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.

[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.

[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.

[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?