definition of justifiable deadly force

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bikerdoc

bikerdoc

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Went to community meeting where the speaker was an Asst Commonwealth Atty. He was a well spoken, likable guy who spoke on a bunch of topics and then opened it up to qustions. when asked about deadly force I started to write furiously, I think I got all

justifiable deadly force is the use of deadly force when you are in fear of iminent bodily harm or death, by someone in close proximity, who has the means and ability to harm you. The incident is unprovoked by you, while you are going about your lawful business, and you have recognized your duty to make peace or flee.

Comments, opinions?
 
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I think you guys misunderstand.

By "duty to flee", I don't believe that means that, if a guy pulls out a gun, you must run like an Olympic sprinter, ducking for cover, desperately praying you don't get shot.

I think it means, if you can just walk away from a guy who's an *******, you do have a duty to do so instead of shoot him.

"He was an *******, so I shot him!" is not going to be ruled "justifiable homicide in any state, including Texas, AFAIK.
 
I think it means, if you can just walk away from a guy who's an *******, you do have a duty to do so instead of shoot him.
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I don't think so in this case. If bikerdoc got it word for word then there is some language that very much matters here.

justifiable deadly force is the use of deadly force when you are in fear of iminent bodily harm or death, by someone in close proximity, who has the means and ability to harm you. The incident is unprovoked by you, while you are going about your lawful business, and you have recognized your duty to make peace or flee.
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If that AND is there then we are assuming the other things already exist AND I have recognized any duty to retreat.

This is a very state specific sort of question. Bikerdoc is in VA so maybe there is a specific duty to retreat.

In Texas we have no such duty.

The "and" in the OPs definition to me indicates a duty to try to retreat even if under attack and that is out of line in my opinion but it might very well be the law in some places.

But, it's hard to tell exactly what the speaker was trying to convey.

The simplest definition I've ever seen is this, though it's pretty vague it does make sense if you think about it.

Justifiable homicide is the killing of one person by another that is committed without malice or criminal intent.
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That pretty much leaves you to self defense I suppose, and capital punishment which is also justified deadly force by the way.

And of course there's that Texas one justifying deadly force in defense of real property, which wouldn't meet any of the definitions in the OPs post but I'm not gonna touch that one :)
 
I'd rather not have the legal, moral, and psychological mess to clean up afterwards so I'd try to get out of the situation if possible, but if they show something threatening and keep approaching me 5-4-3-2-1 goes a LOT FASTER. My family and future wife are who I'm thinking about first, my own well being second. I'm no good to them in jail or broke, but I'm even less good to them dead. My regard for the attacker's well being goes down somewhere around that of a cockroach.
 
While fleeing may sometimes be the prudent thing to do, in Virginia there is no duty to retreat (flee). If you are where you are legally you have every right to stay and defend yourself. The Asst. Commonwealth's Attorney must be from Northern VA, Richmond area, or Norfolk area because an Asst. CA in central Virginia with this attitude may not be working long.
 
justifiable deadly force is the use of deadly force when you are in fear of iminent bodily harm or death, by someone in close proximity, who has the means and ability to harm you.
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Iminent bodily harm? I would have to see the definition of bodily harm with iminent as my understanding was that it wasn't that it was iminent, but that it was serious in some way. In other words, a guy about to punch you in the gut is about to do iminent bodily harm, but not necessarily serious bodily harm. As such, the use of lethal force would not be justified necessarily. Threat of a bruised belly, as I understand it, isn't enough to justify lethal force.

The incident is unprovoked by you, while you are going about your lawful business, and you have recognized your duty to make peace or flee.
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All crap. I can call a person a bad name and hence be said to having provoked that person, but that does not give the person the right to use some sort of physically harmful force against me. If that person does and I am in fear for my life, I can use lethal force in return. In other words, I can both provoke and use lethal force legally.

It may not matter if my business is lawful or not.

No duty to make peace or flee where I am.
 
Even in jurisdictions with a duty to retreat, you only have a duty to retreat if you can do so safely. Even the old English common law version followed this rule.

The duty to "make peace" means that if you contributed to the altercation by giving someone the "You're number one!" sign or calling them something ungentlemanly, you have to basically apologize and attempt to walk away before a self-defense justification will be available to you.
 
justifiable deadly force is when you use deadly force to prevent the serious bodily harm to yourself or someone else, or when you use deadly force to prevent the commission of a violent felony...
 
justifiable deadly force is when you use deadly force to prevent the serious bodily harm to yourself or someone else, or when you use deadly force to prevent the commission of a violent felony...
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Not in all states.

There's that pesky Texas one again :)

9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or
tangible, movable property etc etc

he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means
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Maybe dumb, but it's legal here. IF you can prove it that is. That and the jury is as "reasonable" as you were.

That's why it's dangerous to make general assumptions about what exactly justified deadly force is, it can very SO much.
 
You see how complicated it gets? Everyone begins to parse a definition of what it means to feel threatened to the point of using lethal force. Yet, nothing has happened here. It's just a thread on the innertube.

Imagine then, what happens in reality. One always needs to be prepared. Goes without saying. No Retreat laws and Castle Doctrines have made it easier for one to cope and deal with drastic defensive behavior. Those laws are important and needed. But it remains that whatever measures one takes in a bad situation will be second guessed by disinterested third parties. Better to be able to walk away in peace, always. Not always possible, so that is why one should always be prepared.
 
who has the means and ability to harm you.
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This is the part of the definition I don't like. It should be stated that a reasonable person in that situation would have a fear of death or serious bodily injury. You may not be able to tell if they have the means or ability. What if they are threatening you with a toy gun that looks real? By his definition, you are not justified since they didn't in fact have the means or ability to harm you. That is crap.
 
IMO, it is only complicated because that definition is so narrowed down that it is almost impossible to justify deadly force.

The legal definition down here is very simple to me, but each case must still be looked at individually. Each state has its own wrinkles that you need to know if you live there.
 
Justification

Its a pretty easy two prong test to see if the use of force was justified.

Prong One:
1. Was it reasonable?
2. Was it necessary?

Prong Two:
1. Did the person have the ability to harm you?
2. Did the person have the Opportunity to harm you?
3. Were you actually in Jeopardy?

If you can answer truthfully a YES to each of these questions, then force is justified.
 
justifiable deadly force is the use of deadly force when you are in fear of iminent bodily harm or death, by someone in close proximity, who has the means and ability to harm you.
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That's close, but incomplete - you must be in *REASONABLE* fear of imminent bodily harm or death. A reasonable person of ordinary prudence put in the exact same set of circumstances must in theory feel the fear of imminent death or serious bodily injury (the jury decides this). You cannot claim merely your own subjective fear as a defense, based on irrational, unreasonable fears. E.g. You're scared of black people, so you see a person of color on the street who is large with a scowl on his face, and walk up and kill him - you may very well be in actual subjective, complete overwhelming terror that that person was going to harm you, but no reasonable person would think that that person minding his own business posed a threat, so it's murder. The test is objective, not subjective. This is true in most all, if not all, states. Very important added requirement before deadly force is justified.

Also, I would take out "in close proximity" - not necessarily a requirement. Let's say you're hunting, and you look through your binoculars, and you see a guy 200 yards away trespassing on your hunting lands, with whom you had a fight the previous day, after which he threatened to kill you. You know him and know that he does not hunt, but that he is very proficient with long range rifles. This man is pointing a scoped rifle directly at you, and you're up high in a tree stand. You take your rifle and shoot him first. Perfectly justifiable, if the jury believes these facts. Slam dunk case, in fact.

Also, there are exceptions to the general rule, which expand the definition. In the state of Texas, you are justified in using deadly force to protect your PROPERTY from imminent thievery, but ONLY after dark.

The question of whether you have a duty to retreat can vary, depending upon state law. In the majority of states, you do have a duty to retreat if possible, before employing deadly force. In a significantly large minority of states, you have no duty to retreat even if you can, provided the other requirements are met.
 
First, you must understand that these kinds of legal definitions vary from state to state. Be sure you know the law in your state. Many of these laws include conditions that may or may not be nuanced. For example, did you have a part in initiating or escalating the confrontation? It's one thing to react to an armed intruder advancing on you in your home, and another to find yourself in an escalating situation because you insulted a guy's woman in front of his friends. If you're smart you'll grovel in apology (make peace) or run like the wind before dropping the hammer.

Some of the no-duty-to-retreat laws may not be as forgiving as some believe, depending on circumstances. Know the law and, if possible, study some case examples.

K
 
Kentak is correct. Check your state statutes. It will be spelled out in the statutes for your state. It's not hard to find. http://www.loc.gov/law/help/guide/states.html Go to this website, find your state, and then do a search for wording such as "use of deadly force"; "force which could cause great bodily harm", etc. Don't confuse "use of force" with "use of deadly force". One is not the same as the other.

For IL the definition of use of deadly force is:
(720 ILCS 5/7‑1) (from Ch. 38, par. 7‑1)
Sec. 7‑1. Use of force in defense of person.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
 
I would add, it's in everyone's best interest that the use of deadly force is *not* legally easy.
 
justifiable deadly force is the use of deadly force when you are in fear of iminent bodily harm or death, by someone in close proximity, who has the means and ability to harm you. The incident is unprovoked by you, while you are going about your lawful business, and you have recognized your duty to make peace or flee.
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He is likely not very familiar with Virginia case law governing deadly force, and it is ALL case law, NOT statute law.
If he is fresh out of law school he likely has not prosecuted any murder cases, let alone self defense cases.
Virginia is a pretty peaceable place.


“The Virginia Gun Owners Guide” is a very good reference and includes the various case law call outs.

Virginia is a justifiable or excusable homicide state as defined in the case law.

Justifiable homicide can ONLY be invoked if you had NO interaction leading up to the event. You must be COMPLETELY without blame or fault.
No words, no threats that contributed to the event.
You are just walking down the street and threatened with death or grave bodily harm.
The attack must be imminent, substantial, and the capability must be present for his threat to be death or grave bodily harm.
Absent any one and you have not been threatened in a way that allows the use of deadly force.
You cannot use yesterdays threat, you cannot invoke it if the threat is not realistically deadly, and the person must be capable of performing the act.

There is NO duty to retreat in ANY place you are otherwise legally allowed to be.

Excusable homicide can be invoked if you contributed to the event, but then clearly indicate your attempt to end the altercation either verbally or by attempting to flee.

You cannot engage in ‘mutual combat’ and then use deadly force if you start loosing without trying to end the altercation.
 
BTW "justifiable deadly force" is quite different from "justifiable homicide."

In my state, I can threaten someone with a gun if I'm making a lawful citizen's arrest. That doesn't necessarily mean I can then just shoot him if he poses no further threat, sits down and says, "I'll sit here and we can wait for the police to arrive."
 
justifiable deadly force is the use of deadly force when you are in fear of iminent bodily harm or death, by someone in close proximity, who has the means and ability to harm you. The incident is unprovoked by you, while you are going about your lawful business, and you have recognized your duty to make peace or flee.
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That's an awfully good thumbnail. In some states you have a duty to flee, in others you do not. But if you applied this across the board, you'd probably be within the law in almost all states.

The key points are:

1. You are not the aggressor. The other guy started it, and you have done all you can to prevent his attack.

2. You are reasonably in fear of your life, or serious bodily harm.

3. You have no realistic alternatives but the use of deadly force.

I'd go a bit farther -- if you have to use deadly force:

1. Stop using force as soon as the attack stops.

2. Do all you can to aid your attacker once he is hors de combat (call 911, give CPR, whatever you can do.)

3. Say nothing to the police beyond pointing out critical evidence -- such as your attacker's weapon, citing witnesses to the attack, and so on. Don't even admit you shot the guy.

4. Get a lawyer, and only talk to him.
 


Which brings us to Sam's rules for a gunfight. Everyone has their own or has read a version somewhere:

Rules for a Gunfight


If you have been in Condition Yellow, the following will be
unnecessary, but, if not, then:

1. Bring a handgun. But if you'd planned better, you'd have a rifle or shotgun or been somewhere else. :(

2. Bring a handgun whose caliber starts with a 4.

3. Don't draw it unless you intend to use it.

4. Don't point it at anything you don't want to destroy.

5. Don't put your finger on the trigger until you are ready to shoot.

6. Once you fire, keep firing until your "target" ceases to be a
threat. Count your shots if you can. If given the opportunity, do a
tactical reload. Try not to shoot your weapon empty.

7. Call 911

8. Call Your lawyer. If you can, get a good criminal law attorney on
retainer before you need one.

9. Render aid if needed.

10. When questioned by police:
a. I feared for my life.
b. I'm too upset to talk now.
c. Stop talking​

Item 2. is arguable. You may not be able to properly conceal one of
the 10mm or 11.25mm pistols. Or you may not be able to control your
fire with one. If either is the case, then at least adhere to rule 1
and bring a handgun of some type. the .25 ACP you have with you is a
lot better than the .45ACP you left home.​
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