The Rule of Law- Civilian Use of Force in Self Defense – What Are the Standards?

Under international law, personal self-defense is a well-established human right and is an important foundation of international law itself as well as the constitution of America. From 1893 to 1896, the United States Supreme Court handed down a series of decisions involving self-defense and the carrying and use of firearms for self- defense. These cases laid the foundation for a 1921 opinion, authored by Justice Oliver Wendell Holmes, which became the most important armed self- defense case in American legal history, upholding and extending the right to armed self-defense.

Self-defense is a legal protection for the use of force; even deadly force to protect one’s life or the life of a third party. The concept has roots back to Roman law and English Common Law, and, in the United States, has been refined over a series of historic self-defense cases in the Supreme Court. In many cases, but not all, the issue of self-defense has been connected with shooting deaths and the right to bear arms. While the Supreme Court has outlined principles governing self-defense as a legal concept, individual states are left to legislate the specific limits within their own jurisdictions.

Consider this. You have just finished buying groceries one evening and are on the way to your vehicle, when you are confronted by a stranger who demands your money. You push him away in an attempt to escape. He trips and falls, hitting his head against the ground. The police arrive and everything is sorted out. You are sent on your way and the stranger is carted off to the hospital. You find out several days later, the stranger died due to the traumatic brain injury he received when his head hit the ground. Several weeks later, you are served papers which indicate you are being sued by the stranger’s family for Wrongful Death, due to your negligence. Is this possible?

The central idea behind a Wrongful Death lawsuit is that through negligence, carelessness or recklessness, someone died. These lawsuits, usually brought forth on behalf of the surviving family members, attempt to collect damages for expenses related to the death, pain and suffering experienced by the survivors and for future earnings of the deceased.

There is also the possibility of a Personal Injury lawsuit in which the injured party attempts to collect damages for their injuries based on negligence or intentional wrongdoing.

What rights do civilians have when using force to prevent injury to themselves or others? What are the legal limitations and implications on use of force by civilians? What legal thresholds will be examined by the Courts? What specific type of force can be used in self defense?

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To answer these questions, let’s look at this from another perspective.

The Odds of Death

Consider the following odds of death as they relate to personal risk. These numbers vary to some degree depending on the annual totals. These odds are calculated by the National Safety Council on the most recently released data from 2004.

Plane Crash

One-year odds are 1 in 400,000.
Lifetime odds are 1 in 5,000.

In this context, would the Court consider it unusual or negligent for flight attendants to skip the safety instructions given to passengers?

Accidental Drowning

One-year odds are 1 in 88,772.
Lifetime odds are 1 in 1,140.

In this context, would the Court consider it unusual or negligent for the owner of a pool to ignore reasonable efforts towards adult supervision while inviting young neighborhood children to use the pool anytime they wish?

Falls

One year odds are 1 in 15,614.
Lifetime odds are 1 in 200.

In this context, would the Court consider it unusual or negligent for the owner of a home to invite others over for a barbecue on the upper deck, knowing the guard rails are loose and broken?

Accidental poisoning

One-year odds are 1 in 14,107.
Lifetime odds are 1 in 180.

In this context, would the Court consider it unusual or negligent for the owner of a business to have unidentified hazardous materials in the break room?

Motor Vehicle Accident

One-year odds are 1 in 6,535.
Lifetime odds are 1 in 84.

In this context, would the Court consider it unusual or negligent for automobile manufacturers to sell automobiles without safety restraints?

Using the same formula, I have crunched some numbers regarding Crime.

Assault

One-year odds are 1 in 25,263.
Lifetime odds are 1 in 217.

In this context, would the Court consider it unusual or negligent for the intended victim to use force to escape or protect themselves?

The odds of being a victim of any type of Crime are approximately 8%.

In this context, would the Court consider it unusual or negligent for the intended victim to use force to escape or protect themselves?

The odds of being a victim of Violent Crime, not necessarily involving death, are 1-2%. In this context, would the Court consider it unusual or negligent for the intended victim to use force to escape or protect themselves?

What Does The Law Allow?

Almost all states within the United States allow civilians to use reasonable force in protection of their own or someone else’s property or life. Check your own state statutes, as they vary considerably from state to state.

Most of these statutes do not define what reasonable force is. Using the example we opened with, is it reasonable to push someone down who is demanding your money, but is not displaying, brandishing or threatening you with a weapon? This is where it gets tricky. Let’s assume, for argument’s sake, that the stranger, who died from the brain injury after you pushed him, was found to have a concealed knife in his pocket? Does this make any difference?

Let’s change the scenario. The same stranger produces a handgun and demands your money. You, being a legally licensed handgun permit holder, pull your handgun and shoot him. He dies. The police discover the handgun he pulled on you is really a BB gun, or a toy gun. Does this change your liability?

The bottom line is that the courts will look at several factors.

Do you have the legal (statutory) authority to use force, and under what conditions?
Were those conditions present at the time of the incident?
Were you a reluctant participant? Did you create or exacerbate the problem?
Did you consider retreating? Was it reasonable to consider retreating?
Was the force you used reasonable, given your perception of the events?

The problem most civilians confront when using force is that they do not understand what is reasonable. The legal definition of reasonable: “what is appropriate for a particular situation?” This definition is generally applied in the law of Negligence. It is the standard of care that a reasonably prudent person would observe under a certain set of conditions. Someone who exercises such standards would not be negligent.

Let’s go back to our example. Is it reasonable for the intended victim to push a stranger away who is demanding their money? Of course it is. We frequently hear about death and injuries that result from these types of crimes. If the civilian’s perception is that they are about to be hurt or injured as a result of a crime, it is reasonable to use force to escape.

Was it reasonable for the civilian to shoot the stranger demanding money, when the gun the stranger was using is a toy gun? Yes, it is. The civilian has no duty or obligation to ask the stranger if the gun he is holding in his hand is a toy gun or a BB gun. The civilian’s perception at the time of the incident is that the stranger is holding a real gun, with real bullets, and he might shoot.

Civilians do not have the same mission as law enforcement officers have. Police are required by their mission and policy to respond to, and deal with, circumstances that may require use of force. Civilians are not required to get involved in any situation requiring the use of force. Civilians are not sent out to intervene in anything. Civilians can walk away from everything.

Civilians do, however, have almost the same authority as police officers when it comes to statutory authority governing the use of force. Civilians have the right to use “reasonable force”, as do the police, if their perception is that an Adversary is trying to hurt someone.

In most states, deadly force, or the taking of another’s life, is justified if a civilian’s perceptions of the activity taking place will likely result in great bodily harm or death. This is the same general rule for police officers. The difference is that civilians must consider retreating, and must be a “reluctant participant”, which means they have little choice with being caught up in the circumstances to begin with. Law enforcement personnel do not have these restrictions.

Although not the focus of this article, another commonality between police and civilians is the ability to use reasonable force to detain someone during an arrest. In many states civilians can make citizen arrests under certain conditions. Check your state statutes for details.

Law enforcement professionals are held to a higher standard of training than civilians, which is why a Use of Force Model of some type is typically part of law enforcement training. The challenge for the civilian is to determine what is reasonable should they decide to use force. Reasonableness and timeliness are the two primary considerations a judge or jury will use to decide if the civilian’s actions were acceptable in a use-of-force case.

Traditional martial arts and self-defense classes do not teach what is reasonable and timely. Most of these classes teach motor skills and techniques, but do not provide the civilian a legal framework of force to work within.

Here’s an example of the dilemma: A civilian comes upon an Adversary who is standing several feet from another person, fists clenched, swearing, and threatening that other person. The Adversary pushes that person hard, knocking them to the ground. Would it be reasonable for the civilian observing this take place, who has the right to use force, to intervene in the situation and to purposefully break the Adversary’s leg? Probably not. Unfortunately, this is a possible response for the civilian participating in traditional martial arts. Why? Many martial arts will teach you a number of techniques to deal with an Adversary, several of which will break an Adversary’s leg.

Now, take the same situation and apply what you will learn from an appropriate Use of Force Model. The description above is one of an Adversary whose actions are physically aggressive with no apparent weapons in hand. A good Use of Force Model will recommend appropriate techniques for this specific type of Adversary. Impact pressure would be one of the appropriate techniques, as would a striking technique. Impact pressure can be applied in various ways in which it is unlikely a leg will be broken, and is very likely to be effective on this type of Adversary. Strikes can also be very effective in a situation like this.

A good Use of Force Model does not teach civilians to break legs. It does, however, suggest impact pressure and striking specific areas of the body is appropriate. Let’s assume the civilian performs a head strike or stun on the Adversary, which momentarily affects the Adversary’s nervous system to the point they collapse and/or lose consciousness. See the difference? Momentary loss of consciousness is considered more reasonable than a broken leg in this particular situation.

Let’s change this scenario one more time. The civilian uses a thigh stun or knee strike, which is an appropriate technique on this type of Adversary. The civilian aims for the Adversary’s thigh with his knee, but the Adversary turns at the last moment toward the civilian, whose thigh stun ends up striking the Adversary’s knee, breaking the knee joint.

In this instance, using either the traditional martial arts training or a Use of Force Model, the injury to the Adversary is the same; a broken leg. But the context and framework is entirely different, and that will affect the considerations of timeliness and reasonableness from a legal perspective.

Primary Consideration

Do your homework when choosing self defense training and defense weapons. Make sure that the techniques you learn are in the context of a Use of Force Model that has been tested by the courts and is appropriate for civilians. These programs are very difficult to find.

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