IANAL: Ability, Opportunity, Jeopardy, and “Good Shoots”

First of all, let me clear something up: The acronym in the title of this post stands for “I Am Not a Lawyer”, which is true. Please don’t construe anything I write here as legal advice. Although I am trained as a paralegal, that isn’t the same thing as being a lawyer, and since the laws of every jurisdiction vary, it’s up to you to check what I have to say with a lawyer who’s licensed to practice law in your state.

With that said, this is the first of what I hope will be an occasional series about aspects of the law as it relates to self-defense. I know, I know, “I’d rather be judged by twelve than carried by six” and all that, you may be saying. But really, if you survive your tangle with violence but end up incarcerated and/or in bankruptcy court to satisfy a civil judgment, it’s a bit of a hollow victory, no? Saving your life is good, but so is not bringing financial ruin down upon your family.

So, let’s get something out of the way right off the bat. People in online gun forums often say things like, “so long as it’s a good shoot, I’m fine”. The truth is, it isn’t a good shoot until and unless the prosecutor’s office agrees your use of deadly force was justified, and/or unless a grand jury agrees (depending on your jurisdiction). It’s probably also not clearly a good shoot until the dust settles on any potential civil lawsuits. Convincing the prosecutor, grand jury (if any), trial jury (if any), and civil trial jury (if any) that you were justified in using deadly force may be easier in gun-friendly parts of the country, and harder in more gun-hostile places, but you never know.

Knowing that you will, in all likelihood, have to justify your use of deadly force, it’s important to consider the standard to which you’ll be held. So what is that standard? I’ll talk about California law, both because it’s the jurisdiction I’m most familiar with and because it’s fairly typical of the way the laws of most states are written.

Here in California, the law says we we act in lawful self-defense when we:

  • Reasonably believe that we are in imminent danger of being killed, seriously injured, or unlawfully touched; AND we
  • Believe that immediate force is necessary to prevent the danger; AND we
  • Use no more force than necessary to defend against the danger.

You’ll notice the presence of the word “reasonably” above. That’s a pretty subjective standard, isn’t it? (You betcha.) Who decides what’s reasonable? (Your judge and jury, if any.) So, what’s the standard for what’s reasonable? In general, the law will ask some variation of this question: “Would a reasonable and prudent person in the same situation, knowing what you knew and nothing more, have made the same decision you did?” The law (ie, the judge or jury) will ask themselves whether the danger you perceived was real and imminent, whether you were reasonable in your belief that you would be harmed, and whether you reasonably responded to that danger.

Massad Ayoob and other firearms trainers talk about these elements as the triad of Ability, Opportunity and Jeopardy (AOJ). He suggests you ask yourself (and be prepared to answer to police, prosecutors, judge and jury) these questions:

  1. Does my attacker have the ability to harm me? If your attacker is armed with a weapon, or is much stronger than you, he probably has the ability to harm you.
  2. Does my attacker have the opportunity to use that ability? If you’re on the other side of a locked door, or he’s in handcuffs, for example, the answer is probably “no”.
  3. Have my attacker’s words and actions created in me a reasonable belief that my life is in jeopardy? Do I have a reasonable fear, given the circumstances, of death or serious bodily injury from my attacker?

If you can satisfy all three of these elements, then it’s likely you’re justified in using deadly force to defend yourself. If you do use deadly force to defend yourself, you’ll eventually have to explain what specific things you perceived led you to conclude that your attacker had the ability and opportunity to cause you death or bodily injury, and why you perceived that your life was in jeopardy sufficiently to justify the use of deadly force.

Here’s a good exercise to solidify your understanding of this crucial concept. Be alert for news stories about police officers who shot suspects, or private citizens who used deadly force to defend themselves. (The Defensive Gun Use of the Day series on TheTruthAboutGuns.com is a good source for these). For each situation, see if you can articulate whether the elements of Ability, Opportunity and Jeopardy were present, and what factors led the citizen or cop to decide to employ deadly force. This exercise will get you thinking in terms of these factors, which is an important skill should you ever have to use a weapon to defend yourself.

There’s one more factor that some trainers talk about, which is sometimes called preclusion. The idea in a nutshell is that there are circumstances whereby an otherwise justified use of deadly force becomes unjustified because of some action the defender took. Usually, this is an action that transformed the defensive use of force into something more like mutual combat. Leaving a place of safety such as a locked door to go looking for an assailant is a good example. So is shooting a criminal after he’s already been incapacitated.

The basic idea behind preclusion is that once the assailant’s ability and opportunity to cause you death or injury are over, the jeopardy to your person is over too. And once the jeopardy is over, there is no further justification for using deadly force. Unless, of course, the assailant regains a position where Ability, Opportunity and Jeopardy could exist again.

As I mentioned at the top of this post: These are general legal principles, but you need to be aware that every jurisdiction is different. And, in truth, every case is different, because the field of the law is a world where outcomes can and do turn on tiny nuances of meaning. (I remember one case I worked on where the future of a family depended on what the word “active” meant in the text of a given statute). So, you should definitely talk to a lawyer who knows both self-defense law and the laws of your particular jurisdiction. If you want to do some reading on your own, your state’s criminal statutes and standard criminal jury instructions (if any) are good sources of information. (For my California readers who are also law geeks like me: CALCRIM 505 is a good place to start.)

Surviving a deadly force encounter with your life intact is a good thing. Surviving with your liberty and financial security intact is even better. Educate yourself about the law, and if you ever have to use deadly force in self-defense, know that the odds are high you’re going to end up having to explain your actions. If you can justify the decisions you made in terms of these factors, you’ve dramatically upped the odds in your favor.

Illustration credit: stock.xchg

Edited to fix garbled formatting from the iPad – sorry about that.

Comments

  1. Really good article. There is one thing that needs to be added that most people leave out. I learned it while in the police academy. Once you know all the stuff above you need to be able to articulate it (explain it) to everyone. The people that show up just after a shoot need to be treated differently then the first police officer. You need to be able to tell the first police officer what happened without messing it up so you don’t have to change it later. Then you have to be able to explain what happened to prove the three things above and be able to keep it together under cross examination. Long and short, just have a plan for what to say at first. The court room stuff you will have time to put together. What are you going to say to people that show up before the cops? What are you going to say to 911? And what are you going to say to the first cop that shows up?

    • That’s a good point, and one I think I need to talk about in another post: How to interact with law enforcement following a deadly force enounter. Massad Ayoob has some good suggestions on that topic, I know.

  2. Excellent analysis! If you want a little more information about how preclusion plays a role in things, I have an article on my site covering the topic…

    http://www.activeresponsetraining.net/preclusion-the-legal-concept-you-must-understand

    Thanks for doing your part to educate responsible gun owners!

    • Thanks for your feedback, Greg, and for the link to your post. I’m planning a future post about preclusion, so I appreciated reading your discussion of the topic!

Trackbacks

  1. […] force, this statement is most probably irrelevant. As you’ll recall from our discussion of Ability, Opportunity and Jeopardy, the general standard you’ll likely be held to isn’t whether YOU were in fear for your […]

  2. […] force is justified, as a general rule, to stop an imminent and otherwise unavoidable threat of death or serious […]

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