Andrew Branca, antifa, Austin, Avoidance, BLM, D/S/Cs, deadly force, Gov. Tony Evers, Imminence, innocence, Marquis Lee Love, mostly peaceful protestors, Proportionality, Reasonableness, The law of self-defense
Recent lawlessness in American cities has sparked a dramatic run on gun stores. Even Democrats/Socialists/Communists, forced to deal with real rather than manufactured reality for the first time in their lives, are buying guns for the first time. It seems the realization the politicians that have promised them utopia, and exemption from the law, and physical laws binding Normal Americans, are liars can be sobering. Suddenly discovering the people you once worshipped don’t give a damn about you or your family, and are seeking to do away with the police while simultaneously trying to disarm you is something of an attitude adjuster. That and realizing the D/S/C shock troops of Antifa and BLM are like nothing so much as rabid dogs that will, without warning, not only bite the hand that feeds and finances them, but tear out the attached throat, has made many former leftists converts to real reality.
With that new understanding of reality, and a newly acquired firearm, comes another sobering reality: when can deadly force be lawfully employed? In this brief article, I’ll focus on an issue of real concern: mob attacks on innocents in motor vehicles. Let’s consider two recent events.
Recently in Portland—where else?—a group of “mostly peaceful protestors” forced an innocent motorist to crash his truck, drug him from the vehicle, and brutally beat him unconscious. The man, Adam Haner, suffered serious injuries, but survived, and one attacker, Marquis Lee Love, who has a felony rap sheet, was eventually arrested. Love was only one of many that attacked Haner, but he was recorded on video kicking a down and unconscious Haner in the head, an act that could easily have killed him.
Also recently in Austin, TX—slightly less where else—an active duty Army Sergeant stationed at Fort Hood shot and killed a white “BLM protester” who was armed with an AK-47-type rifle:
An active-duty Army sergeant from Fort Hood says he was the one who shot and killed a man at a Black Lives Matter protest in Austin, Texas, last weekend, according to the sergeant’s attorney.
Sgt. Daniel Perry said he fired at Garrett Foster out of self-defense after Foster allegedly raised an assault rifle toward Perry, according to a statementfrom the attorney obtained by The Washington Post.
According to the statement, Perry was driving for a ride-share company in downtown Austin on the night of July 25 when he turned a corner toward a protest he did not know was taking place.
At that point, the attorney says protesters began beating on Perry’s car. Foster then allegedly approached the car window holding an assault rifle.
The attorney said Foster gestured with the gun for the driver to roll down the window, and Perry did so because he ‘initially believed the person was associated with law enforcement.’
Perry realized Foster was not an officer, after which Foster allegedly raised his rifle at Perry. The attorney said Perry perceived that as ‘a threat to his life’ and fired at Foster using a handgun he kept in his car.
Note that The Hill’s account does not identify the rifle by type. Were Perry wielding it, they surely would have. The local prosecutor, correctly applying Texas law, did not charge Perry in the shooting, though considering it occurred in Austin, and that particular prosecutor’s office is known for leftist sympathies, it could easily have been otherwise, a point to which we’ll return, gentle readers.
There are a variety of similar incidents of late, virtually always taking place in D/S/C ruled cities, where the political authorities have hamstrung the police, allowing vicious leftist thugs not only to block major thoroughfares at will, but to occupy and rule city streets and entire neighborhoods. In so doing, they have turned their city over to those mobs, and allowed them to get away with a wide variety of felonies, many of which might well constitute reasonable grounds to use deadly force.
Disclaimers: I am not an attorney, and the information I provide herein comprises general principles of law for your consideration. It is not legal advice. You are responsible for knowing the laws in your city/state, which may differ greatly from place to place. Again, I am not providing legal advice, merely general information.
The Law of Deadly Force: I’m borrowing here from attorney Andrew Branca, currently the national expert on this subject. His book–The Law of Self Defense,–is a must-have for those interested in this subject, and should be read and reread by anyone carrying a concealed handgun. His website is here. While I’ve understood these issues for decades, and expressed the concepts that follow in several sets of terms, I’ve found Branca’s terms most appropriate for our times. Coincidentally, Branca has put together a six-part series on self-defense response to rioters, looters and arsonists. The first part—here–is free, and I recommend it.
When is the use of deadly force justified? When necessary to immediately halt the imminent threat of serious bodily harm or death to self or another. These are the elements to be considered, often within seconds:
Innocence: the defender must not be the initial or unlawful aggressor. People engaging in mutual combat can’t claim innocence. Because they’re actively trying to harm each other with no way to tell how far the conflict will go, they’re not engaging in self-defense. Innocence also means if deadly force is lawfully authorized, one must stop immediately when the threat stops. One must also involve the police as soon as possible. An innocent victim stops the deadly threat, they do not punish the attacker.
Avoidance: Are you doing all you reasonably can to avoid conflict? This factor is largely dependent on local laws. Some states require one to do everything reasonably possible, including running away, to avoid having to use force. Such states normally place the burden on the innocent citizen to prove they did everything they could to avoid hurting the criminal. Other states have “Stand Your Ground”–SYG—and “Castle Doctrine” laws that do not require, as long as one is lawfully present, one to run away. They can remain where they lawfully are and defend themselves. Often, they also benefit from the presumption they were acting in self-defense. The state has to prove otherwise.
Imminence: One can’t use deadly force against a possible attack, or against an attack that might happen at some time in the future. The danger must be real, clearly about to occur–within mere seconds of occurring–or already occurring.
Proportionality: the threat can’t be of humiliation or minor injury. If the only threat is of hurt feelings, even a slap to the face might not be proportional. A thrown napkin cannot be followed by a gunshot. A reasonable person must believe they’re facing a threat—an imminent threat–of serious–Branca uses the word “grave”–bodily harm or death.
Reasonableness: A reasonable person in the same circumstances would be compelled to use deadly force. Responding to spitting with a gunshot would, absent other imminent threats, be inherently unreasonable.
These factors may seem relatively simple, and a clear guide. Were life so simple. I can’t stress this strongly enough: one must always do whatever they reasonably can to avoid having to use any kind of force. If that means avoiding certain places, certain people, walking or driving out of one’s way many blocks, even enduring crude insults and threats, it’s always best to do just that. If forced to use deadly force, even if one is entirely legally justified, the consequences may be grave and last a lifetime.
Take the Austin case. The prosecutor may well have charged the Sgt. regardless of the law, forcing him to spend tens, even hundreds of thousands he surely did not have to defend himself. That could have ended his military career, and could have put him in jail for many years. Suffice it to say taking a life is violent, bloody and brutal, and few avoid psychic trauma that may last a lifetime.
In today’s political climate, there are a great many leftist prosecutors, put into office with enormous financial help from George Soros affiliated organizations. They are not there to enforce the law, but to establish social justice. They will not prosecute violent criminals, but will almost certainly prosecute honest citizens forced to defend themselves.
Justifiably killing a “mostly peaceful protestor” is certain to result in murder charges in such jurisdictions, as was the case in St. Louis. When a mob trespassed on the property of Mark and Patricia McKlosky, they defended their home by brandishing a rifle and pistol. They did not shoot anyone, despite some of the several hundred “protestors” being armed and making death threats. The McKloskeys are currently facing felony charges. Missouri has a “Castle Doctrine” law that allows people to defend not only their homes but their property, but where social justice rules, the law is whatever the prosecutor says it is. The State Attorney General is working to quash the charges.
Let’s analyze an example. On a shopping trip, you turn a corner in the downtown business district, and suddenly find yourself surrounded by a large, angry mob, most wearing black pseudo-military clothing and masks. Armed with shields, baseball bats, pipes, Molotov cocktails, even rifles, they force you to stop, and began beating on your car. This behavior quickly escalates to beating your car with weapons, which begin to shatter the glass. They’re trying to open your locked doors and are violently rocking the car. You’re armed with a handgun with 13 rounds, and one spare magazine of 13 rounds, giving you a total of 27 rounds (one in the chamber). The mob is many times that size, and no matter which way you drive, you’re going to hit some of them.
What do you do?
In this case, you’re clearly innocent. You were not looking for trouble; it came looking for you. You did nothing more than drive on a public street.
Avoidance scarcely applies. You had no idea what you were driving into, and for the moment, you have no means of escaping without hitting people with your car. Keep in mind your car is no less a deadly weapon than a firearm. It’s a potential projectile that travels far slower than a bullet, but is far, far heavier, delivering even more force on impact. Yet the wisest course of action, if at all possible, is to drive out of there, preferably by backing up, which will demonstrate your intention to entirely avoid them.
The mob is demonstrating their intentions. You have every reasonable expectation of suffering serious bodily harm or death if they manage to drag you from the car. If they break your windows out, they could deliver mortal blows with their fists, bats and pipes without dragging you out. The danger is imminent; in this case, it’s more than that: it’s happening right now.
Proportionality is an interesting dilemma here. In this kind of situation, disparity of force comes into play. A 5’, 95 pound woman facing a 6’, 200 pound man in an unarmed fight is at a great and obvious disadvantage. So too are you, regardless of your size or martial arts training, when menaced by a mob. They can, if they get their hands on you, easily kill you without weapons. This will be taken into account in a rule of law justice system, but likely not in a social justice system.
Shooting one or more attackers, those closest and most violent, those most likely to do you serious harm any second, might cause the rest to momentarily pause, even run, giving you the opportunity to escape. Or it might cause them to redouble their efforts. There’s no real way to know. Keep in mind people will do things under the cover of an angry, masked mob they would not do individually. Antifa and BLM thugs have always worn masks to avoid being identified and punished for their crimes, but now, they’re wearing them “legitimately.” The best and quickest option might be backing away, slowly at first, and then, hopefully as the mob falls away, rapidly. The risk of injuring or killing more of them is greater, but there may be an opening at the back of your vehicle that allows that option. Many contemporary vehicles have back up cameras that may make this choice quicker and easier.
What would a reasonable person in the same situation do? Would they believe they were in imminent danger of serious bodily injury or death? Would they believe their best course of action was shooting one or more of the attackers, or driving out of the situation as quickly as possible? Most importantly, will they be able to find an attorney competent in the law of deadly force who will be able to convince a jury their actions were reasonable, even if in driving out, they run over and injure or kill several “mostly peaceful protestors?”
Keep in mind that if you lawfully use force, the criminal thugs you injure or kill will suddenly become virtual saints, who spent their time selflessly helping the poor while waiting for the Vatican to canonize them. Expect the media to be on the side of the criminals. Expect them to lie about you. Even in states that seemingly prohibit it, you will be sued by the criminals or their survivors. You may be able to get the case dismissed, or eventually win it, but again, there go years of your life and tens or hundreds of thousands of dollars you don’t have.
The scenario we’ve considered is relatively clear. Many such scenarios people have actually faced are not so clear, and the law—and the way it is applied—can be very different depending on location. Given this scenario, a prosecutor in most cities in Texas would be likely to find a use of force entirely justified. A prosecutor in New York City, Chicago, Portland, Seattle and a variety of other D/S/C strongholds would be as likely to prosecute the innocent motorist.
And what of juries? In some places in America, if you have a competent attorney (at some $300+ per hour), virtually any jury would acquit you. In others, particularly if one of the injured or killed “protestors” was black or affiliated with a politically favored violent group, virtually any jury would convict you. Such a conviction might eventually be reversed on appeal after you’ve spent years in jail, your life and family all but destroyed.
If you’re lawfully carrying a concealed weapon, you also have liability/defense insurance, right? It’s inexpensive, and absolutely essential. One of the primary national firms–I use their services–offering this kind of protection is here.
But as I’ve noted, no such situation is without consequences of various kinds. What would a reasonable person do? They’d consider the elements of the use of force and calmly and dispassionately apply them to their current situation. Easy, right?
PRE-POSTING UPDATE: To further muddy the waters, consider this from Captain’s Journal:
They brandished firearms, and they did so at the police. All the police did was throw gas from the vehicle to move them back so they could drive away.
Then as they drove off, the rioters shot at the police vehicle.
So as you watch this, ponder these questions: ‘Do you have any doubt left in your mind that in order to stop the communist revolution, these people are going to have to be shot? If they will do this to the police, do you have any doubt left in your mind that they would do this to you?’
This happened last night in Kenosha, Wisconsin following the police shooting earlier in the day of a black man with a criminal record of violence. No details about that incident are known, and it is being investigated by the State Police. Apparently no arrests have been made of the armed thugs that menaced the police and shot at them. Governor Tony Evers—Democrat, had this to say:
“Mostly peaceful protestors” burned a car dealership, multiple buildings, and went on an orgy of arson, riot and looting. The state’s Democrat governor, admitting he knew nothing of the facts, reflexively threw the police to the wolves, all but calling them murderers. The police were in an armored vehicle and had tear gas to disburse rioters. Were you in Wisconsin, faced with this situation, unarmored and with no crowd control devices, would you be justified in using deadly force? If you did, who would be more likely to be arrested?