm, I do so then.  It is framed by four words which identify concepts to be examined seriatim:

                                        CAN

                                         MAY

                                         SHOULD

                                         MUST

Can is whether you possess the: mindset (technical/tactical knowledge and sinew to succeed in executing life-taking action); physical skillset (competence under pressure derived from repetition and frequent dry and live fire training imparting skills good enough to succeed, that is, to make a distant, moving, or rescue shot, or to engage partially obscured or multiple threats, without harming an innocent); equipment (reliable firearm in known condition with status and mission appropriate accessories and ammunition reloads of more than sufficient quantity).

May is the question actually being asked, that is: If I can, may I employ deadly force and be within the bounds of applicable use of force laws which immunize me from adverse criminal and civil consequences.  (If I am an “on duty” LEO, there will likely be additional and/or different impositions before I can use deadly force free of all adverse legal system and agency consequences).

Should is if I can and may, and have a choice, should I, that is:  Am I willing to risk everything (what I am and have, and what I will ever become or have) to face uncertain consequences, possibly including never to be viewed the same by or to return intact to friends and family, given the limitations imposed by the short window of time I will have in a dynamic situation to assess and decide.  The should question is quite grave:  It might be answered in good faith in the affirmative, but nevertheless be second-guessed by peers, superiors, a judge, jury, or the public.   A classic should scenario is one where you did not actually witness the predicate event, so the deadly force decision must be made based on the judgment of others.    (Once again, an “on duty” LEO may have further considerations, such as consideration of dereliction of duty or collegial disgrace for not using deadly force where authorized and appropriate to protect the public or fellow LEO.    There is no question LEO’s often use restraint in using deadly force, even when they may, and even when lesser force might be tactically unsound.   See an article from the FBI Law Enforcement Bulletin: http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/june-2012/restraint-in-the-use-of-deadly-force).

Must I explain is when: If you do not employ deadly force, you (or someone you cannot live without) will likely die.   This is Jeff Cooper’s condition black in its darkest and ugliest form.

I respectively suggest the better (and therefore more difficult) question to ask is:  “If I can and may, should I?”  No trainer can answer that, because it is the questioner’s judgment call, no one else’s.

The title indicates this is a primer, so let’s now step back and look in broad terms at what is meant by the term “deadly force” and when it may be employed.   It is a legal term (with interesting but often overlooked medical parameters) now fairly well defined by state statutes and case law, and for LEO’s, also by federal case law.  Deadly force is generally defined as that degree of physical force which is likely to cause or creates a substantial risk of death or serious bodily injury (sometimes called great, grievous, or grave bodily harm).  The latter usually includes extended loss of consciousness, long term disability, disfigurement, large bone fracture, a wound having potential for large loss of blood, or loss of the function of a limb or organ.  The intent or lack thereof of the actor to inflict death or great bodily harm is not usually determinative in defining force as deadly force.

Various states have statutes which define deadly force to specifically include certain acts, such as shooting a firearm into an occupied building or vehicle, or at or in the direction of any person.  Under most case law, any attack with a firearm, knife, large impact weapon or moving vehicle would be considered the use of deadly force.  .  Releasing a K-9 on a subject may constitute deadly force.  Use of “less-lethal” weapons (baton, OC, TASER) is not normally considered the use of deadly force.  Pointing a firearm at a person or threatening to use deadly force may be an assault type crime, but they are not considered the use of deadly force.

The use of deadly force is generally reserved to defense of persons; it is rarely allowed in defense of property.   In the civilian setting, the legal question posed is:  Do I have a reasonable belief that it is necessary to use deadly force to stop the imminent and otherwise unavoidable event to which deadly force is an allowed response.   Deadly force is generally allowed to stop the in-progress or imminent commission of a felony of the type which historically included threatened or actual harm to a person.   Such felonies may be identified in a statute by name (for example, murder, robbery, rape, arson, occupied dwelling burglary, home invasion robbery).  A state’s statute may authorize the use of deadly force to prevent the flight of a person who has just committed one of such felonies.  Escaping arrestees and already institutionalized prisoners may be governed by specific state statute authorizing the use of deadly force.  Even when deadly force is permitted, some state law may nevertheless require avoidance/retreat if possible, or that other than deadly force be employed first unless it is reasonable to believe it would be futile to do so.

There are further impositions on a LEO’s use of deadly force by federal constitutional principle — that all force used by a LEO must be “objectively reasonable” that is, not “excessive,” based on the “totality of circumstances.”  That determination involves the seriousness of the offense involved, the immediacy of the bodily threat to others, and the resistance offered by the subject.  A LEO may have a duty to identify him/herself and/or warn of the intention to employ deadly force.   In addition, LEO’s must address the issue of whether the use of deadly force is within the agency’s deadly force policy and SOP’s for use of firearms.  Even when deadly force is authorized, some SOP’s may nevertheless forbid certain action, such as vehicle ramming or warning shots, due to perceived danger to innocents.

Recent self-defense shooting incidents have brought the so-called Stand Your Ground (“SYG”) state laws into the forefront of deadly force controversy.   Perception and legal reality diverge greatly on SYG.  I will review SYG principles for civilians and LEO’s, the Castle Doctrine, and duty to retreat in an upcoming second part of this article.  Until then, have a safe and sober New Year.

[To be continued . . . . ]

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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.

6 thoughts on “A PRIMER ON USE OF DEADLY FORCE (PART ONE)

  1. Excellent article and well thought out points. Probably the hardest thing to convince LEO’s and civilians carrying with a CHL is the can part of your diagram and how it flows to the should aspect. I honestly believe that if you carry a weapon that can be used to take someones life you need to reconcile both of those questions before you walk out the door. I’m looking forward to part 2 of the article.

  2. A point of correction. Jeff Cooper did not have a Black in his color code, he listed White, Yellow, Orange and Red.

  3. Thanks for the correction. Black was Marines addition to Cooper’s?

  4. Condition Black was, at least in the Army, Iraq circa 2004, a weapons status like Condition Zero in other circles.

  5. re-“Condition Black” – in this context, “Black” is attributable to Massad Ayoob as a modification to Jeff Cooper’s codes which went from White to Red.
    Cooper disagreed with Ayoob on having this, fyi (per what Ayoob told us in his MAG-40 and MAG-80 classes, same class as LFI-I and LFI-II)

    Per Ayoob, the distinction between Red and Black is whether the bad guy has crossed the legal line to allow you to use deadly force. Ie – you investigate a bump in the night and find a strange man in your living room. You should be in Red, but if the circumstances allow. Whether you shoot is based on your judgment, how the bad guy responds in that fraction of an instant when he knows you’ve seen him, does he flee or come towards you, or something else?
    If the bad guy responds by fleeing or surrendering, you’re supposed to stay at Red and not start shooting (Black). If he does something else, then you do.

    Ayoob explains the rationale for having such a thing as Condition Black as that’s something us regular citizens need to consider that Marines in combat in the S Pacific don’t. This was about the time Cooper came up with the idea of color codes for training his Marines. If a Marine in that circumstance is on edge, paying attention intently, and identifies a shape in the jungle as Japanese, then he is in Condition Red and lights it up. For you and me, we have to be able to explain why he was a deadly threat and justify shooting or being in Black.

    Made sense to me, although per Ayoob, Cooper never bought into the concept and gave him a hard time about the idea. Do what makes sense to you.

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