Ethics and legality of headshots

[Mannlicher]

sometimes we way over think things.

[OldMarksman]

There is no "if the court finds".

Oh yes there is. Just how do you imagine that it could ever otherwise be determined whether or not a person had used "force as permitted under this chapter"?

This part of the country is very friendly to non criminals who defend themselves from criminals.

I don't know what you mean by that, but the first step is to decide just who is a criminal and who is not a criminal. When someone has been shot, who was the defender and who was the attacker must be decided based on evidence.

You know as well as I do that it is quite easy to differentiate in most cases.

Might I respectfully suggest that you avail yourself of a good course in use of force law. After the fact, it is necessary to piece together incomplete and possibly contradictory evidence of what has happened. That is not always easy.

In "gun friendly" Arizona, Larry Hickey was the victim of an unprovoked attack by three people. He was charged and tried twice , and he spent a long time behind bars the state dropped its prosecution of Hickey. Was it easy to "differentiate" between the crimina s and the non criminals in that case?

And by the way, the plaintiffs did in fact succeed (out of court) in their suit regarding civil liability in that case--even though Hickey was never found guilty.

I never arrested a violent offender that did not have a rap sheet 3 miles long.

Every single "rap sheet" has a first offense at the top.

That "rap sheet" is in no way relevant to any particular use of force incident--or to any other possible issue, except when it comes to sentencing.

There is no "good guy" and there is no "bad guy" going in.

[K_Mac]

There are no on size fits all answers to the use of lethal force in self-defense. I regularly practice two shots to center mass and one to the head in a variety of scenarios. That doesn't mean this is the only response available to me though. Just drawing a gun may stop the fight. Maybe a central nervous system hit or two will be needed on a moving target that is trying to kill me. Training and good judgement are both essential to surviving a gunfight, and the legal dangers that accompany one. Use the force necessary to stop the attack...it is as simple as that.

[Spats McGee]

Originally Posted by Nanuk

. . . .

There is no "if the court finds". The intent of the law is so that the victim of a violent attack is not "victimized" again by the system or the attackers family. This part of the country is very friendly to non criminals who defend themselves from criminals. You know as well as I do that it is quite easy to differentiate in most cases. I never arrested a violent offender that did not have a rap sheet 3 miles long.

The part that I have underlined is hogwash. Note that the first section reads: "An individual who uses force as permitted under this chapter is immune from civil liability for the use of the force to the individual against whom force was used or to that individual's estate unless . . . . " While it is possible that the prosecutor's office could determine that the SD shooter acted "as permitted by this chapter," or that it cannot prove otherwise, and decline to charge, if there's any dispute over whether the SD shooter acted "as permitted by this chapter," it will have to be a court that makes that finding.

[Nanuk]

The part that I have underlined is hogwash. Note that the first section reads: "An individual who uses force as permitted under this chapter is immune from civil liability for the use of the force to the individual against whom force was used or to that individual's estate unless . . . . " While it is possible that the prosecutor's office could determine that the SD shooter acted "as permitted by this chapter," or that it cannot prove otherwise, and decline to charge, if there's any dispute over whether the SD shooter acted "as permitted by this chapter," it will have to be a court that makes that finding.

That is usually handled by the Grand Jury.

http://www.breitbart.com/big-governm...-uses-of-2017/

These are typical. It is not rocket science.

[Nanuk]

Might I respectfully suggest that you avail yourself of a good course in use of force law. After the fact, it is necessary to piece together incomplete and possibly contradictory evidence of what has happened. That is not always easy.

Retired LE. Been doing it for about 35 years with lots, and lots of training.

[Onward Allusion]

But it seems to me that really exposes you to prosecution, being labeled a sadistic fiend out to do harm instead of engaging in self defense.

Then don't carry so you don't ever have to shoot anyone. Not saying this to be a D*. The truth is that if you really feel that way, you should not carry because if and when the time comes, there's a good chance your reaction time will be impaired by overthinking and second-guesing.

[Danoobie]

I wouldn't shoot for the head, from a simple practicality standpoint.
Why saddle yourself with a smaller target?
Ethics and legality also seem to point against it being reasonable.
Why borrow trouble?

[OldMarksman]

That is usually handled by the Grand Jury.

Grand Juries do not decide quilt or innocence, nor do they decide questions of civil liability. They decide whether to proceed with criminal prosecution. A decision to not proceed does not equate to a finding that someone did "act as permitted" under the law. It simply means that the evidence shown to the Grand Jury does not support an assessment that a criminal trial would most probably result in a finding of guilt behind a reasonable doubt.

In the civil question, the BARD standard does not apply. A plaintiff must only show that a preponderance of the evidence indicates that the user of force did not act "as permitted under" the law.

Retired LE. Been doing it for about 35 years with lots, and lots of training.

But apparently unaware of what is required to invoke civil immunity ofter a use of force incident.

Perhaps this will prove helpful:

https://thefiringline.com/forums/sho...18&postcount=1

[Spats McGee]

Originally Posted by Nanuk

That is usually handled by the Grand Jury.

I'd be surprised if that were correct. Typically, grand juries simply decide if there's enough evidence to indict, based on a possibly one-sided presentation by the prosecutor. (Often one-sided because defendants are not advised to go talk about a potential crime with the prosecutor in the room.) Even then, a finding by a GJ that there's not enough evidence to support a criminal charge may or may not mean that the SD shooter acted in accordance with applicable law.

And I don't think the article that you linked supports the claim that anything is "usually handled by the Grand Jury." It's merely a listing of the "Top 25 Defensive Gun Uses of 2017." There's no mention whatsoever about how the states respectively connected to each DGU handles the charging process, much less their civil liability framework.

[OldMarksman]

Ethics and legality also seem to point against it [(a head shot)] being reasonable.

I really do not think so, if deadly force had been justified, and if the shooter had used no more force than had been necessary.

[Nanuk]

Grand Juries do not decide quilt or innocence, nor do they decide questions of civil liability. They decide whether to proceed with criminal prosecution.

BINGO. And in my state, per the section of law I quoted and the intent stated that I got directly from my states Attorney General's office, done.

It simply means that the evidence shown to the Grand Jury does not support an assessment that a criminal trial would most probably result in a finding of guilt behind a reasonable doubt.

That is how the system works, yes.

I'd be surprised if that were correct. Typically, grand juries simply decide if there's enough evidence to indict, based on a possibly one-sided presentation by the prosecutor.

Again, BINGO. That is how the system works. No indictment, no trial. If you did not commit a crime you by default acted within the law. I do not know the law in Arkansas or New York, but here with that we are done.

Even then, a finding by a GJ that there's not enough evidence to support a criminal charge may or may not mean that the SD shooter acted in accordance with applicable law.

It means that the states lacks the evidence to convict which equates to the same thing. Jury trials are wildly unpredictable, I have known few prosecutors willing to take weak cases to trial.

And I don't think the article that you linked supports the claim that anything is "usually handled by the Grand Jury." It's merely a listing of the "Top 25 Defensive Gun Uses of 2017." There's no mention whatsoever about how the states respectively connected to each DGU handles the charging process, much less their civil liability framework.

The point of the exercise was to show that all shootings are not Myst shrouded mysteries and bound to land you in civil or criminal court as Mas Ayoob would have us believe, it depends on the state. In my entire LE career I cannot remember any SD use of force incidents making it past the prosecutor/grand jury where I worked as a city cop (TX) or a fed (TX, CA, NM, ND).

[OldMarksman]

No indictment, no trial.

Yep.

If you did not commit a crime you by default acted within the law.

Well, yes, but the lack of a criminal conviction does not mean that one did not commit a crime--it means only that there was reasonable doubt.

It means [(that there's not enough evidence to support a criminal charge)] that the states lacks the evidence to convict...

Yep.

...which equates to the same thing [(that the SD shooter acted in accordance with applicable law)].

No, it most certainly does not.

Do not confuse the criminal justice process (the prosecutor, a criminal court, and the BARD standard) with civil liability and protection against same as decided in the civil tort process (the plaintiff, a civil court, and the preponderance of the evidence standard).

And once again, do not confuse a failure to charge or convict with a finding of innocence. "Not guilty" does NOT mean "innocent".

[Spats McGee]

Originally Posted by Nanuk

BINGO. And in my state, per the section of law I quoted and the intent stated that I got directly from my states Attorney General's office, done. . . . .

I'll take you at your word that you got the intent of the law straight from the AG's office. That said, it is important to understand that the AG is your State's attorney. Unless you are acting on behalf of the State itself, the AG is not your lawyer. I'm curious, though: In the materials that you got from your State's AG, was the AG opining on the effect of criminal matters on civil litigation between private citizens? If your AG rendered an opinion on this, or some other public document, would you be kind enough to give me an identifier, so that I might read it for myself?

Originally Posted by Nanuk

Again, BINGO. That is how the system works. No indictment, no trial. If you did not commit a crime you by default acted within the law. I do not know the law in Arkansas or New York, but here with that we are done. . . . .

Yes, and no. "No indictment, no trial," yes. But it's not quite right to equate a lack of a trial with innocence. It's not uncommon for a prosecution to fail, simply because the prosecutor could not prove each and every element of the crime charged beyond a reasonable doubt. That results in a not guilty verdict. I'm not convinced that the ND law you cited has been established to work the way you claim.

The law you cited was enacted in 2007, and has not made it to your Supreme Court. IOW, while you may turn out to be right, there is no case law at this time that says "if you aren't convicted, you're immune," which seems to be the position you're taking. IMO, the argument is still open that where no criminal prosecution has commenced, the SD shooter must establish that he or she acted within the parameters of the law.

Originally Posted by Nanuk

The point of the exercise was to show that all shootings are not Myst shrouded mysteries and bound to land you in civil or criminal court as Mas Ayoob would have us believe, it depends on the state. In my entire LE career I cannot remember any SD use of force incidents making it past the prosecutor/grand jury where I worked as a city cop (TX) or a fed (TX, CA, NM, ND).

Who said they were? But you placed the link along with a claim that Grand Juries handle civil immunity determinations.

[OldMarksman]

The law you cited was enacted in 2007, and has not made it to your Supreme Court.

That seems to be the case with civil immunity statutes in quite a number of states.

IMO, the argument is still open that where no criminal prosecution has commenced, the SD shooter must establish that he or she acted within the parameters of the law.

In the absence of case law to the contrary, I do not see any other way to interpret the law.

The civil immunity provision protects an "individual who uses force as permitted under this chapter". A ruling to that effect would surely be required.

Quite a number of states have enacted civil immunity laws. Most remain untested.

Some states, not including North Dakota, also have laws protecting persons who use force lawfully from criminal prosecution, in addition to civil liability. A person may ask a criminal court to stop the criminal prosecution process before it goes to trial by presenting favorable evidence to a judge and requesting that prosecution not proceed; the judge decides based on the preponderance of the evidence standard.

That is true in my state and in Florida. Different courts rule upon the criminal and civil immunity issues.

I found it quite interesting when the Florida Supreme Court recently ruled that a decision by a judge to stop criminal prosecution does not invoke the civil immunity provision, and that a separate court ruling would be required for that.

[briandg]

We've gone off course, imo, into purely legal and technical debate, and not much of this is actually beneficial to the average joe in any particular jurisdiction, even county by county, city by city, since every single juror and lawyer in every court has a differing agenda and moral compass. crime and unethical behavior apply to trials as well, every level of LE and both sides of prosecution have been routinely exposed to be corrupt in many cases. The oj trial was based on mere allegations of evidence tampering and other crimes by the police.

Spats, you and several others here are actually lawyers, legal professionals, and obviously far smarter than I am, but not necessarily of the same moral/ethical cut of cloth.

I am opposed to head shots at nearly every level, unless there is absolutely, completely no way to stop the attack without a head shot.

I have no faith in this average joe and his ability to safely and cleanly and successfully pull off a head shot during a confrontation.

I don't believe that a head shot is a good ethical decision to make just because it is part of a drill. I don't think that it can be a smart move legally.

I just in general don't think that the brain, as a small target, should be used when a larger target that can be just as devastating sits right dead center of the chest. Spine, heart, major nerve branches, major arteries... just the spine itself takes up a whole lot more space than the brain, firing a shot at the brain, a miss is a complete miss. If the shooter doesn't hit the thirty or so square inches of spine and at least partially paralyze the target, he will still hit a major organ, bone, blood vessel, or other damaging portion.


Triple tapping with a hit to the brain and using the reasoning that it's just a good idea and it's what the shooter has trained himself to do so just invites trouble.

There are my beliefs, do any of you share these thoughts, and if not, what suggestions to you have on a practical and moral approach, 'will i go to hell or do i deserve jail', rather than 'am i going to be prosecuted or sued for this head shot'?

A big part of my concern in a shooting is always collateral damage. I go to a barber shop across the street from a bar. A squabble breaks out in that bar, it turns ugly, shots are fired by men who have beered themselves up, and not a single round connects. Will I get the head shot, and will my barber retire because of that trauma?

[OldMarksman]

I have no faith in this average joe and his ability to safely and cleanly and successfully pull off a head shot during a confrontation.

I don't either.

I just in general don't think that the brain, as a small target, should be used...

I don't either, if there is an alternative.

If the shooter doesn't hit the thirty or so square inches of spine and at least partially paralyze the target, he will still hit a major organ, bone, blood vessel, or other damaging portion.

Maybe, but maybe not. Hitting something vital is more serendipitous than designed. That's why many situations necessarily end up with a number of shots being fired very quickly. And yes, the upper chest does make a better target than the head.

That said, it is not unlikely that, in a defensive shooting, one or more shots mays tie the head, whether intended or not. I do not see a legal or ethical problem with that outcome, provided that lawful justification for the use of deadly force existed in the first place.

One other thing: if one is involved on a hostage rescue situation, and if one does have the skill to carry it out, deliberate head shots may well be what is needed.

[Spur0701]

In my agency part of our PPC course of fire for qualification (which is every three months) are multiple "failure drills", it's always been part of our training and something we emphasize. For those intrested Wikipedia says Jeff Cooper popularized is starting in the 80's (https://en.wikipedia.org/wiki/Mozambique_Drill)

See here starting at about 45 seconds in, the is the Dallas shooting where 5 officers were slain: https://www.youtube.com/watch?v=cT1qnEQQdOk

Quote from the description of the video: "This is the horrifying moment a brave police officer attempted to shoot one of the Dallas gunmen- only for the bullet to bounce off his armored vest and for him to turn around and execute the cop at point-blank range."

[Spats McGee]

Originally Posted by briandg

We've gone off course, imo, into purely legal and technical debate, and not much of this is actually beneficial to the average joe in any particular jurisdiction, . . . .

I don't disagree with that.

Originally Posted by briandg

. . . . Spats, you and several others here are actually lawyers, legal professionals, and obviously far smarter than I am, but not necessarily of the same moral/ethical cut of cloth. . . . .

As to the first part, I do not claim to be smarter than others here. I do have a specialized education, one that I earned more through determination and hard work than anything else, but that doesn't necessarily make me smarter than you. There's a reason accountants don't ask me for math advice.

As to the second part, should I be offended? I feel like I should be, but I'm not generally an "I'm offended" kind of guy.

Originally Posted by briandg

. . . . I have no faith in this average joe and his ability to safely and cleanly and successfully pull off a head shot during a confrontation.

I don't believe that a head shot is a good ethical decision to make just because it is part of a drill. I don't think that it can be a smart move legally. . . . .

Agreed on all counts. As to it being part of a drill, one who trains "two to the chest and one to the head" had better be able to articulate, under oath and cross-examination, why he or she trains that way. In that sense it's not really any different than any of the other choices we make as concealed carriers: be prepared to articulate.

Originally Posted by briandg

. . . . There are my beliefs, do any of you share these thoughts, and if not, what suggestions to you have on a practical and moral approach, 'will i go to hell or do i deserve jail', rather than 'am i going to be prosecuted or sued for this head shot'? . . .

First, do not ask yourself, "Can I shoot?" Ask yourself, "Do I have to?" In simplest terms, that's going to be the litmus test in most jurisdictions. We can go on and on about immediacy, threats of serious body harm, disparity of force, etc., but it all boils down to: you can use that force necessary to stop an unlawful threat against yourself or others. I'll say it again: Do not ask yourself, "Can I shoot?" Ask yourself, "Do I have to?"

Second, as noted above: Be prepared to articulate. As Frank Ettin has noted in the past: "The best thing you can do is say the right thing. The next best thing you can do is say nothing. The worst thing you can do is say the wrong thing." The trick is knowing the difference.

Third, defending a SD shooting is different than defending a garden variety criminal case. If you're in a SD shooting, you'll need to be prepared to get the investigation off on the right foot: point out evidence and surveillance cameras, identify potential witnesses and give the police an overview of the event.

Is that helpful?

[Nanuk]

I'll take you at your word that you got the intent of the law straight from the AG's office. That said, it is important to understand that the AG is your State's attorney. Unless you are acting on behalf of the State itself, the AG is not your lawyer. I'm curious, though: In the materials that you got from your State's AG, was the AG opining on the effect of criminal matters on civil litigation between private citizens? If your AG rendered an opinion on this, or some other public document, would you be kind enough to give me an identifier, so that I might read it for myself?

See post #47. That is the law.

The matter of intent of the law was a verbal statement during a class.

[Spats McGee]

Originally Posted by Nanuk

See post #47. That is the law.

The matter of intent of the law was a verbal statement during a class.

A class taught by someone in your AG’s office?

[briandg]

Spats, I consider myself to be one of those guys with a ramrod inserted clear past the pucker, I am very seriously black and white but still believe that we have to look deeply to find out where responsibility or 'evil' began. Just like a jury does. Wrong is wrong, right is right, you can't shoot your neighbor's dog and make lame excuses. I'm a narrow minded idealist.


You are either a more intolerant judge of people and what they do or you are more forgiving of lesser problems. Neither one of us should feel any shame.

Maybe you aren't more intelligent than I am, but your advantages in that area are obvious.

I was in an automobile accident as a kid, one of only two that I have been responsible for. The cop told me. 'SHUT UP! NOW ISN'T THE TIME!' Very sound advice all around. Circle those wagons, gather those ducks. Then say 'no comment' until you really, absolutely have to speak.

Your litmus test is the answer. Some people are eager to use the gun, or just too lazy to worry about the repercussions, and not keeping your head leads to disaster. The one time that I genuinely feared a person, I drew when he had just reached the legal kill line, then he stopped and made verbal and gesturing threats. I found myself in a bind. There he stood, I 'could' have shot him and pretended that it was justified, but he no longer posed any danger, and there I was, naked in the classroom. I had no real way to end it until he backed down or police arrived, or it escalated much further.

I could have but I shouldn't have, it would have been quite literally the stupidest thing that I have ever done, I knew it then, I know it now, and no matter what legal protection I might have believed that I had, in reality, as I quite well knew, my moral and legal justification wasn't there. And I say for the millionth time, nothing goes as planned and it's very likely that poor judgment will cost a person.

I wish that more people worried about when and should and worried less about how and worried about the right or wrong as well as legal, whether or not, for example, the shooter could stand before God and receive absolution, for example.

Not meaning to drag religion unnecessarily into this, but everyone should question what they do.

[Nanuk]

A class taught by someone in your AG’s office?

Yes.

[Nanuk]

https://video.search.yahoo.com/searc...56&action=view

This is what I am talking about. This happened not too far away. We have a huge Somali/Sudanese population.

I would have shot this guy to pieces. Tell me about how it would be illegal or unethical to shoot him in the face. In those states where you must retreat before using force articulate for me just how you are going to do that without suffering severe injuries. I saw one effective use of cover where the one guy shut the security curtain, but I don't carry one of those.

I find real world scenarios much more useful when discussing such things than arguing over minutia.

[OldMarksman]

See post #47. That is the law.

No argument about that!

The matter of intent of the law [("The intent of the law is so that the victim of a violent attack is not "victimized" again by the system or the attackers family")] was a verbal statement during a class.

That is likely a very fair characterization of why the law was enacted. I would not classify that as legal advice--it's just common sense.

Requiring the plaintiff to bear the expenses in a suit should help with that by discouraging attorneys from taking cases that they are unlikely to win.

Of course, if the person does not have any money, he will not be able to pay the defendant's legal expenses.

This is what I am talking about

What most of those videos show is that the " 'old two in the belly and one in the head' adage" would not be a viable response in such attacks. Of course, none of them involved the shooting of someone who was holding a hostage.

In those states where you must retreat before using force articulate for me just how you are going to do that without suffering severe injuries.

There are no jurisdictions in which retreat is required if retreat is not safely possible. That is a fundamental tenet of common law even where it is not spelled out in statute.