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.