Feb 29 2016

Ability, Opportunity, Jeopardy

Before you read this article, please do not just take my word, or anyone else’s word, about any of these legal issues. I AM NOT A LAWYER and THIS ARTICLE IS NOT LEGAL ADVICE. You should look up your own state laws and do your own research about how those laws apply to you. If you do not understand anything, ask a qualified expert in your own state law to explain the statutes to you. This stuff is way too serious to simply trust the word of some guy on the ‘net. LOOK IT UP YOURSELF.

Among the first question many people who are new to self-defense ask is, “When may I shoot a criminal? or can’t I just shoot them?”

There are a lot of myths, misinformation, and misunderstandings in the popular culture about using deadly force. And the laws governing the use of deadly force do vary from one jurisdiction to another. This means it is very, very important that you look up and try to understand the laws in your own state if you are serious about self-defense. Do not just take my word, or the word of some guy at the gun store, or (especially) whatever vague understanding you’ve picked up from TV and the movies. Do some real research into the actual laws that affect you personally.

One good place to start your research online is at www.handgunlaw.us. Another truly excellent resource for armed citizens is the Armed Citizens’ Legal Defense Network, which provides great information about the legal realities of self defense for its members. If, after doing this research and reading the laws directly for yourself, there is anything you do not understand, make an appointment to talk to a local lawyer and ask them to explain the state and local law to you.

Much of the material below came from Massad Ayoob. The material is presented in his book In the Gravest Extreme, and is also covered in detail in Ayoob’s MAG-40 class available through the Massad Ayoob Group. I highly recommend this class to anyone who is serious about owning a firearm for personal protection, as well as to those who are involved in the martial arts. If you possess the ability to kill or cripple another person, it is absolutely encumbent upon you to study the legal, ethical, and moral limits society has placed upon you. Mas Ayoob’s MAG-40 class is a great place to start.

Although the specific laws about deadly force are different from one state to the next, in the United States there is one fairly uniform standard on using deadly force which, if followed, will keep you within the law no matter where you live. This standard has its roots in common law and has been used as a benchmark in law enforcement training for many, many years. It applies whether you are at home or in public, no matter what method your attacker uses to try to do you harm. As long as your response to his actions falls entirely within this standard, your position in court afterward should be very strong.

The Basic Standard
You may legally use deadly force only when there is an immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent.

In order to meet this basic standard, you must be able to convince a jury that you (or the person you defended) were an innocent party, and that you were in immediate and otherwise unavoidable danger of death or grave bodily harm.

Meeting the “immediate” part of the standard isn’t too difficult. You only fight back when the danger is actually present, not when it might be present sometime in the future or was present sometime in the past. If someone threatens to kill you tomorrow, you don’t gun him down; you get a restraining order and make sure he can’t find you tomorrow. If someone attacks you and then runs off, you don’t shoot him in the backside no matter how badly you want to. If someone leaves the scene to get a weapon, you get out of Dodge as quick as you can so you aren’t there when he gets back. You don’t use deadly force unless the danger of getting killed or maimed is right then and right there. The danger must be immediate. It must be present at the very moment you pull the trigger.

Since you’re a smart person, if you could have figured out another way to avoid the danger you would have done it. If you were in public, you probably tried to walk away or disengage. Even in your own home, you probably tried getting behind furniture, or barring the door, or even leaving the house.

You may have even called 911. Your actions must show that shooting the attacker was the absolute last thing on your list of things you wanted to do. That is how you meet the “otherwise unavoidable” part of the standard.

Showing that you were the “innocent” party is also fairly straightforward in most cases. If you don’t habitually get into bar brawls or yell at other people, if you’ve learned to deal with beggars by saying no and walking away, if you don’t get involved in road-rage incidents — all of these are commonsense things your mother probably told you, and although mom probably didn’t know it she was giving you sound legal advice. If you did not willingly participate in an altercation or egg it on, the court will see that you were an innocent party. But how can you know and prove that the situation you were in was truly life-threatening, and really involved a danger of grave bodily harm or even death?

Ability, Opportunity, Jeopardy
Police are trained to answer this question by looking for three basic elements that must be present before they may use lethal force. These three elements are called Ability, Opportunity, and Jeopardy (often abbreviated to A, O, J). When these three things are present, any reasonable person would believe that a life was in danger, so the defendant’s legal position is very strong. But if one of the elements is missing, the defendant may have a hard time convincing a jury that shooting the attacker was really necessary.

Important Definitions!
Ability means that the other person has the power to kill or to cripple you.

Opportunity means that the circumstances are such that the other person would be able to use his ability against you.

Jeopardy means that the other person’s actions or words provide you with a reasonably-perceived belief that he intends to kill you or cripple you.

It is important to realize that any two of the elements may be present in a lot of common interactions. The presence of only two elements does not justify using deadly force. This isn’t as complicated as it sounds, and it is mostly just common sense.

An example of A & O, but not J: a young man with a baseball bat (ability) is standing within ten feet of you (opportunity). Unless the young man either verbally threatens to assault you, or physically begins the motions necessary to whack you, or in some other way makes it very obvious that he intends to do you harm, jeopardy is not present.

An example of O & J, but not A: a very irate little girl says, “I hate you! I’m going to kill you!” (jeopardy). She is standing right next to you, close enough to hit you (opportunity). But she’s only a little girl, and she doesn’t have any weapons. Ability is not present.

An example of A & J, but not O: you are in court and you have just testified against a male criminal who is physically much bigger and stronger than you are, and who has been trained as a martial artist (ability). As the guilty verdict is read, the criminal rages to his feet and begins shouting and threatening to kill you right then and there (jeopardy). But he is restrained by handcuffs and by the bailiffs. Opportunity is not present.

Now that we have defined our terms and have seen the simple overview, let’s examine each of the individual elements more closely.

The power to kill or cripple another human being can be represented by a lot of different things. Most often, it is represented by a weapon of some sort: a gun, a knife, a tire iron or club, or even some improvised weapon like a screwdriver or a metal chain. This isn’t a complete list, of course. The number of items that could be used as deadly weapons is nearly infinite, and they all represent ability. But ability can be present even when a weapon is not.

If a weapon is not present, ability may be represented by something the courts call disparity of force. This is just a fancy phrase that means the fight would be so radically unfair and so unevenly matched that any reasonable bystander would agree that one of the participants could kill or permanently damage the other person even without a weapon. Disparity of force is figured out on a case-by-case basis, taking in the entire set of circumstances. Generally speaking, disparity exists:

  • When a young person attacks a really old person
  • When a large, powerful man attacks someone who is very, very much smaller than he is
  • When three or more people attack one person
  • When an adult attacks a child
  • When a healthy person attacks someone who is handicapped
  • When a known, skilled martial artist attacks someone who is not a martial artist
  • When one participant has become so badly injured that he is unable to physically defend himself from a continued violent assault
  • When a man attacks a woman

Let me repeat that last point for emphasis: if an unarmed man attacks a woman, the courts generally recognize that disparity of force is present. This means that if a woman is attacked even by an unarmed man, she may generally assume that ability exists. A male attacker who goes after a female victim does not have to display a weapon in order to be a deadly threat. A woman who is attacked may reasonably believe that even an unarmed male possesses the power to kill her or to severely injure her.

Opportunity means that the total circumstances are such that the other person would be able to use his ability to maim or kill you. It includes, but is not limited to, questions such as how close he is to where you are, what objects might be between you and him, whether you have a readily-available means of stopping him from reaching you, and what he is armed with if he is armed at all.

When opportunity is present, a person with a gun will be within shooting distance (which can be quite far away, if there is no readily-available cover for you). If he is armed with a blade or an impact weapon, he will be room distance from you or closer, with no impediments between you. He will be close enough to kill you with whatever weapon he has, or with his bare hands. And there will be nothing in the environment to prevent him from doing so.

Probably the most important thing to note about opportunity is that even if the other person is armed with an impact weapon or a blade, they can possess the element of opportunity even if they are on the other side of an average household room. This is because an average adult human being can cover 21 feet of distance in about 1.5 seconds or a little less. If you have practiced on the range with a timer, you know that is just barely enough time to draw your gun from concealment and get one good shot downrange. This means that an attacker armed with an impact weapon can swarm you and kill you before you are able to draw your gun, unless you begin the defensive process before he covers that distance.

On a practical level, most criminals prefer to operate without any witnesses. If you are trying to avoid the elements of A,O,J coming into place around you, it is a good idea to be especially alert in places where a crowd is not far away, but witnesses are unlikely to follow.

Jeopardy is the most difficult of the three elements to articulate and the most difficult to prove. It is most often the central nub of a criminal trial. The reason for this is that human beings are not mind readers. You cannot know, beyond any shadow of a doubt, what another person is thinking and what he intends to do. You can only reasonably perceive his intentions based upon his actions and his words.

It is important to note here that simple fear isn’t enough to believe jeopardy is present. Someone who “looks menacing” may in fact be an innocent person with unfortunate features. Being afraid of what someone might do, when they have not given any real indication that they will do it, is not jeopardy.

As with the other two elements, jeopardy is really based on the entire set of surrounding circumstances. The jury will be instructed to ask themselves whether a reasonable and prudent person, knowing exactly what you knew at that moment (and no more!), would have come to the same conclusion you did. Would a reasonable and prudent person have believed that your attacker meant to use his ability to kill or cripple you? Was your decision that the person was a threat based upon simple fear, or did his actions and/or words give you a reasonable perception that he intended to kill you? What did the other person say or do, what physical motions did he make, which convinced you that he meant to do you harm?

Jeopardy does not necessarily require a clear verbal statement that the other person is trying to kill or cripple you. Some attacks might include a spoken threat (“I’m going to kill you!” or “Do what I say or you’ll die, b*****” or “See this knife? I’m gonna cut your throat…”) Any of these types of verbal statements may be used to establish jeopardy. But jeopardy can be present even when the other person does not say a single word. For example, an intruder who climbs in through a bedroom window, brandishes a knife, and advances toward you may be clearly showing, by his actions, that he intends to slice you to ribbons. Jeopardy would be present because the intruder’s physical actions clearly demonstrate his probable intent.

Jeopardy can be present even if the other person later says they were “just joking,” or if it turns out the gun or knife they were threatening you with was nothing but a toy. Remember, the jury will be instructed to ask themselves whether a reasonable and prudent person, knowing exactly what you knew at the time (and no more!) would have come to the same conclusion you did. If the person was acting in such a way that anyone with a lick of sense would have believed he really did intend to maim or kill you, then jeopardy did in fact exist no matter what other facts might have come to light after the dust settled.

Now that you have learned about the elements of A,O,J and how they relate to the legal situation if you use your firearm to defend yourself, the best way to keep these items in your memory is to practice using them.

When you watch the evening news, or read a newspaper, pay attention to stories which involve criminal attacks. Are the elements of A,O,J present? Did the criminal have the ability to kill or cripple his victim? At what point was there an opportunity for the criminal to attack? Did the victim reasonably perceive that the criminal intended to kill or cripple — was jeopardy present? If any of the three elements were not present, what parts of the story would need to be different in order for that element to be there? What important information did the news account leave out and how could that information alter the victim’s legal situation?

Get in the habit of asking yourself these questions, so that you become easily comfortable with applying the elements of A,O,J to situations which may allow the legal use of deadly force.

The Basic Standard
You may legally use deadly force only when there is an immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent.

1. It is particularly important that women understand this point as it relates to sexual assault. An unarmed adult male can kill or seriously injure an adult female using only his bare hands (ability); in order to complete the rape, he must be close enough to kill or cripple you (opportunity); and even if the rapist never says a word to you, the threat of death or grave injury if you do not comply with his disgusting scheme is part of what defines the crime of rape (jeopardy). This means that yes, you can legally use your gun to defend yourself against a man who attempts to forcibly rape you — even if he is unarmed.

2. From a legal perspective, it is important that you are able to document that you knew this before the attack, however. One way to do this is to take a class which includes the Tueller Drill, named after its creator, Dennis Tueller. If you find a place, be sure to take dated notes, and to keep those notes in a secure place in case you ever need to authenticate your before-the-attack knowledge of the danger posed by an attacker at room distance.

3. You may also be able to document your knowledge by purchasing the “Surviving Edged Weapons” video made by Calibre Press (a gory but instructional film intended for police officers in training), or by viewing “How Close is Too Close?” by Dennis Tueller and Massad Ayoob.