A lot of current conversation has the phrases “the shooting was justified”, “…but it was self defense…” or “that wasn’t right, he was unarmed.” It all seems to be centered on using deadly force. What is the definition of deadly force? When are you authorized to use deadly force? What are the steps to be taken before using deadly force?
Verbiage for deadly force changes depending on who is giving the definition. For example the DOJ, the FBI, and your local PD could have different definitions of deadly force. In general most state that deadly force is a force that a person uses causing or has the risk of causing death or serious bodily harm and injury. Let’s break it down a little more. What is serious bodily harm? Permanent, irreparable damage to a person; broken bones, stabs, and deep cuts or lacerations. So if a person is capable of causing permanent damage, breaking a bone, stabbing, cutting or lacerating, or killing then they are capable of using deadly force.
So if someone has a piece of rebar, baseball bat, etc., than they are capable of using deadly force. I found a lot of people don’t understand this concept. Getting into a fight at the park and using your skateboard to hit someone could be argued as deadly force. Or if you are significantly larger than someone, so much so that you could break a bone or cause permanent, irreparable damage, you are capable of using deadly force. Deadly force covers a lot of actions. However, just because someone is larger than another person doesn’t mean they are going to use deadly force. If that were the case, people boxing out of their weight class would be considered to be using deadly force. They obviously are not.
So why aren’t they using deadly force? There are three requirements that need to be met: opportunity, capability, and intent. The larger boxer has opportunity because he is in range of hitting his opponent. In our example the larger fighter has the capability of hitting the smaller fighter with enough force to be deadly. But he doesn’t have the intent. He doesn't want to kill his opponent. Therefore he doesn't meet all the requirements. These requirements are often referred to as the deadly force triangle. Each side of the triangle has to be met before using deadly force.
Hunters hiking through the hills and people concealed carrying in the cities all have two parts of the deadly force triangle. They all have opportunity and capability but they lack intent.
Intent is also the hardest one to prove. As just an observer of a situation it’s difficult to tell how someone else will react or what their intent is.
This can be a problem when put in a security capacity. What do the people around you intend to do? Opportunity is pretty simple, if someone is in a building and another person is outside the building, generally the person doesn't have any opportunity to use deadly force. Capability is also fairly easy. Could whatever threat I’m facing impose deadly force? Intent, unless vocalized, has to be interpreted through actions. Threatening or brandishing demonstrates intent. The famous movie cliché of lifting a shirt to show you are carrying a gun to intimidate someone is illegal because it is a threat of death. If you brandish a weapon in such a way it could be argued that you have met the requirements of deadly force. So if someone brandishes a weapon is it legal to shoot them? Not at all.
We have only talked about what deadly force is, and how it is used. Now we need to know when it is appropriate to be used. The default answer is as a last resort. Avoid situations where you might encounter deadly force. De-escalate the situation. If you are in a situation where you are met with deadly force, you want to dominate the situation and take decisive action towards your aggressor. If you don’t, the consequences can be fatal.
What if you are a professional force such as police or security that cannot avoid being put into such situations? There are set rules that every security force follows. They change a little depending on location and situation but most follow an incremental step process to handle circumstances with the lowest level of force necessary. The end goal is to change the behavior of the people you are interacting with. The levels generally follow the flow of: presence, verbal directions, soft controls, hard controls, less than lethal force, and lethal force.
Presence is the first step. Just having security present might change the behavior of other people. For example, I have been to parties where a police car drives past and everyone changes behavior until the cops are out of site. Several clubs have their security guards wear shirts clearly designating that they are security. Usually the securities are the biggest guys in the room. Just the physical presence is enough to stop or de-escalate a situation.
Next are verbals. Giving verbal task direction is a good way to help determine intent. If you give someone a task and they do it that helps to determine intent. A command such as “don't move”, if followed, shows their intent is to comply with directions. Cops usually announce who they are and give instructions. A lot of time that is all it takes to de-escalate a situation. There is debate on the use of profanity and slang by cops. I think that if they are acting as an authority they need to keep their speech professional without profanity. What do you think? Leave a comment at the end of the article.
Soft controls refer to when you have to physically engage a person. An example would be breaking up a fight. If you have to grab someone who is fighting and pull them off their opponent, that was a use of a soft control. Security escorting someone by the arm out of a club is use of a soft control.
With hard controls we move into strikes, kicks, and take down techniques. With the strikes you have the body separated into green, yellow and red zones. The meaty or in some cases fatty parts of our bodies would be considered green zones; upper leg, butt, back (avoiding the spine), and the stomach. Then you have the yellow zones; the joints. Knees, elbows, and wrist should all be avoided. Red zones are where it is unacceptable to strike: genitals, spine, sternum, back of the head, etc.
Less than lethal weapons are the next step. The name is less than lethal instead of non-lethal for a reason. Most of the tools used in this level of force have the capability to cause lethal force but are not considered lethal because of the training the user has received and the way in which they use them. These include pepper spray, less than lethal rounds commonly called bean bag rounds and rubber bullets, and expandable batons. An expandable baton strike at a red area has a high probability of meeting that lethal force definition. So in the hands of someone who has not been trained and not held to the standard of using the weapon appropriately, an expandable baton is commonly considered a lethal weapon.
Lastly there is lethal force. This is anything that could meet our definition of a force that a person uses causing or has the risk of causing death or serious bodily harm and injury. Guns, knives, blunt weapons and strikes to the wrong parts of the body are all capable of lethal force.
Choke holds are a point of contention for a lot of people. Should police be able to use them? The opposition states that in certain scenarios they have the potential to cause death. This is 100% true. Proponents for choke holds point out that those lethal scenarios are few and far between. Choke holds are generally an effective way to gain control of a person who is not compliant without causing any permanent physical damage. It is a common maneuver used by millions around the world who practice jujitsu. So do we limit an effective hard control that has a low potential to be fatal? It may lead to the more common use of less than lethal weapons. They carry with them a higher potential of a fatality over choke holds. It’s a point worth talking about. There are pros and cons to both sides. Leave a comment and let me know your opinion.
The idea behind the use of force is to change behavior and gain compliance. If someone complies with all instructions and still gets thrown to the ground (hard control) that would not be justifiable. However, if someone was not complying with being pulled in a certain direction (soft control), a strike (hard control) would be justifiable. The lowest level of force needed to gain compliance was used. If someone who displays intent not to comply gets a hold of a weapon, and they have met the requirements for deadly force and could expect to be met with such force. Everyone has the inherent right to self-defense. You don’t have to wait to be stabbed before you can defend yourself.
So when can lethal force be authorized outside of someone attacking you? “Never, obviously. If I’m not being attacked why would I be justified in using deadly force?” There are legal justifications for using deadly force other than for your own self-defense. Again, everywhere is going to have their own exact rules, but they should all fit into these general justifications.
There is an inherent right to self-defense and the defense of others. Just because it isn't you being attacked doesn't mean you can’t aid the person who is. If the aggressor meets the criteria for the use of deadly force, then it’s likely justifiable to respond with deadly force. Keep in mind that if you use deadly force, you will be accountable for your actions.
Accessing inherently dangerous property. If someone has expressed their intent to use deadly force then keeping them from accessing the means to do so would be a justification for using deadly force. Examples of inherently dangerous property would be weapons, poison, explosives, etc. If someone states they are going to pour acid on my face and they reach for acid, then I would potentially be justified in using deadly force.
Arrest/apprehension and escape. If a police officer is arresting someone for a violent felony he has the authority to use deadly force to apprehend the suspect. The officer would have to use their best judgment in the situation as to what level of force is needed in a given scenario. Examples of violent felonies include, murder, rape, kidnapping, etc. Additionally if someone arrested for a violent felony is attempting to escape the officer would have to use their best judgment, but deadly force is authorized.
An officer is not authorized to use deadly force to apprehend a suspect for a misdemeanor or a “victimless” non-violent felony. However, if the suspect resists and meets the deadly force triangle (opportunity, capability, and intent) and all other means available to change behavior can’t be reasonably employed and then deadly force would be justified.
Continue reading part two of this post by clicking here.
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