You Are Your First Responder

UAPDI

Training

The Legal Use of Force

Self-Defense, Use of Force and Deadly Force

Details
Category: The Legal Use of Force

In the state of Minnesota, statute 609.06 authorizes a private citizen the right to use reasonable force toward another without the other’s consent, to resist or aid another in resisting an offense against the person or in resisting a trespass. So what is considered to be reasonable force?

Reasonable force can best be described as the level of force proportionate to the level of unlawful force about to be utilized against the victim. If someone were to push or slap you, you would most likely not be justified in using a baseball bat or gun as a means of protecting yourself. This level of force (bat or gun) would be considered unreasonable and excessive under the law when compared to a push or a slap in the face. Using excessive force to defend yourself could result in criminal charges leading to your imprisonment and/or the payment of large fines. The line between reasonable force and excessive force is very thin where no buffer zone exists. In addition to using reasonable force, you must be a reluctant participant in the altercation and have attempted to withdraw or retreat (if safe to do so), otherwise, your involvement may be considered to be willing mutual combat (brawling/fighting) and subsequently you may erode any legal protection afforded you under the law.

Minnesota statute 609.065 specifically covers the justifiable taking of human life. The statute specifically states:
"The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode."

Statute 609.065 is slightly more complicated than it appears so let us pick-apart 609.065 and examine what probably is not obvious in the statute.

Outside of your place of abode, you may only use deadly force in self-defense if you believe the threat of death or great bodily harm exists to you or another and you or the person you are protecting are innocent and reluctant participants in the deadly threat encounter.

Essentially, you cannot provoke someone, shoot them and claim self-defense (you were part of the problem). Additionally, if you rob a bank and are confronted by someone with a gun and you shoot them, you cannot claim self-defense because you are not innocent (you committed a crime by robbing a bank and forfeit your right to self-defense).

Minnesota statute defines “great bodily harm” as:
“…bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” (609.02)

To help illustrate just how severe great bodily harm is, broken bones (fractures) do not even qualify or meet the requirement of great bodily harm (see “substantial bodily harm” MN 609.02).

Statute 609.065 also states,
“…the actor reasonably believes exposes the actor or another to great bodily harm or death... “.

The term “reasonably”, alone in the statute is somewhat subjective; however, there is a test that will help us identify what is “reasonable” in a more objective light. This test is also fairly universal and widely adopted (not Minnesota specific). The test for when the use of deadly force is authorized is often referred to as the AOJ-P Analysis.

AOJ-P is short for Ability, Opportunity, Jeopardy and Preclusion. If a threat passes these criterions, the use of deadly force is generally authorized.

Ability to Cause Great Bodily Harm or Death

In order to use deadly force against another, the attacker must truly have the ability to kill or cause great bodily harm. This “ability” may come in the form of having a dangerous or deadly weapon or a disparity of force exists between the victim and the attacker.

First, what is a "dangerous weapon"? Well, according to Minnesota statute 609.02 subd. 6 it means this:
"Dangerous weapon" means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm. As used in this subdivision, "flammable liquid" means any liquid having a flash point below 100 degrees Fahrenheit and having a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees Fahrenheit but does not include intoxicating liquor as defined in section 340A.101. As used in this subdivision, "combustible liquid" is a liquid having a flash point at or above 100 degrees Fahrenheit."

The obvious “dangerous weapon” includes guns and knives. However, any every-day common household object can in fact become a “dangerous weapon” under statute depending on how the object is used. For example, is a camera tripod a “dangerous weapon”? Well no, of course not. Not if it is sitting on the shelf at WalMart or if the tripod is being used to take photographs. But what if a stranger were to approach you and proceeded to crush in your skull with the tripod? Under the law, the tripod becomes “clubbed” and therefore, based on how the tripod was used, it is labeled as a “dangerous weapon”. Baseball bats, golf clubs, hammers, laptops, grandmas Waterford vase and your tire iron (to name a few) can all be turned into dangerous weapons based on their use at the time of an attack. Dangerous weapons are believed to give an attacker the “ability” to cause death or great bodily harm. What about a taser? If a police officer is attacked by someone with a taser, can the officer defend himself / herself with their firearm? The answer is "yes" and the explanation is: The taser or stun-gun is an incapacitating device and if the officer becomes incapacitated, the attacker now has access to the officers gun. Tasers or stun-guns are also sometimes used to facilitate a rape or kidnapping which are considered violent crimes. Deadly force can be used to prevent rape or attempted kidnapping.

When a “dangerous weapon” is not present, the attackers “ability” can come from what is referred to as a disparity of force. Essentially, the attackers own strength, size, force in numbers or the victims own condition can create a life threatening situation if attacked by an unarmed attacker or attackers.

Elements that create a disparity of force include, but are not limited to:

A great deal of common sense must be used when assessing a threat. For example, if a 5 year old boy runs at you with a kitchen knife, you may in fact suffer some cuts and scrapes but it will most likely be difficult convincing a jury that the 5 year old had the strength to wield a knife in a manner that truly represented a valid threat of death or great bodily harm.

In a one-on-one altercation between two males, the attacker being unarmed, there is going to need to be a significant size and strength difference before the victim would be justified in reaching for a weapon. An example might be an 80 year old violently attacked by a 25 year old or possibly a 5’ 4” 125lb male attacked by a 6’ 7” 300lb male.

There is a cultural predisposition that males are generally larger and stronger than females and therefore disparity of force will most often exist. It is important to note that a female can use deadly force to defend against rape.

Generally speaking, when attacked by two or more assailants, disparity of force clearly exists. With two against one, it most likely will come down to a judgment call as to whether or not the two attackers represent enough of an overwhelming force to justify the use of deadly force for self-defense. It is important to note that should you disable one of two attackers or two of three attackers, your use of deadly force must generally stop because now disparity of force (force in numbers) no longer exists. When a group or mob of attackers are present, all members of the mob shall share in the jeopardy for the fear that the mob has caused. In other words, If attacked by three individuals and you shoot at the attacker closest to you but miss and hit his cohort behind him, your actions will be viewed as justified because all members of the mob are acting as a single unit. From vol 1 of Warren on Homicide by Oscar Leroy Warren and Basil Michael Bilas, section 148 page 642, “Where several are apparently preparing to join in an attack on defendant, his right of self-defense extends to each participant". Also see STATE OF WEST VIRGINIA v . E. H. FOLEY Supreme Court of Appeals of West Virginia, published Nov 13, 1945. Also see Seeley v. State where "...it was held that in a criminal case involving self-defense, the jury should have been instructed that where a defendant was in danger of losing his life or suffering great bodily harm from more than one assailant, acting together, that defendant had a right to defend against all assailants." -- It is important to note that protesters and or those involved in rioting that are lying in the street in order to block a drivers escape from a violent mob attack are in fact part of the mob and therefore share in the jeopardy for the fear that the mob has caused. In many cases, but not all, drivers fleeing a riot are not being charged for driving over obstacles (people) blocking their escape.

In an article written by Schuyler P. Robertson, "Mob mentality is well-documented. In short, people in riots will do things they wouldn’t normally do. A riot is a very dangerous organism, and even people who plan on peacefully protesting can suddenly become threats or can block your escape if other protesters become threats."

If you are attacked by someone with superior fighting skills, disparity of force can exist. The challenge is you must know your attacker possesses these skills at the time of the attack. Fighting skills in the destructive arts typically include a black belt in a martial art, professionally trained boxer or specialized training in the military where the individual is taught to kill fighting hand-to-hand.

In some cases if the victim has a medical condition or is taking certain types of medication such as blood thinners, disparity of force may exist even between two males evenly matched in size and strength. Conceivably, someone on blood thinners would be at risk of death even if only moderately / mildly attacked (high potential for hemorrhaging).

Lastly, if you find yourself in an altercation fighting hand-to-hand where size and skill are all equally matched, should you (the victim) become disabled during the attack, disparity of force may now exist and justify the use of deadly force. An example would be to receive a kick to the knee, falling to the ground and be unable to get up. Being unable to roll with the attackers crushing kicks and punches, these crushing blows with the shod foot or fist could in fact be life threatening.

The element of “ability” in the AOJ-P analysis is easily identified when a weapon such as a gun, knife or club exist. Ability becomes more difficult to identify in cases where disparity of force is claimed unless the disparity of force is clearly obvious (multiple attackers).

Opportunity to Cause Great Bodily Harm or Death

In addition to ability, your attacker must have the opportunity to kill or cause great bodily harm and the threat must be immediate. For example, if some man yells, “I am going to cut your head off with my knife” and your attacker is on the other side of a four-lane highway with heavy traffic flowing in each direction, it would not be reasonable to believe he had the immediate opportunity to kill you; you could, in fact, most likely run away to safety. The attacker has distance and obstacles (traffic) working against him.

On the other hand, if the same person is within 21 to 30 feet and there are no obstacles, it is very likely that this individual has the immediate opportunity to kill you with his knife. It has been proven that a person can close a distance of 21 feet and thrust a knife into the intended target within 1.5 seconds. Other similar studies found elderly people who qualified for Social Security capable of closing a distance of 21 feet within 2 seconds. See the “Tueller Drill” by Dennis Tueller.

With firearms, guns are considered to be remote-control weapons and therefore opportunity nearly always exists. The opportunity criterion is mostly a factor with contact weapons.

Some other considerations may apply when it comes to opportunity. For instance, is a knife-wielding assailant behind a locked door a threat? Most likely not; therefore, if you were to shoot the assailant through the door, that would not likely be found justifiable. On the other hand, if the assailant started to successfully break the door down, then he would promptly become dangerous and firing a gun to stop the deadly threat would in fact be warranted.

Jeopardy and Preclusion

Jeopardy
In addition to ability and opportunity, the criterion jeopardy requires that, in your specific situation, a reasonable and prudent person would believe that the existing threat of death or great bodily harm is indeed a real threat and is immediate and otherwise unavoidable. The jeopardy test is what helps us separate real threats from potential threats or imagined threats. A large part of the jeopardy test comes down to the context of a given situation.

Walking through the mall, nearly anyone could punch, stab or shoot you but what is the likelihood and why would someone do that? The reason you are not actively "defending" yourself as you move through the mall is because you have no real reason to believe that you are about to be violently attacked. Context is helpful in understanding the nature of threatening or potentially threatening situations.

While you can never really know a persons true intent, you must judge them based on their actions and words. Police officers sometimes shoot and kill individuals making threats with toy guns or unloaded firearms. The officer has no way of knowing that the gun was not real or unloaded and neither would any other reasonable person. Therefore, because the officer believed true jeopardy existed, many of these types of shootings do not result in criminal charges.

Preclusion
Your actions will be judged by others after the threat you faced is over. Many self-defense claims fail due to “preclusion” or the avoidance factor. Because human life is held in high regard by society, in many jurisdictions you are required to avoid taking a human life at nearly all cost with the only exception being at the cost of your own life or that of the person you are protecting. After a homicide, law enforcement and others will run through a long list of questions regarding your actions and why you did what you did. If you do not have valid answers and your answers cannot be easily supported by evidence, being prosecuted becomes very likely.

AOJ-P Summary
Never use deadly force against another unless you are in fear of immediate death or great bodily harm, you are innocent, you are a reluctant participant in the altercation, no opportunity to retreat or avoid the use of deadly force exists and your use of deadly force will not put innocent bystanders in jeopardy.

Five Elements of Self-Defense

There are five elements required to prove a legal use-of-force, self-defense standing: Avoidance, Innocence, Imminence, Proportionality, and Reasonableness. If any of these five elements fails to be proven beyond a reasonable doubt during the legal process, you generally cannot make a claim of self-defense. These elements have been developed and refined over hundreds of years. For example, the element of "innocence" was first conceived by St Augustine, a Roman Catholic Priest, 354AD - 430AD, where he incorporated the notion of mens rea (guilty mind) into criminal culpability. Therefore, an act could not be considered a crime if the person lacked a guilty mind. The work of St Augustine would become the earliest foundation of what would become the element of "innocence". Later, St Thomas Aquinas, a Roman Catholic Priest, 1225AD - 1274AD, brought a moral dimension to the notion of natural law (a body of unchanging moral principles regarded as a basis for all human conduct), as well as its superiority to man-made law. By "moral" we are referring to good versus evil and right versus wrong.

  • Avoidance (Grotius)
  • Innocence (Augustine)
  • Imminence (Grotius)
  • Proportionality (Aquinas)
  • Reasonableness (Aquinas)
  1. Avoidance - Run / escape if you can and if escape can be accomplished in complete safety. Even in states with stand-your-ground laws, escape is the preferred choice and also the most reasonable choice. This will be a point of argument by a prosecutor if you could have escaped without using force but chose not to, even in a state where there is no duty to retreat.
  2. Innocence - Do not be the person that started the fight. The initial aggressor loses the right to claim self-defense.
  3. Imminence - The attack is already underway or about to immediately begin. The AOJ-P analysis helps identify the element of imminence.
  4.  Proportionality - You can only use equal force to defend yourself (not to be confused with equal weapons). In other words, if a threat doesn't rise to the level of being deadly force, you cannot use deadly force to defend yourself. This is where non-deadly tools can be of benefit e.g. pepper spray. Once the threat has been stopped, your use of force must also stop.
  5. Reasonableness - A reasonable and prudent person with your training and experience would have made the same decision under the same circumstances. A person doesn't have to make perfect decisions but mistakes do have to be reasonable mistakes. Remember that your jury will get to decide if all of your actions were reasonable based on the facts presented at trial.

Defense of Others

Limit defense of others to immediate family!

Should there ever be an exception? Maybe a scenario like the 2007 Virginia Tech massacre, where the justification is clearly evident and the situation itself is so obvious and so grave, action would clearly be warranted; but keep reading then decide…

When you use deadly force to defend another, you are stepping into the would-be victim’s shoes and therefore you are taking ownership of the situation. The AOJ-P Analysis still applies only now it applies to you and not the person you are defending. This would imply that you know 100% of all the facts surrounding the defense of the person you have chosen to protect.

Current laws (criminal or civil) do not shield Good Samaritans. If you should make a mistake like accidentally shooting the wrong person or miss the attacker and shoot an innocent bystander you will be held accountable. In addition, if the person you chose to defend is not innocent (the “victim” committed a crime related to the event that you are not aware of), things will most likely not go well for you in court.

What if you came to the aid of another, believing that their life was in jeopardy and you shoot and killed their attacker and shortly thereafter, the victim tells the police that he or she did not believe their life was in danger but appreciated your help in the situation. This contradiction between what you believed and what the victim believed with regard to the level of danger present in the scenario is probably going to be enough to prosecute the case or at a minimum, take the case to a grand jury.

The defense of others debate is never ending in the carry community. Generally speaking, there are basically two camps. The first group believes that if you have the means to protect someone, you have a moral obligation to try. The second group believes that the obligation extends to immediate family only.

Displaying or Pointing a Firearm to Thwart an Attack

According to the National Rifle Association, more than 2 million assaults are prevented each year by making a potential attacker aware that the would-be victim is carrying a firearm.

If you believe a threat will soon turn into physical violence, you may take the following actions to preempt an attack (least aggressive to most aggressive):

  • Expose your firearm but leave the gun in the holster, keeping your hand on the guns grip so the gun can be quickly pulled and put into action. Issue verbal commands and visual cues to suggest that the threat stop their approach, while you are creating distance (attempting to retreat from the situation). 
  • Pull your gun from its holster and keep the gun at your side or at a low ready position (pointed toward the ground at approximately a 45 degree angle). Issue verbal commands and visual cues to suggest that the threat stop their approach, while you are creating distance (attempting to retreat from the situation).
  • Pull your gun from its holster and point your gun at the attacker (see notes below). Issue verbal commands and visual cues to suggest that the threat stop their approach, while you are creating distance (attempting to retreat from the situation).


Anytime a firearm is used defensively, regardless of whether or not a shot is fired, it is important to notify the police as soon as it is safe to do so. The reason for this is the fact that the would-be criminal might decide to call 911 to report that someone (you) just pulled a gun on him. Generally, the first person to call 911 is the victim.

Keep in mind that if you point your gun at someone and you are not able to articulate your legal justification for doing so, you run the risk of criminal prosecution for second degree assault which can be up to 7 years in prison. In theory, it would be fair to say that to be justified in pointing your firearm at someone, the situation would have to be so grave that you would also be justified in shooting the attacker but at the last moment, the attack was prevented upon the presentation of your firearm without the need to fire.

Never, under any circumstance, fire warning shots, either into the air or into the ground. Firing a warning shot is dangerous and primarily a product of television and Hollywood. Many if not all police departments have policies against this type of action. Innocent people have been killed by firing warning shots and you are responsible for the bullets that leave your barrel. In addition, a prosecutor can make at least two arguments in court regarding your "warning shot": (1) It wasn't a warning shot at all. You just missed your target; (2) If you had the time to carefully select a safe location for your warning shot, then the threat you claim you faced wasn't an immediate threat, otherwise you would have shot your supposed attacker.

NOTE (07/31/2024): State of Minnesota vs. Earley Romero Blevins - The Minnesota Supreme Court has ruled that the duty to retreat exists prior to using any level of force, including the threat of using force, to defend oneself from an attack. In other words, if you do not attempt to retreat prior to making your attacker aware that you have a firearm, you can be charged with second degree assault. See page four of the opinion.

"Accordingly, we hold that a person claiming self-defense has a duty to retreat when
reasonably possible before committing the felony offense of second-degree assault-fear
with a dangerous weapon, specifically, a device designed as a weapon and capable of
producing death or great bodily harm."

Defense of Dwelling (Place of Abode)

Statute 609.065 specifically authorizes the use of deadly force to prevent the commission of a felony in the home (or place of abode). In Minnesota, the courts have ruled that there is no duty to retreat from the home. Exercise great restraint before deciding to employ deadly force. Even in the home there can be a high financial, psychological and social cost to shooting another human. Ensure it is necessary before doing so.

The choice to own a firearm for use in the home as a defensive weapon is a very personal decision that requires forethought. Some humans are capable of committing amazingly heinous acts of violence resulting in the possible torture and or death of the intended victim or victims (can you count to 46?). At a minimum, everyone needs to ask the question:

“If my home is invaded at 3AM and the phones do not work or police response is not immediate, how will I defend myself and or my family against one or multiple armed attackers?”

Some folks have given this question considerable thought and have addressed the issue to the point where they are reasonably prepared to defend their home and family. Other folks do not believe a home invasion is likely or they do not believe their home will ever be invaded by criminals and subsequently consider the question no further. Either way, how people deal with life’s issues and the resulting decision that is made is an individual choice and we all must live with the choices that we make.

Home invasions most often occur during the day between the hours a home would most likely not be occupied (e.g. 9AM to 4PM). The motivation for these “cold” invasions is almost always theft. Home invasions that occur while the home is occupied (hot invasion) are to be considered extremely dangerous for the occupants. One must conclude that individuals committing a hot invasion are prepared to “deal” with the occupants of the home using violence. This almost always results in an armed confrontation.

The end result of a hot home invasion cannot be predicted. The criminal’s original motive may have been theft but the focus may shift from the theft of possessions to the occupants at any time and result in rape, torture, murder and or arson. Generally, the more invaders in your home the more dangerous the situation will be. This is because a group of criminals will tend to embolden one another and in some cases members of a group will want to out-do the others by committing more heinous acts of violence than their cohorts. A single home invader may only restrain the victims and leave the home or he may choose to kill the victims in an effort to eliminate witnesses that could identify him in court.

Another point to be made is the fact that most criminals are on drugs. This can create a few challenges for the victims. First, if you believe you can reason with or negotiate with someone that is truly out of their mind, good luck. Attempting to convince a criminal that what they are doing is wrong will probably not result in anything positive. Second, criminals that are on drugs are not easily subdued. Adrenalin combined with various drugs can make a criminal nearly unstoppable without the aid of a firearm and well-placed shots.

Consider our original question and make a decision on your level of preparedness.