WHAT IS “SERIOUS BODILY INJURY”?

WHAT IS “SERIOUS BODILY INJURY”?

The moment that a concealed carrier fires the first bullet at another person is the start of a journey that will likely change his or her life forever. There is much gray area between a shooting that is clearly justified and one that is clearly not. Knowing when it is lawful and appropriate to shoot is every bit as important as knowing how to competently fire a gun at a person with full knowledge that it may end that person’s life.

It is commonly accepted that a concealed carrier may use deadly force in order to defend him or herself against another person if the same other has the opportunity, the ability, and the immediate intent to cause serious bodily injury or death. While the  presence or absence of castle doctrine and “stand your ground” laws can be a factor, the objective of this article is to take a closer look at the definition of “serious bodily injury” and why it is important that concealed carriers are familiar with it. There is a wide range of opinions as to what constitutes serious bodily injury, and the results of a faulty understanding can range from an unjustified shooting to the concealed carrier being maimed or killed because he or she failed to realize how much danger that they actually were in.

CCW Safe National Trial Counsel Don West is a board-certified criminal trial specialist with close to 40 years of experience as a successful criminal defense trial attorney. Don received a great deal of national recognition for his success in defending George Zimmerman in the Trayvon Martin shooting. I contacted Don and asked him for his thoughts on the subject, to which he responded as follows: “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Each state has its own definition of serious bodily injury that applies to its civil and criminal statutes, and not all of them specify exactly what the definition of serious bodily injury is. Instead, they attempt to define it by saying what it does not mean, which means that the judge or the jury has to determine if the actual injury or feared injury would qualified as serious bodily injury. There may be case law based on specific scenarios where the courts ruled some types of injuries constituted serious bodily injury and others did not. There simply does not appear to be any exact rules that apply to self-defense cases when it comes an unarmed attacker. Another consideration is that one does not have to actually sustain the injury before using force.

An open hand or closed fist is normally not seen as creating a substantial risk of death since under many circumstances the risk of serious injury or death is minimal. The most common injuries from getting punched in a “fist fight” are a split lip, blackened eye, or maybe a laceration, none of which would typically qualify as serious bodily injury. Therefore, the use of deadly force as a response to being punched would typically be considered unjustified.  Prosecution becomes likely if the concealed carrier’s use of force is disproportionate to the level of force in which they were threatened. Given the fact that this is largely sorted out after the incident and based upon either the injury suffered by the concealed carrier or what he or she thought was about to happen, a prosecutor may challenge a claim of self-defense if the concealed carrier only suffered a bloody nose, split lip, or  blackened eye by asserting that deadly force was unjustified because the force used by the attacker was not  sufficient to cause serious bodily injury or death. 

A potential problem for concealed carriers is the fact that serious bodily injuries can also be caused by an open hand or closed fist. Concealed carriers need to know that a single punch can end their life. A clean shot to the chin, temple, back of the head, or even the side of the neck can render them completely unconscious. A disturbingly large number or persons have been killed or suffered severe brain damage by falling after being punched and hitting their head on a concrete surface. This can be readily confirmed by doing an internet search for “knockout game videos” and going to the website onepunchhomicide.com. Another consideration is that it is not uncommon for an attacker to continue to punch, kick, and even stomp on the head of an unconscious person long after they fell to the ground.

What can be done to avoid being put into a position in which our life is in grave danger or being forced to use deadly force in order to avoid serious bodily injury or death? Actions that concealed carriers might take include the following:

• Do not get into fist fights, also known as mutual combat.
• Avoid getting into a heated interaction with another person in which a physical assault is a distinct possibility. Disengage at the first opportunity.
• Understand that many of the persons that were injured or killed in this manner were either sucker-punched or involved in mutual combat.
• A good way to mitigate the possibility of taking a hard hit to the head or neck is to stay aware, maintain distance beyond two arms-length from unknown contacts, issue commands if being encroached upon, and know how to effectively cover the head so that a solid punch is unlikely to strike the chin, jaw, temple, side of the neck, or back of the head.

If a concealed carrier is punched in the face and not wobbled (possibly concussed), they are in all likelihood not seriously injured. Suffering a broken nose or chipped tooth is not a justification for then shooting that person. If the attacker remains on the scene and wants to fight, then the best choice will likely be to disengage and call 911. On the other hand, if that same person attacks the concealed carrier and clearly demonstrates both his or her intent to maim or kill and the physical capability of doing so, then absent any less lethal options or opportunity to disengage a deadly force response may be warranted. On more than one occasion the mere defensive display of a firearm by the defender was all that it took to cause the attacker to break off the attack.

As always, it is the totality of the circumstances that dictates the best actions for the concealed carrier to take. Probably the best advice that I can give to concealed carriers is to get educated and train. The more educated and skilled we are, the more likely that any action that we might take is appropriate, lawful, and effective if we are ever faced with a situation where there is the danger of an imminent physical attack.

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Steve Moses Steve Moses has been a defensive firearms trainer for over 26 years and is a licensed Texas Personal Protection Officer with 7 years of experience performing as shift lead on a church security detail for a D/FW area metro-church. Steve is a co-owner and Director of Training for Palisade Training Group, LLC based in Dallas, Texas. Moses is a retired deputy constable and spent over 10 years on a multi-precinct Special Response Team. He owns multiple instructor certifications, including Rangemaster Advanced Handgun Instructor and Defensive Shotgun Instructor, Red Zone Knife Defense Instructor and Adaptive Striking Foundations Instructor, Modern Samurai Project Red Dot Sight Instructor, and State of Texas Personal Protection Officer Instructor. Steve holds a BJJ Brown Belt in Relson Gracie Jiu Jitsu. He is a content contributor for CCW Safe and writes weekly articles on various subjects of interest to concealed carriers. Moses shoots competitively and holds an IDPA Expert rating. Steve is an annual presenter at the Rangemaster Tactical Conference.