Duty to meet with equal force?

[doc_strange]

Recently, the Arizona Sun ran a story about the pending trial of a man who shot and killed an alleged attacker. Give it a read - it's short and plaintext. I'll wait...

Done? Ok. As there were no witnesses, I can see how the prosecutors could want to test the facts before a jury. I have no argument actually with that - and there may be facts unrevealed to the press that contradict the defendant's story. For the sake of this discussion, let's set aside the "who is funding the defense" controversy (which I have to say, really is technically irrelevant in our system of justice - How are the defendant's actions changed by what organization subsequently steps up to fund the defense? A defendant should not be judged by who helps fund the defense; that if anything is utterly unjust.).

That aside, there are some peculiar statements in the article. Here, I think is the big one:
After several warnings for [alleged attacker] to stop, [defendant] shot [alleged attacker] three times in the chest at close range. [defendant] was not harmed, and [alleged attacker] did not have a weapon in his hands at the time he was killed. . . other options were available.

My comments in the... um, comments. Discuss.

Comments

[docstrange.livejournal.com]

Ok. That sounds to me like the standard law enforcement personnel must meet to use deadly force. But here the author is applying it to the ordinary citizen. I understand why trained LEOs strapped with batons, cuffs, and maybe even body armor would be held to that standard - not to mention that, as it is their duty to confront suspicious persons, having a different standard would create an atmosphere of fear when approached by an LEO (something very unhelpful to the keeping of the peace and the ability of police to do their jobs). I won't argue it makes the job harder (no doubt it does), but it makes the officers plainly the arm of the law, bringing even ***hats who attack them to criminal justice. I also won't argue that, as a reciprocal point of justice, one who attacks an officer acting in the line of duty deserves a harsher penalty.

Ok, then. So here we have the ordinary citizen being held to... being no meaner than the attacker? Let's read that line again: "[alleged attacker] did not have a weapon in his hands at the time he was killed."

The unstated assumption is that, given an attacker, the surprised, attacked citizen should meet the attacker with no more than equal force. Also, that two dogs and a pair of fists are not a real threat to a retired schoolteacher alone on a walking trail. In essence, the attacker not only decides on attacking and the time and place of confrontation, but also on the victim's permitted response. The article, correctly, seems to point out that the gun turned a possible mauling of the victim into the death of the attacker - without the gun, it is possible that no one would have died. That's a key argument in gun control circles, and, well, it is in essence true. The unstated conclusion is that the victim should have dealt with being mauled, rather than killing the attacker. The article says "could have run" right after talking about the dogs that were set upon him. Um. And what if the attacker is faster? At what point can the victim use superior force to thwart an attack? How about when the attacker charges with raised fists despite knowing their victim has a firearm?

The equal force argument misses, for example, that it cedes control of attack situations to the attacker. For the duration of the attack. After their choice to attack or approach and threaten imminent harm ("assault"), the attacker is then given the choice of weapon and level of violence in which to engage: "[alleged attacker] did not have a weapon in his hands at the time he was killed." They retain the element of surprise throughout. If the attacker grapples and starts losing the fight... the attacker can pull a knife. I guess then, after getting stabbed in the kidney, the victim is then permitted to pull a knife. WTF?

That just seems peculiar to me. Backwards. I understand why this one's going to trial (no witnesses to support the defendant's statement that he was attacked despite displaying the firearm), but the notion that the victim of an assault must not respond with a level of force capable of preventing bodily harm to himself... and can't use that force if the attacker is "only" going to beat them to a pulp and set dogs on them.... Peculiar.

[feonixrift.livejournal.com]

Thank you, for clearly articulating why I feel the current regulations amount to disallowing self defense. If I, as someone small and fairly weak, must use "equal" force against large strong people who already have situational advantage, I'm toast unless my level of skill is vastly above theirs.

[docstrange.livejournal.com]

It's taken me a while to put the unstated argument into words: That a victim must accommodate an attacker's level-of-force expectations, letting the attacker determine the limits of defensive response. I feel that once the attacker crosses a certain line, the target of aggression has a basic human right to prevent immanent harm to self or others. I am willing to hear arguments about that line in terms of aggressive behavior, but I don't think it requires display of a deadly weapon. Every day people maim or beat others to death with bare hands or a convenient stick or rock, let alone with a knife or other weapon pulled only when the tide turns against them. Attackers have no right to get in a few licks on "fair fight" terms.

I still think this case, having no witness and possibly some contested facts, deserves to go to trial. But if the question is "given a aggressive attacker and even half a possibility of being tackled while running away, should the defendant have chosen other options?" I would say, no.

[ivy]

I agree with most of that. The "where is that line" is arguable, but I think demonstrated intent to cause severe harm to my person is it. (I can't shoot someone for grabbing my butt. I can if they're trying to rape me. I think many people consider deadly force versus rape not okay, which is odd to me.) The person committing the wrong loses some fair-fight rights by deciding to assault someone else.

[docstrange.livejournal.com]

Yes - the standard seems to me to be best set at the reasonable impression of imminent bodily harm or death. Then again, I don't think one should be expected to permit one's self to be put into a headlock or other disabling position. My guess, however, is that (in the US) people tend to consider a head-on charge from a crazed but unarmed attacker a more marginal case for armed peronal defense than a rape attempt (which I actually think most would agree is cause for armed self-defense).

[erik]

The aricle doesn't say anything about the dogs after the warning shot.
If Kuenzli had the dogs under effective control and was directing them to attack Fish, and was himself attacking Fish, there is no question that Fish was justified in using deadly force.

If the dogs just up and attacked him, ran off when he fired the warning shot, and then Kuenzli flipped out and came at Fish, then it's a little murkier.

[docstrange.livejournal.com]

If the dogs just up and attacked him, ran off when he fired the warning shot, and then Kuenzli flipped out and came at Fish, then it's a little murkier.

Hmm. Interesting. So although there's a "flipped out" guy who comes at Fish, you think that's murkier. Can you go into a little detail on what you think makes the question of use of force murkier?

It sounds to me like you're taking the "equal force" argument - disarmed of his dogs, Kuenzli deserves to be met with equal and not superior force?

[erik]

No...I was assuming there was some established standard of which I was not aware...your response (which made clear to me that there was not, for non-law-enforcement people) and mine were written at the same time.

[docstrange.livejournal.com]

Ah. Yeah, I think the issue is that the standard for the ordinary citizen is a "reasonable" sense of immediate threat of bodily harm. When the guy is yelling and gesticulating, not reasonable. When he's rushing you to tackle, it could be reasonable depending on circumstances. I think the effort to make citizens meet the immediate threat of unknowable levels of bodily harm with only as much force as the attacker seems to be using is just unreasonable. Of course there must be a line, and that line is generally said to be the immediate threat of injury or death.

LEOs in some respects are held to lower standards during the arrest of a suspected felon who violently resists, but the officer still must reasonably believe that if the person escapes, they will represent a threat to others or the officer, and force must be the only reasonable option at the time.

[liana]

If someone poses an immediate threat to my health and safety, I believe they have no right to expect me to play fair in defending myself.

[docstrange.livejournal.com]

Hmm. To what extent does "no right to expect" the victim "to play fair" go?

[liana]

If someone seems intent on maiming me or worse, I don't believe I should leave them in any position to carry that out.

[cruiser.livejournal.com]

I feel that given that it's possible to kill/maim with bare hands and/or a convenient rock/stick, the attacker, by threatening to do the victim bodily harm, has already escalated the threat to a level that should allow the victim to use deadly force to protect himself - the victim shouldn't have to wait until he's on the ground struggling to remain concious to decide "OK, I think my life is in danger now, it's time to pull out the gun."

With regard to this specific case, if Kuenzli did indeed charge at Fish threatening bodily harm after Fish had already fired a warning shot, it demonstrates a disregard for his own life that puts Fish in that much more danger.
As far as other options were available - my question is what other options do the prosecutors have in mind? Let's see: Fish can 1) do nothing and wait and see if he's going to be beaten senseless, or 2) he can run back up the trail he's just exited, resulting in either having to make the same decision when Kuenzli catches up to him or Kuenzli and his dogs between him & civilization, 3) whip out his cell phone and hope he has time to call 911 and hope the police arrive before he's killed, or 4) he can wait until he's reasonably certain he's being attacked and fire 3 shots at close range into the chest of his attacker. Does anyone see any other possibilities here?

[docstrange.livejournal.com]

I think that's a good summary. I think the prosecution is looking towards #s 1-3 as the "right" answer and are talking about #4 as if the victim had to play nicer. Maybe it's really all just PR blather, but them talking about #4 as a right to use deadly force issue has (rightly) brought the political machine down on them. Had they pitched it solely as a "someone [a jury or judge if the defendant chooses] should test the facts and see whether the story is consistent with the facts" I think there would be almost no uproar.

As you can guess, I think #4 is the reasonable option for self-defense. In taking real responsibility for one's safety, one takes real responsibility for one's actions: One deals with the consequences if one is mistaken. Some forms of manslaughter are not lightweight charges to face.

[vokzal.livejournal.com]

a) There's a case that decided the police are not under obligation to protect you. (I'm not sure which jurisdiction this was at, or if I'm properly reading it, but that is my understanding of it.)

b) I've heard the argument that if you are going to use deadly force, you should not fire a warning shot or anything, and just go ahead and kill them. Otherwise you didn't really believe you were actually in immediate danger. (This is probably from Texas law.) Commentary on that? (Or perhaps it is just in the hopes that the person you shot dead can't sue you for hurting them and that any next of kin won't bother.)

[docstrange.livejournal.com]

Interesting points.

a) Yes, actually a number leading that way, with Castle Rock v. Gonzales the crowning Supreme Court decision. Logic says that of course the police can't always be there in time to help, but the case says that police don't even have an obligation to try. I guess it hammers home the self-defense angle, but it's not actually the root of the right to defend one's self.

b) That seems to state the standard for LEOs. My whole screed there was in regards to the peculiar assumption that a person can only use force equal to the attacker's force. If the only reasonable way a victim can stop someone from turning his face to jelly is deadly force, then it should be permissible. Again, why should an attacker get to determine the limits of the defender's response. It's not a matter of "fair sport pip pip wot wot!"

[vokzal.livejournal.com]

LEO?

[docstrange.livejournal.com]

Law Enforcement Officer/Organization