Self-Defense

When You Can and Cannot Use Lethal Force

woman using gun to defend herself

The subject of lethal force by civilians in a defensive context is absolutely riddled with hearsay, falsehood and outright idiotic opinion. There is little excuse for this among serious students of self-defense in light of the internet and the unfettered access to expert opinion, state statutes and legal precedent it provides.

There is more than one phase to a defensive encounter; you must of course prevail in the fight itself, but you must then also win the inevitable legal battle. Often it is the legal fight that may prove to be the more trying of the two. It is entirely possible to “win the fight” only to be judged by 12 and your exculpation found wanting, thereby earning yourself a protracted stay at the Graybar Resort, all expenses paid courtesy of the taxpayers, and watching your family and life on the outside go on without you.

While those who are fonder of boasting and braggadocio will likely find the following article dull and meaningless, I would strenuously advocate that those of you who carry a gun, knife or other weapon for self-defense read, heed and make the appropriate changes to your training and procedurals where necessary.

First Thing’s First

***DISCLAIMER: This article is not to be treated as legal advice. The author is not an attorney. Neither this website, its principals, owners, operators, contractors or employees, or the author of this article, claim any criminal or civil liability resulting from injury, death or legal action resulting from the use or misuse of the information contained in this article. Any comprehensive self defense plan will include preparing for the legal aftermath of any self-defense encounter. The reader should hire and consult with a competent attorney as part of your preparations. ***

Before I go any further, it is useful to specify exactly what we are talking about when I use the term lethal force, or lethal defensive force. “Lethal force” is simply any amount of force that will typically result in severe bodily harm or death when doled out. That is the short legal version, as you could say that a playful push that resulted in the pushee accidentally falling and breaking their neck was technically lethal force, but that result was merely accident; the push itself was not lethal force.

“Lethal defensive force” is the same as above, only it is explicitly used in a defensive context and in order to prevent the use of lethal force against oneself or someone else. It may also be used in the aftermath of lethal force being used against you or another in order to prevent further injury or risk of death.

It sounds simple enough, but as with anything that weighs lives in the balance the nuance and context of the details will reveal a legal landscape fraught with peril. You may be asking yourself: what would constitute a lethal threat against you, the effect of perception on the decision to use lethal force in defense, preemptive use of lethal force in defense and many more.

Good. You are on the right track. Now really step back understand the gravity of the problem: you must not only know your state and local laws backwards and forwards, but also be able to successfully detect, identify, confirm and then counter a lethal threat in an extremely compressed time frame, often seconds at best, and then you must be able to succinctly articulate to a judge and jury why you made the decisions you did.

It is a sobering, terrifying thought. The decision that you made in a single instant, had to make in a single instant, to save your life or someone else’s will be dissected at leisure, picked apart, weighed and judged according to the whims of a handful of strangers who were not there. Your future, your life will hang in the balance of that decision.

It is almost too much to contemplate, but contemplate it you must. Ignorance is no defense. Hope is not a strategy. Negligence when it comes to the legal component of your defensive skillset is ethically untenable. Anyone who swaggeringly claims they would rather be judged by 12 than carried by 6 has never, ever been tried by jury, or else their life is in such shambles they have nothing to lose.

The “Constants” of Self Defense Law

This article will not be a completely comprehensive guide to everything that might happen to you in a self-defense scenario, or a map on how an encounter will play out, before during and after. There are so many variables, so many possibilities, I don’t think any work by any author could even come close to collating them all.

Instead, treat this article as a simple introduction to the foundational elements of self-defense law and you, the reader. I must again reiterate I am no attorney, paralegal or any other legal professional. The information in this article is sourced from established legal precedent from previous self-defense cases, the opinions of other experts in the use of force and self-defense legal-defense specialists.

One other major wrench in the “one-size-fits-all” approach to self-defense is the varying state and local laws governing it, and sometimes those variations can be significant. It would not do to assume the laws and rules you abide by and live under in Nevada will be in lockstep with the ones in Vermont. God forbid you should need to use lethal force while vacationing up there; one would be in for a very, very rude awakening!

That being said, you will find that virtually anywhere in the U.S. the basis of all self-defense law governing the use of force incorporates three essential factors that I’ll outline below. Sorry international readers, you are on your own regarding your home countries legal rules. Those factors are the imminence of the threat, a presence or plausible fear of great bodily harm or death, and the use of minimum level of counterforce.

We’ll dive into what you need to know on all of them in just a second. But let’s just say you are in a place with no laws, a proper Mad Max-ian dystopia, one where you are answerable to no one, and the only law is that of the jungle. Do those factors still apply? I saw yes, and with reason. All of them must be necessary for a clean shoot, and I don’t mean legally. I am talking ethics, here.

The taking of a life (or the expiry of one mortally wounded by your actions if you want to get testy) should never, ever be undertaken lightly. If you are one of the good guys, you must have a value system that backs that up accordingly. You should never, ever draw your weapon, much less use it, in order to settle an argument, appear like a tough guy, or for any other reason than the direst extreme.

Examining the Mandates of Lethal Defensive Force

Imminence of Threat

By and large, U.S. law only allows you to use force of any kind, even non-lethal defensive force, against an imminent or active and ongoing threat. What does that mean exactly? It simply means that the threat, or reasonable, plausible perception of a threat must exist before you can be justified in using force. This onus is even more crucial when you may be utilizing lethal levels of force.

Pepper spraying someone is one thing, punching them in the mouth is another, and shooting or stabbing them is something else entirely. A threat is imminent when it is going to occur immediately or in the very near future, as in next handful of seconds. You cannot respond to a threat, but especially a lethal threat, with force of any kind unless it is imminent.

For instance, an assailant drawing a knife and advancing on you would constitute an imminent threat and one that certainly constitutes lethal defensive force. Out to how far? Well, a person armed with a knife can cross a frightening amount of distance and attack in very short order. Across the street? Sure, that’s imminent. How about 100 yards away? Arguably not imminent.

Similarly a person at a short distance or separated from you by an obstacle or barrier and armed with a gun and threatening to shoot you with it is an imminent threat; the range and speed of a bullet makes the threat valid, and imminent.

Plausible Fear of Great Bodily Harm or Death

When it comes to lethal defensive force, you may only use it when there is the threat of great bodily harm or death against you, or the perception that there is. More on that in a moment, but what this means is that you can only use lethal force against threats that will result in your crippling, severe maiming or death. You cannot pull out your gun and shoot someone who is merely threatening to punch you, for instance.

This gets tricky sometimes: if an assailant approaches you, places you at knife point and informs you “this is a hold-up” the threat of great bodily harm or death is obvious and the use of lethal force in defense will be appropriate almost anywhere. Same situation, but the assailant has a conspicuously blunt object in his jacket pocket that he is gesticulating at you with in the manner of a concealed gun. Are you justified in using lethal force this time?

In most jurisdictions, yes, as you would have a very plausible fear that this brazen mugger was concealing a pistol and could shoot you with it. You need not wait until you could visually verify that he did have a gun before defending yourself. This revolves around a legal precept known as the “reasonable person” conceit: simply put, what would any reasonable person be expected to do in that situation?

Ok, last example with our trusty mugger, here: exact same scenario, you are approached and stopped by the mugger. He informs you it is a hold-up, and produces an obvious water pistol. Can you use lethal force in defense? Obviously no, as a water pistol is no threat to anything except a piece of paper.

This gets tricky to navigate in any instance where an assailant surrenders or is questionably incapacitated from wounds sustained in the fight: let’s say you confront a home invader who is armed. You shoot him, and he makes it as far as the front yard before collapsing. He is alive and conscious, but has lost his weapon and making no attempt to get up. Could you still shoot him, considering he broke into your house with intent to do harm? No, as he is no longer capable of threatening you.

If there is no reasonable fear or evidence that you may suffer great bodily harm or death you cannot employ lethal force in defense. Lesser force may be warranted, but not lethal force.

knife

Minimum Level of Counterforce

Even when in a justifiable lethal force encounter, you are only allowed to use the minimum level of force to stop the attack or reduce the threat. This is often a subject of much contention in the court cases that follow a defensive encounter where lethal force was used.

You may be wondering, “How many shots/stabs are considered excessive force?” The answer is always one more than the amount it took to incapacitate your attacker or catalyze the attack. Don’t take this to mean you must apply force so incrementally and slowly to gauge its effect that you are the equivalent of a tortoise in a shootout.

No, it simply means you must be constantly assessing your intervention efforts, and halt them once the bad guy is either incapacitated or outright fleeing the fight. It does not mean you cannot shoot multiple times as a matter of procedure or shoot rapidly. It only means that you must not ever let emotion overtake you in the aftermath when you have, ostensibly, won and survived the fight.

Anything perceived as excessive force, be it “one for good measure” or a coup de grace, any force applied in revenge, anger or indignation after the threat has been neutralized is excessive force, and will, at best severely hamper your defense and may net you additional charges.

You must keep in mind and train accordingly: all of the above elements must be in place simultaneously for you to be legally justified in use of lethal force. If a threat is ostensibly lethal but is not imminent, you cannot use lethal force. If it is imminent, but does not pose a risk of death, you cannot use lethal force. If lethal force is appropriate as soon as the threat is eliminated or reduced you may no longer use lethal force against the attacker.

This is not cowboys and Indians out here; any lapses in judgment and anything less than strict adherence to the laws of your state and locality will see you hoisted in court.

Additional Concerns

Use of lethal force in defense of another person, a third party, typically (but not always!) follows the same guidelines as use of force in defense of yourself. This means that if a 3rd party is under an imminent threat of death or great bodily injury you may use lethal force against the assailant in defense of that person.

Note that unless that third person is someone you are personally connected with, e.g. spouse, relative, friend, etc., that this type of encounter is fraught with peril. Unless you are in immediate proximity as the situation develops you will rarely have all the information you need to make a 100% solid decision. Intervention on behalf of another person may not lead to the desired outcome, and you will still be completely liable for your actions, right or wrong.

Even if you do in fact have all the info needed, you will still be rolling the dice on the aftermath. You will likely be arrested. You can count on exorbitant legal fees and 1 to 2 two years of your life down the tubes dealing with the aftermath, assuming you survive and are not grievously injured at any rate. I am saying you should not be upright citizen and try to save your fellow man, only that you must go into such an encounter with a full understanding of the potential consequences.

If you can avoid or defuse trouble, by all means do so. But if you cannot, then you’ll need to make the call.

Conclusion

**DISCLAIMER: This article is not to be treated as legal advice. The author is not an attorney. The reader should hire and consult with a competent attorney as part of your preparations. ***

Knowledge of state and local laws governing the use of defensive lethal force is a key component of readiness if one is relying on any weapon for self-defense. You must be sure of the situation and your response before engaging a threat, and furthermore be able to clearly articulate your “why” to police and legal officials. Without this knowledge, your self-defense skill set has a major failure point. Know the law. No excuses will suffice after a lethal force encounter.

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About Charles Yor

Charles Yor is an advocate of low-profile preparation, readiness as a virtue and avoiding trouble before it starts. He has enjoyed a long career in personal security implementation throughout the lower 48 of the United States.
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