The legal, moral and ethical use of lethal force


Lee’s note: Here’s the best work I’ve ever seen on the topic from our friend Peter Burlingame.

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 The Legal, Moral, and Ethical Use of Lethal Force

Video, photos and story by Peter Burlingame

While it is important to know how to shoot, it is critical that you know when to shoot. Using lethal force has many consequences, even when everything is done properly.  Deadly force decisions wil impact you legally, financially, as well as psychologically. Fully understanding when you can use lethal force, not just legally, but also morally and ethically, will reduce the negative impact of event.

My preference is that you never need to use your firearm for anything other than recreation,pb 1 but if you must use your gun to defend yourself, I want you to be able to live with your decision. I want you to be able to live with the legal consequences, the financial consequences, and the moral and ethical consequences.

Let’s start by defining lethal force. Lethal force is that level of force which has a substantial chance of resulting in a person’s death, or grave bodily injury.  Grave bodily injury is considered a crippling injury like a broken bone or the loss of a limb or an organ. The term deadly force is interchangeable with lethal force.

Understanding when it is appropriate to use deadly force will enable you to make the proper decision, and will also help you to explain to the investigating officers why you used that force.  I know of a number of cases where the use of lethal force was appropriate, but because the person who was defending themselves couldn’t articulate why they did what they did, they were successfully prosecuted.

You may use lethal force if there is an immediate and unavoidable threat of death to the innocent. Those 9 simple words are the best guide to determine when to use deadly force.  One way to look at it is that those are four questions to which you must to be able to answer ‘yes’ 1.) Is this immediate? 2.) Can I avoid this situation? 3.) Is there a threat of death or grave bodily injury? 4.) Am I, or the person I am protecting, innocent?

If you can answer yes to all four of those questions, then deadly force is acceptable. If the answer to just one of those questions is no, then that level of force is not justified. Let’s look at each of those four segments in detail.

1.) Immediate means right now, this very moment. Not in 5 minutes, not in five hours, right now. If there is any lag in time, then you have a chance to take actions to avoid the situation.

2.) Unavoidable is related to time or the environment. If an attacker is 20 feet away and running toward you with a machete, you do not have time to avoid the attack, because it is immediate. The environment can also make the scenario unavoidable. Imagine being inside a room with no windows and only one door. You are in the corner farthest from the door. An assailant armed with a large knife is standing in the doorway, threatening you. Because he is blocking the entrance, you cannot avoid him.

3.) Threat of Death or Grave Bodily Harm* comprises three parts. For a person to constitute a threat of death, they must show three things: Ability, Opportunity, and Jeopardy. As with the original sentence, all three elements must be present. If just one is missing, then there is no threat.

4.) Innocent – This means that you, or the person that you are defending, have done nothing to provoke the attack.  Being ‘innocent’ must be a way of life. By acting in a polite and respectful manner, even if the person you are dealing with is being rude or argumentative, you may be able to successfully defuse the situation. If the assailant won’t back down, then you may have witnesses that can say  you tried to calm things down, you were respectful, and attempted to avoid the situation. Also, it will help you psychologically in the aftermath. You won’t second guess your actions by asking: “was there something else I could have done to avoid shooting the attacker?”

If you have a concealed weapons license, a government agency has given you permission to walk around in public with the ability to take another person’s life very easily. That right comes with a heavy responsibility. When you walk around with a firearm, society holds you to a ‘higher standard of care’ than an unarmed person. Society expects you to act responsibly and to do everything you can to avoid situations where you have to use lethal force.

pb 2Are you legally allowed to use lethal force to defend someone else? Yes, when there is an immediate unavoidable threat of death to the innocent. This is usually clear cut when we are defending loved ones, but what about strangers? Do you know what happened just before you arrived on the scene? Do you really know who the innocent party is? Are you sure that they want to be rescued?

It is likely that you can look at a situation and determine if it is immediate, if it is unavoidable, if there is a threat of death. What might not be so obvious is who is innocent.  Keep this in mind before you get involved in someone else’s problem.

You are under no legal obligation to help another person. Whether you have a moral obligation is for you to decide. If you do decide to help another person be aware of the potential consequences of your actions and take steps to protect yourself.  When I say “protect yourself” I mean that not only could you get physically hurt in the fight, but you also can get into legal trouble.

Realize that simply pointing your gun at someone is a use of lethal force. You are threatening that person with your gun. This is a crime, unless you can justify your actions. The justification is the same: an immediate and unavoidable threat of death to the innocent.

This is a quick overview of the justifiable use of lethal force. Study your local laws regarding self defense. Using your gun for defense can have grave consequences. Make certain that you are competent in both the ‘How’ and the ‘When’ of using your firearm to protect you and your loved ones.

Disciplina remuneror fidelis!

* Ability – the attacker must have the ability to cause your death or grave bodily injury. Generally this means that they have a weapon of some sort. A knife, a gun, a baseball bat, tire iron, etc. are weapons that can be used to kill people.  The body can also be a weapon. More people are killed each year in the U.S. by fists and feet, than by rifles.

Also part of Ability is Disparity of Force.  Disparity of Force is when the levels of force between the two sides in a conflict are unequal. Some examples are: 2 attackers against 1 victim, a male attacker against a female victim, a young person assailing an senior citizen, a healthy person against an a disabled person, or a trained and experienced person attacking an untrained individual. In all of these situations the force between the two sides is unequal, and thus is considered Ability in the Use of Lethal Force equation.

Opportunity – the assailant must have the opportunity to use his weapon against you. Most often this is a function of distance. Someone 25 yards away armed with a knife, doesn’t have the opportunity to cut you with that knife. If he had a rifle at that same distance, he would have the opportunity to shoot you. While distance is most often the factor in opportunity, the environment can have an effect. A gunman could be 3 feet away from you but not have the opportunity to shoot you if you were positioned behind bulletproof glass, like bank tellers are.

Jeopardy – The attacker must do something to make you reasonably believe that your life is in danger. This could be a verbal threat, “I’m going to cut your heart out!”, or it could be body language, the attacker runs towards you with a knife in his hand.  Alternatively, ‘Intent’ is often used instead of jeopardy by some use of force instructors

You are in a parking lot, walking to your car. Someone is walking towards you. They are only 10 feet away and have a baseball bat. Do they constitute a ‘threat of death’? You notice that they are wearing a softball uniform, have a baseball glove in their other hand, and there is a ball field next to the parking lot.  Yes, they had Ability (baseball bat) and they had Opportunity (only 10 feet away), but Jeopardy was missing.

You receive a phone call from an angry person. “I’ve got a gun and I’m going to shoot you!” They have Ability (the gun) and Jeopardy (verbal threat), but they are not near you so they don’t have the Opportunity to use the gun on you.

Peter Burlingame is the founder of The Self Defense Initiative, a 25 year old training school based in the U.S. Virgin Islands. Peter is a contributing member of the International Association of Law Enforcement Firearms Instructors and the International Law Enforcement Educators and Trainers Association. His articles have been published in the FBI’s National Associates’ magazine, “The Firearms Instructor” and “Survival Quarterly.” You may contact him at Videos at


About Author

Lee Williams can’t remember a time in his life when he wasn’t shooting. Before becoming a journalist, Lee served in the Army and worked as a police officer. He’s earned more than a dozen journalism awards as a reporter, and three medals of valor as a cop. He is an NRA-certified law enforcement firearms instructor, an avid tactical shooter and a training junkie. When he’s not busy as a senior investigative reporter, he is usually shooting his AKs, XDs and CZs. If you don’t run into him at a local gun range, you can reach him at 941.284.8553, by email, or by regular mail to 1777 Main St., Sarasota, FL 34236. You can follow him on Twitter: @HT_GunWriter and on Facebook @The Gun Writer.


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  3. I’ve tried unsuccessfully to locate the N.C.G.S. which requires 3 elements to be present for an officer to justifiably use excessive or deadly force. Can you help?


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