Make Ready with Massad Ayoob:
Deadly Force FAQ
Panteao Productions http://panteao.com/product/deadly-force-faq/
Produced 2012, 53 minutes, $29.99
Reviewed by Gila Hayes
It never hurts to get in a good review of the principles underlying justification for use of deadly force in self defense, and that is what I did a few weekends ago. I enjoyed the DVD program I watched so much that I decided to share it with Network members in this month’s book/DVD review column. The “big gun” when the topic is justifiable use of force in self defense is Massad Ayoob, who, by way of full disclosure, is a valued member of the Network’s Advisory Board. Ayoob is the lecturer on three of Panteao Productions’ Make Ready series, this one entitled, Make Ready with Massad Ayoob: Deadly Force FAQ.
For new readers, Ayoob’s experience spans four decades of teaching, writing, policing and working as an expert witness in the courts, focusing on use of force.
As the introduction on Deadly Force FAQ reminds us, “The use of deadly force has many consequences and the more you understand the law and what you should or should not do, the better off you will be. In this video Mas talks about what situations justify deadly force, disparity of force, castle doctrine, stand your ground law, presumption of justifiability, civil liability, the myths associated with defending yourself, and more.”
The program starts by succinctly defining key concepts, including what constitutes deadly force, the general structure of the laws defining the crimes of murder and how homicide is categorized in the criminal codes. Ayoob goes on to outline when resorting to deadly force is justified and how the citizen determines deadly force is necessary. He provides brief but clear definitions of the factors in that decision, enumerating:
Ability—the power to kill or cripple
Opportunity—the immediate capability of employing that power, and
Jeopardy—actions and/or words that a reasonable person would use to conclude the attacker intended to kill or cripple.
Disparity of force in its various manifestations also plays into justification, the lecture continues. Ayoob concludes this segment by defining what is sometimes taught as preclusion, noting that preclusion addresses what the armed defender can or may do while the justifying factors the attacker’s actions create are identified by the concepts of ability, opportunity and jeopardy.
In the next segment, Ayoob asserts that the much-discussed castle doctrine is widely misunderstood and adds that it is not written out as statutory law in all 50 states. A more accurate understanding of defense in the home may be drawn from a study of case law from your state’s supreme court, as well as your state’s pattern jury instructions, he advises. Be also aware that how you may defend yourself at home differs from state to state–especially as regards curtilage, the properties surrounding the dwelling.
Castle doctrine applies to those who have a right to be in the house, Ayoob continues, warning against misunderstanding the law’s applicability if attacked by an invited guest or household members, as some state’s variations extend castle doctrine protections to anyone who is lawfully in the home. This he illustrates by citing Commonwealth of MA v. Rebecca Shaeffer, compared to a NE case in which roommates fought and the individual successfully invoked Castle Doctrine rights despite his attacker’s residency in the home.
Next, Ayoob analyzes Stand Your Ground (SYG) law, attributing the foundational concepts from English common law’s principle known as “Homicide se Defendendo” meaning that pursuing someone who is trying to run away from a fight and pressing the conflict with them was frowned upon. Nowadays, with Stand Your Ground bandied casually about by both pro self-defense forces and anti-defense activists, the entire concept has become horribly misunderstood. “There has never been a state in this country that has ever required you to retreat unless that retreat could be accomplished in complete safety to ones’ self and others,” he emphasizes.
Ayoob expresses appreciation for legislation, exemplified by FL and TX, attempting to clarify the goal of SYG law: an individual attacked where he or she has a right to be, need not retreat—period. Practically, the rules of engagement did not change, Ayoob explains, as armed citizens are more likely to attempt to avoid being involved in a shooting unless the danger is unavoidable. In the aftermath, however, the court can no longer require you to prove why you couldn’t “try to crawl out a window or outrun a bullet.” Still, the provisions are quite different state-to-state, Ayoob continues, and he warns listeners to check state law to assure understanding. He concludes this segment with a brief discussion of how SYG laws influence civil liability, citing FL and TX provisions, and the terms he explains give keys for the listener to research his or her own state law.
Having covered the foundational knowledge plus hot-button issues of Castle Doctrine and Stand Your Ground, Ayoob moves on to persistent myths about use of deadly force in self defense. Acting upon bad advice to move the body of an assailant you shot results in altering evidence, and can lead to perjury, and other crimes that change a purely self-defense action into multiple offenses, he accounts. Altering evidence can be construed as an indication of prior planning of a crime, and if you fall into the old myth to change the shooting scene, you will be “felony stupid,” he concludes.
Leaving the scene of a shooting without calling law enforcement is the next myth debunked. Doing so will be seen as “consciousness of guilty,” Ayoob explains because society expects that you will remain on the scene and give authorities a full account of what transpired. Only continued deadly danger justifies leaving the scene, he adds. Even then, he advises shouting, “Call the police!” to inform witnesses and attempting to telephone 911 even in a poor service area so the phone’s log shows that you tried to summon help to override any mistaken conclusions that you ran away to hide your guilt.
A persistent hot-button topic is the issue of refusing to give responding officers even limited information after a self-defense shooting. Expressing his respectful disagreement, Ayoob explains that over the decades he has seen this practice “get a whole lot of people into more trouble than it got them out of.” Bolstering his opinion on this contentious topic, he further comments that the advice comes from attorneys who customarily defend people who are guilty of that of which they are charged or at least a less serious charge. “If most of your clients are guilty as charged, what possibly could they say to the police that could help them?” he asks rhetorically. “So, of course, the advice of the criminal defense bar is ‘say nothing.’ When you, the innocent person who fired in self defense, follow the advice of essentially a guy whose whole experience is defending criminals, you may be going down the wrong path…if you take a guilty man’s lawyer’s advice and you act as a guilty man would act you are going to end up with a guilty man’s verdict,” he concludes. He later asserts that most of the defense bar does not have experience defending self-defense shootings, but suggests that armed citizens begin their search for a suitable attorney by identifying lawyers who defend police after a shooting. Ayoob also gives a shout-out to the Network, explaining Network membership benefits.
As the lecture continues, Ayoob defines and gives details about his five-point post-incident check list that is also part of his post-shooting aftermath lecture included in the Network’s member education package.
You will want to listen carefully to his full explanations, but the bullet points include–
- State the active dynamic
- State that you will sign the complaint
- Point out the evidence
- Point out the witnesses
- Say, “Officer you will have my full cooperation on any other questions after I have spoken with counsel.”
Other post-incident issues include whether to render medical aid to the assailant, how to secure your gun after the shooting, how to respond to questions after a shooting, and giving testimony in court. Of the latter, Ayoob says, “When you have done the right thing, the key element is going to be why did you do it? It goes to what the courts call Mens Rea, Latin for ‘the guilty mind.’ …It is going to be key to show the jury what was in your mind, what was the mind-set of the defendant? When the poison is Mens Rea the antidote is the mind set of the defendant. Your lawyer can’t get that across to the jury for you. There is only one person who can and that is going to be you.”
Deadly Force FAQ was a great review and would also serve well as an introductory teaser to get fellow gun owners more interested in the legal aftermath of using their firearms. Its brevity is a great selling point, because whether reviewing or starting to learn these issues, the 53-minute compilation of the most often asked questions about use of force in self defense is long enough to pack a lot of information into a short time and short enough that anyone can make time to view it.
Click here to return to August 2015 Journal to read more.