We love to get deep into the weeds with the most unlikely scenarios. "Force" is putting your hands on somebody. The burden to justify putting your hands on somebody is a lot lower than the burden for shooting them. Theft, vandalism, trespassing, rarely justify shooting, but may justify "force". I've done so.
Force less than deadly force
- Thread starter Lohman446
- Start date
OldMarksman presented an interesting case study on Mr. Hickey (though I only read through as far as the hung jury). At least as the author presents it Mr. Hickey and his wife were attacked by three individuals in their own driveway. Mr. Hickey was being assaulted by all three of these individuals to the point of possibly (not a lot of medical evidence) sustaining a concussion before drawing his firearm.
The big discrepancy seems to be the placement of the fight - either in Mr. Hickey's driveway (the author is biased and presents statements that the physical evidence supported this side of the story) OR the middle of the street.
I originally started typing this thinking it really proved the counter argument - that OldMarskman was right and you better not use a firearm if presented with a fist fight. Mr. Hickey was engaged with three individuals (originally two females with the third (male) jumping in). There was a clear disparity of force.
The point of contention is WHERE the fight occurred. The prosecutor argued it occurred in the middle of the street. He argued that Mr. Hickey had effectively marched forward and engaged in a mutual confrontation while bringing a gun to a fist fight.
So I get the point that OldMarskman makes and it is right - it does not appear (at least in Arizona) that an attacker (or three) represent in themselves a threat of severe bodily harm. However if you enter the fight and it escalates are you likely to find yourself in the same position Mr. Hickey was in (who according to the article did everything right). If you stand your ground and fight back (or use pepper spray) and are forced to go for your gun as the fight gets out of hand are you, from a legal stand point, helping yourself?
My take-away: you are screwed virtually no matter what you do if you use deadly force and your attackers are not armed.
The big discrepancy seems to be the placement of the fight - either in Mr. Hickey's driveway (the author is biased and presents statements that the physical evidence supported this side of the story) OR the middle of the street.
I originally started typing this thinking it really proved the counter argument - that OldMarskman was right and you better not use a firearm if presented with a fist fight. Mr. Hickey was engaged with three individuals (originally two females with the third (male) jumping in). There was a clear disparity of force.
The point of contention is WHERE the fight occurred. The prosecutor argued it occurred in the middle of the street. He argued that Mr. Hickey had effectively marched forward and engaged in a mutual confrontation while bringing a gun to a fist fight.
So I get the point that OldMarskman makes and it is right - it does not appear (at least in Arizona) that an attacker (or three) represent in themselves a threat of severe bodily harm. However if you enter the fight and it escalates are you likely to find yourself in the same position Mr. Hickey was in (who according to the article did everything right). If you stand your ground and fight back (or use pepper spray) and are forced to go for your gun as the fight gets out of hand are you, from a legal stand point, helping yourself?
My take-away: you are screwed virtually no matter what you do if you use deadly force and your attackers are not armed.
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As a Professional Use of force trainer for the past (gulp
) 3 decades... Im very sure of it.
Without extenuating circs (mtpl attackers, disparity of force[male vs female or extreme size difference], some infirmity on your part, ect) you are going to have a hard time justifing using DEADLY force on someone that was trying to punch you
I know there will be responses like " Im 207 years old and if i get hit i might die". That would be one of those extenuating circimstances mentioned above.
As a basic use of force guideline... You cannot use deadly force against a fist.
) 3 decades... Im very sure of it. Without extenuating circs (mtpl attackers, disparity of force[male vs female or extreme size difference], some infirmity on your part, ect) you are going to have a hard time justifing using DEADLY force on someone that was trying to punch you
I know there will be responses like " Im 207 years old and if i get hit i might die". That would be one of those extenuating circimstances mentioned above.
As a basic use of force guideline... You cannot use deadly force against a fist.
This is where the "stand your ground laws" come into play. In states with a duty to retreat then you better do so.
In a general sense... Going towards the fight is not a good idea reguardless of the statutes. You must alway be "innocent" in the initial assault. Mutual combat negates your claim of self defense.
So, back to my earlier scenario at the gas station. Maybe you are returning to your car from inside and cannot SAFELY simply get into your car. Guy starts screaming at you..." You SOB!!! You cut me off and almost killed my kids!!! Im going to kick your Butt (pc for the Mods) and teach you a lesson"
Sure...try to deescalate the situation. Some good verbal judo. Back away.. Whatever. But the time comes when he is going to punch you if you wait any longer to respond.
Chose an option..
A. Shoot him with your lawfully carried pistol
B. Spray/Taz/whatever you have as a less lethat option
C. Get into a fist fight and maybe lose control of your pistol and get shot
I think i (and my Attny) can make a pretty good arguement why "B" was the best option at that moment
You have a problem then. Not all aggressive actions justify the use of deadly force. What is your plan if someone is finger jabbing you in the chest in a dispute? Or if someone grabs you from behind pinning your arms, or gets in your face spitting at you? The list goes on.
There are many cases where you may need to defend yourself where running away or drawing a gun are not options. Even a straight up punch in the face or multiple assailants may not be enough to justify deadly force.
OldMarksman
Staff
Not really. That was disputed, and that simply led to an issue of credibility.
Well, it depends on what they were doing and from what distance.
Whether the disparity of force justifies shooting is always up to the jury. In Hickey's case, none of the juries would agree that it was.
Complicated and fact-sensitive.
Pepper spray would not make things worse unless it was used to attack an innocent.
If you could avoid shooting and the evidence indicates you did not do so, you are in a heap of trouble.
And then there is the question of innocence. Who provoked it? Who actually started it? Did the one who provoked it attempt to withdraw? Would that make a difference in the jurisdiction at hand? Did the one who started it attempt to withdraw?
Read Branca's book. Everything that has come up so far in this discussion is covered quite well.
Some people may be surprised to learn that, if someone uses deadly force to defend against unlawful non-deadly force, the person using non-deadly force may then be justified in resorting to deadly force .
It presents some interesting thoughts. Hiking I have always carried a walking stick - I practiced enough with bo staffs decades ago in martial arts that I have some idea how they work. Interestingly my two year old daughter who often "hikes" with me in areas I am familiar carries one too. I always liked this because I figured it was quicker to engage at contact distance (my main concern is coyotes) and would give me a second to get to my pistol (also running away with her is not a good option).
Now I'm trying to figure out what this new turn of events (ok lack of knowledge on my part and preparation based on lack of knowledge) means. I've practiced enough in the past to know A) I'm not as good as I think I am and B) my adversary may be far better than I think. I desperately want to avoid anything that resembles, in any way, a "fair" fist fight. Carrying a hiking stick probably is not going to work. I'm not familiar with the various pepper sprays, there use, or legality in Michigan. I'm also not entirely sure I'm willing to "practice" with them enough to know what to expect.
I was really comfortable with my "all or nothing" approach to force... You guys kind of ruined that one.
I get some points in this conversation because that one I already knew. You may escalate force to the level of force presented against you.
Now I'm trying to figure out what this new turn of events (ok lack of knowledge on my part and preparation based on lack of knowledge) means. I've practiced enough in the past to know A) I'm not as good as I think I am and B) my adversary may be far better than I think. I desperately want to avoid anything that resembles, in any way, a "fair" fist fight. Carrying a hiking stick probably is not going to work. I'm not familiar with the various pepper sprays, there use, or legality in Michigan. I'm also not entirely sure I'm willing to "practice" with them enough to know what to expect.
I was really comfortable with my "all or nothing" approach to force... You guys kind of ruined that one.
I get some points in this conversation because that one I already knew. You may escalate force to the level of force presented against you.
OldMarksman
Staff
I carry a 57 inch hickory stick from Brazos.
Glenn E. Meyer
New member
Let me give you a common scenario that demonstrate the force continuum concept. First, though - if you carry a gun and are serious about it - you need to study up on your local laws and take a course or two about such combined with FOF scenarios of instances with ambiguous force levels. In TX, the levels of force that can be used are nuanced.
So - you are coming out of your car - a panhandler approaches you and demands money. You tell him to stop and you cannot help him. He continues to approach. As you back away - he grabs your arm (no blows, not a choke, not a hold), just a grab.
Shoot him or not? You can alter this to just have him getting in your face and screaming.
Shoot him? This is quite a common training scenario. I was the 'victim' of such at a KRTraining FOF class. Did I shoot him?
So - you are coming out of your car - a panhandler approaches you and demands money. You tell him to stop and you cannot help him. He continues to approach. As you back away - he grabs your arm (no blows, not a choke, not a hold), just a grab.
Shoot him or not? You can alter this to just have him getting in your face and screaming.
Shoot him? This is quite a common training scenario. I was the 'victim' of such at a KRTraining FOF class. Did I shoot him?
I do not know; but I went to Fry’s Electronics for computer parts. I knew when I pulled into the parking lot and stayed to the right when looking for a parking place I did not make everyone happy. When I did find a parking place I exited my P/U and then noticed a car had driven around and blocked by vehicle. There was nothing to do but open my driver side door and step behind it while making an adjustment. After the adjustment I past three of the occupants, there was not a lot of room but I was friendly and spoke to them. One of the occupants remained in the auto as thought he was waiting to see if his three buddies needed help; I spoke to him also.
F. Guffey
F. Guffey
Some people might be better served by making an effort to learn and understand the laws involved with the use of force in defense of self (or an innocent third person).
Our jails and prisons often contain some folks who sincerely thought their understanding of "self defense", and their choice of use-of-force, was reasonable and correct for some situation, but they were wrong.
It's dismaying to have to arrest someone who sincerely thought their response to some situation was "right", and then see them baffled and horrified to learn that they'd become the suspect at some point because of a bad decision on their part, and now that decision had potential consequences they'd not considered.
Our jails and prisons often contain some folks who sincerely thought their understanding of "self defense", and their choice of use-of-force, was reasonable and correct for some situation, but they were wrong.
It's dismaying to have to arrest someone who sincerely thought their response to some situation was "right", and then see them baffled and horrified to learn that they'd become the suspect at some point because of a bad decision on their part, and now that decision had potential consequences they'd not considered.
I'm comfortable with the line at which I would use deadly force and the morality of that line. I am surprised by the case study of Mr. Hickey if the article presents it in a factual manner though I am aware of the chance of bias.
If I use deadly force to protect my children against what I perceive as a threat of severe bodily harm or kidnapping despite all efforts made to retreat and I find myself on the wrong side of the legal question I will. If I did not act because of legality and my children were severely harmed because of it the situation would be far more untenable.
There are some unique situations presented here that do require me to take pause. For instance I really am thrown by the idea of grown adults starting a non-consensual fist fight. Its frankly never any scenario I ever considered.
I still come back to the story of Mr. Hickey as presented. If one takes it at face value as presented in the article his actions mimic what I have been discussing as "right". According to him he used "soft hand" techniques, effectively attempting only defense (though again that is disputed if one reads it closely) and attempting retreat until the force against him became seemingly insurmountable and retreat impossible. If you take his story at face value it seems he had no option but to escalate force and, again if you accept his account of having concussion like symptoms, it seems he was in danger of severe bodily harm. He also followed the old advice of NOT making a statement until he had his lawyer. The location of the fight is in dispute (on his property / driveway vs in the center of the street). The interesting point about it, in regards to this conversation, is his musings that are related in the story questioning if he had escalated force sooner (not deadly force) if the outcome would have been better.
Glenn E. Meyer
New member
That's why you need to study up if you are carrying a gun. Get thee to a quality training paradigm.
Your not wrong but I have a mental hurdle to get over first. I recall in one martial arts class where they were doing a "your being mugged defend yourself" scenario and I offered the option of "I'm giving him my money" as my defense it was met with questioning looks. There is a major mental hang-up I have with using force against another person to the point that I have always viewed doing so as an absolute last desperate resort done only in very desperate times - hence an "all or nothing" approach.
Now I'm weighing in "proper" training (and trying to juggle in my mind what that is) to either refresh and update my background or do something else entirely.
I laugh at all the laws and comments made by the armchair experts -- every time i see in the paper that a perp has punched a man who instantly dies !! Where's the proportional response ??
As a now a seasoned citizen ,slower , weaker, an easier target to the perps my thinking has changed . My defense choice now includes a [some times necessary ] KABAR Defensive Cane and serious thought to where I am and who's near me . I'm a nice guy - until you mess with me - I have little to lose !
As a now a seasoned citizen ,slower , weaker, an easier target to the perps my thinking has changed . My defense choice now includes a [some times necessary ] KABAR Defensive Cane and serious thought to where I am and who's near me . I'm a nice guy - until you mess with me - I have little to lose !
OldMarksman
Staff
That's just it. The triers of fact will have to weigh all of the evidence (Hickey's was not the only testimony), and the evidence will always be incomplete.
OldMarksman
Staff
I would not call that a mental hangup. One should never use force of any kind unless it is immediately necessary to do so.
"Immediately necessary" means last resort.
That does not follow. One may not lawfully use more force than is immediately necessary.
In the book that I recommended, attorney Andrew Branca strongly recommends having a less lethal option. He carries a firearm---and pepper spray.
Book is available on Amazon BTW (some state seminar editions for free on Kindle) - I had to order the 3rd edition because it was not on Kindle as near I could tell and there was none specific to my state.
It kind of made sense even if it ended up being wrong (the logic was not a disastor - one premise appears wrong). I was working under the premise that if one attempted retreat and limited oneself to defensive measures someone continuing the attack even through your retreat would rise to a credible threat of severe bodily harm.
I was not suggesting the guy saying "I'm going to kick your butt" gave you justification to draw and deploy your firearm. I was suggesting (again the more I look at Mr. Hickeys account of events if taken at face value the more I realize its an issue) that if someone lands multiple attacks on you despite pleas to stop and an attempt to retreat the threat would rise to the level of justifying deadly force.
It is at least a conversation that was worth having and has identified some issues I have to look for training in and adjust.
OldMarksman
Staff
I just finished the third addition of Branca's book. I strongly recommend it.
Not yet on Kindle, but I think getting it sooner is worth the inconvenience.
Here's another one, from Massad Ayoob: http://www.barnesandnoble.com/w/deadly-force-understanding-your-right-to-self-defense-massad-ayoob/1119045666
Couple or three things to keep in mind:
And do be careful about pepper spray. The threshold for a basis for reasonable belief about the existence of immediate necessity is lower than that for using a gun or knife, but you cannot use it without having a very good reason.
Not yet on Kindle, but I think getting it sooner is worth the inconvenience.
Here's another one, from Massad Ayoob: http://www.barnesandnoble.com/w/deadly-force-understanding-your-right-to-self-defense-massad-ayoob/1119045666
Couple or three things to keep in mind:
- One should not read these books to get ideas about "when can I shoot". Learn from them what you would like to know before you have to shoot, should that ever happen.
- Don't assume that deadly force means shooting or using a knife. Any bludgeon, including a baseball bat or a nine iron, would be considered a deadly weapon, should it be swung at someone. There are exceptions, depending on your training and certifications. A Cross pen can deliver deadly force.
- Don't become enamored with cute ideas we see sometimes about using dangerous substances such as fuel at the gas pump or wasp spray. You may well end up haveing meted out much more force than would be lawfully justifed; you may violate specific laws concerning their use; and you may end up seriously injuring yourself and/or innocent people.
And do be careful about pepper spray. The threshold for a basis for reasonable belief about the existence of immediate necessity is lower than that for using a gun or knife, but you cannot use it without having a very good reason.
At the academy
We were taught the escalation of force and depending on the situation, there were different things you could do. Not necessarily in this order, but there were:
Verbal techniques (deescalation, warnings, commands)
chemical agents
control holds
impact weapon
non-lethal (taser, bean bag)
carotid restraint (somewhere between holds and deadly force)
deadly force (firearm
There are times when deadly force is the only force to be considered. Not every situation automatically requires you go to each level of force before escalating to deadly force. It all depends and you have to articulate/justify the application of force to your department and to the review board (or to the court if it comes to trial or civil suit).
It also depends on your opponent and your ability. Grandma cannot be expected to sweep the legs before blasting away with her handgun. Similarly ex-linebacker turned police officer is not expected to draw his sidearm to take down Grandpa who is waving his cane at him. In the scenario where a gun is pulled on the officer, the officer isn't expected to use verbal judo to dissuade his opponent from killing him.
Remember, what you do must be justified as self defense before the investigating agency, the district attorney and perhaps a jury in a civil suit.
We were taught the escalation of force and depending on the situation, there were different things you could do. Not necessarily in this order, but there were:
Verbal techniques (deescalation, warnings, commands)
chemical agents
control holds
impact weapon
non-lethal (taser, bean bag)
carotid restraint (somewhere between holds and deadly force)
deadly force (firearm
There are times when deadly force is the only force to be considered. Not every situation automatically requires you go to each level of force before escalating to deadly force. It all depends and you have to articulate/justify the application of force to your department and to the review board (or to the court if it comes to trial or civil suit).
It also depends on your opponent and your ability. Grandma cannot be expected to sweep the legs before blasting away with her handgun. Similarly ex-linebacker turned police officer is not expected to draw his sidearm to take down Grandpa who is waving his cane at him. In the scenario where a gun is pulled on the officer, the officer isn't expected to use verbal judo to dissuade his opponent from killing him.
Remember, what you do must be justified as self defense before the investigating agency, the district attorney and perhaps a jury in a civil suit.