Grey Beard Biker’s last blog post on Principles of Self-Defense dealt with Imminence. This post will deal specifically with Proportionality – the third component of a successful self-defense claim if you use deadly force. In review, here are the five components which must all be answered affirmatively for you to prove you acted in self-defense:
From a law enforcement and legal perspective, pulling a gun during a fist fight would not be considered a proportional response. Doing so would fail the third component and would certainly put you at risk of being charged and spending time in prison. But before I get ahead of myself, let’s take a look at weapons that are always considered deadly:
- Guns and other firearms
That is the entire list. So, would it be correct to assume only these projectile weapons are considered deadly? NO! Common items can be used as a contact weapon and be deadly: baseball bats, hammers, clubs, walking canes, bowling balls, bricks, tire irons, etc. Even one’s fists can be used to deadly effect if the attacker is much larger, he’s choking you or you are no longer able to defend yourself. But the use of any of these other weapons would have to clear the AOJ Triad hurdle in order to be considered deadly-force:
- Ability – The attacker has the ability to cause death or grave bodily harm
- Opportunity – The attacker can get to you with the force to cause death or grave bodily harm
- Jeopardy – The attacker intends to do grave harm to you
As an example, if you were having an argument at a softball game with the batter and he poked you in the chest with his bat, he would have ability and opportunity. But unless he intended to attack you violently with it (jeopardy), you could not immediately resort to using deadly force. Your self-defense claim would fail the third leg of the triad.
Now, if you were approached in an alley by a thug carrying the same bat, and he gets in your face, saying he’s going to kill you, the shit-bag has ability, opportunity and there is most certainly jeopardy. In this scenario, your use of deadly force should be considered justified. But only if you are innocent. You cannot be the person who started the altercation, you have to be in a place you are legally allowed to be and the threat to your life has to be imminent.
The last thing which must be considered is escalation of force. If you are arguing with someone and they throw the first punch, you have the right to defend yourself with non-lethal force. Your fists would be the most logical response. But if you are overpowered and the attacker is on top of you, pounding you in the face, this could represent a deadly threat or an attack which could cause grave bodily harm – the amount of force has escalated and you have the should have the right to protect yourself with escalated force. But again, you must be the innocent party.
My son-in-law is a sheriff’s deputy in Florida. He carries roughly 25 pounds of gear on his belt when he is working. His defensive tools include pepper spray, a TASER and his service pistol. Law enforcement officers are trained to use what’s called the “continuum of force.” This would involve going up-and-down the ladder of lethality of their available tools. Their first tool is yelling, “Stop!” This is obviously everyone’s first tool. Next would be pepper spray, then their TASER and lastly their service pistol. Obviously, if they are experiencing an imminent threat from a gun wielding robber, they are not going to start by pulling out their pepper spray or yelling, “Stop!” But if, during a routine traffic stop, the person becomes belligerent, they may well go to the pepper spray and escalate force as necessary. This is a useful illustration because many civilians often carry only their fists and their firearm. And while some of you may carry a knife, as your lovable Grey Beard Biker always does, don’t fall into the potential legal trap of thinking it is considered less lethal than your pistol. If you are in close combat with a thug, pulling your knife is the same a pulling a gun and can certainly be considered an escalation of force. Remember, from a legal perspective, it is just a deadly as your gun.
So, what other non-lethal weapons should you consider carrying? Pepper spray is the most obvious. It is quite effective and will give you time to separate yourself from the bad guy and call 911. But pulling pepper spray may also be considered an escalation of force if the threat is not imminent. Case law in many states has shown that juries will convict a criminal of aggravated assault if they use pepper spray in the commission of a crime. So, remember, you must always be the innocent party before you do so. Another tool which you might consider is a key chain mounted kubotan. A kubotan is essentially a mini-club and is quite effective at taking the fight out of an attacker if used correctly. But training and speed are essential with such a tool. And again, you will still need to be the innocent party in order to justify your use of a kubotan – and it must be used only when an escalation of force is required.
In summary, you cannot use force that is not proportional to the force an attacker is using against you. During a fight, your attacker may escalate their force against you, and you may escalate proportionally to their force.
Watch for the next Grey Beard Biker blog post on Avoidance!
The Grey Beard Biker
Note: Neither the Grey Beard Biker or Michael are an attorney. While he has been involved in self-defense for many years, this article is provided for informational purposes only. Check with an attorney to understand your state’s laws.
This article was originally published in Thunder Roads Tennessee/Kentucky magazine and is used with permission. It was written by Michael Noirot – a/k/a the Grey Beard Biker.
Other articles in this series can be read by clicking on the following links: