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Explaining the deadly force decision: "the preclusion question." (use of guns in self-defense) (Lethal Force) (Column)

Deadly force is justified only when there is a situation Of immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent. This month, the operative term under discussion is otherwise unavoidable.

Neither I nor Shooting Industry magazine will attempt to give you a state-by-state guide to which jurisdictions require retreat if possible before resorting to lethal force in self defense. The reasons for this include:

* A compendium of law tends to be printed once and stay in print for many years. These legal tomes don't take into account the constant changes and minor fluctuations of the law. Readers who believe them, not realizing that they are relying on obsolete information, can get into trouble.

* I know that at least some such compendia were put together by a researcher who called the attorney general's office or the state police and put down as gospel what the fellow on the other end of the phone stated as law, Each state has literally hundreds of laws, and no enforcement officer or clerk answering the phone can be expected to know them by heart. An off-the-cuff guess then becomes written in stone. Unfortunately, what's "written in stone" means nothing if it is not written in the law.

* Many a compendium of such quasi-legal advice has been based on a source that said, "Don't worry about it. The unwritten law here is, we only use the gun laws to prosecute the bad guys." De facto, the unwritten laws are not worth the paper they are printed on, Call it "Ayoob's Law Number Ten."

Suffice it to say that in most states, if your customer is attacked in public they have a "retreat requirement," they do not. The retreat requirement does not exist when in one's own home - a benevolent heritage from the English Common Law principle that "a man's home is his castle." As explained earlier in this series, the bizarre caselaw of Commonwealth of Massachusetts v. Lynn Shaefer, read by some as a requirement that you try to climb out your own window before defending yourself with a gun, has long since been nullified, and was never taken seriously outside its own politico-legally unique state.

Avoiding Conflict

"Otherwise unavoidable." My colleague John Farnam, one of the top armed combat tactics instructors in the world, calls it the element of preclusion. He puts it right up there with ability, opportunity, and jeopardy in defining the deadly force situation.

I respectfully disagree with John on that. Certainly, the preclusion factor - the reasonable and prudent belief that, under the circumstances, deadly force is the only effective resort - is critical to your defensibility. However, my experience as an expert before the courts has taught me that it needs to be handled separately from the core criteria of ability (the opponent's power to kill), opportunity (the opponent's capacity to instantly employ that power), and jeopardy (the opponent's actions that make the reasonable and prudent person assume that the opponent intends to kill an innocent person).

First, I want my decision to use deadly force to be unarguable by any law of God, man and society. Ability/opportunity/jeopardy is universal to that decision, even though each element may be called different names by different systems. Preclusion is sometimes there and sometimes not, and I don't want to cloud the core issue with it.

Second, I want the jury that judges me as an armed citizen to know that I acted to the same standard as their role model for deadly force decision making: the police officer. Cops don't have a retreat requirement. Indeed, police are often required not to retreat at the risk of being accused of cowardice, and before any other relevant issue is dealt with, I want the jury to know the lethal force decision I made as a citizen was the same I'd have made as a cop.

Third, and perhaps most important, where the retreat requirement exists, it is often misunderstood. It doesn't say that you have to retreat before you fire in self defense, period, end. What it says, one way or another, is: "You are required to retreat from the assault prior to using deadly force, if you can do so with complete safety to yourself and others."

If your customer can't retreat without leaving someone wounded or helpless in reach of the criminal aggressor, or without turning their back into a bullseye for the criminal's gun, no problem. The law doesn't say they have to. They may have to go to court to prove it, but they'll be alive to make the point.

It is for this reason that I don't consider the preclusion aspect a core element of the deadly danger to the innocent that justifies use of deadly force. Rather, I teach it as something that pervades every aspect of the decisional process in one sense, and in another sense as a final safety net that, when absent, gives the citizen with the gun one more critically vital reason to pull the trigger.

Next issue, we'll have a wrap up of this series and add a few subtleties which there wasn't time for previously. Does it take almost a year to lay the groundwork for this kind of thing? It sure does. Who told you that defending yourself was going to be simple?
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Copyright 1992 Gale, Cengage Learning. All rights reserved.

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Author:Ayoob, Massad
Publication:Shooting Industry
Article Type:Column
Date:Feb 1, 1992
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