One of the most vexing questions facing a concealed carrier: when should I pull my gun? Too early and you’re looking at a brandishing charge. Too late and you’re dead. Same goes for firing your firearm – except the penalty for early withdrawal would be jail time. Generally speaking, you can threaten or use lethal force when you or other innocent life face an imminent, credible threat of death or grievous bodily harm. “Death” is death. “Grievous bodily harm” means serious injury; not a slap in the face. But what do the words “imminent” and “credible” mean? This you need to know . . .
The common definition of “imminent” is “about to happen.” It’s better, safer, to think of “an imminent threat” as a bad guy in the process of trying to hurt or kill you or other innocent life. If someone threatens to shoot you in an hour, that’s not an imminent threat. Then again, what if you’re being held hostage? What if the person has tried to kill you before?
The word “credible” is equally troublesome. On the face of it, the term refers to a “genuine” threat, such as a bad guy holding a knife to someone’s throat. Sure, but what if we’re looking at a confused octogenarian waving around a kitchen knife in a nursing home? What if you’re not a strapping TTAG reader but a fellow oldie confined to a wheelchair who’s called for help, to no avail?
There are dozens of variables involved in any defensive gun use (DGU): your age, your attacker’s age, the number of attackers, your physical condition, your attackers’ physical condition, your history, their history, where the deal went down, why you were there, why they were there, why they attacked you, who else was there and so on. When deciding whether or not a DGU was lawful self-defense, the police, prosecutor, judge and/or jury look at “the totality of circumstances.” Taken as a whole, was the attack imminent and credible?
This is an entirely subjective process. For example, a large, young, strong, male attacker threatening to beat a smaller, older, female person to death probably poses a credible threat. But who decides how much larger, younger, stronger the attacker has to be – or how small and old the potential victim has to be – to constitute a credible threat? A cop? An older person? Nope. It’s a “reasonable person.”
Self-defense laws vary from state to state, but most states ask the police, prosecutor, judge and/or jury to apply the “reasonable person” standard when deciding if a DGU was lawful. Would a reasonable person have reasonably believed that they were facing an imminent, credible threat of death or grievous bodily harm?
This is important: the reasonable person is NOT the person making the judgement whether or not the threat was imminent or credible. It’s the police, prosecutor and/or judge and jury’s idea of what a reasonable person would do in those circumstances. So a cop has to think, “If I was a small, old woman facing this potential attacker, would it be reasonable for me to believe that I was facing an imminent credible threat of death or grievous bodily harm?”
Note: this assumes that the police, prosecutor, judge and/or jury considers the defender a reasonable person. If the person who brandished or shot their gun wasn’t reasonable, say, if the old woman in the wheelchair was delusional, if the facts show that she wasn’t facing an imminent, credible threat, all bets are off.
So the trick to avoid being prosecuted for a DGU is . . . be a reasonable person. I know that sounds a bit silly, but it’s true. If you are confrontational in the run up to a DGU, you’re far more likely to be charged with a crime. If you were looking to score some crack in a back alley in the run up to a DGU, you’re far more likely to be charged with a crime. If you’re a member of a biker gang, you’re far more likely to be charged with a crime.
Wait! That’s not fair! Drug users and biker gang members have just as much right to defend themselves against an imminent credible threat of death or grievous bodily harm as a 21-year-old mother breast-feeding her baby at home! Maybe so. But you don’t get to make that decision. The police may be sympathetic but decide, for career reasons, to arrest you and let the prosecutor make the call. The prosecutor may have political ambitions and figure that pot smokers aren’t reasonable people. The judge may agree. The jury may agree.
In the example in the video above, the woman’s claim that she was in “genuine fear” will be examined under the “reasonable person standard.” If the woman posted racist comments on her Facebook page, for example, things will not go well for her. If the man asking for the light has a criminal record, her odds of walking away are significantly better. If the deal went down at night in a lonely parking lot, same thing.
In case you haven’t realized it yet, the reasonable person standard is subjective; there is no “check list” determining whether or not your DGU was lawful. It’s not a perfect process. You could be facing Jack the Ripper and still go down because you live in an anti-gun city or state. You could happen to be a white hispanic attacked by a black teenager in a city where racial politics trump your right to self-defense, for example, and end up behind bars.
In short, the reasonable person standard isn’t perfect. But it’s not bad. And it’s all you’ve got.