MAY/MUST Questions Answered Correctly. . . Shoot First, Live

There is a saying (often attributed to Clint Smith of Thunder Ranch): “Some people just need to be shot.”  Taking a life is the last thing anybody wants to do, whether in public service as an LEO, or as an unsworn in defense of self or innocent others.   But wise and healthy aversion to the awful, distasteful, life-changing (but sometimes necessary) deed does not render that statement silly or merely theoretical, legally or tactically.

I previously introduced MSW followers to my legal/tactical paradigm of CAN-MAY-SHOULD-MUST, and later wrote and explained how I apply it to home invasion defense.  I write now to bemoan what I hope is not a trend — of tactics trainers/writers who are not lawyers  —  to interject purported legal principles into articles or training on shooting, concealed carry, or self defense.  I have seen or heard phrases to describe what they believe is lawful or unlawful.  One is “legally justified.”  Another is “within the law.”   Well meaning, ordinarily cautious, experienced trainers (some with LE experience) imply or make statements themselves, or lament (about the thinking of the citizenry, their command, or local prosecutors) to the effect that:

  • A person cannot shoot another unless that other is pointing a gun
  • Deadly force can only be used against someone already engaged in life threatening action
  • A knife attacker cannot be shot unless close enough to pose a tangible threat
  • A LEO cannot shoot someone (fleeing or otherwise) until the LEO sees a gun or the subject fires upon the LEO

What’s my beef with such statements? They are legally incorrect.  That is, they got the MAY wrong.  (They also likely got the MUST wrong. Permit me to play tactical trainer for the moment, hopefully better than those I criticize play lawyer . . .  such advice will get good guys killed, a la universally accepted notions such as “## foot rule,” “action beats reaction,” or failure of OODA loop principles).  I fear prosecutors and civil plaintiffs will see such published writing as legal and/or tactical gospel and proceed accordingly.  Maybe such statements are born of political correctness, fear of legal liability, “bad ass” appearance avoidance, or response to ameliorate concerns of those who allege (incorrectly) that “stand your ground” laws allow someone to shoot another simply because “they feel threatened.”  Respectfully, none of that is appropriate, from where I stand.

LEOs frequently shoot “unarmed” people or people who are not doing one of the above enumerated acts.  Something way north of a majority are within agency policy, completely lawful, morally acceptable, and tactically sound.  Such shootings almost always survive against a claim of “excessive force” as well.  Similar scenario defensive shootings by civilians often rightfully have the same result.  The law of self defense generally requires only that someone “reasonably believe” deadly force is necessary either to defend against imminent great bodily harm or death to an innocent, or to stop the imminent or in progress commission of a specified type crime.  There is an objectively “reasonable” LEO standard as well.  A high standard indeed, but perfect prediction of future events is not required to answer the MAY and MUST.

I would never suppose that attorney me (or anyone else, regardless of calling) could completely and always correctly advise on the use of deadly force MUST question for another.   However, the MAY question of the developing grump I express here is answered in no uncertain terms by numerous Federal and state cases.  Here are some examples of case quotes/holdings which express the use of force concept:

  • “We accept for the present purposes that, once past Sergeant Carr, Montoute never turned to face him again, and Montoute never actually pointed the sawed-off shotgun at anyone. But there was nothing to prevent him from doing either, or both, in a split second. At least where orders to drop the weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.”  (LEO; Montoute v. Carr, U.S. Court of Appeals, Eleventh Circuit, 1997).
  • In order to successfully invoke stand your ground immunity, a defendant need not “see a weapon,” or “have brandished his gun, fired a warning shot or told the attackers to stop because he had a gun.”  (Civilian defender; Mobley v. State of Florida, Third District Court of Appeal, 2014).
  • “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”  (LEO; Tennessee v. Garner, U.S. Sup. Ct., 1985).
  • “If Davis’s reasonable belief that Bubblegum had a gun had been correct, he had one or two seconds left to live.   See People v. Desmond, 93 A.D.2d 822, 460 N.Y.S.2d 619, 620 (2d Dep’t 1983) (question is not whether the defendant was “in actual peril of his life,” but whether “he reasonably believed he was in such peril”).”  (Civilian; Davis v. Strack, U.S. Court of Appeals, Second Circuit, 2001).
  • “It is not necessary that the danger which gave rise to the belief actually existed; it is sufficient that the person resorting to self-defense at the time involved reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken. In forming such reasonable belief a person may act upon appearances. In other words, it is sufficient that the danger was reasonably apparent.”  (LEO; Davis v. Freels, U.S. Court of Appeals, Seventh Circuit, 1978).
  • “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.”  (Bell v. Wolfish, U.S. Sup. Ct., 1979, as quoted in Graham v. Connor).
  • “[T]he Constitution does not require that certitude precede the act of self protection.”  (LEO; Elliot v. Leavitt, U.S. Court of Appeals, Fourth Circuit, 1996, see also Wilkinson v. Torres, U.S. Court of Appeals, Ninth Circuit, 2010).  (Note, these two cases also discuss and explain the seminal law on multiple  shots to eliminate threat and unlikely requirement for target reassessment before re-engagement).

I don’t write this to put down anybody.   I just want everyone to get the MAY correct, as unpleasant as the true state of the law may be to some.  (Hat tip to my nonlawyer mentors and LE buddies, who don’t think legally incorrect on duty, or make erroneous statements like that in their training classes, writings, and lectures).

We all understand.  Taking a life is, well, just that.  Killing.  Homicide.   Repugnant.  Irreversible.  Maybe unforgettable for a lifetime.  But sometimes necessary and legally justified.   Thus, when the MAY/MUST answers are grounded in training and good faith, and executed with the best human objectivity and certainty, shoot first, live.  The law is with you.

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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.

22 thoughts on “MAY/MUST Questions Answered Correctly. . . Shoot First, Live

  1. Excellent article! Trainers and lawyers alike need to realize that the ultimate decision whether or not to use deadly force rests with the person who is at that moment in time feeling threatened, and up to that person to later justify it through articulation. It should be the responsibility if each individual to know the laws that govern them ahead of time, but such is not reality. I feel some people are just looking for someone to tell them that a law or circumstance allows the to shoot someone else, and that ain’t the case in the real world. People should also consider that law enforcement officers most likely allowed time to get their heads straight or seek medical treatment after a deadly force encounter, here private citizens are not. All parties should keep this in mind. I don’t wish to join the group that encourages good men and women to second-guess themselves into an early grave, but it is enough of a responsibility to justify preparing your mind in addition to improving your shooting skills or deciding that you have to exercise your rights.

  2. Well Steve, I totally agree with everything you wrote. Many LEO’s and trainers give out some pretty sketchy advice. It is worse with many of both the Military and Non-LEO trainers who are dishing out advice on CONUS use of force legal standards with very little understanding of the realities of the “big picture”. It is like the trend of “just win the fight anyway possible with zero regard that what happens with the legalities before, during, and after the fight are a major part of the equation and the fight (sitting in jail for “winning” is really not winning in my world).
    Now, I am very honest with people that many of our LEO trainers (especially when training civilians) say some really stupid stuff. Everytime I hear the “if you shoot someone in your yard, pull them in the house”, I go ballistic………and full nuclear when that comes out of a cops mouth as “advice”. Hopefully, a future posting of yours will also deal with “stupid” advice from lawyers on use of force and dealing with after a use of force event. Very few folks in the business on all sides really understand the complexities of the issue and unfortunately many with a badge, uniform, or law degree are often the worst offenders of bad advice given with no practical experience.

    • Darryl, thanks for commenting. I certainly did not mean to imply that lawyers don’t fail similarly when they give legal advice on use of force and shooting aftermath issues. I suspect agency and risk management ones do, for the reasons I stated. The impetus for my writing did not include seeing any misstatements by trainers with law degrees or lawyers. But if/when I do, the MSW crowd will be the first to know.

      • The level of stupidity that can come from city attorney’s and risk management is actually some of the worst. I am convinced that it is job security for them to get the agency sued…..and blame the stupid cops for their policy’s that almost ensure a policy violation even when totally justified under legal standards you listed. I also think that is where much of the L/E stupidity comes from……listening to their city attorney’s instead of true use of force experts.

        • You also got me thinking about one point I didn’t mention. Sometimes trainers and lawyers fall for the nonsense that in a situation when deadly force is the lawful indicated response, use of lesser force that might have worked is first required.

  3. Mr. Harris wrote a good article, and Mr. Bolke, as usual, gave thoughtful information. My compliments to both.
    My thoughts.
    A civilian who carries a weapon to use in his or others’ self-defense must know the specific state law of the jurisdiction where he/she lives. This is vitally important. These statutes are not rocket science. Read them and understand them. Run various scenarios through your mind about them.

    Consult with LEOs, trainers, attorneys or better yet, arrange for a group meeting (milk and cookies) with an attorney in the evening to discuss situations where deadly force might be used. Most attorneys will meet for milk and cookies and of course, the potential to solicit new clients. Understand also that attorneys are not the know-all institutions that they want to be. Take what they say with a grain of salt, or consult with more than one, and preferably with one who has actually handled these sorts of cases. Learn all you can from these people.

    Know what you can or can’t do in your state or other states if you travel. Know the difference between justification for the use of deadly force, force in general, and when to threaten either. Know if you have a duty to retreat or not before using deadly force. You are doing a disservice to yourself and others if you do not know and understand the law. A civilian needs to train on the law as much as a LEO.

    After you know the law, plan when or how you intend to use deadly force. Reading various threads on other forums shows me that civilians have different ideas about when to employ deadly force. These ideas range from aggressively pursuing force to protect strangers to aggressively protecting only one’s immediate family. Regardless of how you decide to employ deadly force, have a clear understanding of the circumstances when you will engage, so that when an incident unfolds, you can deploy your force quickly and in the manner intended.
    Then there is the situation after the shooting.

  4. Excellent synopsis Steve!

    I hope to see an article from you pertaining to after the smoke clears.

    Does one (the shooter, who lives) talk to law enforcement without a lawyer present?
    My opinion (worth exactly what you paid)…NEVER! If one just went through the traumatic event of shooting another human being, I would suggest that person is not in the best frame of mind to talk to law enforcement without a lawyer present. Your lawyer protects your rights, not investigating law enforcement!

    • Billy, thanks.
      Who promised the smoke “clears” after you shoot someone? Much has been written on shooting aftermath, both for civilians and LEOs. Each situation is so fact dependent, I think the only certain thing is one should speak with an attorney before speaking with investigators, and have the attorney present for a (delayed) interview. Exceptions would be for first aid, to document evidence and witnesses, and to give the particulars of any additional malefactor(s) who have fled. George Zimmerman is a great example. He did just about everything most would say is incorrect after the shooting, but most of the incorrect things he did/said helped him get acquitted. I included some aftermath suggestions in my post on that case: “AAR: STATE OF FLORIDA VS. GEORGE ZIMMERMAN.”

      • Steven…

        My thoughts exactly!

        And good point, THE smoke really never clears!

        In a perfect world, innocent people would not be wrongly accused and /or convicted. Thus, anyone could speak willingly, freely and candidly to criminal investigators without an attorney present.

        I certainly understand Daryl’s ding against my comment. I understand the culture.

        Yet, most disconcerting, I have personally witnessed an innocent person getting totally twisted up and unwittingly confess to a crime they did not commit when confronted by a professional interrogator using highly evolved interview (interrogation) techniques. It happens!

        Yes, we can use behavioral science to assist the direction of the interview, and the science has been highly successful. But, there are still those unique cases where the science did not work and innocent people were wrongly accused and sometimes convicted.

        And, that is why I think it imperative to seek legal counsel before giving any statement or interview to LE first responders or investigators.

        In my state, the Assistant AG for LE Affairs has written numerous times to the LE community about the importance in seeking union provided or private legal counsel before speaking to investigators after an officer involved shooting. Shouldn’t the same advice apply to all citizens? IMO the answer is an unequivocal YES!

        FL v. George Zimmerman
        While Zimmerman may have been his own worst advocate in the aftermath of the shooting…his inept actions pale in comparison to State’s Attorney Corey. This case is conflicted on so many fronts!

        • I wasn’t talking about sitting in an interview room with an investigator. At the actual post shooting scene, where your first statement to L/E is “I’m not talking and I want a lawyer”………enjoy the ride. The crooks will be talking, and providing the only information to L/E. My advice to people is that if you are in fact a victim, act like it. If the cops are treating you like a victim, I would try to maintain that status and not start acting like a suspect. If you are a victim and the cops are treating you like a suspect…that is the time to start acting like one (get some legal counsel). If your plan A is to NEVER speak to L/E, you are 100% guaranteeing that you will be in an adversarial relationship from the first second, and you will be wholly on your own to help yourself. I hope your attorney is REALLY good, but they will have to be to win an acquittal without ever having a victim statement or any assistance given to L/E to help them prove you are the victim. You will also be in-cutody or on a high bond while this is going on.
          Personally, the asking for a lawyer is in the plan, but not at A, or B level. I’ve been through four shootings of my own (two on people, two on street lights), and a heavily involved participant who didn’t fire on a couple of others where I never needed an attorney, never prosecuted, and never sued. Is this normal….probably not, but I am glad that I didn’t “lawyer up” right out of the gate, because in both of the cases remaining silent would have screwed me badly.

          • Darryl – home run! In circumstances you describe, it is advisable to speak and make sure responding LEOs are given enough to view you as the “good guy” and the incident as a good self defense shooting. (Maybe you will then not be arrested, so you can go home, rest, and call attorney). Where the attendant circumstances of a shooting are rather evident and lawful, for example when the malefactor was attempting a crime for which deadly force may be used to oppose, those facts should be brought to the attention of responding uniforms/investigators. The nifty thing that happened with Zimmerman with his interviews and recreation of the incident was that it put a valid self defense theory before the jury and Zimmerman did not have to testify. And, the jury did not have his silence or “lawyer up” invocation to hold against him.

          • Daryl, I never stated NEVER speak to LE!

            I stated, NEVER speak to LE without counsel present! Big difference.

            OK, I will walk back a bit from my NEVER statement. I see nothing wrong with telling the initial responding LE officer, “the guy was pounding my head into the cement and I feared for my life”. If the LEO asks, “did you shoot the guy?” At this point, I would say I need to talk to a lawyer before answering that question. If you say “yes, I shot the guy”. That is a statement admitting to homicide (assuming bad guy is dead). Do you really think an attorney, if present, would allow a client to answer that question? It is about the preservation of your Constitutional rights. NOT, what kind of relationship you initially establish with LE or where you might spend the night.

            The determination of type of (justified) homicide is weeks, if not months down the legal path.

            I agree, innocent people want to speak freely to LE; they did nothing wrong, so they believe. And guilty people like to talk as well.

            In some states, only a grand jury can declare “justified homicide”. Thus, all statements and evidence is presented to the grand jury. As such, I would want to be certain any comment attributed to me can not be taken out of context or interpreted any other way than offered. And only legal counsel can preserve your right not to offer conflicting, confusing or incriminating statements.

            I can not imagine an event where a shooter, acting and treated by LE as a victim, is not taken for a ride downtown to allow investigators an opportunity to collect evidence and attempt a controlled interview. To allow a shooter to go home, shower, relax, eat, get a good night sleep would be construed as serious negligence by LE. I cannot envision a 100% guaranteed, justified shooter/victim allowed to go home (leave the scene).

            Not even a bloodied George Zimmerman was allowed to go home. And he acted and looked like the perfect victim.
            7.16.55 pm gunshot heard on 911 call
            7.17.40 pm Officer Smith arrives on scene
            7.18.43 pm Officer Smith takes Zimmerman into custody
            7.40 pm Sanford Fire treats Zimmerman’s injuries
            7.52 pm Zimmerman arrives at Sanford PD
            11.21 pm Evidence collected from Zimmerman
            1.00 am Zimmerman released

            At no time, do I recall Zimmerman and LE having a adversarial relationship. Zimmerman continued to appear the victim in the walk through with Detective Chris Serino the following day.

            Yes, this is just one case out of many we can cite/discuss. But, FL v. Zimmerman clearly demonstrates how quickly events can unfold to the disadvantage of the shooter/victim even after investigators determined the shooter acted in self defense!

            And I completely agree with Steven, Zimmerman’s conflicting comments/statements do not initially help his cause. Yet, likely contributed to his acquittal. And back to my original premise, should he have talked to LE without counsel present?

          • I posted this comment earlier, but it seems to have disappeared:

            Darryl – home run! In circumstances you describe, it is advisable to speak and make sure responding LEOs are given enough to view you as the “good guy” and the incident as a good self defense shooting. (Maybe you will then not be arrested, so you can go home, rest, and call attorney). Where the attendant circumstances of a shooting are rather evident and lawful, for example when the malefactor was attempting a crime for which deadly force may be used to oppose, those facts should be brought to the attention of responding uniforms/investigators. The nifty thing that happened with Zimmerman with his interviews and recreation of the incident was that it put a valid self defense theory before the jury and Zimmerman did not have to testify. And, the jury did not have his silence or “lawyer up” invocation to hold against him.

  5. I’ll add one more comment to Billy’s response above and let Steve get back in here and I’ll try to go back to casual observer. We all have sort of a fantasy idea of what will happen in, and after a shooting, and much of it will not even be close if it ever happens. It is why I am big on education (like reading and thinking about articles like Steven’s), multiple options, and some other things we can discuss later.
    When people tell me that they are not talking until there lawyer gets there, and then they will give a statement is sort of funny. What happens when your lawyer say’s “we are not giving a statement”? Do you have a plan for this? You have already invoked your rights, so the cops are essentially done with you (and you are probably in-custody somewhere else if you have not given an interview that allows the investigators to ask questions). Your attorney will have to make arrangements for an interview later, IF they let you talk. I have found many attorney’s are very confident of their courtroom skill’s and are willing to test them on your behalf. If you want to talk and your attorney doesn’t, this will be an interesting time to find a new attorney. How “on call” is your legal counsel…? 3 AM on Sunday morning, are they coming to the police station?
    My point on this is there are a whole lot of variables to get into the “never’s”. Can you imagine the Zimmerman case if he made no statement and his attorney said “we have no comment, see you in court”…….I think the initial statements, and walk through is what probably was the biggest thing that got him cleared. Others disagree, and I am totally good with that.

    • All good points. Sometimes lawyers tell on scene investigators the client won’t speak because they may think the client has lied to them about what happened and they want more time to check out the physical evidence and what witnesses said. In the perfect world the attorney comes to the scene pretty quickly and brings his/her own investigator to identify witnesses. All of that is somewhat easier when the client is LEO in an OIS.

      • I have observed it more as an attorney deflecting questions that could possibly solicit a reply which would incriminate a client. A defense attorney certainly does not want a client lying.

        And I mentioned the “perfect world” earlier. Unfortunately, it doesn’t exit. Yet, we have the best judicial system on the planet. No, it isn’t perfect. But, there are only a handful of countries on the planet allowing a person to invoke the right to refuse speaking to police or guarantee access to an attorney when speaking to police.

        And, that is all I was simply alluding from the outset.

    • FL v. Zimmerman will be a case study for decades to come in law school for so many different and conflicting reasons.

      We can say his appearance as a victim and his many comments and statements through many venues aided his acquittal.

      Yet, listening to members of the jury speak post verdict, it was State’s Attorney Corey over-charging Zimmerman that allowed the jury to declare him justified in the shooting of Martin. Recall, more than one juror stated they wanted to convict Zimmerman of something. But, the evidence and testimony did not support a guilty verdict on the charges being considered by the jury.

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