Injury, Serious Bodily Injury, and Death

The armed defender’s dilemma

“How many of you here have taken a punch to the head where you saw lightning?” Tatiana Whitlock is a firearms instructor who, in addition to more advanced classes, offers training for newly-minted concealed carriers across the country. She says she asks this question at the beginning of each class. Two or three people in a classroom of 20 will raise their hand.

It’s important because, Tatiana says, most people “do not know what it feels like to be uncomfortable from being struck. The first time an adult takes that kind of hit, there’s an assumption that you’re going to die, because it hurts and it is jolting and alarming and disorienting.”

Tatiana is a student of martial arts. I like that she calls getting punched in the head “uncomfortable.” That’s always true, but most of the time, getting punched in the head is not deadly (more on that a little later).

The most challenging self-defense cases I’ve come across — whether by studying shootings that make headlines or serving as a litigation consultant — are cases where the defender discharged a firearm against an unarmed attacker. They used deadly force against non-lethal force. They “brought a gun to a fist fight.”

One of the most difficult self-defense questions to answer is “When am I justified in using deadly force.” The technical answer, although it’s written a little differently in the laws of each state, is that if you have a reasonable fear of imminent death or serious bodily injury from the hands of another, you may justifiably use deadly force to stop the attack. “Imminent” is a pretty subjective term, and “reasonable” is completely subjective, so already there’s no way to offer a clear answer without knowing all the specifics of an encounter.

The term “serious bodily injury” is more objective, but very often, it’s completely misunderstood. Firearms instructor and CCW Safe contributor Steve Moses recently wrote a great article about serious bodily injury where he quoted CCW Safe National Trial Counsel and criminal defense attorney Don West. “‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that caused death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

We’ve discussed the Michael Drejka case in great detail. Markis McGlockton shoved Drejka violently to the ground in a convenience store parking lot. On his back, feet in the air, Drejka feared McGlockton would press the attack, so he pulled his pistol and fired a single shot. Drejka required no treatment for his injuries; unarmed, McGlockton died in the convenience store at the feet of his five-year-old boy. Drejka was convicted of manslaughter and sentenced to 20 years in prison where, ironically, another inmate stuck Drejka in the head with a sock containing a piece of metal — something much more capable of causing serious bodily injury.

We’ve seen other cases where the defender fired before the perceived unarmed attacker even threw a punch. Michael Dunn shot Jordan Davis after a verbal threat. Ronald Gasser shot Joe McKnight for resting his arms on the window frame of his truck. They both responded to the mere threat of non-lethal force with a firearm.  If we’re looking for the answer to “When am I justified in using deadly force?” — Drejka, Dunn, and Wafer all got it wrong.

In contrast, I can’t help thinking about the Zimmerman case where I met Don West. Lost in all the controversy that engulfed that case is the fact that Zimmerman took a sucker punch to the nose and endured a 90-second ground and pound before he fired a single round to stop the attack.  One of the arguments made at trial was that Zimmerman was unable to retreat, he didn’t know how long the attack would last, and couldn’t have known if the next blow would cross the line from bodily injury to serious bodily injury or death.

That takes us back to the idea that getting punched in the head isn’t deadly — most of the time. Steve Moses recently reminded me of the 2012 documentary One Punch Homicide that demonstrates how a single punch can be fatal.  The line between bodily injury, serious bodily injury, and death can be hard to define without crossing over it. It’s a real dilemma for armed defenders.

Firearms instructor Claude Werner says that one thing the firearms instruction industry doesn’t always do well is “to make it clear to people that there is a difference between force and deadly force.” It’s important for defenders to know what kind of force is being used against them before they decide how to respond so they don’t overreact. It’s just as important for defenders to have less lethal options available for dealing with ambiguous threats where the line between injury, serious bodily injury, and death are blurred. We’ll talk about that in more detail next week.

In the meantime, the lesson for concealed carriers and armed defenders is that not all force is equal, and using deadly force to stop a minor physical attack or to prevent an attack that is not likely to cause death or serious bodily injury is illegal. Part of navigating his defender’s dilemma is being able to judge the physical abilities of a potential attacker, and another part is understanding what kind of attack you can withstand before fearing serious bodily injury. This isn’t real advice, but maybe it wouldn’t hurt for every concealed carrier to get punched in the face, just once, so they know what it’s like to feel, as Tatiana Witlock says, “uncomfortable.”   

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