By Wesley Dickinson
Some people are saying that a Victim Protection Act or Castle Doctrine in Nebraska would make it easier for someone to kill another person and get off without being charged with murder. That claim is not only untrue, but it’s an outright lie.
Would you like to play a game? In the following scenarios, see if you can tell me whether a criminal court would find your use of deadly force justified when a person is:
Trying to steal your vehicle while you’re in it?
Trying to steal your parked vehicle?
Trying to steal your parked vehicle with your child in the backseat?
Pointing a gun at you and threatening to shoot you because of your gender or race?
Pointing a gun at you demanding your wallet?
Pointing a knife at you demanding your wallet?
Pointing a baseball bat at you demanding your wallet?
Pointing a knife at and threatening to harm your spouse?
Pointing a gun at and threatening to shoot your best friend?
Has his hand in his jacket pocket threatening to kill you?
Walking away, gun still in hand, after mugging you at gunpoint and bloodying your nose with a series of punches?
Those questions should be easy for you to answer. In order to use deadly force against another person, there must be an immediate and unavoidable danger of death or serious bodily harm to an innocent. Let’s consider Masaad Ayoob’s threat triangle of the three elements that must be present to justify the use of deadly force: Ability, Opportunity, and Jeopardy. Prosecutors look for all three elements to be present prior to charging the victim in a self defense case where deadly force is used against the attacker. Further, when all three elements are present, a reasonable person (i.e. a juror) would consider a victim to be in immediate and unavoidable danger, but if one piece is missing, the victim may have a difficult time convincing a jury that deadly force was justified. Let’s consider each element individually:
Ability means an attacker is capable of causing death or serious bodily harm. This can be through the use of a tool such as a gun, knife, or even a baseball bat, or it could be through a size disparity between a 250-lb man and 120-lb woman or elderly man in a wheelchair.
Opportunity means an attacker has the chance to cause death or serious bodily harm. Opportunity is frequently relative to the tool being used and the distance of the attacker from the victim. A barehanded thug would need to be much closer to a victim than an attacker armed with a crossbow.
Jeopardy is a bit more abstract than the other two elements because it deals with intent. An attacker must make it evident that their intent is to cause death or serious bodily harm. It can be verbal, such as a threat of beating you to death. But actions can also reveal intent, such as swinging a golf club at your head or firing a handgun at you but unintentionally missing.
If you remove any one of those elements, then deadly force is not justified and you could be on your way to a lengthy vacation with a new roommate named Bubba. Consider these scenarios where one element is missing and deadly force would certainly not be justified:
No Ability – A 5 year-old girl swinging her fists, beating on your legs while wailing that she is going to kill you for not buying her a candy bar. She has the Opportunity and Jeopardy boxes checked, but not the Ability.
No Opportunity – A 250-lb weightlifter calls you over the phone and explains he’s going to kill you and use your head as a soccer ball. While the gym rat certainly has satisfied the Ability and Jeopardy elements, you are not justified in driving over to his house and preemptively shooting him, because over the phone, he has no Opportunity.
No Jeopardy – While jogging on a trail in the park as the sun sets, you notice a handgun holstered on the hip of a female jogger approaching you from the opposite direction. With the firearm and her proximity, she certainly has the Ability and the Opportunity, but unless she makes any verbal or nonverbal threats, Jeopardy is not present.
Don’t believe lies that a Victim Protection Act will allow Nebraskans to shoot their neighbors. Deadly force must be justified and no legislative bill is going to change that. However, a Victim Protection Act would protect a victim from frivolous lawsuits by the attacker if a court finds the actions of the victim to be justified.