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Tuesday, December 24, 2013

Dr. George Thompson - The Use of Deadly Force




George Thompson, Ph.D., Verbal Judo Institute

How much is too much? The key is always REASONABLE force. You are allowed to use that force which is considered reasonable for the situation you are faced with. That reason is based upon the reasonable person theory. What would a reasonable person in the same situation do? Not a person out of control, trying to kill everyone, but a reasonable person.

I have included a training outline from a department on the use of Deadly Force. I hope this helps.

THE USE OF DEADLY FORCE

In order to justify the use of deadly force two requirements must be present. Those two requirements are imminent danger and preclusion. Imminent danger consists of the following four elements: intent, means, opportunity, and ability. Preclusion represents that all other reasonable options have been exhausted or inappropriate.

To establish imminent danger all four of the elements that make up imminent danger must be present. If one element is missing, imminent danger does not exist. Without imminent danger the need to justify preclusion does not exist, and deadly force is not justifiable. In determining whether or not deadly force is justified, the first step is to determine if imminent danger exists.

Elements of Imminent Danger:
  • Intent
  • Means
  • Opportunity
  • Ability

Elements Defined:
  • Intent can be defined as an attacker’s apparent desire to cause great bodily injury or death.
  • Means can be defined as the device used by the attacker to cause great bodily injury or death.
  • Opportunity can be defined as the attacker’s opportunity to use the means to cause great bodily injury of death.
  • Ability can be defined as the attacker’s ability to use the means to cause great bodily injury or death.

When all four elements of imminent danger are present then one of two requirements has been established for the use of deadly force. The second and final requirement needed to justify the use of deadly force is that all other reasonable options have been exhausted or inappropriate. This requirement is defined as preclusion.

Elements of Preclusion: 

• All other options have been exhausted, ineffective, or are inappropriate

Elements Defined: 
 
The elements of preclusion are departmental specific and determined by your department’s use of force continuum and availability or resources. 

Imminent Danger Examples: 

To further explain the elements of imminent danger consider the following:

The attacker’s intent can be expressed through words like, “I’m going to kill you,” or through actions like pointing a gun or knife at you or another person.

The means an attacker uses to cause great bodily harm or death can be an easily identifiable weapon like a knife or gun, but in reality, can be any instrument capable of causing great bodily injury or death. A brick, large rock, tire iron, screwdriver, and so on are all instruments that can be used as a deadly weapon.

Opportunity refers to the attacker’s opportunity to use the means to cause great bodily harm or death. The attacker could easily close a 12 foot distance and stab you with a knife or screwdriver. So, the opportunity is there for them to use the means to carry out the threat. However, if the attacker was 45 feet a way holding a knife in their hand or the two of you were separated by an 8 foot wall, the opportunity for them to use the means to carry out the act would not be present.

The ability refers to the attacker’s ability to use the means to carry out the threat. Let’s say the attacker is standing 6 feet in front of you with a tire iron in their hand and threatens to kill you with it. You have intent (threats to kill), means (tire iron), and opportunity (6 feet away), but the attacker is only 7 years old and 45lbs.

Based upon this example, the attacker does not have the physical ability to use the weapon to the point where they could cause great bodily injury or death. Ability is missing, so imminent danger does not exist.

Let’s say everything was the same, but the attacker is 30 years old, 5’10” and 180lbs, making him physically able to use the tire iron in a capacity that could cause great bodily injury or death. With all four elements present imminent danger would be established. If you take away anyone of the elements, remember, you do not have imminent danger.

Imminent danger by itself is not enough to justify the use of deadly force. You must also establish preclusion which amounts to showing that all other reasonable options have been exhausted or inappropriate.

You walk up to the scene of a domestic violence call. As you near the residence the front door fly’s open and a 25 year old man of average size rushes from the doorway right at you. The man is holding a large kitchen knife in his right hand and says, “Not you bastards again!” You draw your firearm as he closes the distance and you fire until the attacker is no longer a threat.

Your decision to shoot was justified since all the elements of imminent danger were present and you had no other reasonable options based upon your force continuum. Since a knife is a deadly weapon comparable to a firearm, and we do not go down the force continuum but a level higher, the use of your firearm would be the appropriate response. As far as options, your only real options in a situation like this besides firing your weapon would be to run or drop to the ground. Since both of these options expose you to danger they are not appropriate. The use of deadly force is justifiable.

Imminent Danger without Preclusion: 

An example of where you can have imminent danger but not be justified in using deadly force is as follows:

You stop your patrol car near a vacant warehouse in a secluded area of the city. You hear a gunshot and feel something hit your car. You see a man holding a hand gun standing on the second story balcony approximately 50 feet from you. The person yells, “I hate the police,”

You have imminent danger. The attacker’s words, plus his actions equal intent. His weapon is the means. The round hitting your car demonstrates that you are within his kill zone, so he has the opportunity to shoot you. The attacker demonstrated he could pull the trigger of the weapon, so they have the ability to use the means.

As you position yourself to return fire, the attacker walks back into the building through an open doorway and closes the door. You immediately move to the side of a brick building for cover. Although you have imminent danger, you may not have preclusion. If your place of cover adequately protects you from harm, you now have other options available.

A situation like this is commonly referred to as a barricaded suspect. So, if no one else is at risk and you have secure place of cover that protects you, a situation like this would lead to a perimeter, HNT, and Entry Team call out. If you shot into the building and by chance killed the attacker, the courts would discuss whether or not you exhausted all other options. In this case you will be hard-pressed to show you did.

In order to justify the use of deadly force, the courts have concluded both imminent danger and preclusion must be present. In a deadly force situation all four elements of imminent danger must be present to constitute imminent danger. Minus any of the elements, imminent danger does not exist. Imminent danger by itself is also not enough. Preclusion must be established to complete the requirements to justify the use of deadly force.

Reference:
George Thompson, Ph.D., Verbal Judo Institute, Instructor’s Course (2000), West Sacramento Police Department




 NOTES:

My sincerest appreciation to Guro Ben Fajardo for the share.



Some of Dr. Thompson's Verbal Judo articles I've archived to this site:


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