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Explaining the deadly force decision: "justifiable homicide." (Massad Ayoob on Lethal Force, part 3)

Explaining the Deadly Force Decision: "Justifiable Homicide"

Part III

On part I, we showed how poor advice from the gunshop on how and when to use the firearm that was purchased for self-defense can trigger cataclysmic repercussions for both the customer and the dealer. In part II we gave a generic overview of how the various levels of homicide are seen by the courts in our society. The gun, of course, may properly be fired at a human being only in a situation where grounds for justifiable homicide exist.

Throughout America - and the free world, and for that matter, the Soviet Union - the concept of justifiable homicide is universal, and spelled out in the law. The Napoleonic Code, the Dutch-Roman Principles, and of course the English Common Law all made it clear. So did virtually every human interpretation of the Law of God from the Bible to the Koran to the Talmud to the Book of Mormon.

When an evil human being attempts to lawlessly deprive an innocent human being of life and limb, he forfeits his own right to live. No principle has been more universally accepted within the laws of God, of Man, and of Society.

We concentrate here upon the Laws of Society. This is not because I doubt the judgment of my fellow Man (even though I often do), nor because I reject the Laws of Theology. It is because the Law of Society is the one we answer to in the here and now, and because it is the only Law this particular writer has the training or experience to help you with at all.

In the USA, there are fifty separate states that have their own definition of "justifiable homicide." The following definition should cover you in all fifty states, and in their outlying territories, and for that matter in the Soviet Union or virtually anywhere else on the planet where some semblance of law exists.

The use of lethal force that can end in homicide is justified in the situation of immediate, otherwise unavoidable danger of death or grave bodily harm to the innocent.

Let us examine that situation in some detail.

The danger the defender acts against must be immediate. Not just in the here and now, but in the here and right now. "Immediate" does not mean that the bad guy said he was going to shoot you if you were here tomorrow, so you shoot him today to save staying up all night worrying.

It has gotten to be otherwise unavoidable. The law allows the death of a citizen only as a last resort. If there was any way out other than shooting the guy, the person is expected to take it if this can practically be done.

Many jurisdictions have a "retreat requirement," which to the uninitiated means that you have to turn and run no matter what. Actually, most states that have a retreat requirement will phrase it as New York does.

The New York law, when you read the fine print, does not say you must attempt to retreat no matter what before defending yourself and your loved ones from a deadly aggressor. It says that you are required to retreat if such retreat can be accomplished with complete safety to yourself and others!

In other words, the law isn't saying you have to turn your back and create a bullseye for the mugger's gun. The law merely wants deadly force to be a final resort when employed by a reasonable and prudent citizen in self defense. No more, no less.

This is, under the English Common Law from which US law derives, one classical exception. Under the English principle, "a man's home is his castle." "Attacked in one's own home, one need not retreat."

The one exception to this was a period of time from the late '70s to the early '80s in Massachusetts, where it was widely accepted that the caselaw of Commonwealth of Massachusetts v. Lynn Schaefer held that when attacked in one's home, one had to try to climb out the windows before resorting to a gun in self defense. This was actually a rather nebulous case and never got to the higher courts where it would have been shot down. In any case, during a brief flash of collective sanity between the Dukakis administrations, the Bay State elected John King as governor and he promptly signed into law a "castle doctrine" that brought Massachusetts into line with the rest of the civilized world.

Massachusetts was neither the first nor the last state to enact what pro-gunners call a "castle law" and anti-gunners call a "Death Wish law" or a "kill thy neighbor" law. Be advised that these laws DO NOT permit the indiscriminate shooting of any intruder caught inside the dwelling! They permit the use of deadly force ONLY when the intruder seriously poses an immediate threat to the life and limb of someone therein. Castle laws have been widely and horribly misinterpreted by a large number of professionals in the firearms field who should have known better.

The requirements for homicide to be justifiable include danger of death or grave bodily harm. Where the law says "grave (or great) bodily harm," read crippling injury. That's where we get the statement "endangering life and limb."

Not a boo-boo. Not a cut or contusion. And certainly not an insult to pride. The law allows killing force only against killing or crippling threat.

Finally, the danger must be to the innocent, and while the statutes don't always spell that out, the caselaw most certainly does. Suppose your grandfather had been outside the Biograph Theater when Melvin Purvis and the other FBI agents took down John Dillinger, and Gramps decided to shoot the men who were firing into the back of the guy in the straw hat running down the alley.

Gramps would certainly have been firing to protect someone who was in immediate danger of death or grave bodily harm - but shooting FBI agents to save Public Enemy #1 would most likely not have been ruled justifiable.

Thus, we have the formula that justifies exerting lethal force: Immediate, Otherwise Unavoidable Danger of Death or Grave Bodily Harm to the Innocent.

But it doesn't stop there. Nothing complicated ever stops with a simple formula. The definitions continue.

Both training and considerable experience in court in shooting cases has taught me that the formula for justifiable homicide is determined by three criteria. They are Ability, Opportunity, and Jeopardy.

We'll start defining them in detail next month.
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Author:Ayoob, Massad
Publication:Shooting Industry
Date:Aug 1, 1991
Previous Article:What's selling.
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