Explaining the deadly force decision: the opportunity factor.
The triad that completes the situation that warrants justifiable use of lethal force, "Immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent," are ability, opportunity, and jeopardy.
Ability, the power to kill or cripple, was discussed last issue. Let's look now at the opportunity factor. Opportunity means that the aggressor not only possesses the power of deadly force, but is capable of immediately employing that power.
Opportunity will seldom be the issue in court when the man your client shot was armed with a gun, though it can happen. When I was retained for the defense team in State of Florida v. Wilburn Brooker, the prosecutor made a big deal of the fact that the deceased armed robber, Terry Johnson, was some fifty feet from the armed citizen Brooker when the latter killed him with a blast of #1 buckshot. Opposing counsel felt that Brooker was, at little more than fifteen yards, out of range of the Charter Arms Undercover 2" .38 Special the career criminal was swinging on him.
The prosecutor asked me skeptically in deposition how far away I felt I'd need to be from a criminal with a 2" .38 before I was no longer in danger from him. I started to say, "Oh, maybe Kenosha," then regained my sense of courtroom propriety and answered that even a hundred yards away, I would consider myself in mortal danger from a man like Johnson, so armed. The lawyer furiously scribbled notes; it was apparent he would attack along this line in front of the jury.
Accordingly, I went to the range with a notary public and emptied four .38 snubs at a police silhouette target 100 yards away. A 2" Charter Undercover like the dead punk's yielded two hits for five shots, and so did a 2" S&W Chief Special model 36. Half of the six shots from my 2" Smith M&P drilled the man-size target, and all six from my wife's 2" Colt Detective Special struck home.
The stress of the indictment and the incident gave Brooker a severe heart condition, and on the advice of his cardiologist, a plea bargain was taken that included a "withhold of adjudication." Today, Brooker has a clean record with the manslaughter charge against him wiped away, carries his pistol with a permit, and enjoys the life he would have lost if he'd waited another second before killing Johnson. I'm certain, however, that we would have won at trial if his health could have stood it.
You'll more commonly see the Opportunity Factor as the issue where contact weapons are involved: knives, clubs, disparity of force situations. If the suspect was not right on top of your client when he or she fired, the other side's lawyers will say, "Ladies and gentlemen of the jury, the suspect was fifteen feet away when the shot was fired and couldn't possibly have hurt the defendant with that little four-inch blade knife! The defendant wasn't in danger! it couldn't have been defense ! Lawyers still use those arguments successfully, but only against lawyers and defendants who don't have the antidote. The antidote came in 1983, from a man named Dennis Tueller.
A sergeant with the Salt Lake City, Utah Police and a staff instructor at Jeff Cooper's American Pistol Institute, Dennis had often run students through the API-250 final exam which included starting with hands shoulder high, then drawing and placing two hits on a silhouette 7 yards (21 feet) away. The allowable time was 1.5 seconds, a good test of pistolcraft skill.
Being a street cop, Dennis wondered how far an attacker with a knife would get, and had a number of test subjects attack the target with a knife from the seven yard line.
Their elapsed time to close the distance and stab the target was... 1.5 seconds.
This fact has been long since proven. I have personally put over a thousand students through what I call the Tueller Drill; they average 1.3 to 1.4 seconds. Some have done it in a second or less. One man with a broken leg in a walking cast did it in two seconds.
Dennis and I did a training film on this, titled "How Close is Too Close?" after Tueller's article of the same title in SWAT magazine in 1983. It's available from Lenny Magill Productions. Also useful is the classic "Surviving Edged Weapons" by Calibre Press. Both will show your customers how quickly and how permanently a knife-wielder can turn them into sashimi.
More important, these films can show the same to the jury. If the client has seen them before the shooting in question took place, they become contributory to his mind-set and thus discoverable evidence in a court of law! The Tueller principle has already saved careers in court as well as lives on the street, and the same is true of the Calibre Press film.
The closer it is, the quicker it happens. In 1985, I testified in Miami that if Mary Hopkins had not shot and fatally wounded the big, unarmed abuser coming at her from eight feet away, he would have killed her. Pistol champ and master instructor Ray Chapman, the attacker's size and ten years older, was my test subject: he closed the distance in less than half a second. "The jury found Mary Not Guilty." She had been charged with murder in the second degree and would have died in prison if found guilty.
But ability, the power to kill or cripple, and opportunity, the capability of immediately employing that power, are still not enough in and of themselves to justify the protection of a gun's deadly force in self defense. The final factor, jeopardy, will be outlined next issue.
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|Title Annotation:||Letal Force, part 5|
|Date:||Oct 1, 1991|
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