Yearly Archives: 2012

If you have any defensive firearm training of any sort, you have to have heard the term “Reasonable Force” at some point. The Reasonableness standard is probably the most important test when someone is trying to decide if your defensive action is justified or not.

However, you may ask just what is reasonable?

This is a large part of any firearm training I provide because I believe it is a lot easier to teach an individual HOW to shoot than it is to teach the WHEN to shoot.

Each state has its own laws, and I am not an attorney so I cannot give you a legal opinion on the law, but based upon my training and experience as a firearm instructor I can give you some points of consideration for you to research on your own.

I also feel the need to inform you that my training is geared more toward armed professionals (LE and Security), and that the majority of legal case law that I know is geared toward them. However, I do believe that many of the lessons learned from police shootings apply to civilians as long as the armed citizen understands the entire situation, including the legal differences between LE and citizen.

In my security classes I talk a lot about Tennessee vs. Garner and Graham v. Conner, but they are just the starting point for learning about legal use of force.

For citizens, it is important to know that you do not get to decide if your action is reasonable. Of course you think your action was right – otherwise you probably would not have done it.

The first person to decide on the reasonableness of your act will be the responding officer, then prosecutors, judges, the media, your family, friends, and the general public.

We know that no single person is perfect – and as a group we are not perfect – there is no real person that we can hold to be perfectly reasonable 100% of the time, but by creating the legal fiction of a reasonable man –Our legal system can use this fiction as an objective tool to avoid subjective decisions. This creates a system where the law works in a foreseeable, uniform and neutral manner when attempting to determine fault.

The reasonable person standard assumes that each person has a duty to behave as any reasonable person would under the same or similar circumstances.

The law cannot predict specific circumstances of each case, but the reasonable person standard does not change. You have act in a reasonable way, no matter what is happening.

The question on reasonableness is; would a reasonable person, in the similar circumstances act as you did.

This is not democratic – it is not comparing your actions to that of the average person, the average person may be wrong (look at the last couple elections or the ratings for reality TV)– but the fictional Reasonable Person is not.

The Reasonable Person weighs:

The foreseeable risk of harm his actions may create against the utility of his actions.

The extent of the risk he is going to create;

The likelihood such risk will actually cause harm to others;

Any alternatives of lesser risk, and the costs of those alternatives

Taking such actions requires the reasonable person to be informed, capable, aware of the law, and fair-minded. Such a person might do something extraordinary in certain circumstances, but whatever that person does or thinks it is always reasonable.

This is pretty hard for the average person to live up to without a certain amount of preplanning, training, and serious thought.

Calculus of Negligence

Federal Judge Learned Hand wrote about a concept called the “calculus of negligence” he wrote that the duty to provide against injuries is a function of three variables: probability of injury; the gravity of the resulting injury, and the burden of adequate precautions.

It can be expressed as B<PL

B is the cost (burden)

P is the probability of loss.

L is the gravity of loss.

The product of P x L must be a greater amount than B

As this applies to self-defense –

B (The cost in life caused by your actions in shooting the bad guy) has to be less than the product of the probability of him hurting you and how serious your injuries would have been.

If we used a scale from 0 – 100 for injuries – 0 being no injury and 100 being death:

and you shot someone and killed them(100) because he said he was going to kill you but he had no ability to do so (0 for probability 100 for the gravity)

Is your action reasonable? Since you did the highest harm (100) against a 0% probability but with a 100 gravity of loss (100*0)=0

You’re obviously going to jail.

Now – this is an unrealistic formula to use in a self-defense situation, please so not call a time out on the two way range so you can whip out your calculator to decide to shoot back or not. However, since understanding the concept essential, I threw it in to help illustrate the concept.

Reasonable Officer Test

The “reasonable officer” standard is a method often applied to law enforcement and other armed professions to help determine if a use of force was correctly applied. While the use of officer will seem to exclude the armed citizen, and the armed citizen is not a professional, I would posit that the test is useful to them as a guide for their actions.

The test is usually applied to whether the level of force used was excessive or not.

If an appropriately trained professional:

Knowing what the subject of the investigation knew at the time and following their agency guidelines (such as a force continuum)l;

Would have used the same level of force or higher;

Then the standard is met.

For the armed citizen:

If an appropriately trained individual:

Knowing what the shooter knew at the time and following the applicable laws on self defense;

Would have used the same level of force or higher;

Then it would be hard to say the citizen’s action was unreasonable.

What is appropriately trained?

Carrying a gun creates a risk to others – the reason it is called a gunfight is because you have a gun. Whenever a person undertakes a skills-based activity (like shooting) that creates a risk to others, they are held to the minimum standard of how a reasonable person experienced in that task would act, regardless of their actual level of experience. By deciding to be armed you are taking on the responsibility to know what you are doing and will be held accountable – even if you don’t know anything about your gun, the law, or accepted self-defense shooting technique.

However, factors external to the defendant are always relevant. So is the context within which each action is made. It is within these circumstances that the determinations and actions of the defendant are to be judged. There are a virtually unlimited amount of factors that could provide inputs into how a person acts: individual perceptions, knowledge, the weather, etc. The determination of reasonableness has to be made after taking into account the totality of the incident – how big was the attacker, how skilled, was it dark, how fit was the citizen, what was their level or training. It is because of this concept that things like “New York Triggers” and DA only guns were built – lawyers make fortunes attempting to prove or disprove how things such as ammunition type and who manufactured it, firearm modifications, training records apply in specific cases.

Emergency versus Non-Emergency

Lastly, since self-defense is a circumstance that requires urgency is important to preventing hindsight bias from affecting the trier of fact. Given pressing such circumstances, a reasonable person may not always act in a manner similar to how she would have acted in a more relaxed setting. An example would be toy guns versus real guns – if your being kidnapped, and someone is pointing a gun at you and telling you to get in their car, you may not have the presence of mind to tell if the gun is real or airsoft (actually many states have laws that state that for the purposes of determining the crime, the fact that a gun is loaded, unloaded real or fake do not change the charge). If you defend yourself and it later is found that the gun is a fake, this concept may protect you from prosecution.

This is a complicated concept, but if you are an armed citizen you need to understand it. I spend a lot of time thinking about it, and how this concept would change how I act in a situation where I had to protect myself or my family. No internet article or video is going to be enough – I don’t know your state law, and I am no lawyer. Please get training from someone in your area, and if you decide to carry a firearm I would recommend spending a little money and finding a lawyer to talk with you for an hour or two about the specifics of your state’s law.

Self Defense Laws of All 50 States (With Plain-Talk Summaries Limited Edition Cover)

Understanding the USE of Handguns for Self-Defense