Force less than deadly force

[JohnKSa]

JNO1 has my meaning.

I was thinking about the comment about having a spectrum of force levels available and wondered about the precise situations where I would need them.

I can see how LE needs to have a spectrum of force levels because they are required to continue to engage until they apprehend the suspect. They can not immediately disengage if things start to look dangerous and avoidance is contrary to the nature of their mission.

I was trying to come up with a non-LE scenario where I could not safely retreat and yet be unable to legally justify the use of a firearm (though perhaps not necessarily deadly force) to either end the situation or facilitate my retreat. I could not.

So I asked the question.

A simple fist fight between people with like abilities (absent a disparity of force scenario) does not rise to that level.

I will never be in a "simple fist fight". I will not allow a confrontation to progress to anywhere near that level without disengaging.

What could happen would be that I am attacked physically by someone who will not let me disengage/retreat/escape in spite of my earnest efforts to do so. The law does not require me to respond in kind. At least not my state's law. TX law allows one to draw/display a firearm as a deterrent/warning if an attacker is unlawfully using force against the defender and will not allow retreat.

[Sharkbite]

John

I hear ya Brother.

What about a twist in the situation i described above. I pull into a gas station, go inside to pay and on my way back to the pump am set upon by some dude i cut off. He is now PISSED and is going to kick my rear? What if my child is still in my car? I cant just run away...but i cant present my pistol and stick some rounds thru him either.

Now some will say i should have taken the child inside with me. OK, so now as i walk back to my car i have a child in tow...same thing. I cant run...i cant shoot

Texas may allow you to draw in that scenario. But most states do not, and even if you draw, how do you justify shooting to stop a punch in the face?

Or is the drawn gun a bluff? Ive seen street thugs sneer at drawn guns before. I dont bluff. If im not ready to shoot you, another option is needed

[stagpanther]

ALL the street thug/gangstahs I've seen pull a gun--and I've seen a few do it--ALWAYS fired after drawing the weapon.

[kilimanjaro]

Why aren't you justified in preventing an imminent assault from this guy? Being cut off in traffic is not provocation for assault. For all you know, once he's done beating you senseless and leaving you laying there, he's going to harm your child in the car.

This is a bit like the drunk kicking in your door at 2:00 A.M., who says he just wants to crash in what he may or may not believe to be his own house? Who says he just wants to punch you in the nose? He's irrational and aggressive, meaning possibly drunk or drugged, and for all anyone knows he intends to cause you grievous bodily harm and may not stop with you.

[Sharkbite]

ALL the street thug/gangstahs I've seen pull a gun--and I've seen a few do it--ALWAYS fired after drawing the weapon.

Stag, i was referring to them sneering at LEO's guns pointed at them. Ive seen that first hand over my sights.

I can only imagine what their reaction to a civilian drawing on them would be. A lot of potty mouth talking would be my guess.

[shooterdownunder]

Yes, punches, even a single punch, can kill or maim. But the issue is one of likelihood.

Likely enough that we've had to recently pass laws specifically targeting 'one punch' attacks.

[OldMarksman]

[In response to]

Likely enough that we've had to recently pass laws specifically targeting 'one punch' attacks.

Such attacks have been classified as criminal violence for centuries.

But they are not generally considered deadly force.

[JohnKSa]

Texas may allow you to draw in that scenario. But most states do not, and even if you draw, how do you justify shooting to stop a punch in the face?

No matter how it's worded, a person physically attacking someone else, who physically prevents the victim from retreating, and who continues to attack the victim after a firearm is presented is a deadly threat.

"A punch in the face" may sound innocuous, but I've seen people permanently injured from a punch in the face. I've seen people knocked out by a punch in the face (knocked out = concussion = serious injury). I've seen people killed by a punch in the face. It makes no sense at all to take one just to find out how hard the guy punches and how well I can take it. The reason I carry a gun in the first place is to prevent someone from seriously injuring or killing me when they leave me no other option. By continuing the attack and refusing to allow me to retreat, they've left me no other option.

If a person refuses to allow me to escape and continues to physically attack me after I draw on them, they will have proven to me that they are a deadly threat and they will leave me no option but to act accordingly. I'm not going to put down my gun and duke it out with them. There's nothing but risk in that for me and that would be true even if I were a black belt in something. Think about it--at any given time, there's only one guy on the planet so good that no one else can beat him.

I would treat them as a deadly threat if for no other reason than that if they subdue me they will have my gun. Given that they have demonstrated that they are completely unwilling to disengage, I have no reason at all to assume that after I'm disabled that they will just walk away, not continue the attack after I can no longer resist, and not use my gun against me (and potentially anyone with me) once they disable me.

A lot of potty mouth talking would be my guess.

I'm perfectly ok with that. They can say whatever they want as I leave the scene and call the cops.

It should be clear that all of the above is predicated on a reasonable assessment of the attacker as being able to cause serious injury or death. That should be implicit in the fact that he is effectively able to physically thwart all my attempts to disengage.

[K_Mac]

As Kilimanjaro said, we don't know the outcome of being violently attacked, and we don't know what will happen to those in our charge if we are incapacitated during such an attack. Walking or running away from a physical confrontation if possible is always the best solution. That is not always possible though. How much force is required to stop the attack will have to be decided based on the situation. The reality is any physical attack can turn serious or deadly even if that is not the intent. I have other tools in my box, but if a hammer is needed then a hammer it will be.

[stagpanther]

I have always chosen to run away from a bad encounter as fast as I can--even when I carried. Except on my property. That's different, I don't see a duty to retreat there (if it's clear a potential threat is not going to retreat; rather escalate).

All humans are predators, and IMO somewhere in everyone there is a primal instinct to kill.

[OldMarksman]

I would treat them as a deadly threat if for no other reason than that if they subdue me they will have my gun.

There is a lot to that.

According to Larry Hickey, that was his reason for shooting.

He could to get an acquittal, but he wasn't convicted, either.

[stagpanther]

I know of a situation when a cop engaged in a physical shoving match chose not to go to his weapon. He didn't live to find out if he made the right choice.

[Lohman446]

I will confess to being rather torn on this.

I have a limited background in martial arts - though its been many years since I have practiced it seriously. I have virtually no "real world" experience in fights since like junior high. I get the techniques taught in the "self defense" portion of martial arts should translate over but I am concerned that the training in hand to hand combat seems horribly scripted. Because I carry my firearm strong side and retention starts by covering it (I really prefer an adversary not know I have it) I am not sure how effective I could be in hand to hand combat - especially when the threat level is less than deadly force. I have no intention of restraining someone. Kathy Jackson writes that one should fight like a cornered cat - the goal is not to do damage to your adversary the goal is to escape and the amount of damage done in order to escape should be a far secondary concern but there should be no doubt that it is enough (once you decide you are fighting).

I am concerned about the use of pepper spray. I get that shooting someone for threatening you "I'm going to kick your butt" is an unreasonable use of force. While pepper spray may mitigate the amount of legal jeopardy involved I'm not certain its use in the same situation is warranted.

I have always practiced and accepted that the use of force was an "all or nothing" thing with some minor caveats. If I draw my weapon and my adversary immediately ceases all aggressive action I have no intention of using it anyways. However I also am not drawing my weapon as a threat - if I draw it is with the intent of using it to stop the threat's aggressive actions or make retreat possible. Nor am I using it when some massive disparity of force exists in my favor (an unarmed child does not pose imminent danger).

The idea of non-consenting adults participating in a fist-fight is still foreign to me. The fact that an adult physically attacking another adult does not rise to the level of an imminent threat of great bodily harm is troubling to me. I get the example of Mr. Hickey (he was actively engaged in hand to hand combat with three individuals). The thing that gives me pause is the idea that Mr. Hickey and / or his wife engaged in this combat as mutual combatants in the middle of the street rather than in their own driveway while attempting to retreat (as the event is related by Mr. Hickey). This seems to be a fact in dispute.

I get the statement: read up on it - I did order Branca's book and seek training. You know that the amount of training he had sought was actually used against Mr. Hickey in court (a mistrial so one can argue it was not successful). That and I am currently considering different options in training - again I find most hand to hand combat training to be too scripted and I am not interested in taking the time to learn Judo or a similar martial art that concentrates on the skills needed to effectively roll around on the ground. I've actually considered the idea practicing Aikido with my daughter (she will be three this year) as being good for her and it wouldn't hurt me. The same caveats apply to some degree though.

So I am left realizing there may be a hole in my training that poses some legal jeopardy. I am currently weighing the risk of the limited scenarios described here in actually occurring.

[Sharkbite]

While pepper spray may mitigate the amount of legal jeopardy involved I'm not certain its use in the same situation is warranted.

I have always practiced and accepted that the use of force was an "all or nothing" thing with some minor caveats

I teach use of force professionally. Empty hands (modestly), Pepper spray (OCAT), Taser (M26 & X26), Baton (ASP & Koga straight stick) and (most often) Firearms. I have always learned and then taught escalation on a sliding scale. The most common analogy is a staircase. You start at the bottom and work your way up (i disagree, but lets look at it that way and i'll put my spin on it later.

So we start with
- Physical presence--that could mean you are a 270lb body builder and nobody want to fight you or it could be your demeanor and bearing
- verbal commands (or verbal Judo for the PC in the crowd)
- Empty hand "soft techniques" (control holds and/or come-alongs)
- OC spray or Electronic control devices (depending on you Agency SOP or State law)
- hard hands (strikes)
- Impact devices
- Chokes
- firearms

That is a "typical" Use of force escalation. Now, no Agency in the U.S. says you have to use each step up the ladder sequentially. I teach it as an elevator not a ladder. A ladder must be climbed 1 rung at a time. An Elevator allows me to go directly to the appropriate level

The use of self defense sprays is at a MUCH lower level then the gun. A "all or nothing" approach leaves a HUGE gap in your defensive strategy and would probably have you resorting to the only tool you had at inappropriate times.

Now, use of force incidents are NEVER black and white. Its all convoluted shades of grey. A Jury (comprised of people that are most likely NOT your peers) will decide your fate.

Drawing your gun when DEADLY force was not justified is a shade of grey best avoided.

SHOOTING an unarmed guy because he was going to punch you is going to be VERY hard to defend in court. No use of force trainer (LE or Civilian) teaches that as a standard response to a physical assault.

I much prefer to have other tools in my tool bag. If i can spray a guy and NOT have to shoot him...im WAY ahead in terms of aftermath.

[Lohman446]

Sharkbite:

My issue with pepper spray, as a civilian, is the use of force beyond contact distance. Looking at your chart you actually have pepper spray before striking (after physical defense) but in order for me to deploy it I have to have some range.

I don't believe I can justify deploying it at the threat "I'm going to kick your butt". My response cannot be deploying pepper spray at that moment (I think).

The course of action that I would have to have to deploy pepper spray: My aggressor physically threatens me. I am unable to apologize or in any other way prevent said aggressor from taking physically aggressive actions. I am also unable to retreat (choice 1). My aggressor attacks me. I am able to thwart that attack and gain distance enough to be able to tactically deploy pepper spray (I am rather uneducated on this but I doubt I want to aim at a target less than a couple feet away) but I am still unable to retreat.

My question becomes - how many times do I have to physically disengage and retreat as much as possible (assume no massive force disparity) before I can reasonably come to a conclusion that my aggressor intends me severe bodily harm?

I have rather limited training time. Any use of force training I take part in removes time from something else in my life. How often do people who bought pepper spray and never tried it actually successfully use it? This is why I'm inclined to sharpen a tool rather than add another - even if that means reconsidering one of the various martial arts because I can practice it with my daughter (and my son when he is older).

For the record: I am not suggesting the use of a firearm as a response to the threat "I'm going to kick your butt". Though I am questioning if it becomes a viable response after several physical attacks that continue despite retreat. I do question if using pepper spray at the threat "I'm going to kick your butt" before the strike is reasonable.

[Sharkbite]

I would use the scenario i posted above to demo the proper usage of OC by a everyday Joe (or Jane).

Coming out of the lobby of a gas station, some stranger starts screaming at you (you cut him off pulling in and he is UPSET). You start (attempt) to create some distance whils saying "im sorry, i didnt see you". He continues to advance in a threatening manner.

You tell him FORCEFULLY to "STOP...STAY BACK!!!!" . If at that point he continues his advance, i would spray him. I could make a VERY compelling case for using a self-defense spray at that point.

The biggest point in my favor is i WAS carrying a gun and could not risk a physical confrontation. So i used the minimal amount of force to defend myself and did so at the most opportune time to minimize both risk to myself and injury to my attacker.

Of course that is a very canned and sterile scenario. But, it showcases why having SOME FORM of less lethal option is a good idea.

As to the question about OC being used by people with minimal training... Its not exactly rocket science. I teach it but thats only because i think people shold have a clear understanding about the product and its effects. As far as actual deployment, if you can use hairspray or spray deodorant, you can use OC. Some spray patterns are different then others and you should test yours to see what it does.

My advice... Buy 2 of whatever kind you chose... Go into your backyard.... Stand upwind and spray one as a training unit. Short bursts in an "S" pattern. See what it does. Wipe your finger on the nozzle and touch the residue to your tounge. That will be enough to convince you that sprayed into the eyes and nose should dissuade an attacker

Disclaimer... OC (no brand or make) is 100% effective. I have sprayed guys that gave up and cried like babies.... Ive also sprayed guys that it had MINIMAL effect on. A good blast to the face WILL result in at least reduced vision and some coughing. Both of which make it harder for him to press the assault.

[OldMarksman]

If I draw my weapon and my adversary immediately ceases all aggressive action I have no intention of using it anyways. However I also am not drawing my weapon as a threat - if I draw it is with the intent of using it to stop the threat's aggressive actions or make retreat possible. Nor am I using it when some massive disparity of force exists in my favor (an unarmed child does not pose imminent danger).

Good thinking!

The fact that an adult physically attacking another adult does not rise to the level of an imminent threat of great bodily harm is troubling to me.

That may be, but you had better accept it.

I get the example of Mr. Hickey (he was actively engaged in hand to hand combat with three individuals). The thing that gives me pause is the idea that Mr. Hickey and / or his wife engaged in this combat as mutual combatants in the middle of the street rather than in their own driveway while attempting to retreat (as the event is related by Mr. Hickey). This seems to be a fact in dispute.

To my knowledge, there was no allegation of consensual combat. The key issues were that the three individuals were not armed and that Hickey resorted to the use of deadly force.

My question becomes - how many times do I have to physically disengage and retreat as much as possible (assume no massive force disparity) before I can reasonably come to a conclusion that my aggressor intends me severe bodily harm?

Zero times. But serious bodily harm moves into the realm of justifying deadly force--and intent (jeopardy, actually) is but one important consideration. There are also ability and opportunity.

Absent a weapon or a significant disparity of force, a reasonable person would have no basis for a belief that an imminent threat of either death or serious bodily harm existed.

Sure, there is a possibility of serious bodily harm, or even death, but that does not constitute an imminent threat.

Let's go back to a scenario that I described--and you said you understood the point.

Someone attacks you with non-deadly force-- by punching you. He started it. You were innocent.

Suppose that you respond by threatening him with deadly force. He then shoots you.

He may prevail in a defense of justification by claiming self defense. You were the one who first presented a threat of death or serious bodily harm.

Though I am questioning if it [using a firearm] becomes a viable response after several physical attacks that continue despite retreat.

No, you may not defend against non-deadly force by using deadly force.

However, if it becomes an immediate matter of keeping him from taking your firearm, then, and only then, you may have no other choice, because his acquisition of the gun would rise to the level of a threat of death or serious injury.

If you had been carrying openly and if he had been fool enough to attack you, such an intent on his part would be reasonable to assume. But had you drawn from concealment, your actions would come into question. Had your gun remain concealed, and had you started to lose consciousness, it would be a judgment call, as in the cases of Hickey and Zimmerman.

I do question if using pepper spray at the threat "I'm going to kick your butt" before the strike is reasonable.

Don't assume that being struck first is ever a requirement in a defense of justification.

[Lohman446]

Don't assume that being struck first is ever a requirement in a defense of justification.

This is the thing - if being struck once or twice and backing up ends the attack I'm willing to accept it and have everyone walk away. Better yet if I get really luck and the blows do not land but it satisfies the need for "justice" for whatever the perceived or actual fault was I can live with that. I'm rather unwilling to swing first (or as I consider it use pepper spray).

The key to me is preventing it from escalating so quickly from "I'm going to kick your butt" to "I'm going to kill you" that I cannot respond to the escalated level of danger. The other key is preventing someone making physical contact with me figuring out I am carrying a gun, panicking, and escalating force.

I have a hard time considering the use of force when I am not under imminent danger of severe physical harm. Perhaps that is why I am having a hard time with the idea of an escalation "elevator" if you will.

As to the Mr. Hickey case - I did not read more than the article presented but it seemed that Mr. Hickey's account argued specifically it was in the driveway while the police account argued (incorrectly according to the article) it was in the road and as such represented mutual combat (IE Mr. Hickey was not retreating as his account holds).

[Sharkbite]

I am having a hard time with the idea of an escalation "elevator" if you will.

You can have "a hard time" with it....however it is our societies standard for use of force events.

[Lohman446]

You can have "a hard time" with it....however it is our societies standard for use of force events.

I should rephrase. I'm not denying the need for different levels of force for some people. Nor am I denying that you know what you are talking about in the levels you describe. The only real surprise I had was that pepper spray comes before hard strikes but considering the ability of hard strikes to do long term damage I get it.

I'm having a problem envisioning the use of it by me. Not you or anyone else - I get the argument that says one can (should?) respond to force with force - I just do not accept that it applies to me.

The situation described where I am walking back to my vehicle and am intercepted by an aggressive and confrontational individual. I'm probably far to willing to watch his (or hers) hands and hold mine slightly up in apology rather than escalation. Its a tactically suspect response and should he chose to hit me chances are at least the first blow lands.* Frankly I hope to have the presence of mind not to respond, to back up, and to see if the situation has ended. If it has everyone walks away, the police are called, and no one is hurt. I WANT any witnesses to be able to say I did not provoke the fight in any way. In fact I desperately want to not provoke the fight in any way.

I am rather unwilling to do harm to another human to the point if they hit me once or twice and walk away I am ok with that outcome. I am less willing to allow another human to do severe harm to me or kill me. So while I don't carry a gun for show I am also rather unwilling to fight unless there is no other option to avoid that severe harm or death.


*Somewhere in here is the George Zimmerman defense. The physical attack has progressed to such a point that not only does it represent severe and imminent harm it is leaving evidence of it. No it is not a single punch. The events, as that defense held IIRC, involved Zimmerman's head being bounced off the cement.

[Sharkbite]

I get that.

The problem with accepting a couple punches is you have absolutly NO IDEA what effect those would have. Maybe his first punch knocks you out. In falling to the ground your (once) concealed pistol is now exposed. You are not able to retain that gun and who knows what happens next.

Is this a 3rd strike felon that now has nothing to lose? He takes your gun and kills you.

Do you smash your head on the parking bumper as you fall and now youre a paraplegic?

Im not willing to take the chance and accecpt the hit. If you are, thats fine. Self-defense is a PERSONAL choice. Where you draw your line in the sand is entirety up to you.

[OldMarksman]

The only real surprise I had was that pepper spray comes before hard strikes but considering the ability of hard strikes to do long term damage I get it.

Did you really think that a person would be required to be physically attacked before resorting to force to defend oneself, or do I misunderstand you?

If so, what gave you that idea?

I get the argument that says one can (should?) respond to force with force - I just do not accept that it applies to me.

Are you saying that you would not defend yourself against the use of force or the threat of force if necessary?

I WANT any witnesses to be able to say I did not provoke the fight in any way. In fact I desperately want to not provoke the fight in any way.

Absolutely! Innocence is essential for a defense of justification.

... I am also rather unwilling to fight unless there is no other option to avoid that severe harm or death.

Well, you sure do not want to use deadly force unless there is no other option. But one option may be the use of non-deadly force.

[Lohman446]

Its a perception issue. I can tell you what would be going through my mind in the hypothetical situation.

"He's not actually going to hit me. There is no way he is actually going to hit me over this"

"Holy crap he hit me. He's not going to do it again is he? There is no way he is actually going to do it again"

Because of this (hopefully not) flawed perception my response to the situation prior to the first or second strike is not likely to be physically effective.

[Lohman446]

Are you saying that you would not defend yourself against the use of force or the threat of force if necessary?

I think so. Now after someone hits me three or four times I'm likely to respond with physical force because there is a limit to everything. Absent the real threat of severe imminent harm I am really not that willing to take offensive action against another person.

[Sharkbite]

He's not actually going to hit me. There is no way he is actually going to hit me over this"

Wow!! Reality check NEEDED.

In todays society, IN AMERICA, people assault other people with physical violence ALL THE TIME.

Dont make the mistake of putting your morals onto others actions. People stab other people over a can of soda. Beat others senseless over a dirty look. Do some research into interpersonal violence