An Overview of Basic "Use of Force" Law

[Frank Ettin]

The question of when one may legally use force in self defense comes up regularly. Perhaps this general and high level overview can serve as a baseline for such discussions.

But first the usual caveats: (1) I'm a lawyer, but I'm not your lawyer; (2) This is not legal advice, but rather it's general information on a legal topic; and (3) this is intended as a general overview without reference to the laws of any particular State, and as such it doesn't consider specific state laws that might allow justification of a use of force in some circumstance not mentioned here.

Now let's look at the basic legal reality of the use of force in self defense.

1. Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.
   
   
   • However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.
     
     
   • Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.
     
     
   • Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.
   
   
2. The amount of force an actor may justifiably use in self defense will depend on the level of the threat.
   
   
   • Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --
     
     
     • Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;
       
       
     • Opportunity, i. e., the assailant was capable of immediately deploying such force; and
       
       
     • put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.
     
     
   • "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."
     
     
   • "Opportunity" could be established by showing proximity, lack of barriers or the like.
     
     
   • "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.
     
     
   • And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.
   
   
3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.
   
   
   • Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.
     
     
   • If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.
     
     
   • Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.
     
     
     • Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?
       
       
     • In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.
       
       
     • It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.
       
       
     • It could also be another matter if you left the safety of your house to confront someone on your property.
   
   
4. Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.
   
   
5. Sometimes a defensive use of lethal force will have grave consequences for the defender, even when ultimately exonerated. For example --
   
   
   • This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.
     
     
   • Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.
     
     
   • Mark Abshire in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.
     
     
   • Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.
     
     
   • Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.
     
     
   • Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.
     
     
   • And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.

 

[Kleanbore]

Excellent!

That would have been a great handout at my CCW training five years ago.

 

[Carl N. Brown]

That sounds like what they teach in the 4 hour class on self-defense law required for a Tennessee handgun carry permit, minus the 45 min videotaped update on general principles and recent state case law.

I am making a copy for my archives. Excellant summary.

 

[Fred Fuller]

This too is going to be a sticky, after it 'circulates' for a bit...

 

[Bartholomew Roberts]

This is a great entry level discussion of use of force laws. It is worth remembering though that each of these subjects has a lot more detail to it and that failure to understand these concepts can land you in prison.

Everybody who is contemplating using a firearm in self-defense should understand at least the basics outlined above; but when you get into different sets of facts and different laws, you could have a lengthy discussion on any of the points raised above. I would encourage everyone to use this as a starting point for their education and not an end point.

 

[Kleanbore]

This is a great entry level discussion of use of force laws. It is worth remembering though that each of these subjects has a lot more detail to it and that failure to understand these concepts can land you in prison.

Everybody who is contemplating using a firearm in self-defense should understand at least the basics outlined above; but when you get into different sets of facts and different laws, you could have a lengthy discussion on any of the points raised above. I would encourage everyone to use this as a starting point for their education and not an end point.

Absolutely!

It would probably also be a good idea to remind everyone at this point that no one should ever be reviewing and analyzing the law for the purpose of justifying the use of deadly force. Deadly force should always be considered a last resort, to be used only when there is no alternative.

 

[Frank Ettin]

Bart,

Absolutely right. This is a first step only. And to really understand law one can't stop with the statutes. He'll need to study the case law as well.

 

[kgpcr]

Great post! Shooting some one creates massive problems. You can count on HUGE legal costs and more stress than one should go through. For me its simple. Its NOT can I shoot but do I HAVE to shoot in order to protect life. If I do have to then I do. If I have ANY other alternative I will take it. Once you go through the legal meat grinder there is no such thing as a winner. You may be fount not guilty or had charges dropped but you spent a ton of money and endured a lot of stress. You may have had to sell your house and what not to pay legal bills and that money is gone for good.

 

[mljdeckard]

I always tell my students, SYG and CD laws exist as a buffer to give protection to the defendant, but you can't rely on them. They are subject to the judicial process, just like every other law. All it takes is a young DA trying to make a name for himself and a judge who has been sleeping on the couch for a week, and you will be putting your lawyer's kids through school instead of your own.

 

[Cosmoline]

A few comments:

--The threat must typically be unlawful. Seems obvious but it can be an issue.

--Phrasing it as "ability, opportunity and jeopardy" is fine, so long as it is remembered that the threat must reasonably be seen as imminent, unlawful and posing the risk of death or serious/grave bodily harm. Mere words without an imminent threat are not going to suffice even with "ability and opportunity."

--The subjective intent of the aggressor is not at issue, and may remain inscrutable to the end.

--There's a difference between assessing threats as a tactical matter and assessing threats as a legal matter. Someone who clearly poses a serious risk to you may nevertheless be untouchable because he hasn't yet crossed any legal threshold. So assessing ability/opportunity/jeopardy is important, but may not dovetail with the required standards. There is no short cut mantra. You must read and understand your own state's code and how it has been interpreted by your own courts.

 

[Frank Ettin]

...The threat must typically be unlawful. Seems obvious but it can be an issue...

Good point. It's most likely to be an issue in a "defense of another" situation where the actor might not fully understand what was going on.

...Phrasing it as "ability, opportunity and jeopardy" is fine, so long as it is remembered that the threat must reasonably be seen as imminent,...

True. Addressed in point 2.a.:

...imminent death or grave bodily injury...

...Mere words without an imminent threat are not going to suffice even with "ability and opportunity...

True. See 2.a.iii.:

...put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple....

especially when read together with 2.a.:

...otherwise unavoidable, imminent death or grave bodily injury...

...The subjective intent of the aggressor is not at issue, and may remain inscrutable to the end...

True. Again, see 2.a.iii. (emphasis added):

...the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent...

 

[Derry 1946]

Great work, Frank. Where I have seen the discussion going into iffy territory most often is in defense of property situations. For example, Thief enters Homeowner's land, takes a lawn mower, and hits the road. Thief is now off the premises with the stolen property. H pursues, perhaps merely hoping to get Thief's license plate number. Altercation ensues, and H uses a firearm. Shooting (or shooting at) the fleeing robber is going to be hard to justify. The other area of confusion is where words alone are the ostensible provocation for force. This too is going to be hard to justify. Thanks for a clear primer, Frank.

 

[Jim K]

An often overlooked point is that self-defense is not something you just toss at the cops while you stroll away from the bleeding body. It is an affirmative defense to a charge of murder (or manslaughter). When someone uses self-defense as a defense, he/she admits to having used deadly force with the intention of doing harm to the victim. You cannot claim self-defense and then say that the killing was an accident or that you didn't mean to do it. Self defense is a deliberate action, taken out of dire necessity.

Jim

 

[Derry 1946]

In claiming self defense, one does not inherently admit to trying to harm the other party ("victim"), but merely to having taken the action necessary to prevent an imminent danger of harm to the defendant. The defendant can usually plead other defenses, even if inconsistent, such as alibi, as long as some evidence supports those defenses. Whether the jury will believe them is another matter.

 

[Frank Ettin]

In claiming self defense, one does not inherently admit to trying to harm the other party ("victim"), but merely to having taken the action necessary to prevent an imminent danger of harm to the defendant....

I have to say that I think that's inaccurate. It's certainly an imprecise way to characterize things.

1. You admit that the fact is true that you performed the act: I shot him.
   
   
   • The fact that the person has been shot is obvious on the face of things.
     
     
   • It's also, therefore, obvious that someone did it.
     
     
   • You admit that it was you who did it.
   
   
2. You claim that the facts are true that legally justify the act: I reasonably believed that I had to shoot him to prevent him from immediately killing me.
   
   
   • The facts legally justifying the use of force will need to be inferred from the circumstances as established by the evidence.
     
     
   • If you shot someone and claim self defense, you will need to present evidence from which could be inferred --
     
     
     • A reasonable a prudent person in like circumstances would have conclude that the person you shot had the ability to kill or cripple you, had the opportunity to kill or cripple you and intended to there and then kill or cripple you.
       
       
     • And that, therefore, a reasonable and prudent person in like circumstance would have concluded that lethal force was necessary to prevent otherwise unavoidable, imminent death or grave bodily injury to an innocent.
     
     
   • While you might say that you shot the guy "to prevent an imminent danger of harm" to you, that's not really an admission. You don't have the final say as to whether that is true. Others will decide that based on the evidence.

 

[Derry 1946]

Perhaps. The prior post said that in claiming self defense one admits to doing the action with the intention of harming the victim. The purpose of the action is to stop the attack. The distinction may be subtle, but admitting an intention to harm the attacker could sound to police, prosecutors, jurors, and judges like an admission to an element of a crime of intent.

 

[Frank Ettin]

...The defendant can usually plead other defenses, even if inconsistent, such as alibi, as long as some evidence supports those defenses. Whether the jury will believe them is another matter.

Can you cite some authority for that proposition or cite some examples of it having been done? And certainly I can't see it being done successfully.

The essence of a defendant's claim of self defense is, "I shot him but it was justified because...." So the defendant will need to at least put on evidence convincingly addressing the "because." And the strongest evidence is likely to be the defendant's story.

Most of the time a defendant claiming self defense will as a practical matter have to testify. On rare occasions a defendant claiming self defense might be able to avoid testifying. But in some way, almost all of the time at least, the defendant's story has to come in. Recently, in a well publicized trial, a defendant avoided testifying, but his story still got to the jury because the defendant's statement made to investigator was put into evidence by the prosecution.

And since the defendant's story is a core part of his self defense claim, it is vital that it be believed. I simply can't imagine a jury giving any credence to a defendant's story when it goes something like: I was justified in shooting him; and if you don't believe that, it was an accident; and if you don't believe that, I wasn't there.

 

[Frank Ettin]

...but admitting an intention to harm the attacker could sound to police...

I'm not sure that I'd expect someone to say, "I intended to harm him." One might say, "I intended to shoot him, because...." or "I shot him, because..."

Certainly by the time the actor's lawyer gets involved, I'd expect a competent lawyer to be careful about his choice of words.

For some further discussion about what to say after a violent encounter, see here.

 

[Derry 1946]

Absolutely. You expressed it more artfully than I. Thanks for the clarification.