Essential Self-Defense Law Part II: Appropriate Force
In the first installment of this article I laid out three legal principles that I firmly believe all armed citizens should be well aware of as a bare minimum of self-defense law understanding: The ability to recognize an imminent threat, an understanding of appropriate force, and an understanding of maintaining innocence. We went on to analyze how to recognize imminence in part one. Now, we will proceed with our discussion and explore the legalities and use of appropriate force.
Understanding Appropriate versus Excessive Lethal Force
When we use force as a citizen to mitigate a violent threat we are legally entitled to only one thing: neutralization of the threat. The textbook definition of neutralize typically reads to “render (something) ineffective or harmless by applying an opposite force or effect.” When we shoot we shoot to neutralize. That is all. Terms such as “shoot to kill” or “shoot to wound” are for the movies, they have no bearing on legal self-defense for the armed citizen. If a threat is indeed an imminent lethal threat then we are justified in a lethal response, and in the case of shooting we shoot to neutralize the threat. A threat becomes neutralized when it no longer poses a danger to innocent life. This may result in the threat dying, or being crippled, or in the threat simply running away. How much force is needed is situationally dependent.
You are not in any way obligated to put yourself or another innocent party in harm’s way by holding back on the use of force. You are not obligated to take a single shot then pause to see if another is needed. You can legally shoot a threat to the ground. If an attacker is on the ground but still fighting, such as still pointing a gun at you from the ground, then you can keep shooting. The attacker is not neutralized until he ceases the violent activity that is endangering lives. However, you are obligated to cease in using force once a threat is truly neutralized. This is the area where a lot of legitimate self-defense events go bad. What if the attacker hits the ground after being shot multiple times and the gun flies out of his hand and across the floor. If the attacker is now unarmed and immobilized so that he no longer poses an imminent threat, and you then stand over the attacker and finish him off with one to the head, guess what? You have used excessive force and will probably do some time in the big house for it. Did he deserve to die? Perhaps, but that is not your call.
What are some neutralization possibilities as it applies to criminal attackers? Well, if you produce your concealed firearm when faced with a lethal threat and at the first sign of the gun the criminal turns around and runs out the door as fast as possible, guess what, you have neutralized the threat. Now, if he is still pointing a gun at you as he flees you are legally entitled to use force. Shooting people in the back is not always wrong, it depends on what they are doing when they get shot in the back. But, if he flees and all you have presented to you is his back as he now runs down the ally and around the corner, if you shoot him in the back, you have used excessive force that is not justified.
On the opposite extreme, a neutralization may entail emptying an entire magazine worth of ammunition into a determined and violent criminal, and then beating him the remainder of his way to death with the empty gun if that is what it takes to get him to cease his dangerous and violent activity. The bottom line is this, the amount of force that is appropriate and required varies completely based on the circumstances. So, we should be ready to use any level of force required without hesitation if it is needed, but we must avoid excessive force. If a threat is still capable of hurting people the continued use of lethal force against that individual is usually justified. However, once that individual is no longer posing a threat, you are legally obligated to cease using force and if you fail to do so you are in for big legal trouble.
Avoiding Excessive Less-Lethal Force
Proportional and necessary force are terms that are sub-sections to our topic of appropriate force and it is important so I bring it up here. You may be forced to defend yourself against threats that are violent, but not deadly. This is when we need to understand the realities of using only force that is proportional. Proportional force means using only force that is at the same level as that used by the aggressor. Generally, proportional force is going to stipulate that a non-lethal threat only warrants less-lethal force. If a drunk slaps you in the face after you accidently knock over his beer and you immediately produce your gun and give him a quick Mozambique drill, do you think that is a proportional response? I think most would agree that it is excessive force. “Proportional” can get murky as disparity of force can upset this seemingly straight-forward concept. Sometimes what is necessary may go beyond just proportional force, or sometimes what is necessary may actually be less than proportional, so my advice is to use only necessary force: the level of force needed to end the threat, but nothing more. A deadly threat such as an armed attacker typically demands a lethal response as this is necessary to neutralize such a threat. An unarmed threat, in most cases, will call for only a less-lethal response, be it open hand skills or less-lethal weaponry like OC spray.
Typically lethal force is not going to be justifiable against an unarmed aggressor, but, as discussed before, disparity of force can make a lethal response to an unarmed attacker necessary for some individuals in some circumstances. Again, consider a large strong male assaulting a small female. In that case the lethal response becomes necessary force. But, what if a small female were to assault a large strong male, perhaps swing a baseball bat at him? If the larger stronger male dodges the bat and closes on her so that he can simply restrain her so that she cannot injure him, or simply get away from her without risking his safety, would it be right for him to use truly “proportional” force and beat her up if he does not have to just because that is the level of force she is using? Technically, a ball bat is a deadly weapon in the eyes of the law and a lethal response may be justified, but perhaps it is not necessary. So, again, my advice as a good policy to default to is use ONLY the force necessary in any given situation to deal with the threat as this is usually going to be more legally defensible.
I am a firm advocate that all concealed carriers should have some open hand fighting skills and perhaps should carry a less-lethal alternative such as pepper spray for such events. What is required of you in your force response will also vary once again based on disparity of force. A strong and trained man will obviously be expected to handle non-lethal threats in less-lethal ways. An older person, a female, or someone who is in some way frail is not expected to go into hand-to-hand combat with a younger or stronger opponent. In some circumstances a strong and capable male may have need for a less-lethal option such as pepper spray because such a force tool can be used instead of going hands on which may put the defender, as well as the aggressor, at greater risk. Pepper spray and other less-lethal options are not just for females who don’t want to carry a gun, they are for anyone serious about self-defense.
Generally I find that far too many concealed carriers spend no time at all considering less-lethal self-defense. I will point out to you that per FBI crime statistics the average American is 5 times more likely to face a non-lethal assault than a lethal assault. That means you are 5 times more likely to need to employ your hands or a less-lethal weapon system than you are to have to deploy your gun. This is something you really need to take into account. Over-reliance on the singular tool can set you up for disaster if it leads you to escalate to an excessive force option because you have no lesser force abilities. Again, this is even more critical for the younger and stronger male than it is for the elderly, infirm, or small female because the young and strong are legally held to a higher expectation of being more proportional in defensive options.
In closing let me again reiterate that this article should be only the beginning for you if this is your first foray into this world of understanding self-defense law. The more versed you are in this knowledge base the more likely you are to make good decisions quickly, making you more likely to protect your physical life, as well as your legal and financial future. In part three of this article we will discuss the principles of maintaining innocence in a self-defense encounter.
Disclaimer: The above are opinions of the author. In any situation dealing with self-defense, it is your responsibility to understand the laws in your area, and what you can and cannot legally do. It is also your responsibility to use your best judgement, given the situation that you may find yourself in. In no way should this information be viewed as legal advice. When in doubt, consult a lawyer for any clarification that you may require. Simply put, use your best judgement and always abide by the law.