Problem Two: Legal Issues in Self-Defense

The late, great Col. Jeff Cooper, founder of the famous firearms school Gunsite, first called the issue of dealing with the criminal justice system after a self-defense shooting “problem two.” Specifically, he opined that surviving the deadly force encounter was “problem one,” and everything that occurred afterward (the emotional, societal and legal issues) was “problem two.” Additionally, an old-time saying in the gun culture goes like this: “It is better to be tried by 12 than carried by six.”

Personally, I agree that the first priority when facing a possible life-threatening attack is to survive that attack. However, for the 23 years that I have been teaching this discipline, it has been my premise that you can have both. You can survive that deadly threat and do it in a manner that allows you to also survive “problem two.”

For the purposes of this and future articles I will be writing for Personal Defense Network, I’ll let others explore the emotional and sociological aspects of “problem two,” while I concentrate on the self defense legal issues, of which there are many.

I was fortunate because I entered the field of law enforcement at age 22 and immediately began my education on the use of deadly force. At that time, we learned about the elements of “ability,” “opportunity” and “jeopardy,” and not to shoot unless all three were present. During this initial phase of my education, I also learned that mistakes can happen when making these assessments, but as long as you made the mistake in good faith, you would likely be OK legally.

Of course, also understood at that time was that a police officer had the backing of his department, which would cover the legal costs of any lawsuit. He would also likely be given the benefit of the doubt by the criminal justice system if he used deadly force in self-defense. In other words, the system would look out for the officer if at all possible. This phenomenon has all but vanished and been replaced with the inquest system now found in many states, and even political prosecutions of otherwise righteous shootings by police officers, if such prosecution would further the political ambitions of those decision-makers.

But how about average private citizens using firearms in self-defense? They have always been under the microscope and, depending on the jurisdiction they live in, may have a treacherous pathway to negotiate when using deadly force, again contingent upon the political ambitions of the district attorney and his minions. Welcome to the real world.

Are you a reasonable person? You probably think so. Do you know someone who is not a reasonable person, at least when it comes to a particular situation? Perhaps an ex-wife? How about a crotchety neighbor? While you may think your actions are always reasonable, so do those other people, and therein lies the issue. Your actions, if judged in a court of law, will be judged to the standard of a reasonable person who would be placed in the same circumstances, and knowing what you knew at the time. It is called the “reasonable man doctrine,” and it is the cornerstone of our legal system.

Here is how the system works. You first have statutory laws, those laws you can find in the local library in a set of books or on the Internet. Those laws are the starting point to your understanding of what your legal rights and responsibilities are. But you also have judge-made laws, which may run contrary to the statutory laws. This is problematic, because the judge-made laws are the legal precedents which the judge at your trial will use to instruct the jury on how to interpret the statutory law. As an example of this problem, in my home state of Washington, a 2005 Washington Supreme Court ruling called into question our 100 years of common law, which had established the right to presume that a person committing a felony against you is committing a life-threatening act. The Washington Supreme Court’s ruling replaced the previous interpretations of the common law with a convoluted argument to abridge that history of prior court rulings which the Washington statutory law was a product of. I know, it is confusing, and it sets up the next gun owner here in Washington State who shoots and kills an intruder in his home, to be the legal guinea pig, as we can no longer count on the statutory law to guide us 100% in our use of deadly force in self-defense.

Now, having said the above, once you understand your state’s common law and statutory law regarding use of deadly force (hopefully they are not in conflict), you then must behave within the constraints of those laws, according to what a jury would decide a reasonable person would do under those circumstances. If the laws are in conflict, you need to take steps with your state legislature to change the statutory law and eliminate the conflict, as is being done in Washington State.

Your actions will always be second guessed; that is how our system is set up. You need to educate yourself to the extent that you understand under what circumstances you are allowed to pull the trigger on another human being, and then be prepared to communicate to the jury the circumstances that caused you to believe your life was in danger. If you do that job effectively, then you will have a fighting chance to win in court.

But don’t feel overwhelmed. Future articles will detail facets of how to make that argument, along with other legal issues in self-defense to help you navigate our legal system should it ever become necessary. Knowledge is power, so learn all you can before you need it.