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LEGAL PRINCIPLES IN THE
JUSTIFICATION OF THE USE OF FORCE
By: Skip Gochenour
PREAMBLE
The legal right to use
force, even deadly force, in self-defense and the defense of others in the U.S.
has been a settled discussion in the law since before the formal founding of the
country. No other conclusion can be drawn by looking broadly at the law in the
respective jurisdictions across the 400 year time span of European settlement to
the present day.
With the exception of a
brief period, largely the third quarter of the 20th Century, and a
few locations, predominately those with populations enamored with the
Franco-German political model, U.S. law has recognized the right of decent,
productive, ordinary citizens to use force to interrupt unlawful violence
directed against themselves or another person.
Viewed across the sweep of
history for those centuries, it is reasonable to argue that the law has sought
to define the circumstances that would allow finders of fact to determine the
difference between the necessity of the defender citizen to strike a blow and a
person who ignores or manipulates circumstance to mask an act laden with
criminal intent.
A similar sweeping view
would suggest good evidence exists to argue the current trend in the law is to
correct some of the constructs bequeathed during that quarter century and
promulgate law that returns to concepts long in practice, though largely lacking
in specific legal definition.
By way of example, the law
50 years ago regularly restricted the justification of defense of others to
those with whom the defender had a “special” relationship. Hence, the current
“short-list” advocated in some currently operating training schools. The
requirement for a defender to have a “special” relationship with the person
defended is largely gone from defense of others law. Another shift in the law
that began about 20 years ago is the redefinition of “immanent” from immediate
to inevitable in the foreseeable future, as seen in the “batterer syndrome”.
When viewed from this
landscape perspective, the law found itself with two problems to finesse. The
first was to find a way to objectify a subjective occurrence. The law had to
create models of fiction that could allow finders of fact to view the conduct of
a defender with sufficient objectivity to sort an act of necessity from criminal
intent. Because real-life experience teaches that infinite combinations of
circumstance must be interpreted on an instance by instance basis, the law had
to allow for sufficient “wiggle room” on the part of the defender and the finder
of fact for the model to be useful. The result was the “reasonable and prudent
man operating in the same or similar circumstance” standard.
The second problem was to
provide the defender with access to a means of defensive tools. Returning to
our landscape view, the issue of carrying weapons about in U.S. has largely been
a process of trying to define who was fit to be trusted with such
responsibility. While it was common for the law to preclude anyone without a
license to carry concealed weapons, evidence would suggest that as a matter of
practice, “people of good character” found with a concealed weapon were
ignored. Enforcement was confined to those operationally defined as
untrustworthy, with the definition varying by time and place.
The historical record
suggests that the laws restricting the carrying of weapons in the south and west
were designed to keep weapons out of the hands of former slaves. The laws
restricting the carrying of weapons in the east and mid-west were written in
response to labor violence connected to the influx of immigrants from southern
and eastern European countries and the laws written in the far west were written
to control Asian immigrant access to weapons.
The influence of criminal
gang violence starting in the 2nd quarter of the 20th
century and America’s flirtation with the rejection of the construct of
individual responsibility led to a more universal enforcement of concealed carry
restrictions and difficulty for the ordinary citizen to acquire a carry
license.
By the 4th
quarter of the 20th century, state legislatures were defining those
fit to have a license to carry concealed weapons for employment in self-defense
as anyone who by personal history and demonstration was unfit. The nearly
universal three disqualifiers are: a felony conviction, a history of mental
illness and a history of substance abuse. The common thread of these three
categories is that each demonstrates in the individual with such history a
proven lack of judgment requisite in a person walking about in society while
armed. Not surprisingly, a person with a proven record in one of these three
lapses of judgment, probably has one or more of the other two categories
operant, whether a matter of record or not.
The rhetoric of those who
reject the concept of personal responsibility aside, an argument can be made
that the current trend in the law to recognize that any American citizen of good
character and repute is entitled to the right of self-defense as well as a means
to travel about with a means of defense, is more declarative of our commonality
as Americans than all of the assertions of those who would plead us as
pre-adolescents engaged in whining fits of jealousy.
With this backdrop, let’s
look at the intent of the legal constructs that form the operating milieu of
legally sufficient justification for using force against another person.
I.
Assuming there is an incident where a defender is required to use force
to reduce the threat to an acceptable level:
A.
Police will be summoned by:
1.
One of the parties to the incident.
2.
An onlooker.
B.
The occurrence of injuries and the increase in severity of injuries
elevates the likelihood of police response and the bringing of charges against
the defender.
C.
The form of force and the level of injuries will determine the nature of
charges the defender will face.
1.
Homicide
2.
Assault of various forms.
3.
Intimidation of various forms
4.
Unlawful restraint.
II.
The Players and their roles.
A.
Patrol Officers will make the initial response to the scene.
1.
If there is no death or danger of death, they may handle the entire
incident.
2.
Collection and preservation of physical evidence will be cursory and
concluded quickly.
3.
Statements will be done largely at the scene. Follow-up with other
witnesses will be cursory. Little attempt to identify and locate all potential
witnesses is likely.
4.
They will probably make any charging decisions at the scene and proceed
with lodging of charges.
5.
If the department is small, it is possible that patrol officers will be
the totality of the investigation response, even in the event of a death.
6.
If there is a death, or the possibility of death as a result of the
incident, the patrol officers will likely hand the case to detectives.
NOTE: When
patrol officer arrive they will likely ask, “What happened”? Your response is
most likely admissible in a court proceeding, even if you have not been
Mirandized. On the other hand, a response from you of “I would like to speak
with my lawyer!” will probably subject you to a charging decision made without
the benefit of your input. Patrol officers will not be inclined to wait for a
lawyer to arrive, especially after mid-night. They will probably have the
benefit of statements from the “victim” and any of his cohorts. The decision
will probably be made with, or without your input.
B.
Detectives
1.
Short of a death, they will make the charging decisions.
2.
The involvement of detectives likely means that more physical evidence
will be collected, analyzed and interpreted.
3.
Many more statements will be taken. Witnesses and potential witnesses
will be identified, located and interviewed. Those interviews will be compared
to with one another and with the physical evidence to create an interpretation
of what likely occurred in the event.
4.
If the incident involves a death, the evidence as well as their
interpretation will be referred to the prosecutor for a charging decision.
NOTE: At some
point detectives will want to take a statement from you. The involvement of
detectives usually means the process is slowed down by the methodical nature of
their work. There will usually be time for a lawyer to arrive to represent
you. It is likely the involvement of detectives will allow time for you to
provide your story for use in the charging decision.
C.
Prosecutors
1.
They will be involved in any charging decision where a death occurs.
They will often be involved in charging decisions where serious bodily injury
occurs.
2.
In such cases, it is common for a prosecutor to be at the scene and at
the station while processing and interviewing is in progress.
D.
Defense lawyer
1.
He will be your spokesman.
2.
He can transmit your story to police and prosecutors in a fashion that
the statement can not be attributed to you at the time of trail.
3.
The charging decision can be made with the benefit of a lawyer for the
state reviewing the evidence that includes your rendition of what occurred,
presented by a trial lawyer who understands and can convey the meaning of the
evidence at trial.
NOTE:
Remember that once the decision to charge you is made, the impetus of the
party’s shifts from trying to learn what happened to trying to win the case.
·
This is now a
contest between “Champions”.
·
Facts become
subservient to the rules of evidence and each champion will try to exclude that
evidence which he deems harmful to his case.
·
A trial is a
form of ritualized fighting as in dueling, where the rules determine what is and
is not “fair”.
·
The truth will
not necessarily set you free, but a lie, or apparent lie will lock you up!
E.
Witnesses
1.
Direct evidence witnesses.
2.
Indirect evidence witnesses
3.
Expert witnesses
4.
Character witnesses
III.
The Process
A.
Reason and Rationality
1.
Reason and rationality are constant themes in the American trial system.
2.
Reasonable man standard
3.
A reasonable and prudent man acting in like or similar circumstances
standard.
4.
Reasonable doubt standard.
5.
Rational decision standard.
NOTE:
Reasonableness varies with the specifics of the occasion. If retreat is
required “if it can be accomplished in complete safety”, the ability of the
Practitioner to reach a place of safety will be measured differently depending
on whether the Practitioner is quick and agile or is infirmed.
Another issue
of reasonableness arises with the past experiences of the Practitioner. A
person who has experienced spousal battering, complete with the ritualistic
aspect, and perceives a life threatening incident in the making, will have their
actions viewed from that experience.
Likewise,
specific knowledge, in the possession of a defender that an assailant has a
reputation for violence can be considered by the finder of fact as the actions
taken by the defender is reviewed.
B.
Reasonable and prudent man.
1.
Is a fictional legal character with abstract objective qualities that
form a standard by which to review the subjective determinations and
interpretations of a real person in an actual set of circumstances.
NOTE: The
subjective portion of this standard will include any knowledge residing in the
particular person asserting necessity in the specific occasion coupled with the
fair conclusions one could draw from that cumulative knowledge and
circumstance. That includes knowledge derived from experience, education and
training.
The
Practitioner must be prepared to articulate the totality of his knowledge and
the operating circumstance and the derivative conclusions that formed his belief
in the necessity of his actions.
C.
Reasonable doubt.
1.
Not a doubt constructed to avoid an unpleasant duty but one that arises
fairly out of the evidence.
D.
Rational decision
1.
Comes from a careful review of the relevant facts and an application of
the law.
2.
Verdicts must be rational, not speculative.
E.
Burden of proof
1.
As a general rule, the burden of proof is always on the prosecution.
2.
Are required to prove each element of an offense beyond a reasonable
doubt.
3.
Must refute any defenses
a.
True defense
1)
alibi
2)
SODDI
3)
TODDI
b.
Affirmative defense
1)
Justification
2)
Prosecution must refute a claim of justification beyond a reasonable
doubt.
3)
Rare occasion where the defense has a burden of proof.
4)
Must demonstrate the elements of justification to a preponderance of the
evidence standard.
5)
If the prosecution can refute one of the elements of justification beyond
a reasonable doubt, he can prevent the defense from arguing justification to the
jury.
6)
The jury will be precluded from considering a claim of legal
justification.
7)
The defense can negate a claim of justification by introducing evidence
inconsistent with an element of justification.
8)
Eg. An assertion by the defendant that the gun discharged “accidentally.
NOTE:
Available studies from different times and places suggest that of the total
number of homicide charges filed; about 22-25% have an element of self-defense
involved. Self-defense is different than legal justification. Self defense is
an act of self-preservation that may or may not meet the legal requirements of
justification.
Those with an
absolutist view of “self-defense” query with incredulity if a person with a
criminal record or is actively involved in criminal conduct is not availed the
right of self-defense. The answer is that he certainly has aright to defend
himself, he may, however have difficulty with one or more of the elements of
justification.
4.
Elements common to justification defense
a.
Recklessness and negligence
1)
Expect problems with a justification defense if you decide to go for a
stroll in a section of town known for a high incidence of street robberies while
carrying a transparent bag full of fifties.
2)
Avoidance, general
b.
Provocation
1)
If an antagonist makes accusations concerning the level of intimacy
between you and your mother, it is not advisable to non-verbally indicate him
that he is “#1” with you.
2)
Avoidance, specific
c.
Retreat
1)
Disengage
NOTE: The
practical effect of the retreat rule is to punish those parties who choose to
stay and continue the engagement.
d.
Excessive force
1)
You may not use force greater than that offered by the antagonist.
2)
The level and amount of force may not exceed that which is required to
reduce the threat to an acceptable level.
3)
Any blow delivered that is outside the requirements of “necessity” is not
justified.
NOTE:
Training techniques, when reviewed under the “necessity” standard, will examine
the necessity of each blow delivered.
F.
Mindset
1.
Mindset as used in this circumstance refers to the state of mind of the
Practitioner as he struck the blow.
2.
Mens Rea.
a.
Guilty mind.
b.
The jury will be instructed of a legal construct that permits them to
infer intent when a deadly weapon is employed against a vital part of the body.
c.
The intent in justification is to interrupt the violent actions of
another.
d.
Unintentional injury or death resulting from the use of a deadly weapon
and is grossly reckless or negligent conduct that likely rises to a criminal
level.
1)
Reckless and negligent conduct is that which deviates from a standard of
care a person in like or similar circumstance would be expected to employ.
2)
Shootings that result from a violation of the 4 Rules would occasion this
form of criminal prosecution.
3)
R&N differs from other states of mind that must be established through
the evidence.
4)
Regarding R&N, the state of mind is irrelevant. The issue is the
standard of care exercised did not those of a R&P man in the same or similar
circumstance.
e.
3 conditions reviewed to determine R&N act.
1)
Potential to reasonably foresee harm that might result from your actions.
2)
The probability that harm could occur
3)
The burden the actor would have to bear if he did not take the action.
4)
The higher the potential for an unintended harm to come from an action,
the higher the certainty of that harm to the actor must be to justify his
actions.
f.
Reckless behavior.
1)
Generally, reckless behavior requires a higher showing of disregard in
the conduct of the actor.
2)
Requires a showing the actor showed a disregard for the apparent
danger occasioned by his actions.
3.
Motive as part of mens rea.
a. Malice is a part of
murder.
b. Malice has a
specific legal definition.
c. Recklessness,
hardness of heart, cruelty, a mind regardless of social duty.
d. The actor’s
actions have a substantial and unjustifiable risk of causing harm.
4.
Necessity as motive.
a. Gives rise to the
concept of retreat, which is actually a tactic recognized as disengagement.
b. Each blow delivered
must be, in and of itself, necessary
c. The use of force must
be necessary to be justified.
NOTE:
Necessity is the product of a two pronged test, subjective and objective.
The
Practitioner must believe it is necessary to use force in the present
circumstance. He must show that his subjective interpretation is derived from
objective facts.
Inversely, the
Practitioner who has objective facts from which to interpret a real threat, but
does not subjectively believe force is needed can not reach the necessity
standard. The Practitioner can not rely on a checklist to justify the use of
force.
That is the
fallacy of the AOJ model.
5.
Proportionality as evidence of motive.
a.
. Proportionality is that force which is equal to that force offered
and/or just enough additional force to reduce the threat to an acceptable level.
1)
Proportionality is that force which is equal to that force offered and/or
just enough additional force to reduce the threat to an acceptable level.
NOTE: OC
sprays can be used as part of the disengage, escape and evade strategy. Even if
the spray is not used directly on the assailant, it can be used to contaminate
the path as the assailant gives pursuit.
6.
Immanent as motive.
a. Statutes and case law
must be consulted for the standard that operates in the specific jurisdiction.
b. Immediately means at
the present moment.
c. In the last 20 years,
immanently has come to be seen as in the presently foreseeable future. This
view came about in response to the “battered” syndrome.
d. Traditionally, immanent
and immediate were used interchangeably.
NOTE: A
bonafide threat to kill is not justification for a pre-emptive strike. It is
available to use as a circumstance to assess the actions of a VCA on an occasion
when that threat combined with other actions gives rise to a conclusion that the
intent of the VCA is lethal.
7.
Castle doctrine
a.
In jurisdictions where the castle doctrine is the law, the doctrine
generally stands for the position that a person in his home or place of business
is not required to retreat from an attack.
b.
Some jurisdictions require an actor to retreat in their domicile or place
of business if the aggressor has an equal right to be in the premises, even if
the jurisdiction recognizes the castle doctrine otherwise.
1)
Was designed to prevent cohabitants from engaging in mutual combat.
8.
Pursuit
a.
An actor who is justified in defending himself should avoid pursuing an
aggressor.
b.
The pursuit of a VCA who is withdrawing can transform the Practitioner
into the aggressor in any subsequent action.
9.
Provocation as motive.
a.
Any action a Practitioner engages in that can be interpreted as
provocative will be reviewed for its role in creating the need for use of force.
10.
Mutual combat as evidence of motive.
a.
Failing to take any opportunity to avoid or disengage an antagonist will
be reviewed for the role those failures played in the need to use force.
IV.
AOJ V. ADEE
A.
AOJ
1.
AOJ is the traditional model used by those who must defend themselves
while completing their sworn duty obligation to confront VCA.
2.
AOJ identifies the salient features of behavior that can be indicative of
a lethal threat.
3.
Ability refers to the presence of a dangerous weapon.
a.
Any implement that is employed in a way to create a danger of death or
serious bodily injury.
1)
Can be anything from fists and feet to a firearm.
2)
Some implements are identified in statute as deadly weapons. Eg. Dirks
and blackjacks.
3)
Any item that is a force multiplier.
4)
Disparity of size, weight, numbers of assailants, training, able-bodied.
4.
Opportunity refers to the effective striking distance of the weapons
system employed by the VCA.
a.
Effective distance can be mediated by obstacles and the VCA being outside
the effective distance for his weapons system.
b.
Avoidance can be accomplished by maintaining a distance from the VCA that
is outside the effect of his weapons system.
c.
Obstacles can be used to avoid and disengage from a VCA.
d.
The failure to use the options of distance and obstacles can be used to
overcome a Practitioners claim of necessity.
5.
Jeopardy refers to the actions of the VCA that leads to the reasonable
conclusion that force is necessary to interrupt an action that can realistically
cause death or serious bodily injury.
B.
ADEE
1.
A model more appropriate to the non-duty sworn Practitioner who is
compelled through necessity to confront a VCA involves avoidance, disengagement
escape and evade.
2.
This model is useful as a tactical strategy and as a framework through
which to describe the objective circumstance that lead to the subjective
conclusion that the use of force was necessary.
NOTE: While
it is common to regard avoidance as meaning staying away from places where
stupid people congregate to do stupid things, it is important to realize that
such people can come to visit you in your home. It is unwise to allow into your
home people who bring actively operant baggage through your front door. Giving
shelter in your home to someone who is hiding from an abusive spouse is a very
bad idea. Direct them to a service that is in the business of providing such
services.
CONCLUSION
As part of your obligation
to prepare for the rigors of carrying weapons about in society prepared to use
them to protect yourself and those for whom you are legally and morally
responsible, develop a working knowledge of the legal constructs that guide you
towards a determination of objective standards from which you will form your
subjective determination of when it is necessary to employ force.
With application, you will
conclude that the law of justification is consistent with your own value system
and the ADEE model.
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