Have you considered what "reasonable" means?

[Crusader103]

This is an argument and does not necessarily reflect my opinion.

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In terms of lethal force it is not difficult to understand that the term "reasonable" implies that another person of sound mind and judgment would likewise feel the risk of death or serious physical injury existed at the time the force was applied.

But that is only half of reasonableness.

Have you considered this? The force used must be likely to overcome the resistance offered. Here's a theoretical case in point though the policies of many police departments are now in line with this thinking:

Suppose that a vehicle is headed straight towards you. We understand that a vehicle may constitute the use of lethal force, thereby warranting a response. However, even fast and accurate fire aimed at the driver of the vehicle is not likely to stop the threat. The vehicle will most definitely not immediately stop, instead continuing on its trajectory based upon momentum or perhaps veering out of control but still constituting a lethal threat. The discharge of a weapon at the driver/vehicle is unlikely to be effective or reduce the risk of death/serious physical injury to you.

In that regard, though the use of force may be justified as you faced a lethal threat, the force applied is not likely to be sufficient to stop the threat. It is therefore unreasonable to apply such force.

In order for force to be justified, it must be both reasonable and necessary. No doubt a vehicle being driven directly at you constitutes a threat, but is it truly reasonable to apply deadly force given that the force is not likely to stop the threat?

I already have my answer. I am not looking for input so much as provoking thought. I have testified in cases concerning this very issue. I will not offer my opinion as I have one pending now and it would be inappropriate. However, the context may help you make better decisions.

Many police agencies have modified their policies to either severely curtail the application of force against a vehicle or the driver of a moving vehicle, or prohibited it altogether, not based upon the lack of a threat but based upon the lack of reasonable effectiveness. Granted, police policy does not carry the force of law for a private citizen but the reasoning behind it goes to the argument that will be made for or against your assertion of reasonableness in self defense.

 

[Red Wind]

The problem in the example with a vehicle, is the instrument of possible destructive mayhem, may be the coincidence of a stuck accelerator or other malfunction, not caused by a villainous actor bent on destruction of the rapidly approaching innocent vehicle.

Lethal reactive force in this case, could lead to a long stay in chokey, under manslaughter conditions.

 

[Crusader103]

It's reasonable to assume for the sake of this discussion that the obvious intent is to hurt/kill you.

I'm not trying to come up with a detailed hypothetical. This is the case, which has been reflected in actual court cases: A person intent on doing you serious injury or death is driving a vehicle towards you.

But for the record, a person's intent has very little to do with whether or not force is necessary to stop them. The discussion is whether or not lethal force presented against a deadly threat is still "reasonable" under the law if that force is not likely to overcome the threat faced.

 

[Red Wind]

Ah, that is a excellent qualifier , Mr. Scott!
Thought can now proceed onto the possible reactions to this oncoming lethal weapon.

 

[JohnKSa]

The vehicle will most definitely not immediately stop, instead continuing on its trajectory based upon momentum or perhaps veering out of control but still constituting a lethal threat. The discharge of a weapon at the driver/vehicle is unlikely to be effective or reduce the risk of death/serious physical injury to you.

Shooting at the driver does at least three things which could reduce the chances of death or serious injury.

1. It could damage the windshield, possibly obscuring the driver's view and therefore making it more difficult to aim the car at the defender. This could allow the defender to get out of the way of the car without having to worry that the driver will simply steer toward the defender if the defender moves.

2. It could injure or kill the driver, making it more difficult, or impossible for the driver to aim the car at the defender. This could allow the defender to get out of the way of the car without having to worry that the driver will simply steer toward the defender if the defender moves.

3. It could scare/deter the driver from continuing the attack.

The force used must be likely to overcome the resistance offered.

I don't believe this is correct.

If lethal force is justified then it can legally be applied even if it is unlikely to be effective given the circumstances. That said, we shouldn't interpret that as giving the defender carte blanche to shoot in a situation where injury/death to innocent bystanders is likely. It does not absolve the defender if his actions cause the death or injury of innocents.

In other words, the fact that shooting at an armored car probably won't stop it doesn't mean you can't legally shoot at an armored car whose driver is trying to kill you. But that's not a blank check to shoot wildly when your shots are very likely to injure/kill innocents.

Many police agencies have modified their policies to either severely curtail the application of force against a vehicle or the driver of a moving vehicle, or prohibited it altogether, not based upon the lack of a threat but based upon the lack of reasonable effectiveness.

This is a liability issue, not evidence that such actions wouldn't be legally justified.

We should keep the same liability issues in mind when we make the decision of whether or not to use deadly force while at the same time not confusing those issues with whether or not deadly force is justified in a situation.

 

[Frank Ettin]

Two failry recent Supreme Court cases might be useful in discussing this subject: Plumhoff v. Rickard, 572 U.S. ___ (No. 12–1117, 2014); and Mullenix v. Luna, 577 U. S. ____ (No. 14–1143, 2015).

In each police officers were sued under 42 USC 1983 for use of lethal force against subjects in cars. In each case the Supreme Court found, essentially, that lethal force was reasonable and that the officers were entitled to qualified immunity.

Of course neither case means that every use of lethal force against a subject in a car will be considered reasonable, but the opinions in these cases can give us some idea about the standards which will be applied to decide the question.

Also, note well that these are 42 USC 1983 cases. As such the core principles apply only to LEOs and are not directly translatable to private citizens.

I urge everyone to read the cases and consider how the principles discussed apply, or don't apply, to the situations envisioned by the OP.

 

[Carl N. Brown]

@OP #1 re: Legal > Have you considered what "reasonable" means?

I was told the general rule was would a reasonable person share your fear of death or grievous bodily harm if they did not act as you did in defense of yourself or another person.

The reasonable person would be judging your reasonable fear for your life or limb (motive) in a self-defense case. Lethal threat reasonably justifies lethal means to counter it in a split-second life-or-death decision.

The reasonable person is not likely to be judgng the reasonable effectiveness of your self defense techniques (means).

My impression is that, in the legal system, the reasonable person will always nitpick the reasonableness of your motive, but seldomn nitpick the effectiveness of your means. Police and self-defense trainers will do that. Means is more likely to be a matter of strategy or training than a legal issue.

Reasonable motive will always be a legal factor. Means can become a legal factor in unusual cases. There are precedents about proportionate use of force and use of unusually dangerous weapons. If you do something really disproportionate or recklessly dangerous to bystanders (like toss a grenade at the clown car in a 4th of July parade out of an unreasonable fear of clowns) don't expect sympathy. Locally officers have been cleared for shooting drivers who try to run them down at road blocks. That involved use of sidearms. I don't think the local grand jury would write off stopping a car and driver with an RPG.

 

[Speedo66]

Using deadly physical force against a moving vehicle was something that was prohibited by the agency I worked for, unless there were shots being fired at the officer from the vehicle.

In an urban environment, like NYC where I worked, even if you took out the driver, you then had an unguided missile careening about a populated area.

Sometimes the intention of the driver is not so much to harm the officer as just to effect an escape. There have been several cases like this that turned into shooting fests by the officers. Just backing away can cause gunfire from officers if there is an officer to the rear the driver is unaware of.

 

[Crusader103]

In other words, the fact that shooting at an armored car probably won't stop it doesn't mean you can't legally shoot at an armored car whose driver is trying to kill you. But that's not a blank check to shoot wildly when your shots are very likely to injure/kill innocents.

A fact most often referenced by the courts concerns the "reasonable officer" or in the case of private citizens, "reasonable person" standard. That is, would a similarly trained person facing the same or similar circumstances act in the same or similar manner. It is difficult to believe that a reasonable person would believe that shooting at an armored vehicle would be a reasonable action to counter the threat posed.

Based upon other comments, and true to life situations, can the same be said of a regular vehicle? Knowing that the vehicle likely will not stop, may veer out of control, and now become an "unguided missile" as another has referenced, is it truly reasonable to shoot at it? If it is not, are you therefore unreasonable in your actions?

Shooting at an armed subject on foot posing a lethal threat is most often considered reasonable. But we understand that bullets are generally capable of stopping such a threat. Therefore, to apply that level of force is reasonable. That may not be the case for vehicles.

 

[BobWright]

In order for forly deadly force given that the force is not likely

 

[pintler]

The force used must be likely to overcome the resistance offered.

I'm with JohnKSa here; I don't think that's likely to be a general rule.

Suppose Granny, with her 32ACP, is being charged by a large machete wielding homicidal maniac carrying a ballistic shield. If she shoots him in the leg, which is the only part showing, that is surely deadly force (he might eventually bleed out), but it is also statistically unlikely to save her life. It's eminently reasonable to do the best you can, even if it's against long odds.

Or consider a one v. many gunfight where the defender is anyone but Jerry Miculek: the weight of numbers will likely prevail, but that doesn't mean the defender can't try.

Self defense is only justified when the alternative is likely to be death; with those stakes playing thin odds seems pretty reasonable to me.

 

[JohnKSa]

It is difficult to believe that a reasonable person would believe that shooting at an armored vehicle would be a reasonable action to counter the threat posed.

To be more clear, I reject the whole idea that the word "reasonable" applies to whether or not the force used is likely to have the desired effect.

The word "reasonable" applies to whether or not a reasonable person would believe there was a deadly threat posed to the defender. It does not apply to whether or not the defensive response is likely to stop the attack.

 

[45_auto]

It is difficult to believe that a reasonable person would believe that shooting at an armored vehicle would be a reasonable action to counter the threat posed.

You've obviously never been in the military with an enemy tank coming at you while you and everyone around you is armed only with a rifle.

By your standard every infantryman in the world would not be considered "reasonable".

 

[harrygunner]

There are cases where most would instinctively bring in "ineffectiveness" of firing a weapon. If the source of incoming rounds is unknown or if the attacker, with a rifle is so far away (1000 yards) we don't expect our handgun to stop the treat. We evade and seek cover.

My argument against generally requiring a reasonable assessment of "effectiveness" is where do you draw the line? Do we arrest a person taking a one in a million shot at saving their life?

I'm a fairly logical person, but wouldn't criticize the soldier against a tank hoping to get a round down the cannon if the only other choice is dying.

Against automobiles, if the tool used to attack is the car, it's good to remind us that taking out the driver could still leave us or others in danger.

Currently, if an innocent is harmed during a defensive act where lethal force is justified, in most states, criminal consequences are mitigated. There may be civil liability consequences.

The OP's case seems like a police liability issue. But, I'm not an attorney.

 

[Decoy80]

Hi folks, I'm not an attorney so my take on this subject may leave you in a civil court. There are no debtor prisons in the US that are known to me so civil liability is not a concern to consider in a situation where human life is in danger. Common sense will dictate the force necessary and the application. It is highly unlikely a citizen would have an RPG. In the case of stopping a moving vehicle personally it would seem reasonable to use it in an effort to stop one. Using deadly force is only OK after all other available options are exhausted. If my life ends in the case, civil liability is no concern, if I'm able to survive by my actions I will naturally be concerned about civil liability. It will not be a factor in a common sense instant decision whether to live or die.

 

[Crusader103]

The OP's case seems like a police liability issue.

It is. But the same liability that may be incurred by police can often be incurred by private citizens. Sometimes more so.

It is most definitely up for discussion whether discharging a firearm at a vehicle is reasonable or not. Agreed, police policies are for police officers and not private citizens, but they are often driven by the same attorneys and concerns that you should concern yourself with.

If it is unreasonable for an officer to direct fire at a moving vehicle under all but the most narrow of circumstances it hardly stands to reason that a private citizen would be reasonable under a broader set of circumstances.

While tactics is not the topic at hand, it may very well be better to use your time and energy to get out of the way than to face a threat, even if back pedaling, while firing. Does that make it unreasonable, then, to fire when a reasonable person would be evading?

 

[JohnKSa]

It is most definitely up for discussion whether discharging a firearm at a vehicle is reasonable or not.

Yes, but let's not get confused about what we're discussing. The likelihood that it will be effective and whether or not it might be inadvisable under certain circumstances has no bearing on whether doing so is justifiable under the deadly force laws.

The legality/justifiability is based on whether or not the defender reasonably believes that the driver poses an imminent deadly threat, not on the defender's assessment of the probability that the bullets will actually stop the attack.

...it may very well be better to use your time and energy to get out of the way...

Whoa! Are we talking about a situation where there's a clear alternative that will eliminate the deadly threat to the defender without the defender having to fire?

If that's the scenario then YES, by all means take that action vs. shooting. It should go without saying that shooting (the use of deadly force in general) is a last resort. If you have a bunker that you can enter, or a pile of concrete barriers you can step behind, or some other obvious space where you can move to in order to make yourself safe then that's absolutely what you should do.

But if you have no way of escape then shooting at the driver would not only be legal, it would make sense. I listed in my first post the ways that doing so could significantly improve the defender's chances of survival.

 

[Crusader103]

Are we talking about a situation where there's a clear alternative that will eliminate the deadly threat to the defender without the defender having to fire?

I didn't specify but let's suppose for a second that yes, there is a possibility (not necessarily a guarantee) that escape is possible.

Is it now unreasonable, from a legal standpoint (not trying to talk tactics here), to fire if there is a possibility of escape no matter how small? We know that firing upon a driver/vehicle is likely to be ineffective. But an attempt at escape might be too.

Is the application of force against a threat that is not likely to be overcome now unreasonable simply because a possible alternative exists?

It seems like minutia, but this is exactly the situation that many have faced. A vehicle is coming at them and they choose to fire though technically they could have possibly moved left or right. There is no doubt that the lethal threat existed at the time they discharged their weapon. But is discharging it unreasonable just because they could have possibly moved?

If the answer is yes, then the consideration of "a reasonable likelihood of effectiveness" does play into the equation of the reasonable officer/reasonable person standard, and not just the fact that a lethal threat existed.

 

[Red Wind]

Here is a similar incident that occurred in Miami in January,1989, that sparked 3 days of riots. A Miami cop firing on a motorcyclist and a passenger on the bike. Both died in the ensuring crash.

The Miami LEO was eventually acquitted.

Initial police reports said that Lozano said he fired as the motorcycle bore down on him. Witnesses said Lozano stepped into the street and fired as Lloyd raced by, hitting him in the head. Blanchard, who had recently arrived from the Virgin Islands, was hurled into a car as the motorcycle crashed. He died hours later.

Lozano faces one manslaughter count in each death.

 

[ClickClickD'oh]

There's a fatal flaw in the OP... It's discussing changes in departmental policy, which is distinct and different from use of force law. It is entirely possible to violate departmental policy on the use of force while being entirely justified under the law.

I have never once encountered even an smidgen of legal precedent that states a defender must be reasonably sure of the success of their use of force in self defense in order for their use of force to be justified. And thank god there isn't or else every defender would need to pass through a series of verification questions.. was the firearm used suitably capable of dealing with the threat? Was the ammunition used suitably capable of dealing with the threat? Was the attacker wearing heavy clothes, or even armor which could have reduced the capability to deal with the threat? Are handguns even legal for self defense at all given that the majority of shootings by handguns don't kill the target?

Simply put, the legal use of force or lethal force is never judged based on the actual capability to end the threat. If I have a sharpened pencil and that's what I use to defend myself against an enraged PCP addict, then a sharpened pencil it is.

 

[JTHunter]

It is not only a "police issue", it is also a matter of perspective.
We all know that the antis don't see "reasonable" in the same manner we do, nor will they ever do so. The same could be said for the victim of the attack vs. a "liberal" prosecutor. The victim would be likely to consider ANY attempt to save their life to be "reasonable", but would the courts OR the attacker's relatives?

 

[JohnKSa]

Is the application of force against a threat that is not likely to be overcome now unreasonable simply because a possible alternative exists?

If there's a possible alternative then it may not be legal to use deadly force. The issue of whether or not the threat can be overcome doesn't enter into the equation.

There is no doubt that the lethal threat existed at the time they discharged their weapon. But is discharging it unreasonable just because they could have possibly moved?

It depends. In a duty-to-retreat state then it would be illegal to use deadly force if the option of safe retreat is on the table.

In a stand your ground state then it would be legal to use deadly force to counter deadly force without considering the option of retreat. That said, if you can retreat to safety, standing and shooting at a car barreling towards you is pretty stupid. It won't get you put in jail, but it might get you killed.

The first rule of self-defense is that it's about staying alive and preferably uninjured. If you get so caught up in the idea of shooting that you ignore a chance to save your life, you're failing the self-defense intelligence test.

 

[old lady new shooter]

In a duty-to-retreat state then it would be illegal to use deadly force if the option of safe retreat is on the table.

Clarification please: Does "safe retreat" take into account the physical condition of the person being attacked? For example, would a different definition apply to a young physically fit person vs an elderly person who can't move very fast?

 

[ClickClickD'oh]

The victim would be likely to consider ANY attempt to save their life to be "reasonable", but would the courts OR the attacker's relatives?

That's why we have things like case law and jury instructions.

So far this thread is based on a misunderstanding of how the word "reasonable" is used in relation to the use of force in self defense. In fact, there are two applications of the word being discussed as if they were a singular entity.

This first application being discussed is the Reasonable Person standard. The Reasonable Person standard absolutely does not ask the possibility of your defense succeeding. It only asks if a reasonable person would believe the illegal use of force being pressed upon them raises to a certain level. If the Reasonable Person standard did take into consideration the chance of your defense succeeding, that would mean in a situation where you have a slim chance of survival, you would have no right to self defense. Our system works quite the opposite, where a person defending against the illegal use of force becomes more justified the more dire their situation becomes.

The second application that is being discussed is the degree of force authorized, as in, the reasonable amount of force required to terminate the illegal use of force against you. Again, this standard does not in any way take into consideration your chance of succeeding in your defense. If non-lethal force is directed illegally at you, the reasonable level of force to respond with is non-lethal force. If lethal force is illegally directed at you, the reasonable amount of force to respond with is lethal force. **IANYL so apply your local use of force standards**

So, to break down the application of "reasonable" in the OP:

1) Reasonable Person: Would a reasonable person consider someone attempting to run them over with a car to be a potentially life threatening use of illegal force against them? I hope everyone answered "Yes"

2) What is the reasonable amount of force to counter this threat? We just all agreed that this is an illegal use of lethal force, ergo, the proper legal level of force to respond with is Lethal Force.

Now, that having being said and hopefully the question of Reasonable being put to rest... since we do live in a wonderful world of lawyers and laws, shooting into moving cars isn't a bright idea because we all know every bullet leaves the barrel with a team of lawyers and everything that happens because of that bullet is your fault. Great, you neutralized the driver of the vehicle, and now the car has run through a playground and over some children... which now might be laid at your feet. The shooting was legal and justified... the rest however, well... good luck with that.

 

[JohnKSa]

Clarification please: Does "safe retreat" take into account the physical condition of the person being attacked? For example, would a different definition apply to a young physically fit person vs an elderly person who can't move very fast?

Yes, safe retreat means that you CAN retreat and that you CAN retreat SAFELY. If you can't retreat then retreat isn't an option. If you can't retreat safely (without reasonably expecting to incur severe bodily injury or death as a consequence) then it's not safe retreat.

That said, if you are in a duty to retreat area, you should expect to have to prove why you couldn't retreat or couldn't retreat safely. Part of that would be pointing out any pertinent physical limitations and perhaps providing proof that they exist. Once you have met the burden of proof, and not before, then you will be able to claim self-defense.