There are only five elements of a claim of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
There’s a video making the internet rounds of an apparent security guard outside a McDonald’s being attacked by two young black men, and I’m being asked if the guard pointing his gun at the two was a lawful threat of deadly defensive force, on the one hand, or a crime, on the other.
Before we begin with the analysis, here’s the video:
And here’s the analysis as this week’s Law of Self Defense Case of the Week.
Five Elements of a Self-Defense Claim
As I always tell folks this kind of use-of-force analysis isn’t rocket science—there are only five elements of a claim of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. Every element is required (unless legally waived), and if any required element is missing, the claim of self-defense fails.
We don’t know how the confrontation started, but for purposes of this discussion, I’m going to assume that the two young men were the initial aggressors, rather than the guard. Check this element in favor of the guard.
A threat needs to be at least imminent, about to happen right now, in order for defensive force to be justified, but a fight that’s actually in progress clearly qualifies as well. Check this element in favor of the guard.
The guard ended up threatening the two men with deadly force—his pistol—and the law generally requires that the guard be facing a deadly force threat in order to be justified in using or threatening deadly defensive force. This, as well as the element of Reasonableness, are the key elements of this case, so we’ll cover this in more depth in a bit.
Even in the minority of states that impose a generalized legal duty to retreat, that duty is imposed only if a completely safe avenue of retreat is practically available. The nature and setting of this attack suggest that the guard had no practical means of completely safe retreat when he presented his handgun, so no legal duty to retreat would have applied even in a duty-to-retreat state.
In most states, of course, there is no generalized legal duty to retreat before defending yourself against an unlawful attack. Regardless of the jurisdiction in this case, then, we’ll check this element in favor of the guard.
As mentioned, this element of Reasonableness, as well as Proportionality, are the key issues of this case, so we’ll cover them in more detail now.
Reasonable Perception of a Deadly Force Threat
For the guard to be justified in using deadly defensive force, he must have reasonably perceived a deadly force threat against him. But what’s that really mean?
In terms of a “deadly force threat,” we mean a threat readily capable of causing either death or serious bodily injury. Pretty straightforward . . . or is it?
In terms of “reasonably perceived” the guard’s perception of a deadly force threat must both have been subjectively held in good faith (which we’ll assume for purposes of this discussion) as well as be objectively reasonable. But what’s “objectively reasonable” mean?
Objective reasonableness asks whether a hypothetical reasonable and prudent person would have shared the guard’s (presumed) subjective perception of a deadly force attack. For such a perception to be objectively reasonable, it must be based on more than just speculation, imagination, or what the law calls a “bare fear,” meaning an irrational fear.
Instead, for a perception to be objectively reasonable, it must be based on the application of the powers of reason to actual evidence, observations, experiences, in the broader context of the totality of the circumstances, the guard’s training and experience, and in consideration of the guard’s naturally challenging job of making important decisions quickly while fighting off an active attack.
To quote the US Supreme Court:
“Detached reflection cannot be demanded in the presence of an uplifted knife.”
Brown v. United States, 256 U.S. 335 (US Supreme Court 1921)
So, was there evidence from which this guard could objectively reasonably infer that he was the subject of a deadly force, rather than a merely non-deadly force, attack? Indeed, there is.
When a Bare-Handed Attack Becomes Deadly Force
Generally speaking, the law generally treats a bare-handed attack as a non-deadly force attack unless there are aggravating circumstances that suggest the bare-handed attack is likely to inflict serious bodily injury.
Such aggravating circumstances could include where the attacker is substantially larger or stronger than the defender, or possesses an exceptional fighting ability that the defender lacks. None of those would appear to necessarily apply in this case.
Other aggravating circumstances, however, do apply in this case. These include the disparity of numbers involved, with two attackers upon a single defender. Another aggravating factor exists when the defender is substantially older than the attacker—those of us of a certain age are well aware that we’re generally not quite as strong or fast as we were as younger, and that we’re also more vulnerable to substantial injury than when we were younger.
Both the disparity of numbers and the apparently much younger attackers, relative to the defender, are consistent with an objectively reasonable perception of an attack likely to cause serious bodily injury, and thus constitute a deadly force attack.
When OC Spray Becomes Deadly Force
Notably, however, the attack did not remain a bare-handed attack. The guard was carrying various defensive tools openly exposed on a utility belt, including a canister of OC (pepper) spray in addition to his pistol. At one point in the attack, as he was being swarmed by both attackers, one of them stripped him of his OC spray and sought to deploy it against him.
In normal circumstances we generally consider OC spray to be a non-deadly means of force, and it is routinely used for this purpose by both law enforcement and civilians. (Indeed, I personally carry OC as my primary means of non-deadly defensive force.)
OC as non-deadly force, however, rests on the presumption that it is used defensively. When used is such a manner, it is intended to neutralize an unlawful threat, after which the defender ceases their use of force on the person sprayed.
The context is entirely different, however, when OC is used offensively. An offensive application of OC is intended to debilitate the target’s ability to defend itself against unlawful attack, presumably so further harm can be committed to the target and/or to facilitate the user’s ability to continue some other criminal act. A familiar offensive use of OC spray has been observed in some bank robberies. There the robbers OC spray the bank’s employees and customers in order to facilitate their robbery.
When these robbers are captured and brought to trial, it is common for prosecutors to argue that in this offensive context the pain and suffering caused by the OC spray to the bank’s employees and customers qualifies as serious bodily injury. This argument justifies a much more serious charge of aggravated assault based on the use of a “deadly force” weapon rather than the much lesser charge of simple assault if the OC was considered merely a “non-deadly force” weapon. This argument has been successful in federal prosecutions of bank robbers who use OC in this manner.
In this instance, of course, the OC spray seized by one attacker from the guard’s belt is being used in an offensive, not a defensive, manner, in order to debilitate the guard’s ability to defend himself and to facilitate the attackers’ ability to continue their assault on the guard. This is arguably, then, a “deadly force” (capable of causing serious bodily injury) application of the OC spray.
This attempted offensive use of the OC spray is consistent with an objectively reasonable perception of an attack likely to cause serious bodily injury, and thus constitutes a deadly force attack.
Inferring the Future from the Past
A speculative or imagined threat cannot be the basis for an objectively reasonable fear of a deadly force attack, so one can’t merely presume that another person is going to attack in a particular way. “Well, for all I know he could have had a gun” is not a legally-sound basis for treating someone as if they actually had a gun.
That said, the law does allow us to make reasonable inferences from observed evidence. So, for example, if a prospective attacker tells you he has a gun and then reaches for his waistband in a manner consistent with presenting a gun, it’s reasonable to infer from that evidence that he’s about to bring a gun into action and to defend yourself accordingly. It is not necessary that the defender wait until the muzzle of the attacker’s gun is on them, nor necessarily even until the gun itself is visible.
In this case, it’s clear that if the attackers possessed a handgun they would constitute a deadly force threat to the guard. The same holds true if they seize the gun of the guard himself—indeed, it’s worse, because then not only would the attackers have armed themselves with a gun they would have simultaneously disarmed the guard.
But does the guard have any evidence from which he can reasonably infer that the attackers intend to seize his gun, if possible?
Certainly: the fact that they have already seized another of his defensive weapons, his OC spray.
Strictly speaking, if someone punches you once, and stops, you have no grounds to use defensive force against them. To do so would be vengeance or retribution, not self-defense.
That said, a pretty good basis on which to infer that a person is going to punch you a second time is that they punched you the first time, especially if they don’t clearly and immediately cease their offensive conduct. It is reasonable to infer future conduct from demonstrated past conduct, especially when that conduct is ongoing.
In this instance, a pretty good basis from which the guard could infer that the attackers would seize his gun, if possible, is that they had already seized his OC spray, and that they were continuing their offensive conduct.
An attacker who is attempting to take your gun from you is arming himself with a gun no less than if he were reaching for a gun on a table (indeed, as already described, it’s worse than that), and thus constitutes a deadly force threat.
The guard’s (presumed) reasonable inference that the attackers were attempting to arm themselves with his gun is consistent with an objectively reasonable perception of an attack likely to cause serious bodily injury, and thus constitutes a deadly force attack.
Conclusion: Lawful Use of Deadly Defensive Force
There are, then, at least three grounds—disparity of numbers, offensive use of OC spray, and inferring future conduct from past/ongoing conduct—from which the guard could objectively reasonably perceive that he was the subject of a deadly force attack against which deadly defensive force would be legally justified, and that his pointing of his handgun at the youths was therefore lawful conduct.
It should also be noted to the guard’s credit that he did not fire his handgun at the attackers as they fled. Such conduct would almost certainly have been unlawful, but not hard to imagine happening given the stress of the life-threatening attack the guard had just been subject to by the two youths. To his credit, the guard kept his cool and ceased using force once the threat against him had been neutralized.
In closing, remember:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
[Featured image via YouTube]
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