In each of the 50 United States, a person has the right to defend oneself from unlawful attack. Washington RCW 9A.16.010 (3) establishes that force against another is not unlawful “[w]henever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person.” In exercising such a right, one must respond with an appropriate level of force, and not exceed what is necessary to stop the attack. Though statutes involving use of force vary among states, the central concepts are consistent.

To illustrate two basic examples, consider a man who is engaged in no unlawful activity and is accosted by another of relatively equal size who begins to throw punches toward his head. The man attacked may respond, in kind, by throwing punches at the head of the attacker. If the one attacked gains the upper hand by knocking the attacker unconscious, he must then cease the application of force. If he persists in pummeling the attacker who is unconscious and defenseless, his use of force then crosses into the realm of criminality.

Likewise, if the attacked man pulls a pistol out from his belt and shoots the attacker, this level of force will exceed the force used by the attacker and once again, constitute an illegal use of force punishable by criminal statutes.

The highest level of force that can be used is lethal force, which is defined as any force that is likely to cause death or great bodily harm (GBH). Examples of GBH include injuries resulting in broken bones, significant lacerations, internal organ damage, dismemberment, or permanent disfigurement. If attacked with unlawful deadly force, a person may respond in kind with deadly force, though circumstances are often difficult to prove after the fact. The justifiability of homicide is established in RCW 9A.16.050.

Imminence of Harm

To be justified, use of deadly force must be made against an imminent threat. Harm that is not immediate, but that is delayed even by a slight period of time, will not allow the use of deadly force. An offender reaching for a gun in his waistband is an immediate threat, but one walking to a car 50 feet away to retrieve a gun is not an immediate threat.

Reasonableness of Perception of Harm

It is not necessary that one must have been in actual danger of death or GBH to justify the use of deadly force in self-defense. This concept has led to heated debates by those who are misinformed about so-called “stand your ground laws.” The following fact pattern will illustrate the standard of reasonableness that is necessary to justify the use of deadly force in self-defense.

A victim who is involved in no criminal activity is illegally accosted by a robber who presents a handgun, demands a wallet, and verbally threatens to kill the victim. The victim finds and seizes an opportunity to draw his own legally carried pistol, and uses it to stop the threat by shooting the robber, thereby causing the death of the robber. Subsequently, an investigation by police reveals that the robber’s gun was unloaded, and therefore incapable of producing death or GBH to the victim by virtue of the way it was used. In this case, the victim was under no threat of being killed by the handgun.

Despite this lack of jeopardy, the law recognizes the “reasonable ground to apprehend” a deadly threat as a justifiable reason to use deadly force in stopping the perceived deadly attack. Courts will recognize that the victim reasonably was induced to believe that he was under the threat of immediate gunshot, and does not fault him for the bad planning of the felonious attacker. In cases in which deadly force is used, the level of perception of a threat experienced by the victim must rise to the same certainty as the one in the above scenario in order to justify use of deadly force. If the alleged apprehension of threat experienced by one using deadly force in self-defense lacks the same reasonable quality, it will not rise to the level at which it will be recognized as a valid defense to criminal charges related to homicide.

Get Legal Help

If you or a loved one has been involved in a deadly encounter and used deadly force to survive, protect your rights. Charges can be brought at any time subsequent to the use of deadly force. Contact the criminal defense attorneys at The Nahajski Firm at (206) 621-0500 for a free and confidential initial consultation.