Police use of force is very much in the news these days. On one hand, Social Justice warriors and Democrat politicians (yes; I know I repeat myself) argue that virtually any use of force against favored victim groups–these days, primarily young black males–is not only illegitimate, but inherently racist and criminal. On the other, most people haven’t a clue about the legal issues revolving around the use of deadly force.
The social justice cry is particularly loud when the criminal was not carrying a gun. In such cases, the Michael Brown case being an obvious contemporary example, the cry “unarmed black man” reverberates throughout the media and blogosphere as though those three words say all that need be said, and unquestionably prove any and everything Black Lives Matter cracktivists assert.
In reality, a criminal relying only on his hands and feet can present a deadly threat, a threat justifying an entirely lawful lethal response, whether done by any member of the public or a police officer. This was exactly the case with Michael Brown. It was also the case with Trayvon Martin. Both are continually cited as unarmed, black, holy social justice martyrs, despite the fact that both criminals died while under the influence of drugs, in the act of trying to kill others–classic cases of self-defense–and no police officers were involved in Martin’s death.
Those wishing to explore the “unarmed” issue in more depth might visit an August, 2015 article: Police Shoot Unarmed Man.
One contemporary case of great significance is the ambush murders of Dallas police officers. Everything about that case effectively refutes the arguments of the social justice crowd. The black killer was very well armed and trained, and was absolutely a racist. We know because during brief negotiations, he expressly said he wanted to kill white police officers, and intended to kill as many as he could.
Even so, some are crying excessive use of police force because the Dallas Police used explosives–reportedly C4, a military grade plastic explosive–delivered by a remote-controlled robot, to actually blow the shooter to bits. And after all, he was black, so the police must be racist somehow. Paul Mirengoff at Powerline reports:
When the Dallas police finally took out Micah Johnson, they used a robot with a bomb — a device that can be compared to a drone. I considered this great police work but, remarkably, killing Johnson in this way proved to be controversial.
Some apparently believed that the officers engaged in the standoff with Johnson, and who had tried unsuccessfully to persuade him to surrender, needed to come close enough to Johnson (who had already killed multiple officers) to be shot at before they would be justified in killing him. As it was, said one law professor, only the robot was in danger.
This kind of commentary proves primarily one thing: even the overwhelming majority of lawyers have no understanding of deadly force law.
When cop killers are willing to die in order to take out police officers in gun battles, we are in uncharted territory. Police departments need to find ways to fight back without accommodating the killers’ desire for a fire fight.
Actually, Mirengoff is partially incorrect. We are not in uncharted territory, as I’ll explain, but first, two important preliminary issues: anyone interested in this topic, or who carries a concealed weapon, must have Andrew Branca’s The Law of Self Defense, an indispensable book. Branca and I often cover national cases such as the Martin case, and currently, the prosecution of the Baltimore officers, he at Legal Insurrection. Also, we must have an understanding of the issues–triggers, if you will–relating to the use of force, and particularly deadly force.
Each state has its own very specific laws on these issues, and it’s an individual duty to be familiar with those laws. When force has been used, particularly deadly force, those laws will be applied to determine whether that defense was lawful self-defense–justifiable homicide–or some degree of murder.
One may use deadly force in self defense when:
Means: An attacker (or attackers) has the present, obvious means to cause serious bodily injury or death.
Opportunity: An attacker is close enough, and circumstances make it possible, to use that means.
Jeopardy: An attacker is actually acting on their threat, or has clearly communicated their intention to act upon it. Jeopardy must be imminent, something that’s going to happen in mere fractions of a second or in mere seconds, or is already happening. Potential future threats do not normally place one in jeopardy.
Two additional factors that are of equal importance are innocence and proportionality:
Innocence: To legitimately claim self-defense, one must be an innocent victim of an assault. Willfully engaging in mutual combat–a fistfight, for example–generally precludes innocence. One may not, in any way, provoke, incite, or bait another into an assault and then cry self-defense when losing.
Proportionality: The force used against an attacker must be in proportion to the force applied against the innocent victim. If someone slaps you on the face and shows no further sign of pressing the assault, and you shoot them, the response was out of all proportion to the threat and the force used against you. You have become the attacker and innocence has shifted to the person that slapped you. If, however, someone initiates and sustains a potential deadly attack against you, you may use deadly force to save yourself.
Obviously, there is a very wide range of possibilities here, but these factors help us to understand the issues. In a deadly force encounter, an unarmed man of average size and strength can seriously injure, even kill, a woman of average size and strength. Attacked by a stranger who presses the attack, a woman can reasonably believe that if she does not use deadly force–her concealed handgun–she will be seriously injured or killed. Rape is generally considered to be serious bodily injury. How can any woman faced with rape be certain her rapist will simply walk away and leave her alive to testify against him?
Disparity of force is also a significant factor. Most people have never been in a fight. They have no idea what it is to be punched in the face. Most human beings have not trained for such brutal violence. For most of us, fights are the choreography we see on the TV set or silver screen. The average man, regardless of size and weight, attacked by a criminal experienced in attacking his fellow man, is at a real disadvantage, a disadvantage that could easily result in serious bodily injury or death.
It’s also important to realize that the standard applied will be what a reasonable man would do in the same circumstances. This is not, however, an inherently unreasonable standard. In Brown v. United States (1921), Supreme Court Justice Oliver Wendell Holmes wrote:
Detached reflection cannot be demanded in the presence of an uplifted knife.
One will be judged based on what a reasonable person could have known and believed at the time, and under those circumstances.
Any citizen should avoid assaults and fights, or if reasonably possible, do a pythonesque King Arthur (“run away, run away!”). There is no dishonor in avoiding injury, or in avoiding the potential of years of litigation if forced to take the life of a criminal trying to take yours.
Unfortunately, the police don’t have that option. In most states, citizens don’t have to defend themselves against the accusation that they could have run away when threatened (“castle doctrine” or “stand your ground” laws). The very nature of police work requires officers to put themselves in harm’s way. The very nature of making an arrest–putting hands on someone and restraining them–would be, if done by a non-police officer, an assault.
When police officers are making a lawful arrest, they may use any force necessary to make that arrest, up to and including deadly force. As long as they are acting lawfully, innocence is presumed. However, proportionality still applies, even then. Let’s examine two pertinent scenarios.
Scenario 1: A criminal armed with a handgun has tried to rob a bar, but was interrupted by a passing police officer. They trade a little gunfire, but no one is hit. The officer withdraws, and the criminal takes everyone in the bar hostage. Negotiations are eventually opened, and the criminal repeatedly threatens to kill hostages if his demands aren’t met. The negotiator reasonably believes he will carry out his threats. The criminal periodically walks into the crosshairs of a police sniper. Can that sniper lawfully shoot the criminal, even if he is not pointing his handgun at someone at the time?
Does he have the means to cause serious bodily injury or death? Yes. He is armed with a handgun, and the police know it is loaded. He earlier fired on a police officer; he tried to commit murder.
Does he have the opportunity to cause serious bodily injury or death? Unquestionably. The hostages are sitting ducks, confined in a small space. All the criminal need do to kill any of them is raise and point his gun and pull the trigger, an act taking a fraction of a second. He need not be pointing the gun at any particular part of anyone’s anatomy to provide the opportunity to do it.
Is he putting them in jeopardy? Yes. At any given time, he is within point-blank range of hostages. Remember he has repeatedly threatened to kill them if he is not obeyed, and he has already tried to murder a police officer.
If the sniper fires, would he be innocent, and would his shot be proportional to the threat? Yes and yes. He is acting under color of law, his mission to save lives by ending the threat as quickly and effectively as necessary. The criminal is threatening deadly force, so deadly force in response is proportional, particularly since only a short time earlier, he used deadly force, failing only due to circumstances and poor marksmanship. The police can’t count on continuing poor marksmanship in the present circumstances.
In such a case, a negotiator will normally try to talk the criminal into surrender, but this is always dangerous. Misunderstanding the criminal’s mental state or intentions could result, in a split second, in the death of innocents. As long as the criminal is holding hostages–that is the operant condition of any hostage situation: the continuing threat to kill hostages–all of the elements for the use of deadly force are present.
Scenario 2: Dallas. An unknown killer has ambushed, wounded and murdered multiple police officers and citizens at a protest where those officers were protecting citizens demonstrating against the police. The killer is cornered and possibly contained to some degree in a multi-level parking garage, a tactical nightmare for assaulting police–and is in contact with negotiators. He is armed with what is believed to be a semiautomatic long gun, and is obviously skilled in its use. In his attack, he has demonstrated a significant degree of tactical skill. He is far more dangerous that the usual criminal. This is even more obvious because he makes explicit his desire to kill police officers, and particularly white police officers, as many as he can. Given the chance, he will continue to kill.
The Police decide to stop the killer through the use of explosives delivered by a remote-controlled robot. They are successful, however, at the time he was killed, the killer was apparently not directly pointing a weapon at anyone. Were the police justified in using deadly force?
Did he have the means to cause serious bodily injury or death? Yes. He is armed with a long gun, and the police know it is loaded. He has already killed and wounded many.
Does he have the opportunity to cause serious bodily injury or death? Unquestionably. While he is, for the moment, potentially contained, he may, at will, maneuver and attack. Even a suicidal charge will surely result in the deaths of more police officers. Remember that the killer’s weapon has already penetrated police bullet resistant vests, and his tactical skills make him uniquely dangerous. The parking garage where he has taken refuge gives him the tactical advantage.
Is he putting the police–and the public–in jeopardy? Yes. Even though, as far as the police know, he does not have anyone in his sights, he could easily accomplish that in a fraction of a second. They don’t know exactly where he is from moment to moment. The mayhem he has already caused, and his clearly stated desire to cause more, means the Police must deal with him. They cannot simply try to wait him out; he could easily escape and kill others during such an attempt, and the tactical advantage is his. He decides when and where to strike. The police are not required to put additional lives at risk merely so they could say that the killer was pointing his rifle directly at them when he died. The law does not require police officers–or anyone–to allow a killer the first shot before responding. The threat, by his multiple attempted murders, and actual murders, and his threats to commit more if given the chance, is real and continual. It ends only with his surrender or death, and he has made clear he will not surrender.
Were the police innocent, and was the use of force proportional to the threat? Yes and yes. The police, victims of an unprovoked and murderous ambush, were obviously innocent. Their role under the law also provides the presumption of innocence. The issue of proportionality is interesting, but only as an academic exercise.
If every other element is present, one may use as big a gun as necessary, and shoot as many times as necessary to end the threat, to stop the attack. If a single .22LR bullet stops the killer, that’s wonderful, but if five .500 S&W Magnum bullets are required, that’s lawful too. One may alternately whack the killer in the head with a golf club as many times as necessary and as hard as necessary. The issue, if the use of force is lawful, is not the means of applying the force used to stop the attack.
The use of explosives was a brilliant tactic in this situation. The reinforced concrete parking garage shielded the surrounding area from the force of the blast, while focusing it–in effect, making it more deadly–on the killer. An explosive, like a firearm, is a distance weapon, yet its use did not require putting the lives of more police officers at risk against a skilled and homicidal opponent with a tactical advantage that would virtually guarantee that more officers would be seriously injured or die.
Underlying the misconception of those that think this use of force somehow wrong is the bizarre notion that it was somehow unfair. The police should fight it out like men, on Main Street, man to man, at high noon! Set aside the reality that such tactics are profoundly stupid, the killer forfeited any claim to a duel–which is illegal, by the way–when he ambushed and murdered many. Some might even be so addled as to imagine that unfairness may be found in the fact the killer was black, so any force police used against him for any reason was racist. His actions, while regrettable, were somehow understandable because of the legacy of white oppression.
Fortunately, the law in this, and similar situations, is clear and color-blind. It is the deadly threat at issue, not the motivation of those threatening, even if the President of the United States can’t imagine what it might be.
Obviously, this case doesn’t mean citizens should arm themselves with robots and explosives. Seeing a tactical use for those tools that would save lives, and a unique circumstance that made using them practical, the police wisely used them. A similar situation may not present itself in a century.
Understand, please, that I’m speaking in general about legal issues. I’m not an attorney, and as I’ve previously mentioned, it is the laws of the state where any use of force occurs that will matter. Some provide more leeway than others, but the general principles, as I’ve outlined them here, tend to apply.
As always, social justice is about feelings, and the rule of law is about fact. evidence and reason.