Misusing The FBI's Justifiable Homicide Statistics

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I wasn't able to talk American Rifleman into publishing this one, but I think our activists will want to know about it. The print version has some pie charts to go with the tables, but those don't convert to ASCII easily. :-)

Misusing The FBI's Justifiable Homicide Statistics

Gun control proponents like to quote FBI statistics about the number of civilian justifiable homicides done with guns each year. The number is usually between 300 and 400 -- which sounds pretty small, relative to the number of murders committed with guns each year. Gun control advocates claim that because the number of civilian justifiable homicides is so small, guns are not useful for defense.

Gun control advocates may use some variation of these numbers, such as the number of civilian justifiable homicides there were with handguns, or how many justifiable homicides were done with guns by women. Make sure that you find out from where they get their number of justifiable homicides. If they get the numbers from the FBI's Uniform Crime Reports, explain that "justifiable homicide" to the FBI has a meaning a bit different from what it means when the rest of us use that same phrase -- and even by the FBI's own very technical definition, the FBI dramatically undercounts justifiable homicides.

"Justifiable Homicides" Aren't What You Think

"Justifiable homicide" is a term with slightly different meanings in different jurisdictions. There is a set of shared definitions, however. A justifiable homicide is an event where one person kills another person to prevent a felony, and the law considers it legally acceptable. Everywhere in the United States, if you use deadly force to protect yourself or someone else from death or great bodily harm, you are within the law. Increasingly, many states are updating their justifiable homicide statutes to presume that if someone breaks into your home, that they intend you great bodily harm, and therefore you are justified in shooting someone who breaks into your home.[1]

There are some special exceptions. If you provoked a fight with someone, refused to back down from the fight, and then killed the person, you are going to have a hard time getting the courts to call it "justifiable homicide."[2] In a few states, you must back away from an attacker as long as you can do so -- even if it means leaving your own home.

In some states, especially in the West, justifiable homicide can include killing to suppress a riot, prevent arson of an occupied building, or to prevent a fleeing felon from escaping.[3] The courts, however, tend to take a very dim view of private citizens "playing policeman," and while the statutes in some states clearly allow civilians to use deadly force to stop a fleeing felon, you would be foolish to use deadly force unless you saw the person commit a murder or rape. Even police officers are now severely restricted from shooting a fleeing felony suspect because of the U. S. Supreme Court decision Tennessee v. Garner (1985).

Excusable Homicide

There is another category of killing, called "excusable homicide." California's law is like that of many other states, and includes two categories of excusable homicide. The first category is homicides "committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent."[4] This is the case where someone does everything right to go shooting, and someone else wanders into the middle of the range and gets shot. In other words, it's an accident.

But the second category of excusable homicide is so similar to justifiable homicide that you may not immediately see the difference: "When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual way."[5] If someone ran up to you on the street, knocked you to the ground, and you pulled out a gun and shot them, this would be an excusable homicide. Why isn't it a justifiable homicide? Because you weren't in danger of death or great bodily harm. On the other hand, excusable homicide laws recognize that under the circumstances of "sudden combat" you don't have time to make that subtle distinction.

Civilian Legal Defensive Homicides

Gun control advocates often point out that civilian justifiable homicides with guns are only 1.4% of all murders, and conclude, therefore, guns are not an effective method of self-defense. It is certainly true that the FBI's Uniform Crime Reports only showed 308 civilian justifiable homicides with guns in 1992.[6] But there is evidence that these figures greatly understate the total number of cases in which a civilian shoots and kills a criminal. If you want to know how many civilians kill criminals each year, you need to look at not only justifiable homicides, but also the "sudden combat" excusable homicides. Let's call this combination of civilian justifiable homicides and the "sudden combat" excusable homicides "civilian legal defensive homicides" (CLDHs).

One reason for underreporting is that the FBI makes the distinction between "justifiable" and "excusable" homicides. The distinction is very subtle -- but the police record these distinctions, and the FBI only totals the justifiable homicides, not the excusable homicides.[7] Another problem is that police report CLDHs less carefully than murders.

There is no data available for the United States as a whole that tells us the yearly number of CLDHs. But there have been several studies of different cities and counties that tell us how many CLDHs there are, relative to the number of murders and manslaughters. The noted criminologist Gary Kleck has concluded, based on these studies, that the number of CLDHs with guns per year is typically 7.1% to 12.9% of the murder rate (at least five times the FBI's "justifiable homicide with a gun" figures).[8]

"Seven Deadly Days" & CLDHs

There is another problem with the FBI's figures for justifiable homicides: it significantly understates CLDHs, and significantly overstates murders. If the police investigate a homicide and ask the district attorney to charge someone with murder or manslaughter, that is reported as a murder or manslaughter to the Uniform Crime Reports program. But district attorneys often investigate a case, find evidence that the killing was indeed, a justifiable or excusable homicide, and then drop the charges.

Some of these murder charges are found to be justifiable or excusable homicide at trial, when it becomes apparent that the killing was done in self-defense. This is very often the case in spousal abuse situations where a woman defends herself or her kids from a current or estranged husband.[9] If a murder turns into a CLDH after the initial report, there is a strong possibility that this change won't make it into the Uniform Crime Reports data.

How do we find out how many such cases there are? We have an especially interesting source of information, because it was originally produced as a piece of antigun propaganda. In 1989, Time magazine ran an article called "Death by Gun." It included photographs and information about every person killed by a gun in one week in the United States.

The week was May 1-7, 1989. Was this a typical week for gun deaths in the U. S.? Reasonably so. There were 464 gun deaths reported in the article. Of these, 216 were suicides, 14 were initially reported as CLDHs, 13 were police justifiable homicides, and 22 were accidents.[10] This leaves 199 murders.

To scale up the May 1-7 gun deaths to determine yearly rates for the United States, we can't just multiply by 52 weeks per year. Murder rates peak in the summer months; May 1989, had 7.8% of 1989's murders.[11] To scale up May 1-7 gun deaths to an annual rate, we multiply by 100.0/7.8 (May's murder percentage), and then multiply by 30/7 (the fraction of May days that included May 1-7). This gives us the following results (remembering that the "per year" figures on the last line are extrapolations):

Seven Deadly Days total   gun suicides  CLDHs  police  accidents murders
initial report    464         216          14     13         22     199
initial report % 100.00%     46.55%      3.02%  2.80%      4.74%  42.89%
per year          25,495   11,868         769    714      1,209  10,934

Let's compare the numbers we extrapolated from the Time article with the figures for the FBI's figures for the whole year 1989. The FBI reported 11,832 gun murders, 236 civilian justifiable homicides, and 360 police justifiable homicides in 1989.[12]

That the FBI's 1989 figures for gun murders, civilian justifiable homicides, and police justifiable homicides don't match our extrapolations isn't very surprising. Only about half of all police justifiable homicides are actually reported to the FBI;[13] the data above fits well with this fact. The 769 CLDHs is far higher than the FBI's figure for civilian justifiable homicides, but we've already discussed why the FBI's numbers are too low.

We talked a few paragraphs back about Professor Kleck's estimate that CLDHs with guns should be 7.1% to 12.9% of the total murder rate. For 1989, that would be between 1,346 and 2,445 gun CLDHs -- not 769.[14] Remember that the Time article, like the FBI's reporting, showed the number of civilian defensive uses initially reported. A year later,

Time followed up on the murder cases, to see how the courts handled them. Instead of 14 CLDHs, now there were 28 -- 14 of the murders reported in "Death by Gun" were now found to be justifiable homicides.

Seven Deadly Days total   gun suicides  CLDHs  police  accidents murders
one year later    464         216         28     13     22          185
one year later % 100.00%     46.55%     6.03%  2.80%  4.74%       39.87%
per year          25,495    11,868     1,538    714  1,209       10,165

This number of CLDHs (1538) is at the low end of the range that Professor Kleck's estimates would give. However, at least 43 murder cases had still not gone to trial,15] and it was still possible that some of these would be found "justifiable." It does seem unlikely, however, that most of these cases still awaiting trial one year later would be found to be justifiable or excusable homicides.

Our extrapolated CLDH count for 1989 is at the low end of Kleck's estimates. The most likely explanation is that Kleck based his estimates on studies conducted in urban counties. It is logical to expect in urban counties, where crime rates are highest, that there would be more CLDHs, even relative to the overall population.

The conclusion we can reach from this exercise in statistical analysis is that not only do the FBI's statistics understate CLDHs, but they overstate murders committed with guns, by perhaps as much 3%. Unfortunately, because no annual totals are kept of CLDHs -- and no adjustments are made to reflect murders that are later found to be legal homicides -- it calls into question the accuracy of the murder statistics published in the FBI's Uniform Crime Reports.

Thus, when someone cites the FBI's statistics on justifiable homicides, be aware that there is strong reason to believe that the FBI's figures, collected in an honest and consistent manner, consistently overstate the number of murders in America, and understate the number of civilians who use a gun in self-defense.


1 California Penal Code sec.198.5 is an example of such a statute.

2 California Penal Code sec.197 is one example.

3 California Penal Code sec.197 allows deadly force "to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace." The courts (at least in California) have narrowed the section about apprehending fleeing felons to just the crimes that were felonies under English common law (e.g., murder, rape).

4 California Penal Code sec.195.

5 California Penal Code sec.195.

6 FBI, Crime in the United States 1992, 22.

7 FBI, Crime in the United States 1992, 22.

8 Gary Kleck, Point Blank: Guns and Violence in America, (New York: Aldine de Gruyter, 1991), 111-114.

9 Kleck, 114.

10 "Seven Deadly Days", Time, July 17, 1989, 30-60.

11 FBI, Crime in the United States 1991, 14.

12 FBI, Crime in the United States 1992, 18, 22.

13 Kleck, 114.

14 FBI, Crime in the United States 1992, 18. There were 18,954 murders in 1989 from all causes.

15 "Death by Gun: One Year Later", Time, May 14, 1990, 30- 31.