Absent an imminent threat–and especially after aggressor withdraws from fight and communicates withdrawal–continued use of force is NOT justified.
One of the conditions of using deadly force in self-defense is that one be facing an imminent threat of death or grave bodily harm. That definition of imminence is well captured by Black’s Law Dictionary:
Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law . . . Such an appearance of threatened and impending injury as would put a reasonable and prudent person to his instant defense.
In other words, the threat is about to happen right now.
When do defendant’s lose their claim of self-defense on the element of imminence? When the threat is to occur in the future and has not yet ripened, or when the threat has already passed. In either circumstance there is no currently existing imminent threat that must be necessarily neutralized by defensive force.
Imminence arose starkly in a recent “defensive” shooting by Tom Greer, an 80-year-old California man whose home had been invaded and he himself seriously injured by a pair of twenty-year-old ne’er-do-wells: 26-year-old Gus Adams and 28-year-old Andrea Miller. (Usual caveat: the facts as described are drawn from a “news” story reported in the Daily News. Also, a grateful h/t to Charles C.W.Cooke of National Review Online for being the first to bring this to my attention.)
Although there were many points during the course of the physical fight in which Greer would have had a robust self-defense argument for his use of deadly force against Adams and Miller, his actual use of such force appears to have occurred well after the imminence “window” had closed.
Further, his post-shooting statements suggest not a reasonably understood use of unnecessary force driven by the heat of the moment, but a deliberate and malicious use of force against a victim fleeing the conflict and begging for mercy.
There appears to be no serious question that Greer was faced with two serious criminals who caused him grave bodily harm. Adams and Miller unlawfully breached and proceeded to ransack Greer’s home. When confronted by Greer they physically attacked him, resulting in Greer suffering a broken collar bone—more than sufficient injury to qualify as the grave bodily harm necessary to justify the use of deadly force in self-defense.
Greer did, in fact, retrieve a concealed .22-caliber Smith & Wesson pistol for just this purpose. And up to this point there seems little question that Greer would have been legally justified in using that pistol in deadly force defense of himself against Adams’ and Miller’s attack.
As often happens when miscreants suddenly find themselves facing a good guy’s gun, however, upon sight of Greer’s pistol Adams and Miller immediately high-tailed it from Greer’s home, and ran for the hills. Greer would later report to local media that as Miller ran she shouted back “Don’t shoot me! I’m pregnant, I’m going to have a baby!” Greer follows this recounting by stating flatly: “I shot her anyway.”
Indeed, he did. Twice. In the back. Killing her. (Her autopsy is being conducted today, from which it can be determined whether she was, in fact, pregnant. UPDATE: Coroner: Burglary suspect shot dead by homeowner in Long Beach, Calif., was not pregnant, as claimed – @latimes) Greer stated that a key reason it was Miller shot twice in the back, and not Adams, is Miller’s relatively poor foot-speed: “The lady didn’t run as fast as the man, so I shot her in the back twice.”
As already mentioned, the use of deadly force in purported “self-defense” after the threat has already passed simply fails the imminence element of self-defense, and thus eradicates self-defense entirely.
But in the context of the facts of this case, it gets even worse for any hopes Greer might have for claiming self-defense.
An aggressor can not normally justify their use of physical force on the grounds of self-defense, for the obvious reason that self-defense is intended to allow the innocent to defend themselves from aggression, not the reverse.
There are, however, means by which a person who was the original aggressor in a fight (or, importantly, who can be made to look as if they were the original aggressor in a fight) can “regain their innocence.” The most common means of “regaining innocence” is by the aggressor withdrawing from the fight in good faith, and communicating their intent to withdraw to the other party.
Once this is done, if the other party then continues to use force, that force is no longer defensive in nature but aggressive. That is, the law sees the continued use of force as the initiation of a second fight, in which the other party is now the aggressor.
Furthermore, the person who was the aggressor in the first fight has now become the defender in the second fight—and they can justify as self-defense their own use of force in resistance against the other party’s continued use of force against them.
In this instance, when Miller withdrew from the first fight and communicated her intent to do so, the first fight—as far as her role was concerned—ended.
When Greer nevertheless continued to use deadly force against her, he effectively became the aggressor in a second fight, and as the aggressor would be ineligible to claim self-defense for his use of force at that point.
Indeed, had Miller been in a position to use force against Greer at that point, she would likely have been able to justify her use of that force as lawful self-defense.
It is true that in many such cases the State elects not to parse the timeline of defensive force with the precision of a scalpel. It is rare to see cases where, say, three shots fired in rapid succession result in the State arguing that the first two shots were OK, but then the threat was neutralized removing imminence, and therefore the third shot cannot be justified as self-defense.
The law has long realized that such precise step-wise examination of a deadly-force fight does not realistically take into account the natural and enormous stresses that occur when one is fighting for one’s life. As the Supreme Court put it almost a century ago:
“Detached reflection cannot be demanded in the presence of an uplifted knife.”
Brown v. United States, 256 U.S. 335 (1921)
Any hope Greer might have had for making such a “reasonable under the heat of the circumstances” argument, however, is substantively damaged by his own recounting of the deliberate nature of his use of deadly force against a fleeing, and pleading, target.
In closing, “self-defense” is not a license for seeking retribution or exorcising even the most genuine and understandable outrage against a person who may previously have but no longer actually does represent an imminent threat of harm.
Nobody “deserves” to have their home violated and ransacked, nor their bones broken, and at least in the latter case a deadly-force defense is lawfully permissible to prevent or stop such an attack from continuing.
But the window for using such deadly force closes once the threat has stopped being imminent. Any use of “defensive” force beyond that point, whatever it might be, is simply not self-defense as a matter of law.
P.S. The newest Law of Self Defense University Video/Podcast has just been released: “#004: The Intersection of Tactics and Law.” Enjoy!
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.DONATE
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