Use of Force

Shots In The Back: Not Automatically A Bad Shooting

Those whose  education on the use of force and the dynamics of a shooting incident is limited to the typical “western” movie or TV shows are indoctrinated to believe that shots in the back automatically make a shooting a bad shooting.  The fact of the matter is that this simply isn’t the case.

I highly recommend the articles found at the following two links.  They do an excellent job of explaining of how a good shooting just MAY result in shots to the back.  This applies not only to peace officers but to armed citizens as well.

http://www.forcescience.org/articles/forcescienceresearchcenter.pdf

http://www.forcescience.org/shotback.html

Leverguns: Getting the Job Done Since 1860

Recently, I sent out a flier for a Lever Action Patrol Rifle course that I am teaching in March of 2013. I received a response from an officer who was appalled that I would teach such a course. In fact, he stated that in doing so, officers might actually take it as an endorsement from me that the lever action platform was worthy of use as a patrol rifle.

My response: I am endorsing the lever action platform as being worthy of use as a patrol rifle.

The lever action platform has been a viable personal defense platform since it came onto the scene in 1860 in the form of the Henry Rifle, and the Henry was itself a reworking for the Volcanic Repeating Rifle. Confederate soldiers facing the Henry Rifle in battle called it “that damned Yankee rifle that you load on Sunday and shoot all week”. Note: The above is not a slight to the Spencer Rifle and others of the same era, rather it is in homage to the direct lineage of the platform as we know it today.

The trend towards the use of patrol rifles was jump started by the North Hollywood Bank Robbery in which two gunmen clad in body armor engaged officers from the Los Angeles Police Department in gunfight lasting for over 40 minutes. The LAPD officers were armed with pistols and shotguns, and their rounds could not penetrate the body armor worn by the bandits. Eventually, officers went to a nearby gun shop where the owner provided AR 15 rifles, and LAPD SWAT officers arrived on scene and ended the battle. I doubt that any of those officers on scene that day would have turned away a Marlin 336 as being unworthy.

Several years ago, a friend of mine was on patrol as a Deputy Sheriff in a rural, northeast Georgia County. He ended up in a protracted gunfight in which the bad guy had a rifle while my friend had his duty pistol and a shotgun. I doubt that he would have turned away a Winchester 94 as unworthy had someone happened upon him and offered it to him.  (Note: Since I originally published this piece, I have spoken with the above Deputy, and he assures me that he would have very much welcomed a levergun had one been available to him.)

I am not making an argument that more modern options such as the AR platform be completely abandoned in favor of the levergun. I am simply making an argument that the lever action rifle remains an effective option for use as a patrol or personal protection rifle. In fact, there are some areas in which I believe the levergun offers some advantages.

The biggest advantage that a lever action rifle offers in the firearms market at the time of the writing of this article is availability. The talk of gun control legislation has resulted in a shortage of AR platform and other similar rifles. In the past few weeks I have ventured to out to as many shops I could get to, and the only AR platform rifles I could find still in stock were all class III rifles requiring extensive paperwork and an approval process that is measured in months. However, in several shops I have been able to find leverguns readily available for prices as low as $250.

To go along with this from both an individual peace officer and agency administrator standpoint, the price point makes a fine old levergun an attractive option to perform this function. That trusty deer rifle can do double duty, and an agency that might not be able to afford outfitting all of its personnel with AR platform rifles could more readily purchase leverguns.

Another advantage of the traditional levergun is that it fires heavier bullets than most of the modern semi-auto platforms commonly used as patrol rifles. So as not to overly-bore those readers who for some reason don’t spend their free time studying ballistic performance, what this translates to is that the rounds typically pack more punch and more readily penetrate barriers. This factor comes into play in such instances when a peace officer might have to shoot through a vehicle body or windshield to end a violent confrontation. I have personally witnessed standard .223 ammo (standard AR platform ammo) disintegrate when going through such barriers, but considering a standard .30-30 rifle will be hurling a projectile three times the weight of a standard .223 round this issue is substantially alleviated.

While on the subject of ammunition, I would be remiss if I did not point out that leverguns are also available in several popular pistol calibers such as .357 Magnum and .44 Magnum. While such rounds do not have the range of a rifle round, common loads in each can achieve notable penetration, and considering the elements and range predominant in the proverbial “average gunfight” the effective range such firearms is up to the task.

One should also not discount the inherent reliability of the lever action platform. One need not worry about gas systems or magazines. Simply work the lever and keep going whilst shoving rounds into the tube or action as needed.

Nothing in the above should be taken as an argument for the wholesale adopting of leverguns in place of other platforms. Also, I most certainly am not making an argument concerning what one needs other than that I steadfastly believe that each and every peace officer should go on duty with a rifle at hand. This is about expanding capability, and a rifle is more efficient at ending a violent encounter than is a pistol.

***Note: The above was written with a law enforcement audience in mind. I also wholeheartedly endorse and advocate the use of the lever action platform as a personal defense rifle. This endorsement is not to be construed as an argument that citizens should be unconstitutionally restricted from owning self-loading rifles or unconstitutionally restricted in the ammunition capacity of their rifles.

Lever Action Patrol Rifle course flier

Videos: A Fixed Perspective

I recently saw the following videos at the Georgia Sheriffs’ Association Command Staff Conference. The use of deadly force by officers depicted in the videos is not the central theme of this article. They are merely illustrative of the fact that videos are a fixed perspective; a fact that should be considered when using them to evaluate an incident.

Please watch the video below and make a decision based upon only what you see in the video as to whether or not the use of deadly force was justified in this instance.

Now, watch the video (no audio):

Did your perspective of the incident change after viewing the second video?

Obviously, you realize at this point that they are videos of the same incident taken from two different in-car video systems; however, the perspectives they offer are radically different. They are exhibit A that video evidence does not always tell the complete story or give a full frame of reference for an incident. In most cases, we only have the perspective offered by a single camera.

Liken this to watching a football game on TV and reviews via instant replay. There are plays where from one angle, it looks like a player was in bounds, had control of the ball, or crossed the goal line, where a different angle leads to a completely different outcome for the play in question. Why does this escape us when we watch videos of incidents?

This issue is not just one for police incidents. Think of the current case from Oklahoma where the store clerk shot the armed robber, retrieved a second firearm, and then shot the armed robber again after he was down. Would video from another angle show us more closely what the store owner saw in that case? Could such video have possibly changed the prosecutor’s decision to seek charges in that case?

The intent of this piece is not to make an argument that video evidence be completely discounted. It is simply to show that videos may not tell the whole story.

As for the incident in above videos, three independent investigations were conducted with the officers being cleared criminally and civilly in all three.

The item in the individual’s hand was a cell phone.

The Lawful Use of Force

Code section 16-3-21 of the Official Code of Georgia Annotated (O.C.G.A.) is the law that covers the use of deadly force for ALL people in Georgia. This law applies to citizens and peace officers alike. A good working definition of deadly is force that force which is likely to or intended to cause death or great bodily harm to a person.

The law allows for the use of deadly force in three situations. The first of these is to prevent death a great bodily harm to oneself. The second is to prevent death or great bodily harm to a third person, and third, to stop/prevent the commission of a forcible felony. A forcible felony is any felony that involves the threat or actual use of force against a person. See below:

16-3-21. Use of force in defense of self or others; evidence of belief that force was necessary in murder or manslaughter prosecution

(a) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.
(b) A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he:
(1) Initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
(2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or
(3) Was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.
(c) Any rule, regulation, or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality, or other political subdivision of the state which is in conflict with this Code section shall be null, void, and of no force and effect.
(d) In a prosecution for murder or manslaughter, if a defendant raises as a defense a justification provided by subsection (a) of this Code section, the defendant, in order to establish the defendant’s reasonable belief that the use of force or deadly force was immediately necessary, may be permitted to offer:
(1) Relevant evidence that the defendant had been the victim of acts of family violence or child abuse committed by the deceased, as such acts are described in Code Sections 19- 13-1 and 19-15-1, respectively; and
(2) Relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to the family violence or child abuse that are the bases of the expert’s opinion.

Please note that nowhere in the above three instances was the defense of property or animals listed. As much as you might like to do so, you cannot use deadly force to shoot someone that is stealing or damaging property or stealing or harming an animal. You may legally, according to 16-3-24 O.C.G.A. us force that is NOT likely or intended to cause death or great bodily harm. See below:

16-3-24. Use of force in defense of property other than a habitation

(a) A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other’s trespass on or other tortious or criminal interference with real property other than a habitation or personal property:
(1) Lawfully in his possession;
(2) Lawfully in the possession of a member of his immediate family; or
(3) Belonging to a person whose property he has a legal duty to protect.
(b) The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.

The question often comes up concerns if it is legal to shoot a person that is breaking into your home. This is usually followed by “should I drag him inside after I shoot him?” The answer to the first question is found in code section 16-3-23 O.C.G.A., which reads as follows:

16-3-23. Use of force in defense of habitation

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.

The answer to the second part of the question is most definitely no. You most certainly should not drag the body or alter the physical evidence in any way.It is also important to note that according to 16-3-23.1 O.C.G.A., a person using or threatening force in the code sections outlined above has no duty for a person to retreat and legally has the right to stand their ground. See below:

16-3-23.1. No duty to retreat prior to use of force in self-defense

A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force.

When it comes to deadly force, we teach peace officers to evaluate potential deadly force situations using the three step guideline of ability, opportunity, and jeopardy. Ability is whether or not a person actually has the means or tools to inflict death or great bodily harm. This could be the person possessing a weapon or even their sheer physical size, for example. Opportunity would be whether or not the person was in position to actually be threat. A person possessing a knife certainly possesses the ability to cause death or great bodily harm; however, if that person is in close proximity they certainly have the opportunity, but if that person is on the other side of a four lane highway, they are not in a position to where they could actually use the knife to cause harm. Finally, jeopardy would be whether or not there was actual reason to believe the person was a threat. Just because a person has ability and opportunity does not mean they are a threat. Keep in mind that the aforementioned labels also apply to a person legally carrying a firearm. The key consideration is whether or not the person in question is behaving in a manner that would cause a person to be in reasonable fear for their life.

Hopefully, you will never be confronted with a situation in which you have to make the decision of whether or not to use such force much less actually having to use it; however, if you do, I hope that you have a better understanding of the legal parameters for doing so.

The decision to use force is an intensely personal decision. The key question is justification, not the moment in time at which one would actually use such force. It hinges on what the individual perceives and can articulate and this can depend on many factors including experience and training.