Teaching The Concept Of Serious Bodily Injury
TEACHING THE CONCEPT OF SERIOUS BODILY INJURY
A good defensive firearms trainer does more than teach his or her students how to shoot. Knowing when it is lawful and appropriate to shoot is every bit as important as knowing how to competently fire a gun at a person with full knowledge that it may end that person’s life. The moment that the student’s first bullet leaves the barrel is the start of a journey that will likely change his or her life forever. There is much gray area between a shooting that is clearly justified and one that is clearly not
It is commonly accepted that a concealed carrier may use deadly force in order to defend him or herself against another person if the same other has the opportunity, the ability, and the immediate intent to cause serious bodily injury or death to the concealed carrier or others unable to effectively defend themselves. Legal scholars may add that the presence or absence of castle doctrine and “stand your ground” laws can be a factor, but the objective of this article is to take a closer look at the definition of “serious bodily injury” and why it is important to discuss the same with students. There is a wide range of opinions as to what constitutes serious bodily injury, and an imperfect understanding may result in either an unjustified shooting or the student suffering a grievous injury because they failed to realize how much danger they actually were in.
I have the extremely good fortune of knowing CCW Safe National Trial Counsel Don West. Don is a board-certified criminal trial specialist with close to 40 years of experience as a successful criminal defense trial attorney who successfully defended George Zimmerman during a trial that received a great deal of national coverage. I contacted Don and asked him for his thoughts on the subject, and he kindly responded with the following: “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
Don went on to say that each state has its own definition of serious bodily injury that applies to its civil and criminal statutes. Not all of them specify exactly what serious bodily injury means but instead attempt to define it by saying what it does not mean and then leave it to the judge or the jury to determine if the actual injury or feared injury would qualify. There is likely to be case law based on specific scenarios where the courts ruled some types of injuries constitute serious bodily injury and others do not. There does not appear to be any hard and fast rules that apply to self-defense cases, which is especially true for an unarmed attacker. Cutting instruments or impact weapons like a baseball bat are commonly accepted as being deadly weapons (even though some political pundits and media reports are now claiming that a knife is not that dangerous), but an open or closed hand would not normally be seen as creating a substantial risk of death since under most circumstances the risk of serious injury or death is minimal. A blackened eye, split lip, or a laceration would typically not qualify as serious bodily injury, therefore the danger from getting punched would not typically justify the use of deadly response.
However, broken bones, impairment of an organ, severe damage to the eyes, and concussions leading to internal bleeding or brain damage would almost certainly constitute serious bodily injury. Complications include the fact that all of the above can be caused by an open hand or closed fist, so this can create an understandable dilemma for concealed carriers. Of course, what further complicates things is that one does not have to actually sustain the injury before using force. In addition, it is the perception of the force being used against the concealed carrier that dictates his or her response, and if the force used in response is disproportional to the force threatened then prosecution becomes likely. Since much of this is sorted out after the incident and based upon either the injury suffered or what the defender thought might happen, a prosecutor may reject the self-defense claim if the defender suffered something as minor as a split lip or blackened eye by claiming that deadly force was not justified because the attacker was not using force sufficient to cause serious bodily injury or death.
What does all of this mean to the concealed carrier? First, do not get into fist fights, also known as mutual combat. Second, avoid any type of heated interaction with another person in which mutual combat might ensue. Disengage as soon as possible. I have done exactly that before, and the only damage that I took was to my pride and it has since healed quite nicely. Concealed carriers need to know that a single punch can end their life. A clean shot to the chin or temple can render the concealed carrier unconscious on his or her feet. The number of persons either killed or brain damaged by falling and hitting their head on a concrete surface after being punched is unexpectedly high. Most of the persons that have been injured or killed in this manner were either sucker-punched or involved in mutual combat. A good way to mitigate this possibility is to stay aware, maintain distance beyond two arms-length from unknown contacts, issue commands if being encroached upon, know how to effectively cover the head so that a punch is unable to land solidly on the chin, jaw, temple, or back of the head, and last, but not least, not get into fist fights.
If someone punches me in the face and I am not wobbled and still standing, I have in all likelihood not been seriously injured. I am not justified in shooting that person because he may have broken my nose. On the other hand, if that same person attacks me and is both intent on and capable of knocking me out and I am unable to defend myself without using deadly force, then I personally believe that a deadly force response may be warranted. Again, I default to the four elements of self-defense: imminent intent to maim or kill, ability to maim or kill, and opportunity to maim and kill, and disengagement is not a possibility.
Naturally, at the end of the day there is probably no black or white answer. The circumstances found in each scenario will determine the most appropriate response. A good start might be telling students that if they are not in legitimate danger of being seriously injured then they are likely not justified in resorting to a handgun, but if attacked by an individual who is physically more powerful who obviously intends to seriously injure or kill them then the use of a defensive handgun may very well be justified. As always, the devil is the details.
I would like to thank Don West for taking the time to share his thoughts on this subject with me, and any errors or misstatements that I may have made are solely my fault. It is much easier to identify and address possible missteps that a concealed carrier with every intention of complying with the law at all times might take than it is to come up with a “one size fits all” solution.
Steve Moses has been a defensive firearms trainer for over 26 years and is a licensed Texas Personal Protection Officer with 7 years of experience performing as shift lead on a church security detail for a D/FW area metro-church. Steve is a co-owner and Director of Training for Palisade Training Group, LLC based in Dallas, Texas. Moses is a retired deputy constable and spent over 10 years on a multi-precinct Special Response Team. He owns multiple instructor certifications, including Rangemaster Advanced Handgun Instructor and Defensive Shotgun Instructor, Red Zone Knife Defense Instructor and Adaptive Striking Foundations Instructor, Modern Samurai Project Red Dot Sight Instructor, and State of Texas Personal Protection Officer Instructor. Steve holds a BJJ Brown Belt in Relson Gracie Jiu Jitsu. He is a content contributor for CCW Safe and writes weekly articles on various subjects of interest to concealed carriers. Moses shoots competitively and holds an IDPA Expert rating. Steve is an annual presenter at the Rangemaster Tactical Conference.