The Legal Justification for the Use of Deadly Force
BY: SHAWN VINCENT
The legal justification for the use of deadly force in self-defense is both deceptively simple and infinitely complicated. Don West, criminal defense attorney and National Trial Counsel for CCW Safe says, “The core principle of self-defense – with minor tweaks within the 50 states – is that, if you have a reasonable belief that you are facing an imminent threat of serious bodily harm or death, then you have the right to use deadly force to prevent yourself from being injured or killed.” It sounds simple enough, but how soon is “imminent”? How bad does an injury need to be to qualify as “serious bodily harm”? What makes a belief “reasonable” anyway? Concealed carriers arm themselves so they are prepared to survive an attack from a violent criminal. Understanding the laws governing the use of deadly force is critical for armed defenders to survive the legal scrutiny that follows any deadly use of force event. As a concealed carrier, you have a responsibility to know the laws wherever you carry, but there are certain core principles that apply no matter where you live in the United States.
Justification for the use of deadly force begins with the defender’s “reasonable belief” that an attacker poses a serious imminent threat. Don West says that “when a jury decides whether a defender’s conduct was reasonable, they will assess it from a subjective and objective point of view.” The subjective assessment looks at the facts from the defender’s perspective, taking into account the information they knew about the specific circumstances, and it may include factors such as the defender’s personal experiences, self-defense training, and physical abilities. The more objective assessment, Don says, “is evaluated from the jury’s perspective where they, in a sense, put themselves in the shoes of the defender” and decide if the conduct was reasonable from that standpoint. “The more legal definition of ‘reasonable belief,’” Don says, “means a belief that would be held by any ordinary or prudent man (person).”
In the shooting of David Crofut by Gerald Strebendt, Crofut rear-ended Strebendt on a dark night at a remote section of highway. Crofut exited his vehicle shouting obscenities and making threats while advancing toward Strebendt. Strebendt happened to have a rifle in his vehicle, and he grabbed it along with his cell phone and dialed 9-1-1. He started commanding Crofut to “stay back,” but Crofut continued to advance until he was close enough to touch the barrel of Strebendt’s rifle. Strebendt fired a single shot. It proved fatal. Crofut was unarmed.
Objectively, an “ordinary and prudent” person, considering the circumstances, might find Strebendt’s belief that he faced a serious imminent threat was reasonable. Crofut was the one acting unreasonably. He was the one making the threats and advancing in the darkness toward a man with a rifle – despite being warned off. Subjectively, however, the assessment changes when it is revealed that Gerald Strebendt is a veteran Marine sniper and a retired professional UFC fighter nicknamed “The Finishing Machine.” With his combat training and physical capabilities, subjectively, a juror could decide that Strebendt didn’t have a genuine reason to fear an unarmed man in his fifties. Stebendt endured an aggressive prosecution for murder and ultimately pled to lesser charges, serving significant time behind bars.
Conversely, Curtis Reeves was a frail man in his seventies when he found himself embroiled in a pitched verbal exchange with a much younger and stronger man named Chad Oulson. The altercation began when Reeves asked Oulson to put his cell phone away during previews at a movie theater. After some terse words, Oulson stood up and leaned over his seat, shouting at Reeves seated in the row behind him. Oulson’s wife put her hand on his chest to hold him back. After Oulson knocked a bucket of popcorn off Reeves’ lap, Reeves drew his pistol and fired a single fatal shot.
The news media dubbed the case “the popcorn shooting,” and objectively, public opinion was largely critical of a concealed carrier for shooting an unarmed man during an argument in a movie theater. At trial, however, Reeves’ lawyers presented evidence about the defendant’s physical frailties and emphasized how Reeves’ was vulnerable in the seated position while Oulson towered over him. While Reeves’ use of deadly force might not have been objectively reasonable to an “ordinary and prudent” person, the jury’s subjective assessment of Reeves’ condition likely contributed to his surprising acquittal.
While these two cases might not be particularly instructive to a concealed carrier, they help illustrate how nuanced the assessment of a defender’s “reasonable belief” can be. Steve Moses, a self-defense and firearms instructor, offers his students some more practical advice on how to understand what constitutes a “reasonable belief” or serious bodily harm or death. Steve teaches students to assess a potential threat’s ability, opportunity, and intent to do harm.
“Ability,” Steve says, “simply means that a potential threat has the skills or the tools to cause serious injury or death.” When an attacker wields a firearm or an edged weapon, making an assessment of an attacker’s ability is relatively easy. It’s more difficult with unarmed attackers. But even with a clear-cut assessment of ability, it’s not enough on its own to justify the use of deadly force; Steve says an attacker must also have the intent to do harm. An armed security guard at a jewelry store has the ability to cause serious injury or death – his gun – but he almost certainly does not have the intent to harm law-abiding citizens.
Ability and intent alone are not enough to justify the use of deadly force. Steve says the potential threat must also have the opportunity to cause serious harm or death. An attacker wielding a firearm likely has the immediate opportunity to cause serious harm – as long as they’re not too far away, or behind some bullet-resistant barrier. However, Steve notes that an attacker with a baseball bat on the opposite side of a car, or an attacker armed with a knife behind a window may have the ability and intent to cause harm, but they do not have the immediate opportunity — not unless they run around the car, not unless they shatter the pane of glass.
While ability and intent speak to the “reasonable belief” aspect of the legal justification for the use of deadly force, “opportunity” speaks to the “imminent” element. There is no firm legal definition of “imminent,” but Don West says that, in practical terms, imminent means “right now or something that can occur in a split second.” It doesn’t mean something is ABOUT to happen. “Imminent” means something IS happening. Some armed defenders who encounter aggressors with the ability and intent to do harm face legal consequences for using deadly force because they resort to their firearm either too early or too late – either before or after the attacker had the imminent opportunity to inflict harm.
Michael Drejka shot Markis McGlockton after being violently shoved to the ground. The incident was captured by security cameras. At first, the much larger McGlockton appears as if he is going to continue the attack, moving toward Drejka with an aggressive posture. When Drejka pulls his pistol and points it a McGlockton, however, the situation changes. The attacker steps backward, diminishing the opportunity to cause harm. Drejka shoots anyway. It proves fatal. A jury convicted Drejka of manslaughter. After the verdict, one of the jurors told reporters, “I think he had the opportunity not to kill him.” The attack was no longer imminent. Drejka shot too late.
In other cases, defenders have shot too soon. Markus Kaarma detected an intruder late at night using a video monitor he had set up in his garage. All he could see was the silhouette of a figure, but he knew someone was there. He grabbed a shotgun and went out to the front of his opened garage and fired into the darkness, fatally injuring the intruder. Greggory Farr was startled awake in the middle of the night by a stranger pounding on his front door trying to break through. Terrified, Farr made the mistake of firing through the door, killing the man on the other side. The intruder in Kaarma’s garage turned out to be a teenaged foreign exchange student who was “garage hopping,” stealing beer from refrigerators in garages that had been left open. The intruder in the Farr case was a drunken neighbor who thought he had been locked out of his own townhome a few doors down. Both were unarmed, and neither had the immediate opportunity to cause serious injury. Both Kaarma and Farr faced criminal prosecution.
As it turns out, neither of the intruders in the Kaarma and Farr cases had the intent to do harm, but the law generally allows homeowners to assume uninvited intruders intend harm. For concealed carriers outside of their homes, Steve Moses says “intent” is the hardest of the elements to determine because “it essentially requires the defender to peer into the other person’s brain.” Steve says one tactic for assessing the intentions of a potential threat is to create distance between you and the aggressor if you can safely do so. Provided the threat is not wielding a firearm, creating distance removes the immediate opportunity for the aggressor to do serious harm as they would have to draw a gun or close the distance to create an immediate threat. If an aggressor presses an attack – especially if the defender retreats and issues clear verbal warnings – it removes much of the ambiguity regarding their intentions, and if the opportunity becomes imminent and ability remains, an armed defender can resort to their firearm with some confidence that their use of deadly force will be found justified.
Despite creating distance and issuing clear verbal warnings, Gerald Strebendt faced challenges in his self-defense claim because his attacker, especially considering the defender’s mixed martial arts skills, did not subjectively have the ability to cause serious harm. This touches on the one aspect of the legal justification of deadly force we haven’t explored yet: the concept of serious bodily harm. The statutes in some states refer to this as “great bodily injury.” Whatever the terminology, deadly force is only justified to prevent an injury that would cause lasting harm, chronic pain, disability, or significant disfigurement. Steve Moses says, “Normal bodily injury is just pain. It’s temporary. It’s fixable,” whereas serious bodily injury includes “things that would break a bone or create a laceration or puncture wound that would require an extended hospital stay.” Steve says that an attack that could render a defender unconscious or incapacitated – such as a choke hold – could also be considered “serious bodily harm.”
As an armed defender or concealed carrier, you should research and understand the specific laws in your state, but wherever you go in the United States, the core elements justifying a citizen’s use of deadly force are fundamentally the same. A defender must have a reasonable belief that they face the imminent threat of serious bodily injury or death. One of the best ways to ensure your actions are reasonable is to use the “Ability, Opportunity, and Intent” test that Steve Moses endorses. When you create distance between yourself and a potential threat and issue verbal warnings, if the aggressor continues to attack, you can be reasonably confident that they have the intent and opportunity to do you harm, and you’ll have more time to assess their ability to cause serious injury or death.
While these are the core principles justifying the use of deadly force, there are other factors that can affect a self-defense claim such as who is the “initial aggressor.” There are also justifications for the use of deadly force in defense of another, or to prevent the commission of a forcible felony. A defender can lose some of the benefits of the self-defense laws if they are trespassing or engaging in criminal acts. All these factors, of course, add to the complexity of self-defense laws. We’ll explore these concepts in our next article.