Hypotheticals

“Ok… what if the guy is coming at you with a knife… can you draw your gun?”

“Well… yes… but I don’t draw my gun to intimidate… I draw my gun because the elements for a justified deadly force response has been satisfied.  If my gun is coming out, and the elements are satisfied I’m going to fire… unless the threat mitigates before I have my sights on target…. then obviously I wouldn’t.”

“Ok, ok… what if the guy is coming at your dog with a knife?”

“Im sure my dog can take care of herself… besides, a dog is property… you are not allowed to use deadly force to protect property.”

“I see… ok, ok… well say the bad guy has his arms in the air and you have your gun on him and he starts to advance on you… can you shoot him?”

“So… let me get this straight… you have a guy standing there like a chimpanzee with his hands in the air and he starts moving towards you and you have your gun out?”

“Yes.”

“What do you think?”

“Well.. yes, I would think I could.”

“Yes… but what if you hit your dog that has just been stabbed?”

“Huh?.. oh yeah… good point.”

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Every CCW class we get some interesting hypotheticals that people want answers too.  I understand the compulsion behind this.  We live, or would like to live in a world of certainties.  Most view the law as a list of knowable rules that if followed result in our happiness.  If not followed we are breaking the rules… and for some engaging in immoral behavior.

Here is the thing:  The law cannot take in every hypothetical.  The law creates a general principal, and in virtually every law that requiresintentas an element, there is going to be some debate as to whether that intent actually manifested.

If the law, and the application of the law was really so cut and dried there would be no need for lawyers, or juries.  Computer’s would be capable of establishing guilt or innocence.

Unfortunately, because so many gun owners,… and ccw carriers especially… pride themselves on being law abiding citizens they become confused at the vagueness of certain applications of the law…. especially as it relates to deadly force.  To seek clarification they create hypotheticals.. sometimes highly intricate hypotheticals… and find comfort in knowing that if the situation they have presented ever happens they will “know what to do.”

Here is the problem… the situation they have presented will never happen the way they presented it.  

A better way is to turn the black letter law into a question.  

You are allowed to use deadly force when it isreasonable to believe that there is an imminent likelihood of death or great bodily injury.

Put in the context of a question :  Did the ccw holder use deadly force because she reasonably believed that there was an imminent likelihood of death or great bodily injury?.

To answer that question we need to make sure all elements are satisfied:

Did she use deadly force?  Answer: Yes

Did she reasonably believe that there was a likelihood of death or great bodily injury?  Answer: Yes  (Though ultimately this question ofreasonablenesswould be decided by a jury)

Was the threat imminent?  Answer: yes.

If the law, formed in the context of a question, generates affirmative answers, then deadly force would appear to be justified.

If all the questions cannot be answered in the affirmative… then the use of deadly force to repel the attacker was not appropriate.

Working through hypotheticals may be academically interesting… but in the end may not give us a tremendous amount of value.  Each prosecution is going to take place within a political context, and ultimately a prosecution is going to rely on a jury to determine whether the actions of the defendant were reasonable based on the unique facts presented.