Determining Reasonableness When Using Deadly Force in Self-Defense

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Determining Reasonableness When Using Deadly Force in Self-Defense

In mid-2018, California became the first state where lawmakers introduced a bill to significantly restrict when law enforcement officers can open fire with their duty handguns when encountering a criminal armed with a weapon in his or her hands. Some say in California and other places that they want a similar law restricting the civilian use of handguns as well when an armed offender confronts them. The application of “reasonableness” is at the heart of this matter. Wonder how all of this will develop and resolve? This is certainly a highly-emotional and volatile issue and, more importantly, a critical self-defense concern for applying practical, logical, and rational thought processes and appropriate, timely problem-solving action if that is even possible at this time for all involved.

Behavior that Makes Sense to Ourself and We Don’t Know What We Don’t Know

Certainly, at any one particular point in time we all do behave in our unique way that makes sense to ourself, given our learned and innate set of delimited beliefs, values, motivations, thoughts, experiences, inherited traits, education, etc. We are all different. And because of the restrictive, emotional blinders and overall very limited experiences we have, we all do not know what we do not know… the big total-system perspective. It is very difficult to “walk in the moccasins of others.” But, these limitations are not excuses to continue pursuing our blind, one-sided, ineffective, emotional reaction involving future life-or-death situations. Without any doubt, discrimination, prejudice, and antagonism toward someone different or with different ideas is a double-sided sword that can cut both ways. Each participant in any association or incident can show unrecognized bias, and at least two disparate views are usually involved in any issue.

Issue: Perhaps we need to pause, take a step back and more seriously consider the implications for a decision to pass a law that shackles the self-defense actions of not only police officers performing their serve and protect duties, but which might also affect self-defense actions for everyone.

Goal: Clarifying the “reasonable” use of force and blending the on-scene restricting of law enforcement’s use of their weapon responses in lethal armed-criminal encounters which jeopardizes police lives, while preserving the letter of the law for everyone, and while avoiding harm and/or death to innocent citizens.

Idea: We are different with unique ideas, and we all have much to learn. But there is a mutually-beneficial common area of agreement which we must find in our solution. We desperately need logical thinking and long-term blending of divergent schools of thought for this recent California issue of “reasonableness” and for a practical, hands-on “big picture” resolution. Protecting all lives is a common interest that must be recognized for a win-win result for all affected.

One stimulus for this California change in the “reasonableness” approach by police officers is the ACLU, American Civil Liberties Union. The ACLU cites controversial studies, for example, that show blacks are far more likely than whites to die in police shootings and that California has 5 of the nation’s top 15 police departments with the highest per capita rates of police killings. Other studies and reports show more blacks are involved in crime with a handgun than are whites and others and there are other specific documented arrest data.

FBI and U.S. Census Bureau Reports

We all know that statistics and numbers can be misleading and do not represent the total picture when analyzing “cause and effect” figures and rationales. And indeed, arrests are not convictions. But, the crime reports and statistics from reputable and seemingly objective sources are there to consider for a big picture view. Substantiated (and controversial to some) statistics apparently support that about half the murder, manslaughter, and violent crimes in America are committed by blacks who constitute about 13% of the population. U.S. Census Bureau data from 2016 report that 13.4% of the U.S. population is black or African American, while 76.6% of the population is white.

Correlation Does Not Necessarily Imply Causation

The F.B.I’s Uniform Crime Report in the U.S. in 2016, Table 21, Arrests by Race and Ethnicity, shows there were 8,421,481 total arrests reported in 2016. Out of that number, about 70% were white, and about 27% were black. Specifically for murder, there were 9,374 arrests reported, with 53% being black and 45% being white, according to this report. Those statistics indicate that there is a disproportionate number of blacks being arrested for murder, relative to their percentage of the population. Of course, this does not report murder convictions nor reasons or causes of this disparity. Some even controversially say that if one group is more likely to be involved in crime, then they are more likely to risk being killed by the police because of the sheer numbers and increased exposure probability. This may or may not be true.

From my university days of teaching business inferential statistics, I recall the definitions, tests, and uses for correlation and causation. A correlation is a relationship between two sets of variables used to predict occurrences. But, just because there is a correlation relationship between two variables, it does not automatically mean statistically that one variable caused the other. It does not imply causation.

Also, just because there is some cause and effect relationship, it does not mean that there is a strong positive correlation. Correlation means that two sets of data move in some consistent pattern and are connected, but it does not mean that one data set actually caused something to happen. But, it does mean that if there is a causal, cause-and-effect relationship between two variables, they must be statistically somewhat correlated.

Several have divergent views for any violent crime cause, like poverty, less education, disadvantages of less access to public services, less parental guidance, low moral standards, disrespect of authority, and dominant cultural values of crime tolerance, etc. This is an emotional-filled subject. Just one aspect was mentioned by an individual whom I admire very much.

Martin Luther King, Jr. Church Speech

“Do you know that Negroes are 10 percent of the population of St. Louis and are responsible for 58 percent of its crimes? We’ve got to face that. And we’ve got to do something about our moral standards. We know that there are many things wrong in the white world, but there are many things wrong in the black world, too. We can’t keep on blaming the white man. There are things we must do for ourselves.”

— Martin Luther King Jr. (in a speech to a St. Louis church congregation, 1961)

Are Police Too Quick to Shoot?

There seems to be a perception among some that police officers in certain communities are too quick to shoot those who appear to pose a deadly threat. They believe that the “reasonable” police officer should wait until an offender armed with a gun in hand begins to actually use the gun against the officer before the officer utilizes lethal force.

Do you hesitate and ask yourself “Is he really a criminal?”

Oh, if it were only that simple a decision and that predictable in the streets in three seconds.

Is waiting and delaying use of a defensive weapon reasonable or even necessary where the offender has his weapon in hand, but not aimed?

Do you bet your life on this uncertainty in a few seconds when faced with an offender with a gun?

What a predicament!

Hesitation for any reason can cost anyone their life because the tactical advantage is lost, self-doubt enters, and the mindset control is not there. Offenders with a gun in hand can attack with deadly force at any time. Force-on-Force Training will help police officers and individuals respond with the appropriate level of “reasonable” force to various situations.

“Reasonable” or “Necessary” Force

The proposed California legislation restricting police officers using deadly force would change the current “reasonable force” law to a “necessary force” standard… whatever that specifically means, especially as possibly applied to civilians. “Necessary” means to me required by the situation and unavoidable. While “reasonable” to me means considered sensible by standards and appropriate for the situation. What is “necessary” or “reasonable” for one may not be for another. And situations vary considerably.

According to some police officers and some media, it seems the proposed new “reasonableness” standard means that officers would be required to delay confronting an armed suspect until backup arrives for witnessing the command, for example, or to first give very explicit mandatory-advance warnings before shooting the offender who has a weapon. One warning to the armed offender would be “you will be shot unless you drop your weapon.” In the face of an armed offender, police officers would be required to first engage in very specific de-escalation techniques, and commands or first try every non-lethal option before shooting a threatening suspect who has a weapon in hand.

This probably means that California police officers would be allowed to shoot in a usual split-second criminal confrontation only if there were no other “reasonable” alternatives not exhausted to the use of deadly force to prevent imminent serious injury or death.

How do you sincerely try to fairly and logically determine and do that in the “heat” of the instant moment?

Of course, if they did happen to shoot as a reasonable “necessary force” last alternative, they might be liable for attempted homicide, a homicide, or other serious charges. And if they did not happen to shoot, they could end up pushing daisies. He was a nice fair and considerate… dead guy! But, how can you objectively know? How do you know if the armed offender will shoot you with the gun they have in their hand? What if you give the “bad guy with a gun” the benefit of the doubt… with police officers’ lives dangling in the uncertainty? Have we lost all reason, rationality, and respect for those that lay their lives on the line and run toward danger for us? Have we gone overboard to give the criminal with a gun the upper-hand advantage? They should not even have the weapon in their hand, to begin with, let alone ignore or disobey the righteous lawful order or command of a police officer doing their duty to protect all citizens. There are two sides to that double-sided blade. As an innocent offender with a gun, why not just put the gun down, not disturb the peace, and follow lawful police commands, then sort out the details and philosophies later.

Obeying a Lawful “Police” Order or Direction

In all states, it is some form of a crime not to follow lawful orders and directions of police officers. In my state of Florida, for example, under Florida Statute 316.072(3), it is a crime to disobey a lawful order or direction by “police,” which includes a municipal police officer, deputy sheriff, or state trooper, a traffic crash investigation officer, a traffic infraction enforcement officer, or any member of the fire department at the scene of a fire, rescue operation, or other emergency. The crime of disobeying a lawful order or direction of a Florida police officer is a Second Degree Misdemeanor punishable by up to 60 days in jail, six months of probation, and a fine of $500. Remember, I am not an attorney and do not want to practice law or give legal opinions, so contact an attorney in your state for a better legal understanding and assistance about this.

Why Argue or Resist Police Commands or Directions

Yes, free speech is a protected and valuable First Amendment right of our Constitution. And, I understand that words alone will rarely rise to the level of disobeying a lawful order of police. Rather, this legal layman-neophyte understands that the words must be accompanied by “obstructive physical conduct” to support a conviction for not following police orders and directions. Does the freedom of using words and exercising your right to expression override the lives of anyone, including police officers and civilians, in any emergency lethal situation?

An in-progress lethal encounter is not about one’s entitled right and freedom of expression, but rather about a responsibility for a safe win-win outcome and to do what is right for everyone involved in the particular possible life-or-death encounter that involves a gun and avoiding the potential negative consequences for everyone.

Well, I don’t know about you, but if a police officer ever gives me a lawful order or command to “stop”, “show me your hands”, “take your hands out of your pockets”, “put your hands up”, “call an ambulance”, “give him First Aid”, or any direction, I will immediately comply to the best of my abilities. I will have nothing to hide and maybe nothing to immediately gain myself. I accept that all lives matter. I will not suspect that the police officer thinks I’m guilty of anything because I know I am not. I will respect authority, their mission to serve and protect, and want to get to the bottom of what is wrong… or prove that I am innocent… or help. I have nothing to hide at all. Failure to comply with the order or signal of a police officer is a serious offense. I respect their duty right to issue commands to meet their mission. My parents taught me that police officers are my friends and will protect me. Of course, there are exceptions nowadays, but I sincerely believe that the vast majority will serve, protect, and help us. I do not believe that this comes from my lack of judgment or wisdom, but rather from a positive outlook to benefit our larger society and help performance. The Pygmalion Effect is alive and well, and I know it works.

The Existing “Reasonableness” Standard Among States

Will the “Reasonableness” standard also change to restrict civilians from using deadly force in self-defense encounters? In all states to use deadly force, you must believe that there was an imminent danger to your life or imminent danger of serious bodily harm. As always, research and know the laws of your state and jurisdiction, take a self-defense pistol course, and practice, practice, practice.

In my home state of Florida, there is Florida Statute 776.012, Stand Your Ground, which states that a person is justified in using deadly force (and does not have a duty to retreat) if he or she “reasonably” believes that such force is “necessary” to prevent the imminent commission of a forcible felony or to prevent imminent death or great bodily harm. An interesting combination of both of the terms.

What Would You Do in this Typical Self-Defense Scenario?

You as a civilian are walking down your street and are legally carrying your handgun with your Concealed Carry License. Suddenly an armed, muscular and healthy, young guy jumps from behind a bush, and there is no cover available to you. He looks menacingly at you with his gun held at the close-retention, high-ready position with the muzzle at a 45-degree cant and pointed upward away from you, and says “Gimme your wallet.” At the same split-second time he says that you draw your gun, confront him, point your gun at him, and are ready to shoot but do not fire. You command him to drop his gun three times, but he ignores your command. So then do you begin exhausting all your possible non-lethal options?

Your Thoughts in 3 Seconds

Quickly going through your mind are your thoughts…

  • He has a gun and has the ability to inflict death or serious harm to me;
  • He is robbing me;
  • He is positioned in a ready position in close proximity to me about 3 feet away;
  • My life is threatened, and I am in jeopardy by his hostile action;
  • I cannot safely escape or retreat at this close a distance;
  • He may suddenly point his gun at me and shoot me;
  • Do I give him a 4th command to drop his gun?
  • What other non-lethal options do I have?
  • Should I shoot before he points his gun at me and shoots me?

Shoot or No Shoot

If this offender suddenly slightly moves his gun and points it in your direction from his high-ready position, you are highly unlikely to get a shot off to defend yourself before he shoots. Even under ideal circumstances, you probably can shoot no faster than the attacker can simultaneously shoot. What is the “reasonable” and/or “necessary” action to take? Oh, you have only 3 seconds maximum to think about this and to make your decision. This is a no-win situation.

Also consider, what if the revised “reasonableness” standard was changed to a required “necessary force” only standard as an existing law? Would this affect your decision? If so, in what way(s)?

Without any doubt, the armed offender in front of you presents an extreme clear and present danger to you. Even if you have your gun pointed and aimed directly at the offender and the offender is not aiming at you, you are still in jeopardy, and your life is threatened. And it does not matter in this scenario if you are a civilian defending your life or a police officer confronting an armed offender. Are you justified in pressing the trigger before the offender makes any move to point his gun at you? There are so very many considerations… and “yes” the situational factors do come into play… and “yes” there are important considerations and differences between the roles of a law enforcement officer and a civilian. And there are research conclusions, scientific studies, and “reasonableness” standards which matter. But, realistically you have 3 seconds to decide.

Criminal Justice Study Conclusions

According to conclusions reached by some researchers in a unique reaction-time study, your preemptively shooting under such circumstances may well be considered “reasonable” and necessary by the law enforcement standards of the Graham v. Connor decision.

What is Graham v. Connor and the Existing “Objective Reasonableness”

Graham v. Connor, 490 U.S. 386, was a United States Supreme Court case where the Court determined in 1989 that an objective reasonableness standard should apply to a civilian’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other “seizure” of his person. The officer’s actions must be reasonable to an objective observer. The test is whether or not a “reasonable” officer on the scene, faced with the same circumstances, would use the same physical force. The objective reasonableness standard as set forth by the Graham v. Connor decision is based on what a well-trained, prudent police officer would do in a given situation. It is not based on the intent or motivation of the officer or other subjective factors at the time of the incident, according to Dr. J. Pete Blair at Texas State University and Dr. Bill Lewinski at the Force Science Institute.

Criminal Justice Study

Related conclusions from a Criminal Justice study at Texas State University show that even well-trained police officers with their guns aimed at a suspect cannot reasonably be expected to react faster than a suspect can raise his or her gun and fire. The study was headed by Dr. J. Pete Blair, an associate Criminal Justice professor at Texas State University and included representatives of the Advanced Law Enforcement Rapid Response Training (ALERRT) Center at the university, with financial support from the Criminal Justice Division of the Texas governor’s office.

Study Conclusion:

“The process of perceiving the suspect’s movement, interpreting the action, deciding on a response, and executing the response for the officer generally took longer than it took the suspect to execute the action of shooting, even though the officer already had his gun aimed at the suspect.”

Of course, a well-trained, prudent civilian self-defender might react the same way in a given situation with their gun aimed at an offender… and would probably also not be expected to react faster than an offender could raise his gun and fire. But, do you bet your life on this and what do you do? What is “objective reasonableness?” What is the “necessary force?”

Conclusion

For both civilian and law enforcement deadly-force encounters with an armed offender, it is not enough to simply conclude that the situation varies, consider it, and it will naturally dictate “reasonable” common-sense actions. Many factors and viewpoints will enter into this seemingly routine decision, both before and after it occurs, which is actually a life-or-death lethal decision with far-reaching implications for many individuals which you make in a very few seconds. By understanding and trusting in our law enforcement system and thinking and acting positively and logically, while minimizing personal animosities and negative emotions, improved long-term results and rational decisions which meet acceptable thresholds can be made to benefit almost all individuals. We should all train for and be a part of a “satisficing” reasonable strategy and solutions, rather than hindrances for improvements. Continued Success!

Photo Credit: Galco, Mbarham.

* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense and concealed carry. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.

© 2018 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at [email protected].