MINSH101 said:
...I could probably explain a kill shot to the head, for example. Am convinced I'd have a hard time explaining why I emptied a 15 round clip from a 9 mm three times into the same target. Especially after it fell to the floor....
Yes indeed. In fact a fellow in Oklahoma by the name of
Jerome Ersland stopped a threat and then finished him off as his assailant lay on the floor. Mr. Ersland is now in prison serving a life term for first degree murder.
The important thing to remember at the outset of any discussion of the use of force in self defense is that our society has, for hundreds of years, frowned on threatening another human or intentionally hurting or killing another human. Threatening someone or intentionally hurting or killing him is
prima facie (on its face) a crime everywhere. However, our laws have long recognized that under certain limited circumstances a threat or an actual act of violence may be excused or justified.
You won't have the final say about whether your act of violence was excusable or justified self defense. That decision will be made by others after the fact -- the prosecutor and/or a grand jury and/or, if you're unlucky, the jury at your trial.
So let's take a general, high level overview of use-of-force law in the United States.
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.
- Our society takes a dim view of threatening or using force against and/or intentionally hurting or killing another human. In every State the threat or 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.
- 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.
- 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.
- A threat of force or the use of force may be legally excused or justified only for the purposes of stopping the threat. Once the threat has ended, the continued threat or use of force can no longer be excused or justified and may result in criminal (and civil) liability.
- 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.
- 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.
- 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.
Now, as to not saying anything to police, if you're going to claim self defense that might not be the best idea.
But Don't Say Too Much.
Call 911. Be the first to report the incident and do so immediately. If you don't report it, or if there's a long delay, you will appear to have a guilty conscience.
Then, having taken LFI-I with Massad Ayoob, spending time with him and helping with a class of his in Sierra Vista, AZ not too long ago, I'll go along with his recommendation for when the police arrive.
- While one has a right to remain silent, clamming up is what the bad guys do. Following a self defense incident, you'll want to act like one of the good guys. You also won't want the investigating officers to miss any evidence or possible witnesses. What if the responding officers miss your assailant's knife that you saw fall down the storm drain? What if they don't know about the guy you saw pick up your assailant's gun and walk off with it?
- At the same time, you don't want to say too much. You will most likely be rattled. You will also most likely be suffering from various well known stress induced distortions of perception.
- So Massad Ayoob recommends:
- Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
- Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
- Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
- Pointing out possible witnesses before they vanish.
- Then saying something like, "I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."
Pleading Self Defense is Very Different From the Common Lines of Defense to a Criminal Charge.
A lot of folks point to the "Don't Talk to the Police" video that is making the rounds on gun boards. But it is about a police contact in general. It works fine when you aren't claiming self defense, and it's up to the State to prove your guilty beyond a reasonable doubt. But things work differently if you are pleading self defense.
Basically --
- The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step 2.
- Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.
- Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.
Let's go through that again.
In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.
If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.
So in such cases, it probably doesn't pay for you to say anything to the police, at least early on. Let them do the work of trying to amass evidence to prove the case against you. There's no reason for you to help.
But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. You will necessarily admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.
So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.
Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the more convincing your story, and your evidence, is, the harder it will be for the prosecutor to meet his rebuttal burden.
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