Defense Everyman use of force: grey and not so grey areas. Aaron Cowan September 3, 2014 0 COMMENT Disclaimer: This is long because it has to be. I am not a lawyer. My legal experience is directly related to law enforcement, personal and professional experience. I also read these things called books. I have taken the time to learn because I teach, and I don’t think I would like prison especially if ignorance put me there. Self-defense is not black and white. The interactions that can lead to a violent encounter can be long conversations, chance encounters, crimes of opportunity or personal grudges. The fact is that any given self-defense situation is going to have so many possible variables that hard and fast rules are impossible to define. This may seem a bit counter-intuitive for a topic that encompasses a few million, even billion dollar industries. From instructors to books to DVDs to pepper spray and firearms (those specifically marketed for self-defense especially) we have a great deal of product and an equal supply of knowledge available. Both are intended to make the security minded effective in the event they have to defend their life or that of someone else. If that time comes, we all hope that the situation will present itself in a very clear and concise manner, i.e. a cliché lethal threat that leaves no room for questioning your decision to use force to defend yourself. Unfortunately, it may not be that simple. It probably will not be that simple. As increased video footage and media attention regarding shootings has shown us, self-defense situations can easily be ambiguous and open to a wide interpretation of “justification”. Even in the world of law enforcement, media attention and a lack of public understanding has seen increased scrutiny over what appear to me to very clear cases of justified uses of force (as well as those that aren’t). This media scrutiny and armchair chatter from people with little to no experience in self-defense training (or practical experience) has the side effect of causing some defense-minded people to question what they can and can’t do when faced with certain types of threats. In law enforcement, we have rules that govern the use of lethal force. These rules all stem from an awesome document called The Constitution; specifically case law from the Supreme Court. The most monumental of all those is the case of of Graham V Connor but other cases have also shaped LE use of force national guidelines (1). From Graham V Connor, each state adopted its own standards within their Police Officer Standards and Training program (or local equivalent) and so long as those guidelines are within the legal standards set by Graham V Connor(2), they are legal. From state standards each police department may write their own use of force policy and it, as with state standards, must be in line with the Constitution (and the state). Policies can be more restrictive, but cannot grant use-of-force rights not detailed by the courts. All of this legal layering provides for the most common sense approach to governing the use of deadly force by an authority and some of the most publicly misunderstood rights of an officer using force. Obviously if law enforcement is second guessed for their decisions, a citizen is likely to be much more so. We have long trusted the Supreme Court to make impartial and objective decisions on law and in my opinion they have rarely let us down. When it comes to Graham V Connor, the Supreme Court established the most common sense legal guide for the use of force in existence. You may be asking why I am talking about cops when the article title clearly has nothing to do with cops. Well, in order to best address ambiguities regarding citizen self-defense we have to first acknowledge a serious problem as citizens. There is no Supreme Court case guiding the states self-defense statutes like there is for law enforcement. The citizen’s legal definition of self-defense wasn’t established by the Supreme Court until 1973 in United States V. Peterson. That case decreed that the use of lethal force is legal in response to “An affirmative, unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences.” Each state, as with Graham V Connor, codified or replaced many existing state guidelines on self-defense in light of the decision, though many states have established “duty to retreat(3) ” clauses which are not addressed in the federal decision. These state specific guidelines complicate what is already a legally ambiguous subject for the citizen, often because of the lack of readily available legal training for interested citizenry. Some states require a rudimentary knowledge of state law for CCW applicants and some require none. As a law enforcement officer I have been through hundreds of hours of constitutional law training alone, with much of that dedicated to the academic understanding behind using force and lethal force. What all that has taught me is that common sense is the best barometer for academic understanding and objective fear or fear of injury the best for physical understanding. What it has also taught me is that barring some exceptions (4) there is little reason for the laws governing use of force for a citizen and the use of force for a police officer to be different. Of course the laws are somewhat different, and there’s little chance in changing that. However what Graham V Connor gave the law enforcement officer is a gift that can readily be applied to the citizen in a self-defense situation; “Objective Reasonableness.” Objective Reasonableness is an imperfect guide for deciding to use force in an encounter. It is imperfect on purpose. To require the use of specific circumstances or standards for force each and every time would require such a complex standard that it would be vastly convoluted and easily abused. Instead, the courts allowed for the possibility that many things could not ever be readily known or predicted, particularly in the sometimes split second available to make a use of force decision. Objective Reasonableness allows for the use of lethal force if you objectively feel that by not using force you will suffer death or grievous personal injury. This standard allows for all facts and circumstances as you knew them at the time to factor into your decision to use force. Also, it does not require that your attacker be armed with a weapon, nor have already injured you. When faced with an attacker with a gun, the decision to use force is clear. When faced with an attacker with a knife or a bat, the decision to use force is clear (though less so). When the attacker is unarmed the decision to use force becomes needlessly ambiguous. This is the grey area of self-defense; perhaps it’s only grey because it hasn’t been adequately explained or explored and quite frankly if you have had formal self-defense training and this wasn’t discussed, your instructor failed you. Let’s look at some basics elements that must be met for the use of force to be reasonable: Objectively perceive a threat to person or third party. Someone has threatened you in some way, or threatened a third party. The threat does not have to be verbal, but it does have to be unambiguous in nature to a degree that it can be articulated (more on that later). The threat makes you believe that there is a risk of death or serious personal injury. The threatening party possesses the means to carry out the attack by their presence (solidified by presence of a weapon but not required) or is already attacking. For simplicity, an in-person threat that is not in any way hindered from acting violently. A threat of violence that may occur is not reason enough to use force unless that threat is conditional and realistic to the situation (give me your wallet or I will stab you). Violence already in progress that leads you to believe you will suffer death or grievous personal injury. Additional exceptions and conditions exist for self-defense and defense of property but vary by state (5). For all intents and purposes, that’s it as far as United States V. Peterson is concerned. You will notice in your personal research (which you should be doing at some point) that there is rarely, if ever, a mention of weapons being required for self-defense to be used. The reason for this is pretty simple; people can and frequently do visit extreme lethal force on other people with their bare hands. It happens all the time. The courts understand that it’s entirely possible for an unarmed attacker to use lethal force through strikes and kicks, even if the media has some sort of misunderstood notion that just because you have a gun you shouldn’t be shooting unarmed people. This may make some people uncomfortable, or maybe add confusion to the topic so let’s go through the most common threats one by one. When should you use lethal force against a person armed with a firearm? As soon as possible. If it is clear they mean you harm through words or actions and you objectively fear death or great personal injury, force must be used to preserve life. Verbal warnings can be given though should not be relied upon. When should you use lethal force against a person armed with a knife/bat/club/pool cue? As soon as possible. If it is clear they mean you harm through words or actions and are within a reasonable distance to carry out that threat and you fear death or great personal injury, force must be used to preserve life. Verbal warnings can be given but should not be relied upon. When should you use lethal force against an unarmed person? In the event that a disparity of force is present and you objectively fear death or great personal injury or have suffered an injury and your threat is within a reasonable distance to carry out that threat, force must be used to preserve life. Verbal warnings can be given but should not be relied upon. Having less lethal means of defend yourself (such as pepper spray) is wise, but should not be a consideration if facing lethal force from an attacking person. Again, these are not bright line rules. Rather they are rather basic examples. Many factors go into determining if a use of force is justified. Not every factor has to be met, however each factor is weighed and becomes the totality of the circumstances that courts look at to determine the legality of a use of lethal force. Do you have a legal right to use force? Was your use of force defensive in nature? Was it an immediate response to a threat? Were the conditions on your use of force present at the exact moment force was used? Just because you gain the right to use lethal force does not mean you retain it indefinitely. In nearly all cases it must be exercised in response to an imminent or continuing threat. Were you a reluctant participant? Did you engage in a confrontation that otherwise could have been avoided? Did you cause or exacerbate the problem? As stated in United States V Peterson “One cannot support a claim of self-defense by a self-generated necessity to kill.” Was retreat possible? Some states require retreat before force can be used if possible (know your state law) in many situations even if not legally required it may be asked (see above). Was retreat reasonable? Was there a disparity of force? When using lethal force against an unarmed threat, this is a major factor: size, age, overwhelming strength, overwhelming numbers (multiple attackers), significant position of disadvantage and existing or suffered injuries factor in. If you are beaten to the point of unconsciousness, a reasonable person would assume that death may result and lethal force can be used to protect life. Was your use of force reasonable? Articulation is simply providing facts that would lead a reasonable person to make the same decision you made. It is not providing conclusions (e.g. He was aggressive and violent). Both “Aggressive” and “Violent” are conclusions; whereas articulation simply provides a description of a threat’s physical actions that would lead a reasonable person to believe the person was aggressive and violent (e.g. He struck me in the head and then pushed me to the ground, cocking back his leg as if to kick me). The problem with examples Sometimes an example leads to a logical conclusion; if I am asked in a class what would you do if you were confronted by a man with a gun tucked in has pants demanding your car keys? My answer would be “shoot him about the face and chest until he is no longer a threat” 9 out of 10 times. I say 9 out of 10 because situations rarely just happen. Time and events lead up to confrontations and geography and reasons for being places usually factor in. What time of day is it? Why am I in this place where I am confronted? What is the person wearing? Is his body language and tone consistent with the threat? Do I have any means of escape or placing myself in a position of advantage? If some of these questions seem silly considering what appears to be an obvious threat, consider a less obvious example that could lead to the same place. What would you do if you were walking to your car from a restaurant and two guys come out of an alley and demand money? Both this and the above example include an aggressive individual(s); however in this example the threat may be much more ambiguous without additional facts: What is their tone of voice? Do I believe they are begging or attempting to intimidate? Can I simply walk away? Can I issue a verbal warning? See, in any given example you can add or subtract enough facts to make a situation a justified or unjustified use of lethal force. Examples are helpful, don’t get me wrong but they need to be understood in context of what their point is. I cannot offer an example for every situation where lethal force would be justified, it simply isn’t possible. I can cover a lot of them but there are far too many unimagined situations to try and box the justification in. Rather than considering a situational example, it’s far more helpful to understand the rules and apply them to any situation you encounter. Self-defense, as much as we want it to be, simply isn’t and never will be black and white. Can I use lethal force against an unarmed person? Absolutely, but certain conditions have to exist to make that reasonable. The problem with distances Get any idea of a set distance needed to use force out of your heard right now. The “21 foot rule” is not a rule, it’s an example from a specific set of circumstances (remember what I said the problem with examples was?). Distance is not so important as proximity and movement. A man already close to me and moving towards me with a knife is going to force me to make some quick decisions. I can issue verbal warning, but how many? I can retreat, but then what? If I simply start moving backwards is there some magic distance I can cover that will make him stop advancing? The fact is, we have to make safe assumptions based on someone’s behavior. If retreat isn’t feasible or not possible in a short period of time, how close do I let someone get before I use force? The truth is I can offer my personal standards, but each person is going to have a different response to the same sort or threat based on who we are as a person (our experience, occupation, age, gender, physical condition, etc. Yes, this matters). I have seen it time and time again running Simunition courses; I will have 10 students, most from very different backgrounds (from cops to carpet cleaners, zoo keepers to audio technicians, psychiatrists to electricians) run through the same “man with a knife” scenario and I will get 10 different reactions. Sometimes I see my LE guys go to the gun first, sometimes they let the bad guy get the closest. This may surprise some but it’s a fact of life, “cop” is their profession, it’s a lot of who they are but it isn’t all of who they are. I may have (and have had) a student in the class who has never been LE or military but grew up in a bad neighborhood and was not a stranger to violence. I can expect a certain kind of response from him based on who he is, not necessarily what he does for a living. Distance is part of the totality of the circumstances, but alone cannot be a determining factor when facing an imminent threat. Stopping the threat How much force should be used if the use of force is reasonable? The answer is simple; the maximum amount of reasonable force it takes to stop the threat. What this means is that if a man breaks out my window at a stop light and attempts to strangle me with my seatbelt and he doesn’t release the seatbelt until I’ve shot him five times, that’s how much force was reasonable. I have no way of knowing if four shots would have worked because I didn’t recognize that he had stopped until I had fired five. If I am knocked to the ground by a group of men who begin kicking me in the chest, legs, head and arms and I shoot one of them in the thigh; the others scatter and the wounded man raises his hands in surrender, then I have exercised the reasonable force needed to stop the threat. If this same man then attempts to strip my weapon from my hands with what I assume is the intention of using it against me, am I not once again justified in the use of lethal force? If I am held at gun point leaving a theater and manage to produce my own weapon and shoot my attacker, who falls to the ground but continues to fight, am I justified in shooting him, even if he’s on the ground? The fact is I am justified in the use of lethal force so long as the threat exists and not a second longer, no matter the physical specifics. There is no magic number of rounds, be it 2 or 12, it takes as many as it takes and even a cursory look into ballistic trauma provides ample evidence of there being no reliable way to predict incapacitation outside of very specific shot placement. Factual understanding and realistic expectations The number of rounds it takes to stop an attacker is how many need to be fired for the threat to cease. Thanks to movies, video games, gun store gossip and internet pontification, this fact seems to be lost on people who spend a good deal of time knowing all there is to know about the awesome [insert gun model here] chambered in the venerable [insert caliber here] but know less than nothing (in some cases a lack of knowledge that should rip a hole in conscious reality) about human anatomy and how people react (or don’t) when shot. We may have seen a few examples with our own eyes of the massive shooty-ness of the [insert caliber here]’s “stopping power” while simultaneously failing to realize that we have only seen a few examples. Rule number one; don’t rely on someone else’s situation or performance to judge your own. Knowing where to put the bullets is important, it is the prime directive of shooting people. Since we don’t live in the dark ages, anatomy information is more than easy to come by, the learning is up to you. The fallacy of chance I blame media for this, as well as a formal education that attempts to convince people everyone is good at heart. Some people deserve to be shot. They earn that honor by their dickish and felonious behavior. Armed or unarmed, I am not required to give someone a chance once they have demonstrated a will and ability to kill me. Since there is absolutely no way to know what another human beings intentions are, any assumptions that lead me to giving someone a chance must be based on their actions/inaction, not on what I feel like I want them to do. If I am comfortable issuing a verbal command such as “drop the knife” and they don’t, at what point should I give up on verbal commands? If they continue to advance with that knife even after I order them not to, at what point does their behavior necessitate force? They have every chance in the world not to behave in a way that forces me to use violence against them; once their behavior warrants force, armed or unarmed. I will not endanger my life or that of someone else in hopes that continued verbal warnings or literal back pedaling will magically make them rethink their life choices. A line has to be drawn at some point. Articulation It all comes down to the ability to communicate your situation and feelings at the exact moment force was used. Every relevant factor, even if it appears inconsequential on its own, factors into the larger picture and aids any investigation in finding that force was necessary. Telling the story is describing what happened and allowing others to draw conclusions instead of taking a linguistic shortcut by trying to point to them yourself. Factors in articulating a use force can (and often do) include: time of day, weather, physical condition (sustained on existing injuries) mental awareness (tired or took a blow to the head), vision (poor eye sight, low light, trauma/liquid obscuring vision) stamina (physical exhaustion from a fight), training, size, age, words said or heard (or threats against your person), ineffectiveness of warnings/threats, presence of weapons, appearance of weapons, your objective and subjective fear, and even more. An investigation (a good one, anyway) is going to weigh these facts and feelings against any and all witnesses, be they physical and electronic and use this to paint a clear as picture as possible of what happened. The more you are able to tell your story with detail, the better that picture will be. Common sense Self-defense is one of those topics that bring out some of the most egregious myths and misunderstandings. Suddenly everyone is a lawyer, expert and accomplished practitioner in “well I would have…” Every situation is going to be unique in small and large ways. Pre-planning and “what if-ing” are constructive, but only with a healthy dose of common sense. Most of the situations where lethal force can be used can also be avoided. Situational awareness and the ability to swallow ones pride are two great ways to avoid a situation that can devolve into bloodshed. When it is unavoidable, we must be able to exercise the maximum amount of violence possible in the shortest period of time. The best way to do that is to avoid any hesitation. We don’t know what we can and can’t do. Self-defense is more than putting holes in paper or ringing steel, its more than running scenarios in Sims gear. Knowing your legal limitations and how to articulate your decisions in such a way that anyone else would have done the same thing is the best common sense before the fight, and priceless for the aftermath. (1) Tennessee V garner, Scott V Harris, US V Dotson, Plakas v. Drinski to name a few. (2) Marbury V Madison, neither state nor branch of government may supersede the judicial branch if that law is repugnant to the constitution. (3) While this varies by state, a “duty to retreat” states that an individual must make all reasonable attempts to avoid the use of force by fleeing their attacker. Exceptions exist, for more information see the American Law Institutes Model Penal Code and your state’s specific law. (4) A “calculated use of force” in LE would be a police sniper using lethal force when there is no objective threat to themselves, at a distance considered outside of the common sense range of self-defense in a pre-emptive manner to protect life even if only the threat of violence from the bad guy existed. (5) Other important laws regarding citizen self-defense stem from Dustin v. Cowdry, Evans v. Hughes, Cross V. State, District of Columbia v. Heller and McDonald v. Chicago (among others). About the Author: Aaron Cowan is the Lead Instructor for Sage Dynamics, a reality-focused firearms and tactics training company that provides practical instruction for the civilian, police and military professional. Aaron served in the U.S. Army as an infantryman, as a private security contractor overseas, and as a police officer. In addition to patrol he worked as a SWAT team member, SWAT deputy team commander, SWAT sniper, sniper section leader, and in-service police training officer. Aaron holds multiple professional certifications including the National Rifle Association Law Enforcement Division’s instructor training program, California POST-certified academy instructor, Advanced Law Enforcement Rapid Response Training (ALERRT) Active Shooter Response Instructor and Simunitions Scenario Instructor, among others. He welcomes shooters of all backgrounds to his classes as long as they come with an open mind and a will to learn. Read more of Aaron’s writing on Breach-Bang-Clear and Monderno.