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Thread: How to answer "would I be justified in using lethal force if..."

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    Regular Member BrianB's Avatar
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    How to answer "would I be justified in using lethal force if..."

    I composed this post in response to another topic that got locked before I could post it. I felt it was a notion worth sharing, and getting the take of others, so I decided to start a new thread for it.

    "Would I be justified in using lethal force if..." It's a question that comes up a lot in defensive circles. My experience as a firearms instructor is that it particularly comes up a lot with new shooters, for some reason especially new female shooters, who really start to get themselves twisted up in the intricacies of the law when contemplating carrying a firearm for self defense. I've had many a new shooter actually express that perhaps they shouldn't carry because they are overwhelmed by the legal aspects.

    I once heard a compelling argument about the use of lethal force and the question of what is and isn't legal. I wish I could give credit to the source, but honestly I just don't recall who it was. I know it was a lecture in a self defense course, possibly even an instructor course, but nothing more than that.

    This will inflame some, but the argument is that it doesn't matter what is and isn't legal and you shouldn't give it a second thought because life and death situations aren't the time to be mulling over statutes and case law. If you have to ask whether or not it is justifiable to use lethal force in a given situation, it probably isn't. If you are in a situation where lethal force is truly required, you will know it.

    If your standard for the use of lethal force is that it is an absolute last resort to prevent imminent death or serious bodily injury to yourself or another innocent, as it should be, then to hell with the law. If you know for certain that you, or a loved one, would have been killed had you not pulled the trigger, and you find yourself jailed over it, you should wake up in jail each morning and be thankful for it. You should be thankful because you will know in your heart that had you not pulled the trigger you or someone you love would be buried in a box, from where there is no appeal, instead of you being in jail.

    The law and order types will no doubt sputter "but, but, but" but to me this makes a lot of sense.

    Thoughts?

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    Its the old "rather be tried by 12 than carried by 6" viewpoint ...

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    I would much rather regret using lethal force than regret not using it.

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    If you mean I rather go before a jury of 12 for a justifiable self defense use of force then be dead or hurt for not using reasonable force to defend my self. Yes

    If you mean I rather take my chances before a jury of 12 for using questionable force in a unjustifiable use of force. No
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    Quote Originally Posted by BrianB View Post
    If your standard for the use of lethal force is that it is an absolute last resort to prevent imminent death or serious bodily injury to yourself or another innocent, as it should be, then to hell with the law. If you know for certain that you, or a loved one, would have been killed had you not pulled the trigger, and you find yourself jailed over it, you should wake up in jail each morning and be thankful for it. You should be thankful because you will know in your heart that had you not pulled the trigger you or someone you love would be buried in a box, from where there is no appeal, instead of you being in jail.
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    There are enough variables in extreme encounters to consider before pulling that gun and using it so as you say, recognizing a serious thread and acting accordingly should be the primary consideration. But I would add to this, and this fits your female newbie shooters, that when one is hampered by some fact of their existence, (again female), or as a condition of age, injury, or birth (born with a handicap), they are right away at a disadvantage and should take that into consideration when faced with an extreme encounter.

    For example I have had four surgeries in under a year, three of which were major, and because of certain factors, along with age, I am no longer capable of running or fighting as I once was in my younger days. So right away, I know that I stand less of a chance against an assailant or assailants than perhaps someone in the twenties or thirties who is fit and in good shape. That means a threat to a younger person which may not be perceived as significant enough to draw a firearm, may very well be significant enough for people like myself to pull that gun.

    In a way, this can create less complication because two young toughs coming at me in a menacing fashion can do far more damage to me than if I was 25 years younger and doing what I was doing 25 years ago to stay in shape. Drawing that gun and using it against those two toughs for someone in my condition would be more acceptable I should think.

    You have introduced an interesting topic which should be ripe for serious discussion. I hope it doesn't turn out as so many on these forums tend to do.
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    Quote Originally Posted by BrianB View Post
    <snip> If you know for certain <snip>
    All I need to prove is that I had a reasonable fear of.....

    Cops are pretty good about seeing the truth of a SD situation. Even the GZ incident proves this. The cops saw the facts and chalked that incident up to a reasonable use of force under FL law and GZ walked out the door. Don't over think it. Try to avoid a "situation" in your daily travels. On your property the "criteria" is even less ambiguous.

    A justifiable use of force SD situation will make itself very clear, hopefully, and any reasonable citizen, including the cops, will see the facts and agree with your decision.

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    When you use the word "justified," you necessarily bring in the law or some other code of justice, such as morality. If your point is that the practicality of saving one's own ass overrides the legalities of the matter, then I'd phrase the question differently. As it is phrased now, it is very definitely asking for a legal or moral answer.

    "If I am [in some situation], would the use of deadly force be the best option?" would be a better way to initiate the discussion, as it deals only with the practicalities. The law is merely a flawed attempt to identify all the "some situations" where the answer should morally be "yes," thereby justifying the use of deadly force.

    For example, "If I am being blackmailed for an illicit sexual affair, would the use of deadly force be the best option?" As a matter of practicality, to protect one's family and home from the destruction that could ensue, one could easily answer yes. The law, correctly and morally in this case, says no.

    "If I have 'clean hands' and am an instant away from being murdered, would the use of deadly force be the best option?" Practically, legally (in most jurisdictions), and morally (in most commonly accepted codes), yes.

    However, the point--that, while in the process of saving one's own ass, the only time that should be spent thinking about the legalities or moralities of using deadly force would be time that is not needed to do that saving--is well-taken.
    Last edited by eye95; 10-29-2013 at 08:48 AM.

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    Regular Member BrianB's Avatar
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    Quote Originally Posted by eye95 View Post
    When you use the word "justified," you necessarily bring in the law or some other code of justice, such as morality.

    [...]

    "If I am [in some situation], would the use of deadly force be the best option?" would be a better way to initiate the discussion, as it deals only with the practicalities.
    In reality, most people don't say "would I be justified in using lethal force if..." - most people say "am I going to get in trouble if this happens and I shoot someone" or "is it legal to shoot someone when", and so on. The essence is what matters. The person who is new to the concept of employing lethal force is worried about going to jail for doing so. Some to the point that they consider remaining unarmed because they think you have to be a lawyer to know when you can and can't protect yourself.

    Most important, I think, is a concept in your opening sentence - morality - yours. The only thing that really matters is if the shooting was justifiable, to you, in your own morality. If it was not justifiable to society or their morality, you may end up in jail. So long as you know for yourself that being in jail is better than watching someone kill a loved one, or allowing yourself to be killed, then the law is of no importance. If your morality is such that killing someone who is blackmailing you is OK, then society will be happy that you're in jail, but that is departing from my premise that your standard for the use of lethal force is that it is an absolute last resort to prevent imminent death or serious bodily injury to yourself or another innocent.

    In the lethal force lecture at Front Sight they use a very good example to illustrate the idea of "you will know when lethal force is justified". They say "if it's not worth dying for it's not worth taking a life for". To wit the following (their example):

    Say you're at Ocean Land and your child is leaning to get a picture of the sharks in the shark tank. Your child falls in. Most parents are going in right after the kid to try to save them. They aren't going to stand there and wonder if they are going to face a trespassing charge for diving into the tank, or wonder how much they are going to have to pay to clean the tank or for injuring the sharks, etc. They are going in after their child without a moment's hesitation. Contrast that with your wife is leaning over the tank and her $5,000 necklace falls off and goes into the tank. Do you go in after it? Of course not. When it's worth dying for you'll know it.

    For someone who is new to carrying a firearm for self defense I think that discussion like the above and like what's in my original post are much more useful than lists of forcible felonies, discussions of disparity of force, means-motive-opportunity, etc. Not that it isn't good to learn about those things at some point if you are so inclined, but for many it gives rise to thoughts of who you can "get away with shooting" as opposed to who you "need to shoot" which is not a good place for someone new to the topic to start.
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    Quote Originally Posted by BrianB View Post

    Say you're at Ocean Land and your child is leaning to get a picture of the sharks in the shark tank. Your child falls in. Most parents are going in right after the kid to try to save them. They aren't going to stand there and wonder if they are going to face a trespassing charge for diving into the tank, or wonder how much they are going to have to pay to clean the tank or for injuring the sharks, etc.
    Its like Wisconsin..we zip in and zip out .. the great white will never notice we were there ... injuring the sharks?

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    Quote Originally Posted by davidmcbeth View Post
    Its like Wisconsin..we zip in and zip out .. the great white will never notice we were there ... injuring the sharks?

    This you?

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    RSMo 563.026.

    Justification generally.

    1. Unless inconsistent with other provisions of this chapter defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute any crime other than a class A felony or murder is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the injury sought to be prevented by the statute defining the crime charged.

    2. The necessity and justifiability of conduct under subsection 1 may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this section is offered, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

    3. The defense of justification under this section is an affirmative defense.
    In other words, a reasonable test is used in MO in my view. If a reasonable person would think it justified then it was likely justified.

    Justification is claimed after the [f]act. This is where the rubber meets the road.

    By the way, I wound not use the Ocean Land scenario to make a point regarding the use of lethal force, since you diving in after your child falls into a shark tank, that you let get to close too, is far different than employing a firearm to save that child in the course of everyday travels/activities.

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    Quote Originally Posted by OC for ME View Post
    By the way, I wound not use the Ocean Land scenario to make a point regarding the use of lethal force, since you diving in after your child falls into a shark tank, that you let get to close too, is far different than employing a firearm to save that child in the course of everyday travels/activities.
    Anybody who would quibble over the use of that analogy is probably missing the point on purpose. Children falling into a shark tank, possibly through no fault of the parents, apparently isn't unheard of.
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    Quote Originally Posted by OC for ME View Post
    All I need to prove is that I had a reasonable fear of.....
    --snipped--.
    Fear alone is not enough - in fact that can be put more precisely: Mere fear is not a justifiable or excusable reason for using deadly force. What anyone fears might happen doesn't rise to the standard.

    The aggressor must have the immediate, eminent ability to actually cause death or serious bodily harm and have communicated that intent in some fashion.
    Last edited by Grapeshot; 10-30-2013 at 06:37 AM. Reason: added
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    Quote Originally Posted by Grapeshot View Post
    Fear alone is not enough - in fact that can be put more precisely: Mere fear is not a justifiable or excusable reason for using deadly force. What anyone fears might happen doesn't rise to the standard.

    The aggressor must have the immediate, eminent ability to actually cause death or serious bodily harm and have communicated that intent in some fashion.
    That is not what I said. I clearly stated a reasonable fear of....not a mere fear of.

    Please refer to the MO statute that I supplied. VA law may be more precise than Mo law.

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    Quote Originally Posted by OC for ME View Post
    That is not what I said. I clearly stated a reasonable fear of....not a mere fear of.

    Please refer to the MO statute that I supplied. VA law may be more precise than Mo law.
    Wording, definitions, and thereby the statutes do vary by the states. I sometimes speak too much to what my home state requires and that is obviously not applicable to all.
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    Quote Originally Posted by Grapeshot View Post
    Wording, definitions, and thereby the statutes do vary by the states. I sometimes speak too much to what my home state requires and that is obviously not applicable to all.
    One of the main reasons ones has to take time and beware of the different requirements when and where one travels.
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    Quote Originally Posted by BrianB View Post
    Anybody who would quibble over the use of that analogy is probably missing the point on purpose. Children falling into a shark tank, possibly through no fault of the parents, apparently isn't unheard of.
    Quibble? No, I do not quibble. I try to use apples to apples examples to make my points. I do not always succeed, but I try. A freak accident, as is depicted in the linked story, has zero bearing on SD with a firearm. The story is analogous to you driving up to your house after work and seeing you house on fire and then you rushing into your burning home to rescue your kids, which also has no bearing on SD with a firearm.

    I addressed your specific use of the term "If you know for certain that you, or a loved one...." in your op. I stated that "I need to prove....." and then explained why I believe that.

    You stated this scenario:
    Say you're at Ocean Land and your child is leaning to get a picture of the sharks in the shark tank. Your child falls in. Most parents are going in right after the kid to try to save them.
    Your use of the shark tank example did not stipulate that the parent could not be held at fault due to the freak nature of the kids in the shark tank story. That is disingenuous on your part.

    Your op is spot on in my view except for the "know for certain" part. Some state laws may have a higher standard to meet, but in a SD situation I only need to "prove" and not be "certain" if I am forced to employ lethal force in my state. I know this about my state's laws on the use of lethal force and I do not worry about the legalities, as you correctly point out. Just as I do not think of my own safety when diving into a shark tank or rushing into my burning house to save my kid.

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    Regardless of where you may live, the determination of "justifiable use of lethal force" will be made by the DA, the Grand Jury, and the appropriate court of jurisdiction.Pax...
    Last edited by Grapeshot; 10-31-2013 at 12:32 PM. Reason: Forum rule #19
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    Quote Originally Posted by Gil223 View Post
    Regardless of where you may live, the determination of "justifiable use of lethal force" will be made by the DA, the Grand Jury, and the appropriate court of jurisdiction.Pax...
    The above is very true, it could boil down to the DA being in a bad mood, though I hope not. BUT while it is better to be judged by 12 than carried by 6 there is no room for not knowing the law, and/or acting outside the law intentionally. We are all responsible for yourself and our choices. I like SB have health problems that widen what falls into imminent danger of life or limb. And I am not required to wear a sign that I am handicapped. If the BG is that stupid to not take it into account that a target is armed, and handicapped in using other lethal means of SD, it's his problem.

    Best advice is never intentionally put yourself in a situation expecting to use lethal force.
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    That is one of those what if questions. If I am asked my answer would be. I'll deal with that issue when the need arises and I hope it never does.
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