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Want to win a fight? Avoid having it in the first place.


I'm sure by now that y'all have heard this old saw: "I'd rather be tried by twelve than carried by six." The meaning, of course, is that the speaker would rather risk facing a jury trial for using his firearm than be carried by six pallbearers to his grave. This tired phrase has been floating around in gun culture circles since forever and believing it has undoubtedly gotten at least a few shooters in very serious trouble.

Spend any length of time in the shooting world and you will hear some incredibly bad legal advice on the use of lethal force, always from someone who has no idea what they're talking about and lacks even the most basic credentials. Examples include:

  • "You can shoot anyone who so much as sticks one hand through the window. It doesn't matter whether he actually makes it inside."

  • "If you have to kill someone outside the house, just drag him inside and tell the police he was an intruder."

  • "I don't have to back down no matter where I am. The law says I can stand my ground. It's Castle Doctrine!"

  • "Of course you can shoot someone who's trying to steal your car out of the driveway! They used to hang horse thieves, you know. Same thing."

And so on. Not only do many gun owners completely misunderstand the concept of Castle Doctrine ("stand your ground" laws), but they also seem to believe we live in a spaghetti Western where summary executions for property crimes are legally acceptable. What many people fail to recognize is that just because you can do something doesn't mean you should. Just because you were, in theory, legally justified in shooting an attacker, doesn't mean a prosecutor, jury, and judge will see it that way.

Lethal force is actually pretty simple. As Greg Ellifritz beautifully explains in this article about the legal concept of preclusion, which you should read several times to be sure you fully understand it, a shooting is only justified if three elements are present: ability, opportunity, and jeopardy.

Ability means the attacker you shot had the ability to cause you grave bodily harm or death. A group of people surrounding one person has ability. A large man attacking a smaller person has ability. An armed person attacking an unarmed person has ability.

Opportunity means the attacker had the chance to hurt you really badly or kill you. A guy waving a baseball bat menacingly at you from two blocks away might have ability, but he doesn't have opportunity. A man standing on the front lawn of a house and screaming at his girlfriend that he's going to kill her, while she watches through an upstairs bedroom window, may have ability, but opportunity would be hard to argue unless he forcefully gained entry to the home.

Jeopardy means the intent to kill you is there. Someone walking by with a holstered pistol on their belt has both ability and opportunity, but you aren't in jeopardy unless they suddenly turn on you and draw. A person driving a car past you on the street while you're jogging has both ability and opportunity to turn you into street pizza, but you have no right to shoot them unless they swerve at you in a clearly menacing way.

All three elements--ability, opportunity, and jeopardy--must be reasonably present for your use of lethal force to hold up in a courtroom. And even then, your best bet is still to escape your attacker if you can. Remember: just because you can do something doesn't mean you should. Just because an act was lawful doesn't mean you won't face life-altering consequences for committing it. Would you rather have a scary story to tell about the time you almost had to use your gun on someone but managed to deescalate the situation, or a months- or even years-long jury trial that drains you financially, creates irreparable ruptures in your personal and professional life, and puts you in the media spotlight forever? And I haven't even mentioned the potential moral and spiritual ramifications of taking a human life. This is serious stuff here. Avoid it if you can.

When I meet someone who smugly tells me that they'd rather be tried by twelve than carried by six, I wonder if they've ever had to use their gun on another person. Unlike the military, there is no such thing as "collateral damage" in a street fight, and you will not be forgiven for stray bullets and innocent casualties. Unlike the police, you will not have the full weight of the state apparatus to help you in the aftermath or fund your defense.

As a solitary armed citizen, your choice to use your firearm will be judged harshly in the court of public opinion, and you will be vulnerable to all sorts of variables beyond your control, from a politically ambitious prosecutor looking to make an example out of you, to a jury full of wild cards who are mysteriously sympathetic to the criminal you shot and killed. Regardless of the outcome of the case, your life after a defensive shooting will change forever. If you can avoid the fight, avoid the fight. The only guaranteed wins are the fights we don't have.

Avoid being tried, avoid being carried, and stay safe out there!

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