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Explaining the deadly force decision: "the jeopardy factor." (part six of the Lethal Force series)

The lethal force of a defensive gunshot is justified by a situation of "immediate, otherwise unavoidable danger of death or grave bodily harm to the innocent." That situation is in turn determined by three criteria -- the ability to cause harm, the opportunity to do so, and reasonable assumption of jeopardy. We have already explored the first two of these factors in previous columns.

The third point of the triad, the Jeopardy Factor, is often the deciding one, especially when the criminal your client shoots is armed with a weapon capable of inflicting lethal force at long range, such as a gun. In order for a jury to believe that your customer's life was in jeopardy the assailant must possess the power to kill or cripple, be immediately capable of employing that power, and must act in such a manner that a reasonable and prudent person would assume that it was his intent to kill or cripple.

We are an armed society. Men and women walk into the confined area of your gunshop every day carrying potentially lethal weapons: ability and opportunity surge together in front of you all the time. What keeps your dealership from turning into an abattoir? The absence of the Jeopardy Factor. Although many people in your store have the power to kill and are in more than sufficient proximity to exercise that power, they do not express the intent to lawlessly harm one another.

The key phrase there is "the intent to lawlessly harm one another." This writer has drawn a gun on more than 30 people, clearly demonstrating the ability and the opportunity to place their lives and safety in immediate jeopardy. All were taken at gunpoint and made a thoroughly understand that they were in imminent danger of being shot by the man pointing the gun at them.

Done without justification that would equal 30 offenses of aggravated assault, enough to get me sentenced for life without parole as a habitually violent criminal. The reason I am writing this in my office rather than behind bars is that none of those people would have been able to dream about effectively mounting a criminal charge or civil suit against me. Why? Because each time I had reason to prudently believe that I was facing a criminal who had the ability and opportunity to place my life in jeopardy, and my leveling a gun at them was justifiable under both the letter and the spirit of the law.

What is Jeopardy?

Jeopardy can take the form of actions, words or even body language. During a recent aggravated assault trial in which my client, a police officer, had shot a man who was trying to take the officer's gun, the prosecutor asked me, "What would make a reasonable and prudent person assume that the shooting victim intended to cause death or grave bodily harm to (the officer)?"

I said, "When he screamed at the officer, "Gimme your f--in' gun, I'm gonna blow your f--in' brains out, motherf--er,' I think it was reasonable and prudent for (the officer) to assume that the intent of (his attacker) was not benevolent."

The jury agreed, ruling that the shooting was absolutely justifiable. After a week of trial, they took just over an hour to find my client not guilty.

An Imaginary Threat

Unfortunately, self-defense shootings aren't always so cut and dried. In another trial the shooting "victim" claimed that his own gun was down at his side when he turned suddenly on the officer who shot and crippled for life. In this case our defense team proved that the turning movement of the man with the .38 would have caused his arms to swing out, pointing the revolver toward the officer.

This would have turned out to be just another justified shooting case had it not been for the fact that the shooting victim was not a criminal at all, but an armed citizen who was simply trying to help the police. He didn't know that the best thing he could have done in the situation was to leave the scene.

The jury agreed with our assertion that the man's turn toward the officer with the revolver in his hand constituted perceived jeopardy, and that the officer was totally justified in assuming that his life was in danger. The jury ruled in favor of the officer and his department.

If your customer goes to trial in a self-defense shooting, the judge will instruct the jury that the jeopardy need not have turned out to be real. As in this case, no defendant could predict that a well-intentioned citizen would be on the scene mimicking the actions of an armed burglar. Ability and opportunity were present in that shooting. Even though the jeopardy turned out to have been false, any reasonable and prudent person placed in the officer's situation knowing what the officer knew would have made the same decision. Thus, the intentional shooting of the misguided good guy was ruled not merely excusable, but justifiable.

That case brings up another piece of advice gun dealers should give every buyer of a weapon intended for protection: Once you have called the police, do not attempt to enter the scene and capute a criminal yourself! You've alerted the police to a situation where they expect "a man with a gun on the premises." If you enter that scene with a gun, you become the "man with a gun on the premises" and set the stage for a mistaken-identity shooting!

Measuring Self Defense

We've noted throughout this series that an enormous amount of judgment needs to be applied during a split second in a lethal force application. That's why the discipline is called "judgment shooting" and "judicious use of deadly force." As a teacher in the field, I've found that it takes 40 hours to give a really good, strong understanding of the discipline.

The actions of a citizen with a gun will always be judged to one specific standard, held against one long-established yardstick. Next month we'll take a look at how the courts will judge your customer if he uses lethal force to defend himself.
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Article Details
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Author:Ayoob, Massad
Publication:Shooting Industry
Date:Nov 1, 1991
Previous Article:Long gun review: Fall 1991.
Next Article:European American Armory.

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