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Lethal force self-defense law explained
It’s been a few years since I wrote for The Truth About Guns. I believe the statute of limitations, I mean my non-compete agreement has expired. I’m ready to tap into my inner gun guy for your dining and dancing pleasure, starting with the legal framework for shooting people…
Disclaimer! This post is not approved by the ATF. It’s not intended to diagnose, treat or cure armed self-defense. For more information on the legal use of lethal force, consult your local laws. The actual law.
That done, a simple piece of advice: try not to shoot anyone. Even if you aren’t charged with a crime, there’s a boatload of paperwork, you’ll need a lawyer, lawyers aren’t cheap and the bloody incident’s bound to ding your karma.
Duty to Retreat?
If you end up shooting someone in self-defense, the laws regarding lethal force vary from state to state. One of the most important legal variables: whether nor not you have a “Duty to Retreat.”
Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Rhode Island and Wisconsin all mandate that you have to try to retreat or avoid a confrontation before using lethal force, if you can do so safely.
Some states – notably California – remove the Duty to Retreat when you’re in your domicile. Some states - such as California, Ohio and Pennsylvania – extend the exemption to your vehicle.
If you own a gun for self-defense, find out if your state has a Duty to Retreat, or if it’s one of the 30 states with a “Stand Your Ground” law. That law removes your duty to retreat if you’re attacked somewhere where you have a legal right to be, engaged in a lawful activity.
The short answer
Generally speaking, you have a right to use lethal force to stop an imminent, credible threat of death or grievous bodily harm.
1. Imminent
An “imminent” threat of death or grievous bodily harm is a threat in the process of occurring. Death or grievous bodily harm must be heading in your direction.
If someone emails a threat to kill you, beat you to a pulp and/or rape you, that doesn’t count. If you see the sender buying groceries, that doesn’t count either. Someone has to be actively trying to kill you, beat you to a pulp and/or rape you to qualify as an imminent threat.
2. Credibile
A “credible” threat of death or grievous bodily harm is a believable threat. If someone slaps you or attacks you with a rubber chicken, shooting them is verboten. If a bad guy comes at you with a knife or gun, center mass.
There’s a LOT of gray area. If you’re a martial artist and a drunk takes a swing at you, are you really facing a credible threat of death or grievous bodily harm? If you’re an old lady walking down the street, sure. A single punch could kill you.
Most states consider a threat credible if an attacker is carjacking you or invading your domicile. But again, that depends on the situation. Hang on. Who decides what’s credible?
The Reasonable Person Standard
When it comes to assessing the imminence, credibility and potential lethality of a threat, initially, it’s your call. After you shoot, three entities will second guess you: the police, the District Attorney (DA) and the judge and/or jury.
In anti-gun states like New Jersey, the cops will arrest you if you shoot someone, no matter what. In pro-gun states like Texas, responding police are free to decide if they’re looking at a case of lawful self-defense, assault with a deadly weapon or murder.
If Lone Star law enforcement reckon a reasonable person would believe they were facing an imminent, credible threat of death or grievous bodily harm in your circumstance, they’ll leave you be.
In all cases, the District Attorney (the chief prosecutor of a particular jurisdiction) decides whether or not you were a “reasonable person” when you pulled the trigger. Whether or not to charge you with a crime.
You can be arrested by the cops and immediately charged by the DA’s office, arrested and not charged by the DA, or arrested and charged by the DA later.
Aside from Alaska, Connecticut and New Jersey, District Attorneys are elected. Politics. If a DA reckons voters would prefer to see you charged – even if their opinion is based on non-factual considerations like race – the DA will charge you. Throwing it to…
The judge and/or jury. If you’ve got this far, they make the final decision on your fate. In theory, they base your final dispensation on the reasonable person standard. To do that, they’re supposed to take into account…
The Totality of Circumstances
When judging the legality of armed self-defense, the attacker’s size, weight, age, motive and the nature of the attack are allowable considerations. As are the defender’s size, weight and age.
In fact, anything can be a factor, from the defender’s shooting history and social media posts, to the weather and time of day, to the number and behavior of bystanders.
One wrinkle: a judge or jury may rule that the attack wasn’t imminent and credible but a “reasonable person” would have thought it so. The shit happens defense.
3. Grievous Bodily Harm or Death
The definition of death is pretty clear. The exact definition of grievous bodily harm (a.k.a, serious bodily injury) varies from jurisdiction to jurisdiction.
GBH generally refers to any bodily injury that would endanger or be likely to endanger life, or cause or be likely to cause permanent injury.
We’re talking fractures, organ damage, disfigurement, severe burns, paralysis or loss of bodily functions (e.g., mobility or vision). And, of course, rape, regardless of physical damage.
Move to Texas!
I’m not sure I made this point emphatically enough: you can face an imminent, credible threat of death or grievous bodily harm, shoot your attacker, stop the threat and end-up arrested, charged and jailed.
Or you can move to Texas, the only state in the U.S. where you can use lethal force to stop someone from stealing your property. Just sayin’.
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