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[update: Thanks to David Hardy of Arms and the Law for the link.]

Keep in mind, as you read what follows, that I am not a lawyer, just a citizen trying his best to understand the rules I’m expected to live under.

Mark Bennett, a criminal defense lawyer here in Houston, on his blog Defending People, forwards “notes from the portion of DEA training dealing with the use of deadly force. [My source] tells me that the students would be given certain fact patterns and told to stand up in class and respond with the exact phrases described in the notes to justify a shooting.”

This is life-and-death crucial, but very long, so I’m reproducing the whole thing, with my comments, below the fold:

LAW OF DEADLY FORCE

Hostile Moves With Guns

1. Points what appears to be a gun in your direction

2. Shoots at you

3. Reaches for waist

4. Raises what appears to be a gun in your direction

5. Turns towards you with what appears to be a gun in his hand

6. Comes at you with what appears to be a gun

7. Reaches for a gun

8. Runs for what appears to be a gun nearby

9. Reaches for a pocket large enough to conceal a gun

10. Grabs for your gun

11. Reaches into a coat

12. Reaches for his ankle

13. Reaches under a seat

14. Reaches into an area not yet cleared, that could conceal a gun

**To shoot at someone to stop an attack, the Officer MUST wait until the suspect makes a “Hostile Move” (you should see or hear some objective sign) that gives you P/C to believe an attack is about to occur.

**If you approach a suspect on foot, identify yourself as DEA with your gun visible in hand. Give a command; if suspect violates the command, courts have upheld that it is justified to shoot to stop the attack. The 14 items listed above give you (1) P/C he intends to attack (2) P/C he is armed with a gun (3) P/C that you are in “immediate danger”

Hostile Moves With Vehicles

1. Accelerates at you, as if to hit you

2. Hits you hard

3.Drags you alongside

4.Knocks you onto the hood and keeps going

**Must approach vehicle on foot and ID yourself with your gun visible and give a command.

Hostile Moves Within Vehicle

1. Bends down towards the floor
· If you approach on foot with gun visible, ID yourself, and give a command, if the suspect ignores you and bends towards the floor, you have the right to shoot. You need NOT wait to see what he may be reaching for.

2. Dives low into the vehicle
· If you approach on foot with gun visible, ID yourself, and tell the suspect to step out of the vehicle, he complies, but then in violation of your commands, turns back towards the open door and reaches or dives down towards the floor of the vehicle, you have the right to begin shooting IMMEDIATELY in self defense (due to the perception and reaction times).

3. Turns toward you with a gun in hand
· If you have probable cause to believe an occupant of a vehicle has a gun in hand AND, in violation of your commands, he begins to turn towards you, you may shoot. You need not wait to confirm that he has a gun, nor do you need to wait until he is fully facing you.

Prohibitions Against Shooting:
DOJ/DEA Deadly Force Policy

· Deadly force may NOT be used SOLELY to prevent the escape of a fleeing suspect.

· Firearms may NOT be fired SOLELY to disable a moving vehicle

· Warning shots are NOT permitted outside of the prison context

Five Conditions That Justify Shooting To Stop an Attack

· P/C that the subject intends to attack

· P/C that the subject has the power to cause death or serious personal injury

· P/C that there is imminent danger

· You first give verbal warnings if safe and feasible to do so

· You balance the risks of hitting others

Other Important Things to Remember

Time to Respond to a Threat

1. Perception time:
· Time it takes from what we see to the time our brains begin to process what we are seeing to our brain so that we are aware of it. The time we are effectively “blind” to what we are seeing (Use .25 sec. average)

2. Reaction time:
· Once we recognize we are about to be shot, our muscles do NOT begin to move instantly. They remain frozen for a fraction of a second (Use .25 sec. average)

3. Firing time:
· Time it takes to actually draw your gun, bring it up to the target, bring your finger to the trigger and pull the trigger. Could be 1-2 seconds in addition to perception and reaction times.

Immediate vs. Imminent Dangers
· An immediate danger requires an immediate response – i.e. Being shot at.
· An imminent danger is slightly broader than immediate – i.e. Shooter stops shooting at you and runs. This is an imminent danger.

**All immediate dangers fall under imminent dangers, but not always vice versa**

Suspect will not show his hands
· With gun visible, ID yourself. Order suspect to show his hands. If he does not, you may assume he has a gun. This does not give you justification to shoot him, but it does give you P/C to believe he is armed.

21 Foot Rule
· When an attacker with a weapon (i.e. Knife) is 21 feet away from you, you may argue suspect poses an imminent danger assuming they may attack you. It may also apply at greater distances, but you must articulate the suspect poses a danger to you at the greater distances. [Where does the 21 feet come from? Why, that's seven yards. You should measure off seven yards in your house so you know exactly how far that is. It's a long ways, in fact, probably about as long as the longest clear path in your house, and if you try to run that distance, you'll find it takes about two and a half seconds: the total "time to respond" mentioned above.-- djm]

[I've copyedited for style and layout. The original HTML for this was beastly; I suspect an export from PowerPoint. Now it's only pretty bad. I added the "Time to Respond" heading.]

I say again: I am not a lawyer. Take what follows very skeptically.

As I said, this is life-and-death:

First, obviously, because it tells you the kinds of behaviors that will get you killed when dealing with a law enforcement officer.

Second, because it tells you when you yourself may use deadly force in your own self-defense.

Third, and perhaps most importantly, because this is how you should describe the shooting to the responding officer.

Although Mr. Bennett tags his post with “police misconduct”, the above guidelines seem common sense to me for anyone in a potential shoot/no shoot situation, and are in good accord with what I’ve read elsewhere.

I’ll add that in Texas, you may assume that a trespasser in your house, particularly after dark, means you deadly harm.

[update: Hardy points out that "probable cause" is intended to justify things like searches, not shootings; and that a lay shooter should never use the phrase. Again: never claim, as a layperson, that you had "probable cause" to so much as twitch, much less to shoot somebody.]

However, if you are not a cop, you generally should not be deliberately placing yourself in these kinds of situations — for instance, what the hell are you doing approaching a stopped vehicle with your gun drawn? Nor should you generally be chasing a “suspect” into an alley or through your neighbors’ yards. Nor should you be identifying yourself as law enforcement, much less DEA, if you are not. No, you shouldn’t even be giving anyone orders, nor expect anyone to obey them. However, see the post below on the Armed Militia — and be extremely careful if you are deliberately putting yourself into a potentially hostile situation.

I mean, if those rules work for the cops, they work for citizens too, right?

It’s not like we’re second class citizens in a society where cops are the Only Ones allowed to use deadly force — right?

I have written before about how important it is to not to talk to the cops without your attorney present; however, that presumes that the police have approached you. Here, you yourself should have called the police to the scene; in fact, if you use your weapon, it is crucial that you be the first to report the incident. You should keep your comments very brief, then offer to come to the station within 24 hours to make a full statement, and bring your attorney with you when you do.

It’s been shown, over and over again, that most people cannot give a coherent account after a shooting; the adrenaline is too strong, and it takes some time for events to order themselves in your mind. Nevertheless, any inconsistencies in your immediate after-action account will be taken as deliberate lies and used against you.

Also, any vindictive or celebratory utterances are going to sound very, very bad when the arresting officer repeats them at your trial.

---

[update]
My understanding is that when you call 911 after a shooting, give your location and ask for an ambulance — “Hurry, I think he’s bleeding to death!”. Then hang up. Do not mention a gun shot wound; certainly do not confess to being the shooter. You do not want a recording of your garbled account of the shooting to appear at trial. The EMTs will call the cops, and rightly so, when they find a GSW victim.

One suggested post-shooting plan of action I’ve seen:

1. Secure the scene. (I.e., get the assailant’s weapon out of his reach and restrain him. C’mon, you’ve seen the movies and you are not an EMT — you do not know that he’s dead.)
2. Render aid to your family or other victims.
3. Call 911.
4. Cautiously render aid, if necessary, to the assailant.
5. Put on a pot of coffee; it’s going to be a long, long night.

Except to render aid and to secure the scene, touch nothing, change nothing, not even to clean up or change your clothes. That’s destroying evidence, that is, and it will be detected and it will count against you. (Um, if I had the assailant’s blood on me, I’d treat it as a biohazard and bathe in bleach. Fuck the evidence.)

I might take my own crime scene pictures, if time and circumstance permitted, although I’d show them to my lawyer before handing the camera over to the police.

[/update]

---

I feel very strongly that “Don’t talk to the cops” should not be read as “No Snitching”. I believe that citizens have a duty to report crimes they’ve witnessed. That said, I am profoundly troubled that you may have to choose between that duty, and bringing yourself under suspicion through an honest attempt to, as they say, help the police with their inquiries. This, however, is a situation that overzealous police and prosecutors have brought on themselves, and I’m finding it harder and harder to hold it against people when they decline to call something in. Bad enough that we should have to worry about retaliation by the bad guys; totally insane that we need to worry about the cops.

Tags: DEA, deadly force, Houston Criminal Defense, justifiable homicide, Mark Bennet, Self-defense

This entry was posted on Saturday, October 25th, 2008 at 1:32 pm and is filed under Cops, Drug War, Fighting Back, First Responders, Guns and Ammo, Militia, Self-defense. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.