THE DEADLY FORCE PARADIGM: THE “MUST”

 

Forced-to-live-in-a-house-after-my-fixed-term-tenancy-expires

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).

Recall — more on the CAN (mindset, equipment, skill) supplies response choices, including to retreat, disengage, challenge (threaten the use of deadly force), or employ nondeadly force. (HERE).  Choice is always good, but it is not always present.  Often said to or heard from an LEO after the use of deadly force:  “It was him or me; I had no choice.”  Sounds about right.

Check your state statutes/cases for the definition of deadly force.  For a one size might fit all definition, I like the following (I paraphrase the Model Penal Code): Force used with the purpose of causing, or what one knows to create a substantial risk of causing death or serious bodily injury (to another person). Firing a firearm in the direction of another person normally constitutes deadly force. [Supreme Court Justice Scalia recently threw a scholarly monkey wrench there (shooting at engine block to disable a speeding/fleeing vehicle should not be analyzed as deadly force) — see his short concurring opinion in an LEO excessive force case, HERE]. A threat to cause death or serious bodily injury, by the production of a weapon, so long as the actor’s purpose is limited to creating an apprehension that deadly force will be used if necessary, does not constitute deadly force.  For your purposes, learn and default to your state’s statutes and cases.  As appropriate, distinguish between assault, battery, and punishment statutes — where the defined term may be framed by actual result – from those defining deadly force by way of actor’s intent or probable/usual result.  For a recent case (being shot where wound is not life-threatening is not great or serious bodily injury under particular statute in Minnesota), see HERE.

What might “reasonable certainty” mean?  How about the language lawyers like to use to describe the criminal law burden of proof – beyond a reasonable doubt:  No other logical conclusion is possible from the facts; conclusion made to a moral certainty; it is beyond dispute that any reasonable alternative is possible. Remember, while you may be second-guessed, you do not have to be correct; hindsight doesn’t count, see HERE.

Can an “unarmed” person inflict injury equivalent to deadly force? Might a single punch, kick, or violent take down constitute deadly force? Yes. As to all.  What kind/level of bodily harm or injury is considered deadly force, as great or serious? In most jurisdictions the following injuries would be included: Partial or complete loss of sight or use of a limb or organ, large bone break, wound causing more than nominal loss of blood, loss of consciousness, head, face, or spinal damage, serious burns, anything more than minor injury causing permanent scarring or disfigurement.  There may be a statute and/or a jury instruction which “defines” the term, or the jury may hear expert medical evidence.  Some examples:  According to the Georgia Code, serious bodily injury means “bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.”  In California, a jury might hear this: “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”  In Minnesota, by statute, “substantial” bodily harm is “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.”  “Great” bodily harm is bodily injury “which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.”  In Connecticut, a jury might hear: “Serious physical injury” is something more serious than mere physical injury, which is defined as “impairment of physical condition or pain.” It is more than a minor or superficial injury.  It is defined by statute as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”  In Washington, in a case where justification is asserted for the use of deadly force, the jury might hear: “Great personal injury means an injury that the slayer reasonably believed, in light of all the facts and circumstances known at the time, would produce severe pain and suffering if it were inflicted upon either the slayer or another person.”

I don’t think I would be out on a limb if I were to opine that all edged and all heavy/large impact weapons are capable of inflicting death or great bodily harm when wielded by an adult or teenager.  Firearms, regardless of kind, and all incendiary and explosive devices as well, no matter the age or stature of the malefactor.  Always.  Are location (for example, in the woods versus ER or police department driveway) and availability of assistance (for example, actual “backup,” or able-bodied witnesses who might render aid) to be considered? Maybe.  The potential for being injured and then disarmed by an unarmed vicious malefactor? Yes.  Number of shots/hits matter?  Not likely, see HERE.

When you MUST, it will be an important part of the aftermath (when appropriate) to articulate the facts and circumstances that justify the lawfulness, reasonableness, and/or perceived necessity of using deadly force.  (The CAN, MAY, SHOULD).  Train.  In the when, how, and why.  For sure, we are in the golden age of do everything gear, and firearms and use of defensive force training.  (Not just from former military, and current and retired LEOs, even from lawyers — 🙂 ).  Take advantage, and take care.  And maybe give some thought to innocents you can live without.  Even when it’s “not my job.”

Suggested: A movie containing numerous scenes which the viewer can analyze using the paradigm elements CAN <> MAY <> SHOULD <> MUST:  “Breakdown” from 1997, IMDB, go — HERE.

Disclaimer: No MSW post constitutes 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.