A tactically appropriate, legally acceptable deadly force response doesn’t necessarily “look right.”  Imagine a courtroom (an LEO is being sued under Federal law for “excessive force,” or a non-sworn alleging self-defense is being prosecuted for murder or manslaughter), where you hear some or all of this: “Members of the jury.  You heard from several eyewitnesses in this case.  They uniformly told you they observed the defendant shoot the victim X times  .  . look around as if to see if anyone was watching, and then duck behind a wall .  .  . stash the partially empty pistol magazine .  .  . put a fresh one into the pistol  .   .   .  and reengage the wounded and flailing victim with Y additional shot(s) to the (body part) .”   A bit concerned that even with the extensive explanation of experts, the above would seem excessive (shot count), unreasonable (reloading, reengaging), and/or sinister (scanning, taking cover) to a judge or jury?  Even when the shooting is unquestionably “good”?  I am.

Current tactical thinking on shot count/placement, reloading, and reengagement (for both LEOs and the non-sworn) seems to be the following: keep shooting until the threat has been neutralized, with continuous reassessment of the necessity to apply deadly force. Some trainers add to follow the threat with the muzzle while confirming neutralization. (Admittedly, whether an apparently incapacitated or capitulating threat has been effectively neutralized is one of those “eye of the beholder” questions).  Some teach a standard “failure drill” engagement and response: Shoot a set number of shots (usually two to “center mass”) with a pause for assessment, and if necessary, execute a relocated reengagement, as thought to be the best placement option considering revised target presentment, location of prior shots, and human anatomy.  (Shooting a preplanned number of shots followed by a pause for reassessment, then reengagement, has its LEO trainer detractors. See “How Not to Respond on the Street,”  by Kevin Davis).  Many teach to reload during a gunfight “when you can,” before the gun runs dry, and when it appears the need for deadly force has ended .  .  .  in case it hasn’t.

The principal rationale for such training is the widely accepted notion that the “one-shot stop” myth had its funeral some 20-plus years ago. Stated another way, handgun shots, even fatal ones, are not necessarily instant neutralizers.  There have been instances where inflicting fatal wounds didn’t end a gunfight, and a shot person didn’t promptly act neutralized.  While on the ferryman’s boat ride to Hades, they receive the assistance of confederates, or deliver deadly blows, stabs, or shots, for seconds, maybe even for a minute or more.

My Perspective — Legal and Otherwise

I am not particularly keen on canned shot counts with preplanned pauses for assessment, reloading of a handgun before it is empty, or “topping off” when the need for the use of deadly force appears to have ended.  I revere many who teach such things, but I was never convinced of the practicality of or tactical necessity for such robotic behaviors, especially for the non-sworn (who are likely only to be involved in a low shot count shooting, not a gunfight).  I think a pause, including that for a reload, may suggest to a judge or jury there was time for a perfect reassessment decision, and/or disengagement.  To them, shots fired after a pause easily take on a sinister appearance.   But, I strongly subscribe to the notion that if an earlier properly taken shot delivered a fatal wound, subsequent shots, especially those in the same volley, should have no legal significance.  (There are cases containing language suggesting that).

A two or three second volley of sustained fire would rarely be found unreasonable or excessive.  It is not unusual for a person running a modern service pistol to be able to shoot two to five times per second.  You can do the math and see why an LEO’s shot count north of three isn’t vigorously questioned.  (Davis: “Round count as an indicator of excessive force comes from the land of the mythical one shot stop”).  What about when reengagement occurs after an interruption of more than say a few seconds?  Like all deadly force encounters, the answer is entirely situation dependent.  Here’s a video of an LEO shooting with two volleys, 11 shots, over more than a minute.

There is Federal case law which addresses seemingly high LEO shot counts.  The cases hint at how reloading and reengagement are viewed.  Shot count is rarely rejected, except perhaps when pauses, reload(s), and/or reengagement reflect excessive shots fatally wounding an already neutralized but likely surviving subject.  Here are examples of cases finding a seemingly high round count LEO shooting not “excessive force”  —

  • Three LEOs, three shots, followed by 12 more shots, in 10 seconds.  From the opinion: [T]he officers need not stop shooting until the threat has ended.This would be a different case if petitioners had initiated a second round of shots after an initial round had clearly incapacitated Rickard and had ended any threat of continued flight, or if Rickard had clearly given himself up. But that is not what happened.”  [Plumhoff v. Rickard  (U.S. Supreme Court, May 27, 2014) (underlining original here, for emphasis)]
  • Two LEOs, 22 shots.  From the opinion: “The number of shots by itself cannot be determinative as to whether the force used was reasonable. Both officers fired almost simultaneously; neither officer emptied his gun; and the evidence indicates that the shooting took place within a matter of seconds. That multiple shots were fired does not suggest the officers shot mindlessly as much as it indicates that they sought to ensure the elimination of a deadly threat.”   [Elliott v. Leavitt (4th Cir. 1996)]
  • Eleven rounds by an LEO, in nine seconds (including a “slight pause” to assess).  Court noted since deadly force was proper:  ” .  .  .   it makes no difference . . . whether Torres fired seven rounds or eleven.”   The court refused to decide whether a two second pause between “rapid-fire volleys” was sufficient time to reevaluate the deadly force decision[Wilkinson v. Torres (9th Cir. 2010]

Are LEO case rulings applied to defensive shootings by the non-sworn? Although they probably should be, I have not found reason for comfort that they have or will. I don’t expect any uniformity in state courts or in the charging decisions of local prosecutors either. This is because self-defense scenarios are more often shootings, where, historically, shot count is low, not shootouts or gunfights, and the need for reengagement and/or reloading is highly improbable.  (Take as an example, the George Zimmerman – Trayvon Martin one shot encounter).  Right or wrong, a high round count shooting by a non-sworn sets off a prosecutor’s murder/manslaughter detector.  [Consider Claude Werner’s research and insight on the actual effectiveness of low shot counts (bookmark his tactical professor website, here)].

Use of force experts and attorneys with non-sworn self-defense trial experience in several states tell me that shot count, shot placement, and reengagement are sometimes argued to assert a shooting was unreasonable or unnecessary, and thus the unlawful use of deadly force.  This is particularly so in a state where properly employed deadly force is nevertheless tested for reasonableness or proportionality.  Investigating LEOs question a non-sworn’s shot count even when the same number of shots would not be questioned in an LEO shooting. (See a six-shot case, here).  Some LEOs, in agreement with the LEO cases and my perspective, don’t deem shot count significant. (See a 12-shot case, here).

So after all the above, what’s my advice to the LEO and the non-sworn? It’s the same for both.  Get good legal and tactical training.  Training should include frequent study of the dynamics of actual lethal force encounters similar to what you might encounter. Update often. Remember your survival remains paramount. Thus, when the CAN-MAY-SHOULD-MUST all scream “use deadly force,” get the absolute best first hit you can (hat tip, Claude Werner / Bill Rogers), and then, follow your training.  If necessary, shoot until the threat is no longer doing what made you correct in the decision to use deadly force in the first place.  Let everyone else count shots; you just count on hits.

[Hat tip: Safariland’s Forensics Source™ for permission to use illustration]

This entry was posted in Legal, Training by Steven Harris. Bookmark the permalink.

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.


  1. Great article! I especially liked the part about the “pause” taking on a sinister appearance. This only reinforces to me the need to keep my mind engaged sharp in a fight,,,, although I can’t speak for how easy that may be.

    Thanks for the info!

  2. My understanding from my John Farnam training is that in the after-shooting debriefing, it is most common for LEOs to report that they fired one or two shots, when in fact they have emptied their magazine, sometimes continuing to pull the trigger after they have exhausted the magazine.

    John teaches that this is one of the reasons to not try to count your own shots. I’m guessing that this is true for single-stack magazines and more so for double-stack magazines.

    • The likelihood that an accurate shot count will be remembered is low, hence that advice. Saying anything post-shooting with a guessed preciseness which turns out not to be exactly right can be seen as a knowing misstatement. Notice the last sentence of my article. It was not a typo; I did not mean to write “count your hits.”

  3. This is somewhat off topic. But after watching that video i got to thinking. I think it would really awesome if you guys did break downs of videos like this. Whether or not it was justified. What the shooter did right or wrong thing(tactically). Like this video: . Would it have been a good idea if you where carrying to pull your firearm or let them go. Sorta like an AAR for these sorts of videos.

    This may be a good or bad idea i don’t know. But it was something i thought would be neat to hear assessments from people that have way more knowledge then i do concerning life or death situations involving firearms.

    • Doing legal or tactical AARs on scenarios like the robbery you linked, is quite difficult. There will always be a tremendous range of opinions about the CAN, SHOULD, and MUST. I think these type situations involve a judgment call to be answered only by the intended victim. I will say this, however. I have watched hundreds of robbery videos. Very often there comes a time before flight when the robber(s) are not alert or have deployed a firearm in such a way that a trained victim could draw on the drawn gun and prevail (the CAN). That is the case in your linked video. I note it seemed that there was no intent to march the victim into the trees or make him lie down, grab his camera, or other signs of impending ugliness more than loss of property. But I also note trail encounters turned crimes do not always end up just as a property crime. See this recent one:

  4. I must say, the use of the term “non-sworn” is a refreshing change from the normal, erroneous bandying about of “civilian”. The same thoughtfulness is apparent throughout your article. Kudos.

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