Do Shots In The Back Imply Excessive Force? by Lyn Bates
Shooting someone in the back conjures up the most awful, most illegal, most vigilante-like scenarios that using a gun can inspire. It bring to mind images of a homeowner shooting a burglar who is only trying to get away now that he knows the house he was targeting is occupied, or mental pictures of a woman shooting her would-be (or actual) rapist as he is running away.
As regular readers of this magazine know by now, you are justified in using lethal force only if you are in immediate and unavoidable danger of death or grave bodily harm. Someone running away can't be putting you in that kind of danger, can they? So, does that mean that anyone who shoots another person in the back is not justified in doing so, and is therefore guilty of murder? What if an attacker threatens with a gun, and a defender shoots multiple times, some of the shots entering the front of the attacker's body, and some entering the back? Does that mean that the defender used excessive force, continuing to shoot after the attacker, who had turned away, was no longer a threat?
These are some of the most interesting questions involved in defensive firearms use. Their answers seem so obvious at first that it can be hard for even knowledgeable gun owners to understand the dynamics of these situations. Even many police officers and prosecutors don't understand them, and thus may over react in the way they treat someone who defended himself or herself with a gun. Virtually all ordinary citizens have no understanding of this, and thus, serving as jurors, may come to the wrong conclusions.
Let's start our investigation of these questions by looking at a question that might seem to be completely unrelated. Should a defender plan to shoot just one shot, then reevaluate whether the threat is still present, then shoot one more shot, then reevaluate, and so on until the threat no longer exists? Or should a defender plan to shoot multiple shots, continuously, until the threat no longer exists?
The best modern police and civilian training says the latter: multiple shots. The reason has to do with the fact that it is virtually impossible, under the conditions of a handgun fight, to deliver a single shot that will stop the attacker. Greg Hamilton, of the Insights Training Center says it simply: "The most likely thing for anyone to do after they are shot is exactly what they were doing before they were shot. So, you have to be prepared to keep shooting until they stop."
Other people have tried to quantify this observation. Dennis Connor, in his excellent article "The Influence of Response Time and the Justification for the Use of Multiple Shot techniques", in the 25th issue of The Firearms Instructor (published by the International Association of Law Enforcement Firearms Instructors), claims that it takes about 1.2 seconds from recognition of a threat cue to deliver one shot, for a highly trained and practiced person. In 3 to 4 seconds, most shooters can fire a full 15 round magazine, even if they fire more slowly than shown in Figure 1. But the stopping power of handgun rounds is, arguably, not very good.
Figure 1. A high capacity magazine can easily be emptied in less than the time it takes for an assailant to cease his attack, even if he is wounded multiple times.
Conner concludes, "The difficulty in achieving instant incapacitation with handgun rounds validates the need and use of multiple shot techniques. Officers who fire one round and then evaluate the results are setting themselves up for failure."
Another expert source for information about how bullets affect people is the second edition of Vincent J. M. Di Maio's classic book Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques. (Do you watch CSI? This is the kind of book that Gil Grissom would have studied when he was in graduate school. It belongs on the bookshelf of every defensive firearms instructor.) Di Maio won't commit to any specific time period for potential activity after being shot, but his lengthy section on Physical Activity Following Gunshot Wounds includes the following gems, all supporting the fact that people who are shot may sustain a fatal wound (or wounds) and yet be able to engage in physical activity for a surprisingly long period of time:
"Experienced forensic pathologists, not uncommonly, encounter cases in which an individual, after incurring a fatal gunshot wound of the heart, is able to walk or run hundreds of yards and engage in strenuous physical activity prior to collapse and death."
"The limiting factor for consciousness is the oxygen supply to the brain. … [I]f no blood is pumped to the brain because of a massive gunshot wound of the heart, and individual can remain conscious and function for at least 10 seconds before collapsing."
"The rate of bleeding, the amount of blood loss, the nature of the injury, and the body's physiological response determines the time from injury to incapacitation and death. This can vary from seconds to hours."
So, will aiming for the head (actually, the brain inside) be a guaranteed way to stop someone faster, instead of aiming for the heart? No again, Di Maio says, "Just as in the case of gunshot wounds of the heart or major blood vessels, individuals can perform tasks or even survive gunshot wounds of the brain."
So, we have quite conclusive proof that hesitating between shots to reevaluate the situation is a recipe for losing the encounter, because the assailant, whether armed with a gun or a contact weapon, is likely to continue to be a threat for at least several seconds, and perhaps much longer, after your first shot is fired.
Now let's get back to those shots in the back.
Let's say that you are in a situation where you have good reason to believe that you may have to shoot very soon. Your gun is drawn, and your finger is safely along the side of the gun's frame, not on the trigger. Your attacker suddenly does something that lets you know you are under lethal attack, so you start to shoot, multiple times, rapidly, as you have been taught and have practiced. A fraction of a second after you start to shoot, your attacker starts to turn his body away from you, perhaps to try to run away. What is going to happen here?
To find out what is likely to happen, let's look at the work of another pair of authorities, Ernest J. Tobin and Martin I. Fackler, who published a seminal article called "Officer reaction-response time in firing a handgun" in the prestigious journal Wound Ballistics Review in 1977. Many subsequent works cite this one, including Di Maio.
Tobin and Fackler carefully measured the time needed for police officers to fire a handgun. The average time from signal to firing was 0.677 seconds starting with the trigger finger outside the trigger guard. They also carefully measured the time needed for a person to turn their body 180 degrees, that is, from facing forward to facing backward. That average time was 0.676 seconds.
Thus, Tobin and Fackler proved that if an attacker was facing a defending shooter, it was possible for the attacker to turn their body and end up facing away from the shooter in the time from when the shooter decides to fire and the gun discharges. See Figure 2 for an illustration of this. Figure 2 emphasizes just the end points, but of course, after you have started to shoot multiple shots, you must perceive and reevaluate constantly to determine whether the threat has ended.
Figure 2. An attacker who turns while being shot at may have the first few rounds enter the front of his body, and he last few enter the back of his body.
Even if the attacker decides to stop being a threat and turn away at exactly the same time that the defender decides react to the threat by shooting, the attacker may have time to turn completely around before the defender's bullet strikes. See Figure 3.
Figure 3. A defender who decides to shoot just as the attacker decides to turn around may still result in a shot into the back of the body.
Thus in these cases the defender can reasonably and honestly claim to have shot at a person who was facing them, yet have the autopsy reveal one or more gunshot entry wounds in the back!
In these experiments, the shooter didn't have to decide whether the threat was deadly or not, he only had to react to the sound of a buzzer. In real life, that decision process is very critical, and it takes time. Tobin and Fackler conclude, in their "Officer decision time in firing a handgun" paper, Wound Ballistics Review, Fall 2001, that decision time can vary tremendously depending on the complexity of the situation, but that for most practical purposes, it is reasonable to estimate half a second to perceive the situation and decide its threat level Another half second of reaction time is required to get the decision from the brain to the muscles and tendons controlling the trigger.
Thus it takes a total of about a full second to perceive a threat, realize it may be lethal, decide to react, and fire a gun that was already drawn. During that second, the attacker may be moving in ways that are relevant to the incident, but which haven't been perceived by the shooter yet.
As a gun owner, you should be familiar with this line of reasoning so that you can help to educate other gun owners and non-gun owners alike. As a defensive gun owner, you shouldn't be surprised if, after a potentially lethal encounter, your attacker is found with some shots "in the back" even though you know you only fired while the threat was facing you. As a potential juror, you should remember this in case it happens to someone else.
This article was reprinted from Women&Guns magazine, May-Jun, 2004, Copyright © 2004, Lyn Bates