Article: MN: Did man go too far to protect his home?

[M1911]

You have it wrong.

Every cop I've ever talked to and every self defense course I've seen or book I've ever read - says shoot to kill.

Every cop you've talked to and every self defense instructor that you spoke to was wrong.

You shoot to stop the threat. Once the person stops being a threat, you stop shooting. Your intent is not to kill them. Your intent is to stop them from attacking you. Yes, intent matters in the law. It isn't just semantics. No, shooting to stop doesn't mean that your aiming point changes. Shooting to stop is defined by your intent and when you stop shooting.

A lot of people here on NES will argue that there isn't any difference between shooting to kill versus shooting to stop. That simply isn't correct.

Suppose, for example, you are in your home when a perp holding a crow bar breaks in. He sees you and raises his crow bar as if to strike. Does he have the ability to cause death or grave bodily injury? Yup, he is armed with a deadly weapon, a crow bar. Does he have the opportunity to do so? Yes, he is in your home and can quickly run up to you. Are his actions placing you in jeopardy? Yes, they sure are. AOJ is satisfied so you are justified in using deadly force.

So, you draw your gun. Now let's consider several different ways this scenario might play out and what the differences would be if you are shooting to kill versus shooting to stop.

A. The burglar drops the crow bar, turns around and runs towards the door. As he reaches the door you do one of the following:

A.1. Shoot to kill. You shoot the burglar multiple times in the back. After he falls, you walk up to him and shoot him in the head. You have achieved your intent -- you killed him.

A.2. Shoot to stop. You hold your fire as the perp runs out the door. Your goal was to stop the attack and once he turned to flee, you were no longer in danger of death or grave bodily injury. You achieved your intent -- the threat was stopped.

B. The burglar steps towards you. You fire two rounds at the center of his chest. He drops the crow bar and collapses on the floor. You then do one of the following:

B.1. Shoot to kill. You walk up to him and shoot him in the head. You have achieved your intent -- you killed him.

B.2. Shoot to stop. You move to cover/concealment, keeping your gun pointed at the perp. You call 911 and ask for police and an ambulance. The perp survives. You have achieved your intent -- the threat was stopped.

C. The burglar steps towards you. You keep firing as he keeps coming towards you. You have shot him several times in the chest before he drops the crow bar and collapses on the floor. You then do one of the following:

C.1. Shoot to kill. You walk up to him and shoot him in the head. You have achieved your intent -- you killed him.

C.2. Shoot to stop. You move to cover/concealment, keeping your gun pointed at the perp. You call 911 and ask for police and an ambulance. The perp was dead before he hit the floor. You have achieved your intent -- the threat was stopped.

Your goal is to protect yourself. Once the perp is no longer a threat, you are no longer legally justified in using deadly force. The perp may cease to be a threat in multiple ways. He may run away. He may give up. You may shoot him and he collapses. You may shoot him and he dies.

But if you fire a single shot after the perp ceases to be a threat, then you have broken the law and may spend a long time in jail as a result.

 

[drgrant]

But if you fire a single shot after the perp ceases to be a threat, then you have broken the law and may spend a long time in jail as a result.

Well, there's a lot of mitigating circumstances for this statement, though. Say for example a guy mag dumps on someone and midway through the mag dump the BG drops his weapon for whatever reason, because of the delay of someone's OODA loop, they might end up pumping a few extra rounds into the guy before they realize he's not armed anymore. Same thing happens with the BS people shout about "if you shoot someone in the back you'll go to jail" which isn't necessarily true because someone could make the decision to shoot and the perp turns at the same time, and he's already fired the gun in that interval without realizing the guy turned away from him in the same interval. Course in these cases it probably will help to get an expert witness to discuss these kinds of things. (these things happen to LEOs all the time).

Also add to this, there are exceptions like TX's property protection statute and the law in NH which more or less allows you to use deadly force against arsonists. A guy with a can of gas and a lighter might not be an imminent threat by most deadly force standards but in that kind of case, the law (presumably) allows for it. (Would make an interesting case in NH, wonder how much case law there is on this, probably not much... ) Some states might also have castle laws which lower the bar for what constitutes a threat or not. There have been numerous cases in free-er states where someone shot a drunk guy in their house and was let off for it, because the law stipulated that anyone who B&Eed was a deadly force threat, regardless of whether or not they had a weapon, etc.

Obviously these kinds of things are exceptions rather than the rule, though.

-Mike

 

[M1911]

Well, there's a lot of mitigating circumstances for this statement, though. Say for example a guy mag dumps on someone and midway through the mag dump the BG drops his weapon for whatever reason, because of the delay of someone's OODA loop, they might end up pumping a few extra rounds into the guy before they realize he's not armed anymore. Same thing happens with the BS people shout about "if you shoot someone in the back you'll go to jail" which isn't necessarily true because someone could make the decision to shoot and the perp turns at the same time, and he's already fired the gun in that interval without realizing the guy turned away from him in the same interval. Course in these cases it probably will help to get an expert witness to discuss these kinds of things. (these things happen to LEOs all the time).

Yes, there have been cases where in the midst of the victim pulling the trigger, the perp turns to run and is shot in the back -- they simply didn't have time to change their mind and not shoot after the perp started to flee. With a good expert witness and a lot of luck, some of them have been rightly exonerated. And some not. Even if they win, they've been put through the legal (and financial) wringer.

Actions that you must take in seconds, in the dark, when you are fatigued in the middle of the night, will be considered for days in the bright lights of a court room.

 

[dcmdon]

I don't see how the manner in which he kills them matters at all. Either he has the right to use deadly force or he doesn't. You don't have to like how he treats criminals.

His right to use deadly force ceases when the person is no longer a threat. A person lying on the ground, gasping for air, does not represent a threat.

M1911 - I think you and Carlsdad just have a simple misunderstanding.

You always shoot to kill. In other words you aim at vital parts.

But your legal justification is that you want to stop the attack. (Which is best done by shooting at vitals)
Once the attack ceases, either because the aggressor turns and runs, or is incapacitated, your legal (and ethical) right to use deadly force ends.

In other words, you are justified in shooting to kill. But if the attack ends without the person dead, you don't have the right to continue your counterattack.

 

[FrugalFannie]

He should have shut his mouth. They were drug addicts. He should have called the day of and shut his mouth and got an attorney. I would not go down the stairs if I had just heard gun shots. Girl was dumb. Course, boy was dumb too.

PSGWSP

- - - Updated - - -

He won't.

Legally, his actions were not justified. If his life actually was in danger (I think he will have a hard time convincing a court of that), it surely wasn't in danger once he'd shot the girl multiple times and he approached her, placed the gun under her chin, and shot her in the head.

Regardless of what you think the law should or shouldn't be, he broke the law as it is today, and he'll spend a very long time in jail as a result. If I am ever in a life or death situation, I want to win both fights -- the one at the scene and the following in court.

drug addicts often have been known to get back up after multiple gun shots and harm the intended victim even more. this is why you shoot until the threat is no more. If I shoot someone and they laugh, damn straight I am going for a "finishing shot"

 

[namedpipes]

... drug addicts often have been known to get back up after multiple gun shots and harm the intended victim even more. this is why you shoot until the threat is no more. If I shoot someone and they laugh, damn straight I am going for a "finishing shot"

*Way* back in (IIRC) the 80's a Worcester police officer made a traffic stop. The driver became combative and attacked the officer. The officer shot the driver, who continued the attack. Ultimately the officer fired many times. My hazy recollection is ~ 10 rounds into the attacker. The officer faced a firestorm of brutality / excessive force accusations, never mind that the man was the size of a refrigerator and high on PCP.

If someone is curious enough to find a reference, I'd be interested to know how close my recollection is, but nothing my google foo is not strong enough today. It's like the world wide web didn't even exist back then or something.

 

[M1911]

M1911 - I think you and Carlsdad just have a simple misunderstanding.

You always shoot to kill. In other words you aim at vital parts.

I disagree.

You are not trying to kill your assailant. You are trying to stop the attack. The quickest way to stop the attack is to aim at the upper chest. Shots in the upper chest are most likely to quickly incapacitate the assailant. Incapacitation doesn't require that the assailant dies.

Might those shots result in the death if the assailant? Yes, they might. But that is not your intent. Furthermore, it is unlikely that you will kill your assailant. Here in the US, about 80% of people shot with a handgun survive.

I know that everyone thinks they are above-average marksman - by definition, they aren't. When you are moving, the perp is moving, and the lighting is poor, and the perp is shooting back, actually hitting the heart or aorta is much easier said than done. With quick transport to a trauma center, I suspect a perp shot in a lung has a better than even chance of living.

Finally, from a legal perspective, remove the phrase "shoot to kill" from your lexicon. Seriously. You weren't shooting to kill. You weren't shooting to wound. You weren't shooting to scare him away. You were shooting to stop the attack. You were trained to shoot center of mass and that is what you did - you followed your training.

Being known as "that guy" at the gun club who talked about "shooting to kill" is not going to help your defense.

Intent matters. It is the heart of the difference between homicide and justifiable homicide.

Don't confuse point of aim with shooting to kill versus shooting to stop. The point of aim may well be identical whether you are shooting to kill versus shooting to stop. The intent, however, is not the same.

 

[M1911]

drug addicts often have been known to get back up after multiple gun shots and harm the intended victim even more. this is why you shoot until the threat is no more.

If they go down and they appear to be no longer a threat, you move to a point of cover/concealment, keep your gun pointed at them, and call the police. If they get back up and become a threat once again, then you are now justified to use deadly force again.

If, however, the perp goes down and is no longer a threat, but you continue shooting because you think that they might get back up and become a threat again, then you may well have turned a justifiable shooting into murder one.

 

[xtry51]

His right to use deadly force ceases when the person is no longer a threat. A person lying on the ground, gasping for air, does not represent a threat.

M1911 - I think you and Carlsdad just have a simple misunderstanding.

You always shoot to kill. In other words you aim at vital parts.

But your legal justification is that you want to stop the attack. (Which is best done by shooting at vitals)
Once the attack ceases, either because the aggressor turns and runs, or is incapacitated, your legal (and ethical) right to use deadly force ends.

In other words, you are justified in shooting to kill. But if the attack ends without the person dead, you don't have the right to continue your counterattack.

My position is I don't really care if they are a threat. In your house robbing it justifies you killing them.

 

[dcmdon]

My position is I don't really care if they are a threat. In your house robbing it justifies you killing them.

Thats fine. And I understand your emotion. You might be able to argue the ethics. But legally once the person is no longer a threat, your right to use deadly physical force ends.

Google "ability, opportunity, and jeopardy". A person flat on their back has no ability, hence, no justification.

 

[namedpipes]

 

[xtry51]

Meh, I don't really have much of a care for "law" in its current form.

 

[dcmdon]

I try to let my conscience guide me. And in most cases, the law is in total mesh with my own ethical beliefs. If you remove any of the 3 , opportunity, ability, and jeopardy, you really do lose your justification to use deadly force.

 

[xtry51]

Oh, I'm not saying I would kill a thief in my house. I'm simply saying I recognize my own personal moral limitations should not be imposed upon others as some mystical higher power that we call "law".

Having the right to do something and actually doing it are mutually exclusive in many cases. Saying you shouldn't do it, or it should never happen is a far cry from determining one person somehow has the right to imprison another over said disapproval.