Criminal defense lawyer Don West says, “If you are facing an imminent threat of great bodily harm or death, you have the legal right to use deadly force in self-defense.” Of course, a defender’s belief that they face such a threat must be objectively and subjectively reasonable (we’ll get into that in Lesson 5). To make things more complicated, how does an armed defender assess whether a threat is imminent? And how badly must a defender be wounded for an injury to qualify as great bodily harm? We’ll tackle those questions in a moment, but first, let’s take a closer look at the law.
While the specific language of statutes governing the justifiable use of deadly force varies from one jurisdiction to another, the foundational principle informing self-defense law in all 50 states is some version of this: deadly force is justified only when the defender has a reasonable belief that an attacker poses an imminent threat of great bodily harm or death. Every armed defender should read and understand the statutes in any state where they are likely to possess or handle a firearm. Many statutes authorize the use of deadly force to stop a forcible felony or for other rare and novel scenarios, but a discussion of those outlier circumstances distracts from the exploration of a citizen defender’s core concern, which is protecting themselves and their families from violence.
In plain tactical terms, as firearms instructor Steve Moses explains to his students, the self-defense statutes imply that an attacker must have the ability, the opportunity, and the intent to seriously injure or kill; otherwise, a defender’s use of deadly force cannot be justified. Some in the training industry refer to this concept as the AOJ Pyramid (ability, opportunity, and jeopardy). We prefer the term intent in place of jeopardy for our exploration of self-defense law. Don West explains, “Ability is the physical capacity for an attacker to cause serious injury. Having the opportunity means the attacker is unobstructed and close enough to inflict that injury. And intent means they actually mean to attack.”
When we encounter self-defense shootings with strong evidence that the attacker had the ability, opportunity, and intent to cause harm—such as the Kristen McMains case, where a young woman fought off a knife-wielding kidnapper—the defender is often praised as a hero. However, cases where doubt is cast on any one of the factors often result in controversy and prosecution, a problem we call The Armed Defender’s Dilemma. Navigating this challenge becomes a little easier when the defender understands more about how the law interprets the terms imminent and great bodily harm.
The term imminent doesn’t have a strict legal definition. Steve Moses tells his students that “When I say imminent, I mean immediate.” Don West agrees: “Imminent means right now—that split-second decision you have to make of whether you are facing a deadly force threat.” Attorney Mike Arnold, in his book about the legal defense of Gerald Strebendt, writes, “If you have time to consider what the police or jury would think if you pulled the trigger … then the threat probably isn’t imminent.” In common usage, people sometimes say the word imminent to mean impending. Impending implies that a significant event is forthcoming, whereas imminent, for the purposes of self-defense, means an event is about to happen this very instant, right now. It’s a narrow distinction with wide-ranging repercussions.
When it comes to the seriousness of an injury presented by a potential attacker, death is easy to define, but the term great bodily harm leaves room for interpretation. “It’s vague,” Don West admits. “It’s the loss of bodily function, severe disfigurement, or permanent impairment of any bodily member or organ—the kind of injuries where most people would say, ‘Yeah, that’s more than a fight.’” Steve Moses adds that the threat of great bodily harm is “something that would break a bone, perhaps create a laceration or a puncture wound that’s so serious that it could be incapacitating.” It may be helpful to define great bodily harm by describing what it is not: It is not temporary pain. Unless it has the potential to render you unconscious, it is generally not an injury you could recover from fully.
For Lesson 4, we’ll explore three controversial cases where an armed defender faced prosecution, in large part, because of ambiguity surrounding one of the three pillars of ability, opportunity, and intent. We’ll start in Wesley Chapel, Florida, where 71-year-old Curtis Reeves fatally shot an unarmed attacker during an explosive confrontation in a movie theater. Then we’ll travel to Ewa Beach, Hawai’i, where Gregory Farr shot and killed a drunken sailor who was pounding on his front door at 3:30 AM. We’ll end by revisiting a case in Austin, Texas, where Daniel Perry faced prosecution for shooting a rifle-wielding protester during a Black Lives Matter march.
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71-year-old Curtis Reeves took his wife, Vivian, to view a screening of Lone Survivor at a movie theater in Wesley Chapel, Florida, in 2014. They sat behind 43-year-old Chad Oulson and his wife, Nicole. During the previews, Oulson had a cellphone exchange with their kid’s babysitter, and when Reeves asked him to put the phone away, Oulson responded with a string of expletives. Reeves left the theater to report Oulson to management, and when he returned to his seat, Oulson was no longer using his device.
“If I had known you put your phone away,” Reeves said, “I wouldn’t have involved the manager.” The comment enraged Oulson. He stood up and leaned over the back of his seat. Oulson’s response exhibited “explosive behavior both verbally and physically,” Reeves said. “The ‘F’ word seemed to be his primary vocabulary at that point.” According to Reeves’ testimony, Oulson “was reaching for me or trying to get over the seat … I couldn’t get up. I was trapped.”
A security camera captured the altercation. While Reeves appears at the edge of the picture, Oulson stands just off frame. The dark, grainy footage shows Oulson’s hand swatting Reeves’ popcorn bucket, sending pieces flying. Reeves responds by shooting Oulson once in the chest. It proved fatal. Oulson was unarmed. Prosecutors said “popcorn is not a weapon,” and they charged Reeves with second-degree murder. Some press outlets referred to the shooting mockingly as the Movie Popcorn Murder.
When Reeves testified at his trial, he said, “In my mind, it was the blink of an eye. I shot Mr. Oulson because I thought he was going to seriously injure or kill me.” As a retired law enforcement officer, Reeves clearly understood the legal justification for deadly force, and his language invokes the spirit of Florida’s use of force statutes. When Reeves says “blink of an eye,” it conjures up the “split-second” concept that Don West uses to describe the term imminent. If you search for the video of the shooting online, you’ll see that Oulson’s attack isn’t forthcoming; it is happening. The imminent nature of the threat made it obvious that the attacker had the opportunity to inflict serious injury—if he wanted to.
Oulson’s intent proves harder to discern. While Oulson almost certainly had no desire to kill Reeves, the attacker’s physically explosive and expletive-riddled exhibition of rage signaled the serious possibility that he might have continued the assault. Reeves testified that he had “no reasonable expectation” that Oulson would exhibit such an extreme physical response. Reeves’ wife, Vivian, testified that she felt “terrified.” Oulson’s wife actually put her hand on her husband’s chest, perhaps in an effort to restrain him. It appears as though everyone involved feared Oulson might escalate the violence.
With the matter of Oulson’s intent mitigated by his own extreme behavior, the remaining controversy centered on whether the unarmed attacker possessed the ability to inflict great bodily harm upon Reeves. Oulson was 28 years younger than Reeves. At trial, Reeves’ lawyers devoted an entire day to presenting testimony from an expert who spoke to the physical frailties associated with aging. At 43 years old, Oulson was fit and much closer to his prime—and at six-foot-four, he towered over the frail, overweight, arthritic septuagenarian.
Tactically speaking, Steve Moses notes that, beyond the physical disparity between the parties, “A person in a seated position is at a considerable disadvantage in a physical confrontation.” Steve says, “If you have someone bigger than you, and they’re standing over you, and you are seated, then you’d have to step right into them to escape.” Reeves had nowhere to go. He felt he had to either endure the attack or fire his weapon. At trial, the state asked Reeves if he killed Chad Oulson out of rage or blind fury. “No, sir,” Reeves replied. “I killed him out of fear.” The jury was tasked to judge whether Reeves’ fear was reasonable.
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In 2018, 33-year-old Gregory Farr shared a townhome with his girlfriend and his daughter in Ewa Beach, Hawai’i. Chief Petty Officer John Hasselbrink, a 41-year-old career Navy submariner, lived in a nearly identical unit in the same row of townhomes. In the early hours of April 15, at around 3:30 AM, Hasselbrink Ubered home from a night of heavy drinking ahead of a long deployment. The Uber driver, Hasselbrink’s family suspects, dropped him off in front of the wrong unit. Hasselbrink walked up to Farr’s front door, thinking it was his.
According to local reporting, “Hasselbrink was in the habit of leaving his door unlocked because he had a friend who from time to time would show up and crash on his couch.” When he encountered a locked door, Hasselbrink, who had left his keys at home, probably assumed his friend had inadvertently locked him out. He started banging on the door to wake his friend. Instead, he woke his neighbor, Gregory Farr. Healing from an ankle surgery just three days earlier, Farr had fallen asleep downstairs. Confused and startled by the commotion at his front door, Farr shouted for the stranger to identify himself, but Hasselbrink, with a blood alcohol concentration of 0.258 (over three times the legal limit to drive), failed to reply. Instead, he tried to force the door open with his shoulder.
Farr struggled up stairs while wearing his ankle cast. Then he retrieved his rifle and asked his girlfriend to dial 9-1-1 while he took a position at the top of the stairs. Because of his vantage point, Farr could see Hasselbrink’s face through a window above the door. He called out to him again and received no response. That’s when Farr noticed his daughter wasn’t in her bed. She had also fallen asleep downstairs, and Farr claimed she was only a few feet from the front door.
“With his ankle unable to carry his weight,” reporter Brittnay Lyte writes, “Farr determined he wouldn’t be able to move down the stairs fast enough to protect her if the door were to break open.” So Farr fired a single round through the door. The bullet struck Hasselbrink in the neck, and he died on the front steps. Prosecutors charged Farr with manslaughter.
Because a locked door stood between Farr and Hasselbrink, it’s difficult to argue that the defender had a clear assessment of Hasselbrink’s ability to inflict great bodily harm or death upon either himself or his daughter. In the light most advantageous to the home defender—sympathetic to the terror someone must feel when a stranger is beating on their front door in the middle of the night—we’ll give Farr the benefit of the doubt. Considering the vulnerability of his young daughter, and with respect to Farr’s hobbled, post-surgery condition, we might assume that, had Hasselbrink broken through the door, then the six-foot-tall, 200-pound Navy man could have inflicted some physical harm—had he desired to do so.
But it is very unlikely that Hasselbrink had any desire to harm anyone. With the benefit of understanding the broader context of this unfortunate encounter, we know the drunk sailor just wanted to get inside (what he thought was his home) and go to bed. If Hasselbrink acted angrily, it was likely because he thought his friend had locked him out. Of course, Farr had no way of knowing this, and it makes sense that he would have misinterpreted the stranger’s anger for malicious intent.
Had Hasselbrink managed to break through the front door, his benign intent would not have legally invalidated Farr’s reasonable misinterpretation of the intruder’s motives. A common-sense application of the Castle Doctrine gives a home defender reasonably broad discretion to assume that someone who forcibly enters their home intends harm—even in a state such as Hawai’i, where that presumption, as of this writing, isn’t specifically spelled out in the statutes. Don West says that in many other states, the law provides provisions that “if somebody has forcibly entered your home, then they are there presumptively to cause you great bodily harm or death.”
But in the Gregory Farr case, Hasselbrink had not managed to break through the front door before the defender fired the fatal shot. Even if Farr could have reasonably assumed the stranger at his door had the ability and intent to attack him and his daughter, Hasselbrink didn’t yet have the opportunity to inflict severe bodily harm or death. Don West says, “Imminent does not mean something that may occur down the road, or something that is currently physically impossible. A future speculative threat is not an imminent threat.” While many people publicly expressed anger over Farr’s decision to shoot, some self-defense advocates sympathized with the defender. Ultimately, a jury would decide, given the totality of the circumstances, whether Farr’s decision to shoot was reasonable.
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You know from our exploration of the Daniel Perry case in Lesson 3 that Perry, an army sergeant moonlighting as an Uber driver, found himself in his car, surrounded by Black Lives Matter protestors during a march in downtown Austin, Texas, in July of 2020—just two months after the police killing of George Floyd. Garrett Foster, a 28-year-old Air Force veteran, had been participating in the demonstrations, and he often chose to march while wearing tactical gear and carrying his AK-47-style rifle, a legal right he exercised as a Texan.
The Houston Chronicle reports that, according to testimony at trial, Perry “made a right turn at a red light into an intersection full of protesters. Some scattered and others surrounded his car, pounding it with their hands and kicking it with their feet.” Amid this chaos, Foster, carrying his rifle, approached the driver’s side window of Perry’s car, and allegedly “issued an order to the driver.” Perry rolled down his window, retrieved his .357, and fired five times, striking Foster in the chest. After driving a short distance from the crowd, Perry called 9-1-1 to report the shooting, and police took him into custody.
While being interrogated by a homicide detective, Perry said, “I didn’t know he was going to aim it at me. I thought he was going to kill me … I’ve never been so scared in my life.” The detective asked Perry to demonstrate how Foster approached him. A video of the interrogation shows Perry standing, holding an imaginary rifle pointed down at the interviewer. “I believe he was going to aim it at me,” Perry says. “I didn’t want to give him a chance to aim it at me.” The homicide detective, relatively satisfied that Perry acted justifiably, allowed Perry to walk out of the police station the next morning without facing charges. But nearly a year later, after further investigation by a newly elected district attorney, a grand jury indicted Perry for murder.
If we use the ability-opportunity-intent pyramid to assess whether Perry faced an imminent, serious threat, we find that Foster clearly had the immediate ability and opportunity to inflict great bodily harm or death. Sergeant Perry served a tour of duty in Afghanistan during his eight-year army career, but it doesn’t take a combat veteran to know what kind of damage an AK-47 can inflict. For demonstrative purposes, firearms instructor Steve Moses visited an outdoor gun range that features some abandoned cars. He set a cinderblock on the driver’s seat of a vehicle, stepped back several feet, held an AK-47 at a low ready, and used a shot timer to measure how long it took for him to react, raise the rifle, aim, and fire. Including reaction time, it took Steve just shy of a second to put a well-aimed round through the door of the abandoned car. After passing through the door, the bullet still carried enough force to shatter the concrete block on the other side.
During Perry’s trial, a jury had little reason to doubt Foster’s ability and opportunity to inflict serious injury or death, but the jurors must have had doubts regarding Foster’s intent as he approached Perry’s vehicle. Foster may have felt he could confront the driver and help him safely exit the crowd. Perhaps Foster felt empowered to step forward because of the rifle he carried. Or maybe Foster felt so comfortable carrying the rifle that he forgot he had it. Possibly, in the chaos of the moment, Foster never stopped to consider how intimidating he might appear to a frightened stranger.
“It’s often not difficult to see if a person has opportunity,” Steve says, “and in many instances, we can clearly see if the person has the ability. Then it becomes a matter of intent, and intent is the most difficult thing to ascertain because that’s taking place inside the brain of the person you’re dealing with.” None of us can read minds, so as armed defenders, we have to use context clues to assess the intentions of a potential aggressor. In Perry’s case, a jury would have to use context to decide—not just whether Foster intended harm—but whether Perry reasonably believed Foster intended to shoot.
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Just as we cannot expect armed defenders to read minds, we cannot expect jurors to know what a defender thought and felt at the moment they pulled the trigger. Don West says that, when the court charges a jury to sit in judgment of an armed defender, “There’s an overriding analysis that looks at the totality of the circumstances, taking everything into account to answer the question, ‘Was the response to the threat reasonable?” Curtis Reeves, Gregory Farr, and Daniel Perry each faced trial for homicide-related charges. Each jury would have to decide if the defender’s use of deadly force was reasonable in the context of the circumstances. Interestingly, each trial ended with a different conclusion, which we’ll explore next in Lesson 5.
These three defenders faced extraordinary circumstances, and few would dispute that they had reason to feel afraid—terrified even. But fear alone does not justify the use of deadly force. Claude Werner, an army captain who served in the special forces, told us: “The saying in the military is that bravery is doing what you need to do despite fear, and there is nothing wrong with being afraid. But we have to understand what’s reasonable fear and what’s unreasonable fear.”
I’ve heard it said that “our greatest fears lie in anticipation.” The idea of anticipation helps illustrate the difference between an impending threat and an imminent threat. When we anticipate an impending threat from a potential attacker, we still have time to take other actions. Once a threat becomes imminent, however, the anticipation is over, and an armed defender must decide whether they have no other choice than to endure an attack or use deadly force to stop it.
Attorney Mike Arnold writes, “Defending yourself against a threat is a twilight zone unlike any other.” When a defender decides to use deadly force, their decision will be submitted for approval to homicide detectives, prosecutors, and perhaps a judge or a jury who will consider whether the defender was afraid of a serious violent attack, and more importantly, whether they honestly and reasonably believed the defender faced the imminent threat of great bodily harm or death.
