When is it Legal to use Deadly Force?

I have been asked two questions around this topic during my classes:

When is it OK to shoot somebody?

When is it appropriate to shoot somebody?

Whew, those are tough ones, partly because they sound so similar, but they are not, and partly because we all have different lines that we will not cross. At what point, in that negative interaction with criminals or terrorists, are you allowed to use deadly force to defend yourself and others? When is it appropriate to use deadly force to defend yourself and others? They are very different questions.

Disclaimer

I am not a lawyer. I don’t pretend to be a lawyer. I don’t want to be a lawyer.

Background – I teach concealed handgun permit classes in Colorado. I am also certified to teach courses that meet the requirements of the Utah conceal handgun permit. More importantly, I have read the laws that are on the books for many states, I am very familiar with the laws in Colorado and Utah, and I teach the basics of those laws to my students while providing this same disclaimer to them. I hope they get the gist.

Killing within the Law

Gabe Suarez, earlier this year, announced a new class, “Killing within the Law.” When the class was announced, it really became a hot topic of conversation. Many people were just up in arms (pun intended) about the class and how that evil person could teach a class like that. Of course, many people failed to understand just what the class covered. The whole intent of the class isn’t to teach people how to kill without legal repercussions, it is to teach people what the rules of engagement are for defensive gun users, and how students can protect themselves from the repercussions of killing somebody in self defense or in the defense of others.

Gabe Suarez addressed the uproar in his video on the topic. The goal is to teach students how to protect themselves from the repercussions of killing somebody in self-defense. In particular, what might happen before, during, and after a defensive gun incident. For example:

  • Understanding the laws around when you can legally use deadly force
  • How to behave and comport yourself
  • Interacting with law enforcement at the scene
  • Knowing that you might be:
    • Prosecuted by the local district attorney
    • Sued for wrongful death in civil courts
    • Investigated for civil rights violations by federal authorities

Principles of Legal Deadly Force

Many people have been down the route of tryingimage to boil all of the different laws in our country to a few basic principles when it comes to legal use of deadly force. Keep in mind, you have shot somebody, and they may have died. You, in the mind of many, have just committed a crime that may range from felony assault to murder in the first degree. You need to defend yourself (hopefully with a top quality lawyer) against those charges. Thankfully, every state in the US allows individuals, and third parties, in certain circumstances, the right to protect themselves from harm, even though the actions would normally be considered a crime. For example, in Colorado, we have

18-1-702 – Choice of Evils. This law states what would otherwise constitute an offense is justifiable under some circumstances. So, you can kill somebody, legally, under the right circumstances.

One of the common ways to explain when it is legal to use deadly force to protect yourself is to use the JAM analysis.

  • Jeopardy – You must be under imminent threat of being killed or suffering great bodily harm, in the mind of a reasonable person.
  • Ability – The attacker, in the mind of a reasonable person, must have the ability to cause death or great bodily harm from where they are at, or where they could be in a moment.
  • Means – The attacker must, in the mind of a reasonable person, have the physical ability or the tools to deliver on the threat.

Another view on how all of the pieces interact is to consider the following components of a legal deadly force engagement.

  • Innocent Party – You need to be an innocent party to the altercation/incident. Meaning, you must not be an instigator, you must not be the one initiating the incident, you must not escalate the altercation/incident, and you must not be a willing participant in the incident. For example, it will be hard to justify your use of deadly force if it is the result of an ongoing feud where you took actions against the other person over a period of time. You will also have great difficulty justifying your actions if you were involved in combat by agreement (an agreed upon fight) with the other party. A recent case involved a person that disengaged from an incident, went to his car to get a gun, and then returned to shoot the other person. That is not something that can be shown to be justified, for example.
  • Imminent Threat to Self or Others – The altercation/incident must either be ongoing or about to start. The standard  is that a reasonable person, in the same situation, would have also felf that it was imminent. Jeopardy must exist.
  • Reasonable – Oh! Oh! Oh! This one is the tough one as what is reasonable to one person is not reasonable to others. Your belief that the threat is imminent must be reasonable. Your belief that the threat could result in death or serious bodily harm must be reasonable. You must be able to show that a reasonable person would likely do the same thing in a similar situation. This fictional “reasonable ” person is sane, not under the influence of substances, has some normal moral and ethical values, and does not have a temper that would cause them to act differently than other “reasonable ” people. Would a reasonable person have drawn a gun and pulled the trigger, in a similar situation?
  • Proportional Response – We have learned, over time, that our responses must be proportional. If somebody insults us, that does not justify us burning down their house. If somebody insults us, that does not even justify physical force in the vast majority of situations. In most cases, people respond to verbal threats with verbal responses. There is a point where higher levels of responses are justified. For example, in Colorado, we have 18-1-704 – Use Of Physical Force In Defense Of A Person. This law clearly states that deadly physical force can be used if the defender “has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury.” Again, there is that “reasonable” component.
  • Avoidance – This one is kind of tricky, too. Some states have “Stand your Ground” statutes. Some states have “Castle Doctrine” statutes. However, these statutes do not, necessarily, remove your responsibility to make good and reasonable decisions, and while you may be protected in criminal court, you may not be protected from civil action. While the law may provide some protections in criminal cases because of these statutes, you need to understant that your actions will appear to others and whether your actions can still be justified in their eyes as cases are tried in civil courts. In many states, you have a duty retreat to the furthest place possible to avoid having to use deadly force. Preclusion, means means that you had the ability to avoid the situation or make it impossible to happen, but chose to not take action. Preclusion is a requirement in many legal cases. In some states, if you have been found not guilty in criminal court, you are shielded from civil action, but that is not a common protection in all states.

Personal View

Most of us have a personal take on the whole topic of justifiable self defense. I have spent many hours pondering when I would use deadly force against another person. I have thought about many situations that would result in me using deadly force, and many that would not.

I watched a video where John Correia talked about this topic, the other day. He said that there is a mentality that we need to consider, too. To paraphrase  one of his statements: whether you can shoot, does not mean you should shoot, or that you must shoot. Even though, your action may be justified under the law, does that mean that it fits your values?

Example 1 – Let’s say that I live in a multi-story home (I do not), with the living room on the main level, and the bedrooms on the top level. In the middle of the night, I hear strange noises on the main level, so I get my gun and a good hand held light, and I investigate. I see two strangers, taking my TV. They do not appear to be interested in anything else. They have already unhooked it, and they start to carry it out the door.

Can I shoot? Legally, under Colorado’s laws, I could shoot and kill both of them.

Should I shoot? I don’t see a reason to shoot them if they are on the way out the door and they are just stealing my TV. I have insurance, but even then, it is not a huge amount of money.

Must I shoot? If they started to come up the stairs, well, then the scenario changes. At that point, they are a significant threat to me and my family. In my mind, I must shoot, at this point.

Would you do it differently?

Example 2 – I am in the parking lot of a large store. I see two men assaulting a young woman. She has a bloody face and is screaming for help. One of them starts to rip at her clothing.

Can I shoot? Yep. They are, clearly, committing a violent felonious assault on the young woman. Under 18-1-704(2)(c) in Colorado, I would be fully justified to use deadly force and kill them.

Should I shoot? If they fail to disengage and run off based on my presence and my verbal challenge, then yes, I probably should shoot them. At this point, assuming they run away, I can be a good witness for the police, and I can get immediate medical attention for the young woman.

Must I shoot? If they grab a blunt instrument and start running at me, then yes. Absolutely, in my mind, I need to use deadly force to defend myself.

Would you do it differently?

Summary

It is vital that we understand:

  • The laws around deadly force
  • The repercussions of using deadly force
  • How we will interact with law enforcement in the aftermath
  • Our personal morals and what we are willing to do in certain circumstances

Your mileage may vary when it comes to the questions:

  • Can you shoot?
  • Should you shoot?
  • Must you shoot?
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