NCIS and Deadly Force

from pages 14 and 15 of PDF file
E2. ENCLOSURE 2
GUIDANCE ON USE OF DEADLY FORCE

E2.1.2. Deadly force is justified only under conditions of extreme necessity and when all three of the following circumstances are present:

E2.1.2.I. Lesser means have been exhausted, are unavailable, or cannot be reasonably employed;

E2.1.2.2. The risk of death or serious bodily harm to innocent persons is not significantly increased by use; and

E2.1.2.3. The purpose of its use is one or more of the following:

E2.1.2.3.1. Self-Defense and Defense of Others. When deadly force reasonably appears to be necessary against a hostile person(s) to protect law enforcement or security personnel who reasonablybelieve themselves or others to be in imminent danger of death or serious bodily harm by the hostile person(s).

E2.1.2.3.2. Assets Involving National Security. When deadly force reasonably appears necessary to prevent the actual theft or sabotage of assets vital to national security. DoD assets shall be specifically designated as "vital to national security" only when their loss, damage, or compromise would seriously jeopardize the fulfillment of a national defense mission. Examples include nuclear weapons; nuclear command, control, and communications facilities; and designated restricted areas containing strategic operational assets, sensitive codes, or special access programs.

E2.1.2.3.3. Assets Not Involving National Security But Inherently Dangerous To Others. When deadly force reasonably appears to be necessary to prevent the actual theft or sabotage of resources, such as operable weapons or ammunition, that are inherently dangerous to others; i.e., assets that, in the hands of an unauthorized individual, present a substantial potential danger of death or serious bodily harm to others. Examples include high-risk portable and lethal missiles, rockets, arms, ammunition, explosives, chemical agents, and special nuclear material.

E2.1.2.3.4. Serious Offenses Against Persons. When deadly force reasonably appears necessary to prevent the commission of a serious crime that involves imminent danger of death or serious bodily harm (for example, setting fire to an inhabited dwelling or sniping), including the defense of other persons, where deadly force is directed against the person threatening to commit the crime. Examples include murder, anned robbery, and aggravated assault.

E2.1.2.3.5. Protect Public Health or Safety. When deadly force reasonably appears to be necessary to prevent the destruction of public utilities or similar critical infrastructure vital to public health or safety, the damage to which, would create an imminent danger of death or serious bodily harm.

E2.1.2.3.6. Arrest or Apprehension. When deadly force reasonably appears to be necessary to arrest or apprehend a person who, there is probable cause to believe, has committed one of the serious offenses referred to in subparagraphs E2.1.2.3.2. through E2.1.2.3.5., above.

E2.1.2.3.7. Escape. When deadly force has been specifically authorized by the Heads of the DoD Components and reasonably appears to be necessary to prevent the escape of a prisoner, provided there is probable cause to believe that such person:

E2.1.2.3.7.l Has committed or attempted to commit one of the serious offenses referred to in subparagraphs E2.1.2.3 .2. through E2.1.2.3.5., above; and

E2.1.2.3.7.2 Would pose an imminent danger of death or serious bodily harm to law enforcement or security personnel or to any other person.

Also for my purposes in discussion below, from page 8 of the PDF File

3.6. Serious Bodily Harm. Does not include minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, tom members of the body, serious damage to the internal organs, and other life-threatening injuries.

1. Lesser means have been exhausted, are unavailable, or cannot be reasonably employed - YES
   
   I would say that Tony exhausted lesser means in regards to hand-to-hand combat and was on the losing end. Other shots to in an attempt to incapacitate Rivkin without killing would have been risky for several reasons. Tony was already injured and at this point, his aim may not have been reliable. Rivkin is highly trained and taking out one arm or leg may not have stopped him. A kill shot is easier to make than an incapacitate shot.


2. The risk of death or serious bodily harm to innocent persons is not significantly increased by use - YES
   
   Only Tony and Rivkin were in the apartment. Rivkin was not holding a hostage in the way like the situation where Gibbs shot through Lee to kill the bad guy. Unless he completely missed his shot and it went through a window and *somehow* managed to strike someone from the second (or whatever) floor... well... no one else was at risk if Tony used deadly force.


3. The purpose of its use is one or more of the following - I will indicate the ones I feel fit for a YES
   
   Self-Defense and Defense of Others. When deadly force reasonably appears to be necessary against a hostile person(s) to protect law enforcement or security personnel who reasonablybelieve themselves or others to be in imminent danger of death or serious bodily harm by the hostile person(s). - YES
   
   Tony already qualified for serious bodily harm from the fight with Rivkin. Refer to but does include fractured or dislocated bones from the section on what constitutes serious bodily harm. This was self-defense on Tony's part against a superior fighter.
   
   Escape. When deadly force has been specifically authorized by the Heads of the DoD Components and reasonably appears to be necessary to prevent the escape of a prisoner, provided there is probable cause to believe that such person:
   E2.1.2.3.7.2 Would pose an imminent danger of death or serious bodily harm to law enforcement or security personnel or to any other person. - YES
   
   We know by this point that Rivkin has killed more than one person on US soil. He has been asked to leave the US by federal agents. He essentially poses an imminent danger to person or persons unknown because of who he is and what he does. So yes, Tony would have this as a justifiable reason.
   
   That is two from that section and only one was required. And I think a strong argument could be made for several of the other items that falls under this section.