As frequently seems to be the case, Hollow Point Ammunition: A Basic Rationale, inspired a large number of comments. Two in particular, however, are often heard in discussion about the use of deadly force. Reader “Former Water Walker” wrote: “Good post. Well except for the verbal gymnastics of ‘stopping,’ but not wounding. Of course I want to wound some criminal when I stop him. Or kill him…” And “Hannibal” agreed . . .
I get a little tired of the semantics as well… given that the means of ‘stopping’ someone in this case involve putting holes in him with metal until enough of his blood leaks out to put him into hypovolemic shock or his nervous system shuts down I think we can safely say we’re shooting to kill.
I’ll not be addressing the primary physical mechanisms of stopping human beings by shooting them here. That’s an article for another time. But as a teacher of English and a former police officer and teacher of police officers, I know it’s important to discuss the semantics of the use of deadly force. Keep in mind that I am not an attorney, and every gun owner is responsible for knowing the law where they live and travel, however, there are some universal legal principles.
To review: one may employ deadly force when faced with an imminent threat of serious bodily injury or death to oneself or another. The three elements that must be fulfilled are means, opportunity and jeopardy. One may use deadly force against a criminal when that criminal has the means–a gun, knife, baseball bat, shovel, etc.–the opportunity–they’re close enough to use their weapon–and are placing their victim in jeopardy, which means they’re actually doing something, or are seconds from doing something, that a reasonable person would believe would put them in danger of serious bodily injury or death. They’re demonstrating the imminent intention to kill–in mere seconds, not minutes, hours or later–or are actually acting on that intention.
One additional element is proportionality, but this is an element generally fulfilled not by the attacker, but by the victim. The primary exception here is in disparity of force. The law will give more latitude to a slight women attacked by a much larger and heavier man, even if he is not armed. Men are generally capable of seriously injuring or killing most women with their bare hands, and the courts recognize this.
Being legally authorized to use deadly force, one may shoot their attacker with as big a gun as they can carry as many times as necessary to stop the attack. If the attacker dies as a result of being stopped, too bad for them, but one shoots to stop, never to kill. One may shoot only until the point that a reasonable person would believe the attacker is incapacitated–the attack is over–and at that moment, may shoot no more. If one bullet stops the attacker, that’s great. If eight are required, that’s legally proper, but not nine. Using more force than a reasonable person would believe necessary to stop an attacker can instantly turn a victim into an attacker.
And this is where words matter.
The law is words. In the application of the law, at the level of the police, for prosecutors, at trial, and for judges at the trial and appellate levels, words matter. They define what is and is not permissible. The Halbig decision, for example, and the future of Obamacare, hinges on a single word: “state.” The Affordable Care Act–Obamacare–says, in clear language, that subsidies are available only to those obtaining insurance through exchanges established by “the state.” Rationally, an appellate court ruled that “state” means state, and not federal government, which caused the Obama Administration and the progressive architects of the law to claim that “state” really means “federal government,” and that’s what they intended to write all along, “so ignore what the law really says and enforce what we meant.”
It’s possible the Obama administration might get away with such linguistic slight of hand and misdirection, but no gun owner should expect any court to read the law so sloppily, or to smile if a defendant’s lawyer tries to do the same. The two words at issue are: “stop” vs. “kill.”
If the three elements are present, if one is lawfully justified in using deadly force, obviously the application of that force might kill an attacker. It is, after all, potentially deadly force, and American law recognizes a difference between homicide–the unlawful killing of another–and justifiable homicide. One may legally kill, but one may never legally murder.
That being the case, why dance around the word “kill?” Why is saying “stop” a smarter idea? Because words, in common usage and in the law, have denotations and connotations. Regardless of the denotation–the dictionary definition–of a word, people often hear, react to and act upon the connotations of a given word, particularly when those connotations have a strong emotional component.
The denotations of “stop” and “kill” somewhat overlap–take the links; you’ll be surprised by all the definitions–but in the context of the application of deadly force, “stop” most obviously means to keep from carrying out an imminent or in-progress action. This is an essentially neutral verb. “Kill,” however, inescapably means to end–to take–someone’s life. It produces images of blood, violence, tears, heartbreak, loss, shattered lives, lost love, and more. Whether one took that life lawfully or not, the negative, emotion-charged connotations cannot be avoided, or controlled.
In the aftermath of the use of deadly force, emotions run high, which is the last thing anyone forced to use deadly force should want. Not only will the person forced to defend themselves be subject to powerful emotions, so will any witnesses, the police, and to a lesser degree, prosecutors and judges. Remember: the standard by which one is judged is that of a reasonable person. Would a reasonable person, confronted by the same circumstances, have believed they had no choice but to employ deadly force? Regardless of whether they were entirely justified, reasonable people, people that want to stay out of prison, do not say: “Yeah, I killed the scum, and he deserved it.”
Perhaps he did. Perhaps society is better off because that particular armed robber was killed by a 90 pound, 5 foot nothing woman who was a better shot, but the moment that convicted felon died, he became someone’s meal ticket, a saint, and a potential recipient of a Nobel Peace Prize.
Every gun owner that carries a concealed weapon should have an attorney experienced in defending self-defense cases on retainer. This is a booming field of law, and firms across the nation provide these services for reasonable yearly fees. Among the first things such firms will tell their clients is should they be involved in a shooting, they must say as little as possible to the police–to anyone–until they have had the opportunity to speak with their attorney. Most would suggest that the first phone call should be to their attorney, then the police.
When the police arrive at the scene, they won’t know who did what, who violated the law and who is a danger to them. If you had to defend your life, you must expect to be arrested. You must expect your life to change forever in ways you can’t imagine. But you must remain silent, except perhaps to say: “he pulled a gun on me, said he was robbing me, and forced me to defend my life. I will speak with you after I speak with my attorney.” You’ll want to blurt out your emotions; don’t do it. The police will record whatever you say. They will use it against you.
No rational person wants to kill others, even violent criminals. It’s not like the movies or TV. You can be glad you were able to quickly stop the aggressor so that you and others weren’t seriously hurt or killed. But you should never so much as suggest that you’re glad you killed them. You want to present yourself as the innocent victim forced to stop a violent, deadly assault on you or others. No rational person wants to be put in that position.
If you come across as anything less than an innocent, unwilling victim, it’s much more likely that the police will arrest you, that you’ll be prosecuted, and that you’ll be convicted — even if the letter of the law is in your favor — despite the law’s denotation, because people will act on the connotations. Ask any competent defense attorney which word he prefers.
But can’t you stop someone without killing them? Doesn’t this mean you should shoot to wound? Absolutely not. You always shoot to stop an attacker as quickly as possible. To do less will cause the police, prosecutor, juries and judges to doubt that you believed you were lawfully authorized to shoot in the first place. Consider too that merely wounding an attacker does not stop him. All it is likely to do is make him less mobile, and perhaps, more determined to kill you. If he is wielding a gun, that’s obviously a bad choice.
Shooting and quickly stopping a moving human being under deadly stress is difficult indeed. It’s not uncommon for even police officers to empty their guns at criminals at inside-a-phone-booth range and miss every shot. It’s always better to keep it as simple as possible. Shoot for center mass, shoot to stop, to stop because if you did not, you surely would have suffered serious bodily injury or death. Do not speak about it with anyone but your attorney, because there is always the possibility of criminal prosecution and civil suits to compensate the family of that saintly potential Nobel Peace Prize winner for their immeasurable loss.
In deadly force encounters, what a victim says is very important. It can mean the difference between being free to recover, or being thrown behind bars and losing every penny you could ever own. It’s not just “semantics” or “verbal gymnastics,” it’s using the right words that express exactly the right sentiments and intentions, that avoid evoking uncontrollable connotations, and that put you solidly on the right side of the law.
Mike’s Home blog is Stately McDaniel Manor.