Posted on 08/31/2014 9:19:21 PM PDT by 2ndDivisionVet
Legally, it doesn’t matter that both Mike Brown and Trayvon Martin were “unarmed” when shot to death.
One of the most common laments to come out of Ferguson these last days has been that surely it was outrageous for Office Darren Wilson to use his service pistol to shoot an “unarmed” Mike Brown. (Earlier iterations of this narrative went further in their misinformation, describing the 18-year-old 6’4″ 292 pound Brown as a “kid” or “child,” as well as falsely claiming that Wilson shot Brown in the back, but such misinformation falls outside the scope of this post.) Similar arguments were made in the context of the shooting by George Zimmerman of the “unarmed” Trayvon Martin.
The notion that a defender may use a firearm in self-defense only if they themselves are faced with a firearm is entertainingly naive, but has no basis in actual law, nor in common sense.
In the eyes of the law a gun is not some magical talisman of power, it is merely one of perhaps an infinite number of means of exerting force. Legally speaking the law tends to divide force into two broad buckets: non-deadly force and deadly force. There is some stratification in the context of non-deadly force–a poke to the chest is not the same degree of non-deadly force as a punch to the face–but really none whatever in the context of deadly force. Deadly force is simply deadly force. For purposes of conciseness, I limit this discussion to cases in which deadly force is involved, as was the case in both Ferguson and Zimmerman.
Deadly Force: Force Likely to Cause Death or Grave Bodily Harm
It should also be noted that when the legal system uses the phrase “deadly force,” it is not merely referring to force than can literally cause death. Of course, force likely to cause death qualifies, naturally. But the law’s view of “deadly force” is broader than the phrase might suggest. In fact, “deadly force” includes BOTH force likely to cause death, as well as force likely to cause “grave bodily harm.”
We all understand “death,” but what could possibly be meant by “grave bodily harm.”? Typically, grave bodily harm means something along the following lines: the temporary loss of an important bodily function/organ, the permanent loss of even a minor bodily function/organ, maiming, rape, or debilitation to the point of defenselessness.
Note, also, that under the law of self-defense, NONE of these must ACTUALLY be experienced by the victim before the victim can lawfully respond. Rather, there must be an imminent threat of one of these occurring, as perceived by a reasonable and prudent person, in the same or similar circumstances, possessing the same or similar capabilities as the defender, having the same or similar knowledge as the defender, and experiencing the same or similar mental stress as would a defender being threatened with such harm.
Proportionality of Force
One of the five elements of the law of self-defense is proportionality (the others being innocence, imminence, avoidance, and reasonableness). Proportionality governs the degree of force that a defender can lawfully use in self-defense. In brief, the defender’s force must be proportional to the force with which he is threatened.
Again, limiting ourselves to instances of the use of deadly force in self-defense, such use of deadly force is permissible only where the defender was facing an imminent threat of deadly force. Or, more accurately, the use of deadly force is permissible only where the defender was facing an imminent threat of death or grave bodily harm.
A gun almost always represent a threat (or, if fired, a use) of deadly force. So in order for a defender to be lawfully permitted to “go to the gun,” they must be facing a reasonably perceived imminent threat of death or grave bodily harm against which they are defending themselves.
Does that mean that they can only go to the gun if they are faced with a gun? Of course not. There are myriad ways that an attacker can represent a threat of death or grave bodily harm, only one small slice of which involve the attacker using a gun. Naturally, an attacker bringing to bear a “classical” deadly weapon such as a gun or knife would represent a threat of death or grave bodily harm. But such a classical deadly weapon is not required.
Disparity of Force
What the law actually looks at is not whether the attacker possessed a classical weapon, but whether the attacker presented the defender with a disparity of force, such that the defender faced a reasonably perceived imminent threat of death or grave bodily harm unless the defender himself resorted to deadly force. Again, for a defender facing a gun or knife, the disparity of force is obvious. This disparity of force also arises, however, in many other circumstances.
Disparity of Numbers
One very common situation that gives rise to a disparity of force is where the defender is facing a disparity of numbers. A defender faced with a single attacker of similar size and fighting ability might be legally obliged to defend himself only with non-deadly force in the absence of the attacker possessing a classical weapon. Where the attackers are numerous, however, that disparity of numbers creates an obvious disparity of force–no man can be expected to defend himself against the simultaneous attack of numerous foes without resort to a weapon to balance the scales.
Disparity of Fighting Ability
Another very common situation that gives rise to a disparity of force is where the attacker possesses an exceptional fighting skill, at least relative to the defender. A defender of no particular fighting skill (most of us) cannot be expected to defend themselves against a highly trained martial artists or even a street fighter, without resort to a weapon to balance the scales.
Disparity of Size/Strength
A third very common situation that gives rise to a disparity of force is where the attacker is substantially larger and more powerful than the attacker. A 120 pound woman cannot be expected to defend herself against a 200 pound rapist without resort to a weapon to balance the scales. Similarly, a 200 pound man cannot be expected to defend himself against a 300 pound man without similar recourse to a weapon. It is worth noting in this context that under Olympic wrestling rules a weight difference of as little as 18 pounds is considered so profoundly unfair that wrestlers are segregated into separate weight classes, and a 100 pound weight difference spans fully five Olympic wrestling weight classes.
Disparity of Physical Fitness
Finally, it is important to recognize that a disparity of force may not be present at the start of a fight, but can come into existence over the course of the fight itself. Imagine two men of equal size and fighting ability, such that there was no disparity of force between them. During the fight, one man’s arm is broken.
Obviously, a disparity of force now exists that wasn’t previously present, and under such circumstances the seriously injured man might well be legally entitled to resort to a deadly weapon even if he would not have been so entitled prior to the injury.
Zimmerman’s Shooting of “Unarmed” Martin
In the case of the Zimmerman/Martin conflict, at least two of these factors were in play. First, there was evidence that Trayvon Martin was an active participant and keen student of street fighting, to the point of having shared with friends his preferred strategy of a vicious first strike followed by a sustained attack until his victim was utterly defeated. Thus, there existed a disparity of fighting ability.
Second, where there was arguably little disparity of force at the start of Martin’s attack up on Zimmerman, after repeated blows to the face (Zimmerman would tell police that it felt like being hit by a brick), having his head smashed repeatedly on a sidewalk, and Martin attempting to muffle Zimmerman’s cries for help by using his hands to cover Zimmerman’s mouth and nose, the two men were clearly no longer on equal footing, if they ever had been.
In addition, every successive blow to Zimmerman’s head on the sidewalk could well be the one to render him unconscious or even to induce a fatal cerebral hemorrhage or skull fracture, thus representing an imminent threat of death or grave bodily harm. Thus, there emerged a disparity of physical fitness.
It was this combination of disparity of force factors that legally justified George Zimmerman resorting to his pistol against an “unarmed” Martin.
It should also be noted that Zimmerman told police that he only drew his pistol after he felt Martin reaching for it. An attacker seeking to seize a defender’s gun is really no different than an attacker reaching to pick his own gun off a table–indeed, it is worse, in the sense that in the former case the defender is being simultaneously disarmed. A defender otherwise in reasonable fear of death from the attacker need not wait until the attacker has gripped the pistol before they can defend themselves–the deadly threat is imminent when the attacker reaches for the weapon.
Finally, it should be noted that being “armed” doesn’t require a weapon, and being without a weapon doesn’t make one “unarmed.” In this case, Trayvon Martin was “armed” with his fists, his body weight astride Zimmerman, the sidewalk against which he smashed Zimmerman’s head, and one might argue the planet Earth itself.
Wilson’s Shooting of “Unarmed” Brown
A similar analysis can be applied to the shooting by Officer Darren Wilson of the “unarmed” Mike Brown.
The pro-Wilson narrative–to which we give due deference, given the presumption of innocence attached to any criminal defendant–is that Brown, along with his cohort Dorian Johnson, first attacked Wilson in his patrol car. There Wilson appears to have suffered a fracture of his orbital bone, the bone that surrounds and protects the eye. During this fight Brown also sought to seize Wilson’s service pistol. In the course of this fight the pistol discharged inside the vehicle.
Brown and Johnson distanced themselves from the vehicle by 30 feet or so. Wilson emerged form the car, and challenged the men to stop. Brown, either independently or in response to Wilson’s challenged, verbally challenged Wilson in return, then (as attested to by more than a dozen witnesses) lowered his head and charged back at Wilson.
It was at this point that Wilson began firing at Brown, striking him (it appears) four times in the arm, once in the eye, and once in the crown of the head. The eye injury was certainly mortal, and likely dropped Brown in his tracks. (Note: There was no evidence of gun shot wounds to Brown’s back, contrary to claims by Dorian Johnson that Wilson had shot Brown in the back.)
Here we have a considerable number of the described disparity of force elements.
There was disparity of numbers, in that Wilson was initially (at least) faced by an attack by both Brown and Johnson.
There was an enormous disparity of size/strength, but during the first fight inside the patrol car when Wilson was fighting both men, but then also when Wilson was facing the imminent charging attack of the 292 pound Brown (Wilson’s own weight appears to be in the range of 200 pounds).
There was also a disparity of physical fitness by the time Wilson deployed his sidearm against Brown. Having suffered a fracture of his orbital lobe it is likely that Wilson had lost considerable visual capability, was in excruciating pain, and was to at least some degree cognitively stunned by the blow. An attacker who has already dispensed such grave bodily harm and who is charging again into the fight against an officer displaying his sidearm can only reasonably be understood to intend to imminently do the same again, or much worse. Having already struggled once for his service pistol, Wilson would know–as all police officers in such circumstances would know–that he was in a life-or-death fight.
And, as was the case in the Zimmerman trial, Brown attempting to seize Wilson’s gun is no different than if Brown had reached for a gun in his own belt–indeed, it is worse, as it would simultaneously arm Brown and disarm Wilson.
It is this combination of disparity of force factors that legally justified Darren Wilson in resorting to his pistol against an “unarmed” Brown.
Did you know that John Kerry was in Viet... oops, I mean Mike Brown was unarmed ?
“Unarmed” does not mean “not dangerous”.
To save my life or the life of another...
Or if he is wearing a striped tie with a striped shirt. ..
The ultimate crime is a striped tie with a checkered shirt..just had to be done...
Answer:
When I feel my life may be in danger.
When that person is in my home.
When I feel my wife or children are in danger of bodily harm.
When I can’t see his/her hands and think the person is armed...
In the state of Washington one can legally shoot someone to stop a felony against you, or anyone else. A shop-owner shot an 18-year old that had just broken into his shop at night and was escaping with a handful of leather belts and buckles. Shot in the back from 100 feet and killed.
Legal shoot.
Now - not saying that is what I would do, but the store owner was found not guilty. As was a more recent guy in Spokane after killing the guy that stole his truck as the thief was driving away in it. (The owner thought he saw a gun, shot the guy in the back of the head from his driveway as the thief drove down the street).
Another instance where the stranger did not respond to the man of the house (out in the garage) and walked towards the house. The owner kept telling him to stop but he didn’t. When the stranger reached for the front door (wife and child inside), the owner shot him in the back and killed him. Perhaps more obvious that was a legal shoot, but I suppose in some states perhaps not.
Several years ago with home break-ins on the rise, along with a rise in the intruders being shot and/or killed, one of the sheriffs quipped something like “It is open-season on intruders in Washington state”.
comment withheld on account it may cause more grief than letting it go.
It is always good to read Andrew Branca.
disparity of force actually covers all the examples they subcategorized underneath it. disparity of numbers is disparity of force. disparity of size is disparity of force. disparity of all the things they noted are disparity of force.
disparity of force also covers ambush/surprise attack.
Know your state laws. When I lived in Maryland, I could use deadly force to protect my property.
Now I live in Virginia, and I can use deadly force only if I fear death or grievous injury to myself or others. If I shoot a thief, I will go to prison.
In uber lib Ca we can defend ourselves, others, our property and dare I say it- put down riots through the use of deadly force.
http://law.onecle.com/california/penal/197.html
197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.
Unfortunately, the Los Angeles Police Department (LAPD) and the District Attorney somehow managed to disregard those California laws in the case of a friend who was defending his mother and himself against some home invaders.
Previously, his mother, who suffered from age related dementia, was threatened with repeated home invasions and burglaries on occasions when he was absent at work. when reported, the LAPD refused to take any actions. Finally, there came a day when his automobile was in the repair shop for maintenance and he was at home asleep in the daytime when the home invaders struck again. Unlike the previous robberies, the door had been heavily reinforced with stronger deadbolt locks and chains. It took the home invaders a considerably greater effort for them to kick and batter the locked front door open, succeeding only by shattering the wooden door frame into great shards and splinters of wood.
The tremendous noise of the front door being splintered and wrecked awoke my friend. He picked up his large caliber pistol and dashed out of his bedroom and into the front room, where he found his elderly mother frozen and shivering in fright and the robbers dropping the loot and dashing out the wrecked front door. The friend pursued the robbers outdoors with his pistol in hand. The robbers retreated into the front yards of the neighboring houses, where they were staying or living. The robbers stopped there as if they were children playing tag and their front yards were supposed to somehow represent a home base where they were safe from being tagged by IT. There they stood and taunted my friend. My friend stopped in his front yard at the property line and responded to the taunts of the robbers by simply holding his pistol up to where it could be seen and the robbers could understand how close they came to being shot.
To add insult to injury, the robbers called the LAPD to report a man with a gun. The LAPD arrived, arrested my friend, refused to arrest the robbers, and left his elderly mother sitting in the home with a wide open front door with no way of closing or locking the door alone with the robbery suspects unmolested. While my friend was under arrest in police custody at a police station only a half block away in Hollywood, the robbery suspects went back into his home and robbed some more of their property as his elderly mother sat there frightened to death.
She telephoned me and asked for my help to come and help her to bail her son out of jail. He eventually found it necessary to accept the prosecutor’s plea deal to a lesser charge to avoid a felony firearms conviction, which then left him with an arrest record and a criminal record. So much for the reliability of California law and the California justice system.
Citizens shoot unarmed attackers all the time and its a good thing they do.
Here’s how my concealed carry course put it: in Texas, if you are in an altercation and use deadly force in the form of a gun, you will most likely be vindicated (although he pointed out several examples where that wasn’t the case). It’s just very difficult to get a conviction in Texas against someone using a firearm to drop someone else engaged in thuggish behavior.
That said, you almost certainly will have to spend extravagantly to defend that shoot. Your justified use of a firearm as lethal force is a FIFTY THOUSAND DOLLAR event. And. Given the ensuing disruption to your life, that’s not nearly the only cost. Now, add back in the unpredictability of the legal system, and using a firearm, legally, is more disruptive than anything that can happen in your life just short of being exposed to lethal force against you.
You had better be facing lethal force when you shoot, or you have just made a costly choice by comparison...
sarcasm
What percentage of rape victims were attacked by an “unarmed” rapist?
The entire point of carrying a firearm is to even the odds against attackers who are better prepared to assault you physically. If all the perps in the world were 5 year old girls, we wouldn’t need to carry firearms.
Good exposition of the law(s) pertaining to deadly force.
I do think, however, that cops have it easier in some ways, but harder in others. Cops are supposed to, through use of command presence and tactical smarts, avoid situations where shooting a civilian might become justified.I imagine this is much harder than most stories about poor officer Wilson let on.
Wow. Head shot, moving target? Some kinda distance?
Wow.
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