Editor’s Note: This article is presented for discussion only and does not constitute legal advice. It is not a substitute for qualified legal counsel. Every legal matter is unique, and minor variations in the facts may result in substantially different conclusions. Additionally, laws differ by state and local jurisdiction and are subject to change.
In self-defense and law enforcement training, the standard rule is to fire to stop an imminent threat of death or serious bodily harm, and to cease firing the exact moment that specific threat stops. Moreover, the use of force must stop immediately when the assailant surrenders, falls incapacitated, or retreats and no longer presents an active danger.
That seems very cut and dry, but legal experts warn it can leave much room for interpretation, which leads to the following question: How many shots are too many?
Criminal defense attorney Joey Hamby of Attorneys For Freedom Law Firm and “Attorneys On Retainer” (AOR) compared that question to what young lawyers are taught on how to cross-examine a witness in court. “Don’t ask one question too many,” to which the answer is that you might not know the answer until it could hurt your case. The point is that when you are succeeding in a trial, you want to stop talking.
When you are using a firearm in self-defense, you want to stop firing at the comparable point when the threat has been neutralized.
The Threat is Neutralized
Hamby explained that many self-defense trainers will tell you that you should continue shooting until the threat is neutralized.
“I agree with that statement, and it came from the principles of reasonableness, imminence, and proportionality,” Hamby noted, but said there are three questions that one needs to ask.
“Is it reasonable to believe that the attacker lying on the ground is a threat of death or serious bodily harm? Is that person an imminent, or immediate, threat? Is it a proportionate use of force to shoot that person? It might surprise some people that the answer to that could be yes,” Hamby continued.
If an attack has the means to seriously injure someone, then that individual may be justified in firing again. By contrast, if the answer is “no,” then it could be much harder in court to prove the actions were justified.
There is also no “magic” number of shots.
Depending on the circumstances, one shot could be one too many, whereas multiple shots fired could be completely justified. However, this is unique from case to case, and prosecutors and law enforcement may see it differently.
“This is where getting the best self-defense attorneys and experts is critical. Prosecutors and police officers [may] lack the training and the experience to evaluate these situations and understand the dynamics,” Hamby explained. “A prosecutor may think that the number of bullet wounds to the attacker shows that someone is using an excessive amount of force.”
There Are Variables to Consider
In a self-defense case, there are endless variables that will come into play, and that can begin with the caliber of the self-defense firearms to the size of the individual.
“There are many variables at play when using deadly force in self-defense. All of those variables, including the caliber of the weapon, need to be viewed through the same legal principles: Reasonableness, Imminence, and Proportionality,” Hamby explained.
“The caliber alone does not control the analysis. If one, well-placed shot from a .22 pistol neutralizes the threat, then you should not continue firing. If three shots from a .44 Magnum still have not neutralized the threat, then it is probably reasonable and proportionate to continue firing until the threat is neutralized,” Hamby emphasized.
It may also seem easy to consider the ways in which the setting can affect the analysis. As an example, it may be much harder to determine if the threat is neutralized in a low-light environment, and that may well affect the number of shots fired.
Still, all of these situations are very fact-specific.
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“Each case has to be analyzed separately, based on the facts of that case. You can’t just transfer general principles from one case to another without understanding how the specific facts affect those principles,” Hamby noted.
In addition, the specific location of your actions can matter in a self-defense case. However, simply being in one’s own home may not impact the legality of the number of shots. Then again, there may be situations where it does.
Home Defense Long Guns vs. Handguns
The same legal principles of reasonableness, imminence, and proportionality hold regardless of whether someone opts to use a handgun, rifle, or shotgun as their primary home defense firearm.
Yet, Hamby warned there are reasons why some firearms could present some issues based on appearance and then question whether it was actually proportional in nature.
“It is possible that police officers, prosecutors, judges, or jurors may have a bias or preconceived idea about guns that may look ‘scary’ … . These types of beliefs may drive an investigation or even charges,” suggested Hamby.
“This is why getting the right defense team in place is vital. Here at Attorneys For Freedom, our focus is on self-defense cases. We are very familiar with these types of biases, and we know how to defuse them,” he added. “We can explain to a skeptical officer or prosecutor how a rifle or shotgun may well be the best tool for the job. It may well increase accuracy, which means it is safer for innocent bystanders. It may also be more effective with fewer shots fired … . These concepts have to be understood and have to be part of your defense team’s knowledge base.”
Fear Factor Comes Into Play
There are also some significant misunderstandings with the general public, such as a widely held belief that one can’t or shouldn’t bring a gun to a knife fight, or a fist fight. Such a misconception is understandable, as it is somewhat linked to the principle of proportionality. However, that is a misapplication of the principle of proportionality.
“The correct analysis is whether the attacker can cause death or serious bodily injury,” explained Hamby. “One easy example is where a very small, physically frail, 85-year-old in a wheelchair is being attacked by a large 20-year-old. Can that attacker seriously injure, or even kill the victim with just fists? Of course. And the 85-year-old may have no options except a firearm.
“Whether the attacker is large or small, armed with a rifle, shotgun, pistol, knife, rock, broken bottle, or just fists, the same questions have to be asked, and the same analysis has to be completed,” Hamby added.
“Unfortunately, many people are misinformed by movies and video games, and they believe that you can easily see when a bullet strikes a person. That is simply not real life. It is the rare exception to be able to tell … ,” Hamby acknowledged. “It is very common for a person to fire multiple times and to have no clear recollection of how many times they fired, and to have no idea of how many times they actually hit … . The main visual indicator you will normally have is when the threat is neutralized.”
The Bottom Line
The most important takeaway is that there is no “approved” number of shots because every self-defense incident has its own facts and its own unique issues. Whether one fires once or 10 times, the actions must be based on sound reasoning, in response to an imminent threat, and proportionate to the threat.
“Once the threat is neutralized,” said Hamby, “Further shots create a risk that you can be faced with criminal and civil liability.”
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