There’s no such thing as a “clean shoot.” Mistakes are made. Information gets lost. Accounts vary. Lucky for you, most prosecutors, DAs and juries apply the “reasonable person” standard to any defensive gun use. If any of these three groups finds that a reasonable person would have fired a gun in self-defense when you did, you skate. I know: what does THAT mean? What it doesn’t mean is illustrated by the case of Donald Rattanavong [via couriernews.suntimes.com]:
Donald Rattanavong saw three or four teenagers apparently trying to break into his car, parked outside his home. Rattanavong came out of the home with a small-caliber pistol and fired more than one shot, one of which hit 18-year-old Gulllermo Pineda in the head, killing him.
And there you have it: a perfect example of “defensive” gun use where a reasonable person will have your you-know-whats for breakfast. The thieves posed no immediate threat to Mr. Rattanavong’s life or the life of his loved ones. He had no business coming out of his house and shooting them. Or should I say at them . . .
[Carpentersville attorney Tim] Mahoney noted that because the charges against Rattanavong are involuntary manslaughter and reckless discharge of a firearm, rather than murder or voluntary manslaughter, the prosecutors probably assume he was only trying to fire warning shots, not intentionally trying to hit Pineda with a bullet.
See how that works? Mahoney’s working the negligent discharge angle. That’s because his client’s behavior violates the basic guiding principle of armed self-defense: don’t shoot another human being unless you or your loved ones are in imminent danger of death or grievous bodily harm.
“The rule of thumb is that you can only use force likely to cause bodily harm if you believe that a person is about to commit a forcible felony on you,” said John Paul Carroll of Naperville. Carroll has seen such incidents from both sides of the street, since he was a homicide detective with the Chicago Police Department before he became an attorney specializing in criminal defense.
Almost. As the rabbi points out [see below for his most excellent video on the subject], “about to commit a forcible felony” doesn’t fully satisfy the gold standard in self-defense shootings. Ideally, legally, the bad guy or guys should be in the process of causing death or bodily harm.
Put another way, imminence must be imminent. You’re not just facing the possibility that you’re about to get your head stoved-in, your skin split open by an edged weapon or your center mass perforated by lead. Bad s4it is going down as you fire.
To have a shot at qualifying for a free pass, most state laws specify that a self-defense shooting must illuminate three basic “green lights”: ability, opportunity and jeopardy. Last things first . . .
No you don’t have to shoot someone in the form of a question. The jeopardy prerequisite is described above. You are in immediate danger of death or grievous bodily harm. It’s not about to happen. It’s happening.
[A quick reminder: STFU. Don’t say ANYTHING to the police after a self-defense shooting. Let your lawyer do the talking. If you’re in too much shock to shut your trap, use this mantra: my life was in danger, my life was in danger, my life was in danger.]
For a self-defense shooting to be ruled justifiable, the bad guy or bad guys must have had the ability to f you up. If you’re a strapping young man with martial arts training, good luck convincing the Powers That Be that you shot a teenage kid without a weapon because he was about to take your life. If you’re an 87-year-old law-abiding lady, the presumption of innocence is yours.
Yup, it’s a calculation. In general, the more serious the threat, the easier it will be to justify pulling the trigger. At one end of the scale: a single weedy teen devoid of weaponry. At the other end: tooled-up members of The Hell’s Angels.
The story above is vague on the number of thieves preying on Mr. Rattanavong’s possessions: “three or four.” There’s a big difference; every thug counts. Every weapon counts. Every move they make, every breathalyzer you take, counts. All the circumstances surrounding the shooting count.
How much they count depends on the prosecutor’s subjective judgement and then, hopefully not, the jury’s. All of whom apply the “reasonable person” standard to the whole misegos.
You’re only “allowed” to counter a threat with lethal force if the bad guy has a realistic chance of doing you in. If a thug with a knife threatens you from across two lanes of traffic, you can’t shoot him—until he crosses the street and gets close enough to gut you like a fish.
If he’s aiming a gun at you from over there, different story. If the bad guy’s driving a car at you, it’s another story again. How close? How fast? If the bad guy brandishes a gun from inside a nearby car—and nothing else—that doesn’t count as opportunity. Unless it does.
“If someone pulls a knife on you, it’s okay to come back at them with a gun,” Carroll said, “But if they’re 18 feet away from you with that knife and you shoot them, you might be in trouble. Were you really in imminent danger?”
Note: it’s best to hire a lawyer familiar with the Tueller Drill, which proves that a perp with a knife can cover 21 feet in 1.5 seconds. Still, Carroll’s asking the right question: would a reasonable person believe that the bad guy could have killed or hurt you?
This is where armed self-defense gets into murky waters. Some states [still] apply the opportunity standard to the shooter. Did you have the opportunity NOT to shoot the bad guy or guys? Could you have done something to avoid the threat?
The rise of the so-called Castle Doctrine—removing the legal requirement to retreat in the face of a lethal threat—is a welcome effort to tip the scales of justice towards a self-defense shooter. But really, you should be thinking this way. A successful escape beats a successful defensive gun use every day and twice on Sundays.
By the same token, some states allow you to use your gun on people attempting to steal your property. That doesn’t make it a good idea.
“If it’s just property at stake, let it go,” Carroll advises. “I don’t care if your car cost $200,000. It’s not worth taking a human life and the law doesn’t think so, either. Don’t shoot. Call 911.”
Your legal rights, moral standards and practical self-defense requirements may coincide, and they may not. Check your state’s laws, run various “what if?” scenarios though your mind and get some force-on-force training.
Meanwhile, remember: the best way to meet the “reasonable person” armed self-defense standard is to act like a reasonable person.
[Click here to buy The Responsible Use of Lethal Force DVD from Armed Self-Defense.]