The Lethal Force Triad: Ability, Opportunity and Jeopardy

by Drew Beatty

Use of deadly force is determined to be justifiable or not in the eyes of the courts and/or a jury. Of the many factors that come into play regarding use of force, the determination whether the use of force was justified or not, depends on the defendant demonstrating that three criteria were present in the incident: Ability, Opportunity and Jeopardy, or AOJ.

For a more detailed discussion and practical examples of the AOJ principles, watch this seminar on Lethal Force and The Law by Second Call Defense Founder Sean Maloney. Although the AOJ discussion begins at the 39:00 mark, the entire video is important for any firearms owner to watch. There are many books available on this subject as well.

It is important to understand that the justification of self-defense will be analyzed under the Reasonable Person Standard. This standard is described by Sean Maloney in his seminar as "what would a reasonable, prudent person have done in the same situation knowing what the defendant knew." The presence of Ability, Opportunity and Jeopardy will be analyzed from this standard.

Ability: Ability is most commonly associated with some kind of weapon, whether hands and feet, gun, knife, ink pen or a bag of frozen squirrels (watch Sean Maloney's seminar video above for more on this). In order for use of force to be justifiable under the law, your attacker must have the power — or ability — to cause serious bodily injury or death. He or she must be strong enough and have the capability to do you harm to a level that would justify a deadly force response.

Courts also take into consideration the concept of disparity of force. A large muscular person can have a force advantage over a smaller, less athletic person. A man can have a force advantage over a woman due to size and strength differences. A healthy person can have a physical advantage over a disabled person. A group of attackers can have a force advantage over an individual. Disparity of force can also change while a deadly force encounter is occurring if an injury sustained during the incident renders a defendant less capable of protecting him or herself.

Opportunity: Opportunity is the second component of AOJ that must be demonstrated to a jury to justify the use of deadly force. The person with the ability to attack you with lethal force must also have the opportunity to do so, and do so immediately. Distance or proximity to you is the most important factor regarding opportunity.

A man threatening to kill you with a knife on the other side of a long, high chain link fence may be demonstrating the desire and ability to inflict lethal harm, but does not have the opportunity to do so. A man 200 yards away with a scoped rifle, though far away, does have an opportunity to act with deadly intent. A person banging menacingly on your apartment door shouting threats does not have opportunity. As soon as the door is breached, he does.

Jeopardy: The third component in the AOJ triad is jeopardy. In order to fulfill the jeopardy criteria, you must demonstrate that the attacker clearly indicated that he was going to carry out an attack. Jeopardy speaks to the attacker's intent. This can be either through words such as a direct threat to do harm, or actions, such as moving toward you in a threatening manner, or both. Like opportunity, jeopardy must also be immediate to justify a lethal response, and a defendant must demonstrate that he or she acted in a manner consistent with the Reasonable Person Standard.

It is also important to note that the jeopardy component can change in an instant. If the threat ceases the attack, jeopardy is no longer present.

Preclusion: One additional factor that is often combined with AOJ is preclusion. Preclusion speaks to the unavoidability of your use of deadly force, again analyzed from the Reasonable Person Standard. You must demonstrate that as a reasonable person you saw no way to avoid having to employ deadly force to counter the attack on you, such as running away or employing some lesser level of force other than lethal force.

Preclusion requirements can vary by certain legal jurisdictions in the US. However, applying the Reasonable Person Standard, if you could have avoided using lethal force, isn't it common sense that you would have?

Justifiable lethal force used in self-defense is a legal construct. It is important to understand the AOJ triad and how that relates to the use of lethal force. It is just as important to have a team like Second Call Defense on your side to defend you if you are the one who was forced to defend your life from an attack.

Drew Beatty is a 50 year old husband and father, and a lifetime resident of the great state of Colorado. He is an NRA Life-Member, and a long-time firearms enthusiast, as well as a strong advocate for The Second Amendment.