http://www.useofforce.us/Introduction: The Basic IssueIn the United States, it is illegal to harm another person intentionally.
That is the law at its most basic level. The names given to crimes involving such harm range from battery to murder, but the general idea is simple: If you poke someone in the eye, you can safely assume that you’re breaking a law.
However, there are circumstances that may justify your action, or at least mitigate the punishment. These vary, but the relevant consideration to this discussion is common sense: self-defense.
If you poke someone’s eye to prevent him from poking you, are you still committing a crime?
Well, not really, but it’s more complicated than that. A killing is a killing; an eye-poking is an eye-poking; a stabbing is a stabbing, and so forth. If the evidence supports that you did such a thing, and you’re prosecuted for it, and you don’t deny it, then it’s a crime. You can, however, make the case that you were legally justified in your actions, and if you can prove that, then you’re clear. But while establishing that you did the eye-poking is the prosecution’s problem, establishing justification is yours—your burden of proof.
That’s the basic issue—legally justifiable use of force—and though this is a gross oversimplification, it gets at the core of the matter. It also introduces the goal of this website: to provide basic, accurate information about how US law today addresses the justifiable use of force for self-defense purposes.
We will walk you through the “ground rules,” so to speak, to give you some idea of this complex and messy issue. It’s so complex, indeed, that there aren’t any straight, easy answers, and it’s particularly important to understand that we can’t give you personalized legal advice. For that, you must consult a good lawyer.
Although the general principles are fairly clear, the law itself, its interpretation and application in individual cases, and its numerous state-by-state variations are not at all simple or straightforward. Therefore, we emphasize that all practical summaries, including this one, come at the cost of some legal precision. Our focus is on giving you information that you can use, not making you a lawyer.
Fortunately, it’s not hard to grasp the simple fundamentals that will hold true across the country and throughout the tangled judicial system. Our ultimate goal is not only to educate, but to provide you with a working knowledge of issues that can and may affect you. Hopefully they never will. But one day, they may.
This site is structured as a linear walk-through. Use the navigation buttons on the left to move between pages or the arrows at the bottom of each page. Read them in order, one at a time. Don’t skip—read them all.
Lethal vs. Non-LethalOne important consideration before we enter the bulk of this information is understanding the difference between lethal force (that which a reasonable person would assume to cause death or grave harm) and anything less (non-lethal force).
Much of the literature, instruction, and legal prosecution that addresses these issues concerns lethal force. The reason is simple: Homicide, no matter what the circumstances, is a big deal. Giving someone a broken jaw in a bar brawl is much less serious for everyone involved.
Legally, a line is sometimes drawn between lethal and non-lethal force, and sometimes not. However, we have chosen here to view situations involving force as generally homogenous, for two reasons: first, for simplicity, and second, because the basic precepts the law uses to establish justification for using force apply to using virtually all degrees of force. If a situation justifies kicking someone, generally speaking, you can use the same guidelines to decide whether you’re justified in shooting someone else. As a result, although many of the statements and examples given here will be focused on lethal force situations, you can feel free to apply their general principles across the board.
Step One—The Central Ideas: Ability, Opportunity, Jeopardy, and PreclusionThe use of lethal force that can end in homicide is justified in the situation of immediate, otherwise unavoidable danger of death or grave bodily harm to the innocent. — Massad Ayoob
That statement by Mr. Ayoob, one of the premier authorities on these matters, is a succinct summary of the basic elements of any justifiable use of force in self-defense. Essentially, it is very simple: In order to determine justifiability, the courts want to know that you had to do what you did. Since “had to” is a pretty subjective judgment, it is legally defined, usually in the following way:
AbilityYour attacker must have the ability—the physical, practical ability—to cause you harm. Common sense applies here, as does context. A gun gives your attacker ability (lethal ability, in fact); a knife gives ability as well. Indeed, most weapons qualify, all the way down to glass bottles, baseball bats, and screwdrivers. While the latter are not designed as weapons, if they are applied as such, they can certainly kill you just as dead.
Other “ability” considerations include disparity in size or physical power between you and your attacker—a very large man versus a very small man, a strong man versus a cripple, a trained fighter versus a bookworm, a man versus a woman, all can apply. And don’t forget disparity in numbers—four men attacking one can very easily kill or cripple, unless that one is a Hollywood action hero.
Most of the above are valid lethal force scenarios, but non-lethal force uses the same standard. Just about anyone can punch you and break your nose, or break your arm, or bruise your stomach.
In short, common sense is a more or less effective guide on this point. The important question is simply whether, as far as you know, the attacker has the ability to harm you—kill or maim you, if you respond with lethal force, or lesser degrees of danger for equivalently lesser uses of force.
OpportunityAlthough opportunity can be viewed as a subset of ability, it is an equally important criterion. Basically, while your attacker may very well have the ability to cause you harm, it means nothing unless he also has the opportunity to do so—right here and right now. After all, there are probably countless criminals in the world who “could” kill you and might do so, given the chance; but they aren’t standing in front of you at this moment, so they don’t have that opportunity.
The biggest consideration here is range or proximity. Although a man with a gun is considered dangerous at any reasonable distance, a man with a knife standing 300 feet away is not, simply because he cannot stab you from that far away. Yet there is another factor, as well. If he were standing mere yards away, he still probably couldn’t reach you with his knife, but because it would only take him moments to approach you and change that, he would still be considered dangerous. A common police standard is to assume that a knife-wielding assailant is capable of covering 21 feet and striking with the blade in 1.5 seconds. Mull on that time span.
Some other considerations may apply when it comes to Opportunity. For instance, is a knife-wielding assailant behind a locked door a threat? Probably not. Therefore, if you were to shoot him through the door, that would not be justifiable. On the other hand, if he started—successfully—breaking the door down, then he would promptly become dangerous again. Again, use common sense.
JeopardyThe most subjective factor of the AOJP analysis is the jeopardy requirement, sometimes called “imminent jeopardy.” This criterion requires that, in your specific situation, a “reasonable and prudent” person would have believed himself to be in immediate danger.
In other words, jeopardy is what distinguishes between a potentially dangerous situation and one that is actually dangerous. Hundreds of times every day, you walk by people who could punch or stab or shoot you. The reason you aren’t “defending” yourself against them is because you have no reason to think that they are actually about to attack you. (Why would they?)
On the other hand, if someone screams a threat and points a gun at you, any sane person would expect that behavior to indicate an intent to cause you harm.
It’s important to recognize that you cannot actually know this person’s intent; you are not a mind reader. All you can judge is his outward appearance and demeanor, which, in that case, are consistent with harmful intent. If it turns out that he was joking, or lying, or the gun was fake, or he wouldn’t actually have pulled the trigger, nothing changes, because you could not have known those things.
The other important qualifier to remember is that the jeopardy must be immediate. A general threat to your well-being in the distant future is meaningless, but “I’m gonna kill you right now!” is meaningful.
Finally, it’s essential to understand that the “immediate jeopardy” condition can go away at the drop of a hat. On the one hand, if you are attacked, beaten, and left lying in an alley, you are not justified in shooting your attacker in the back as he walks away, because he will have ceased to be a threat. On the other hand, if he turns around and comes back for more, then the immediate jeopardy resumes. Jeopardy can cease suddenly and unexpectedly if your attacker surrenders or clearly ceases to be a threat (if you knock him unconscious, for instance, or he tries to run), and continuing to use force in such situations can change your action from legal self-defense to illegal battery in moments.
PreclusionPreclusion is not so much an individual consideration as it is an all-encompassing lens through which to view your actions. More complex than the others, it is nevertheless just as important. It is the idea that, whatever the situation, you are expected to use force only as a last resort—that is, only when the circumstances preclude all other options.
In other words, even when the ability, opportunity, and jeopardy criteria are satisfied, and knowing that you must clearly do something to protect yourself, the use of force, particularly lethal force, may only be that “something” if you have no other safe options.
The word “safe” is key there, because at no time does the law ever require you to choose an action that endangers yourself. If you can run away or retreat, you should, but if doing so would put you in harm’s way, you are not required to do so.
Preclusion is the factor that is missing in most self-defense arguments, and thus the reason most fail. You must remember that you bear the burden of proof; until you prove otherwise, the law merely sees two equal citizens in a dispute. You can say, “He tried to hit me,” but then the police and the courts will ask, “Why didn’t you _____?” You must have no options to offer to fill in that blank—there must have been no other courses of action you could have taken to maintain your safety except the use of force. Otherwise, you’re just fighting because you want to, and that’s a crime.
Does the Preclusion standard mean that an ultimatum like “give me your money or I’ll hurt you” requires you to, well, give him your money? Unless you honestly believe that he may hurt you anyway, yes. The law values “life and limb” above property. Or you can refuse, but you may not respond with a fist. He’s giving you a choice, which, by definition, means that you still have options other than force.
The point is simply that you must exercise self-restraint to the greatest extent possible. One vital aspect of this requirement concerns the appropriateness or degree of the force you employ, or how well suited your response is to the threat itself. If a man punches you, you probably cannot justifiably shoot him, because that’s a lethal response to a non-lethal attack. If a three-year-old punches you, you probably cannot do anything at all. If, on the other hand, a 300-pound boxer punches you, you may be justified in responding with deadly force, because his fists can be deadly as well.
Always remember:
1. The threat must be current, immediate, and unavoidable.
2. Your level of force must be appropriate to the threat.
3. Your use of force must stop when the threat ceases.
If at any point you smudge the first, exceed the second, or forget the third, you are running the risk of a criminal indictment—and if the results are glaring (e.g., you killed him), it’s nearly certain.
Knock your attacker over—then keep stomping on him while he’s down and not moving? Bad. Pull a knife and slash—and keep slashing when your assailant pulls away? Uh-oh; now you’re not only breaking the rules, you’re leaving “defensive wounds,” a signature of cuts and marks which forensics experts will use to prove that he was an unwilling victim.
Step Two—Unjustified Force: Misconceptions and ExceptionsWith a basic understanding of the precepts of Ability, Opportunity, Jeopardy, and Preclusion (or AOJP), and additional research on your part, you can begin to judge most situations accurately. However, there are a few common areas of confusion that bear clarifying.
Verbal ThreatsIn and of themselves, verbal threats are fairly meaningless. (They may constitute a crime under harassment laws, or something similar, but that’s not relevant here). However, they do matter when they denote or imply serious “jeopardy.”
In other words, suppose somebody sends you a threatening email. Are you justified in driving to his house and beating him up? Probably not. Every aspect of AOJP is missing, most of all the third: If someone actually wanted to hurt you, would he send you an email about it? It’s pretty unlikely that you (or any “reasonable and prudent” person) would consider this an immediate threat, even if it is sincere.
On the other hand, suppose a young man bearing gang tattoos and carrying a metal pipe approaches you in a parking lot at night, appearing to be under the influence of drugs, swinging the pipe, and yelling that he’ll bash your brains in. Now, not only are the conditions of Ability and Opportunity fulfilled, the threat itself (of imminent physical harm) is also credible. Context, context, context is all! A meek gray-haired grandmother saying the same thing in a book store probably won’t invoke fear in your heart, and rightly so.
Anything expressed verbally or in another non-physical fashion that does not denote or imply immediate physical jeopardy is not legal justification for the use of force. Insults are not. Generic shouting is not.
Lawful ForceOne case in which you are not justified in using force, whether or not you follow the rules of AOJP, is when the situation you’re responding to is a lawful one. The most obvious possibility is a lawful police action.
If, in the rightful execution of his duties, a law enforcement officer grabs you, throws you to the ground, and handcuffs you, shouldn’t that justify your hitting him back? No. If he were just some guy on the street it would, but the fact is, a cop is legally allowed to do what he’s doing—it’s necessary to do his job. If you respond with force, it is not justified and you would be breaking the law.
There are exceptions to this, depending on certain technicalities and issues concerning degree of force—basically, whether the officer himself was acting legally—but they’re nothing to stake your life and liberty on. Check your state legislation for exact details.
Required RetreatOne commonly misunderstood facet of justified self-defense is so-called “required retreat” laws, which a number of states have enacted.
The idea here is to encourage you to retreat (in other words, run away), if it’s at all possible. “Required retreat” is meant to discourage force in situations where you can use force but do not have to do so. If you’re driving in your car and someone starts yelling at you from the sidewalk, should you drive away, or run him over? Gee . . . .
In short, “required retreat” is largely just a clarification of AOJP, specifically of the Preclusion condition. If you have any other options, including retreat, use them before you use force; however, you needn’t use them if doing so would put you in danger. “Required retreat” laws do not change this fundamental right.
"Castle Doctrine"The so-called “castle doctrine” is another type of law enacted in many states, which essentially provides a partial exception to the rule of Preclusion.
If you are in your home, it says, you are not expected to retreat from it. If a burglar breaks down the front door, you need not climb out a window or dart out the back door. Doing so may very well be the smart thing, for your safety, but legally, you’re not required to flee your own home. This comes from the ancient notion that your “house is your castle,” and you should not be expected to cooperate in being chased out of it. So if you feel legitimately threatened within your home and have no other options except to run, appropriate force is justified. Check your state laws to see whether this applies to you.
Defense of PropertyYou are generally permitted to use minimal force to remove a trespasser from your property (someone on your property who has no lawful claim to it, whom you have asked to leave and who has refused), but you may not cause him serious harm unless he is violent, in which case the usual AOJP rules apply.
You cannot shoot someone for stealing your car. You cannot shoot someone for stealing your wallet. You cannot shoot someone for wandering over your property line. In the eyes of the law, life has priority over possessions—even a criminal’s life. You may defend your own safety with the use of force, but not your stuff.
Defense of OthersBut how about defending your family, friends, or a stranger? You are generally permitted to use the same amount of force, under the same rules, in defense of another person as you would in self defense. However, while this is technically the case, unless the third party is a close friend or family member, doing so can be a very risky proposition simply because you do not always know the whole story. For instance, if you turn a corner and see one man hitting another, he may be defending himself from an earlier attack; he may be a plainclothes police officer; or he may be protecting someone else altogether. AOJP applies, but it’s more difficult to judge because appearances can deceive. You may not know everything. Be wary.
FightingEngaging in a fight, or consensual combat—in other words, a brawl where all parties willingly (even if implicitly) agree to be involved—strips all participants of any justification for the use of force. You all may be prosecuted, or none of you may be; check your state laws. Unless serious injury results, even if you can be charged, the chances are that the DA’s office (District Attorney) won’t bother; they’ll just look at it as a brawl.
Remember, though, that a fight can turn into a case of one-sided battery within moments. Is your opponent starting to lose and trying to withdraw? Better stop hitting him, because he has withdrawn his consent to fight. What if you’re having a fistfight, and one of you breaks a chair over the other’s head, or pulls a knife? Odds are that’s illegal, too, because both parties didn’t “consent” to a knife- or chair-fight. Fighting is dangerous legal ground.