The last thing you ever want to do.
By Seth R. Nadel
People want to be left alone, to live their lives, make their living, and enjoy life as they wish. No rational person desires to use force against another human. But at times, the actions of others leave no choice – it is use force, or allow force to be used on you by someone who wants your earnings, your property, or your life.
The law recognizes a very limited set of circumstances when you may lawfully use force against another, and they vary in detail from state to state. The most basic rule is you may only use force when there is an immediate threat of death, or serious bodily harm, to yourself or another. Some jurisdictions require you to retreat before you use force. Others have passed laws, commonly known as “Castle Doctrine” and “Stand your ground,” expanding the conditions when force is allowed. Not everyone understands these titles, so I will attempt to explain.
I am not a lawyer, and whatever questions I may raise about these laws must be answered by a lawyer. But I have been studying and continue to study the management of interpersonal conflict for 50+ years. And I have used force in defense of my life, and others’ lives. So I have some practical experience to bring to this article.
We must first break down the basic statement, starting with “immediate threat of death” – immediate – if you do not use force, you may be killed or injured right now! A threat of future harm does not justify force. No threat – no mere words – can justify use of force. No matter what someone says about you, your parents, your mate, your friends, it cannot be cited as justification for using force. There is no such thing as “fighting words,” and only a fool would respond to such insults. You can always walk away – which does tend to show just how weak the person insulting you is. But be ready, as walking away sometimes enrages the other party, and they choose to attack.
The “threat” aspect is defined in part by what is called “disparity of force.” If you are 6’, 200#, well muscled, and young, the threat of combat with an equally aged, equally, tall and muscled individual may not justify using deadly force. But if you are older, ill, smaller, obviously weaker, or if your aggressor is using a weapon – any weapon – disparity of force may exist.
Certainly, if you are alone, and there are two or more attackers, disparity of force may exist. If your attacker says he/she/it “knows Karate,” or is a “mixed martial arts expert,” they have created a disparity of force situation, and you are allowed to believe them! They need not use a gun, knife, or club – last year over 800 people in the U.S. were killed by what the FBI quaintly calls “personal weapons” – hands, feet, teeth, etc.
Threat is also defined by who is the aggressor. If you initiate a fight and start to lose, you can disengage, but you cannot use deadly force. If you disengage and the other party pursues you, they become the aggressor. But starting a fight comes under the general title of “Stupid People doing Stupid Things” – like drinking & driving. Either one, by itself, is fine. Combine them, and you are in the category of SPDST !
The next phrase is “serious bodily harm” – what does that mean? It does mean that someone slapping you is not serious bodily harm. Generally, serious bodily harm means the chance of death or permanent disfigurement, which may include psychological damage as well. At one time, one state in the East held that a woman being raped was NOT subject to serious bodily harm – thankfully, some smarter folks changed that law.
How about such a threat to another – this can get really tricky. As a Federal Agent, I could make arrests anyplace in the United States, its possessions or territories. And I never wore a uniform – in fact we purposely dressed to blend in. Consider all the non-uniformed Federal, State, and local officers that could be in your town at any time. Then add in all those officers who normally wear a uniform, but are off duty. I live in a resort area, also populated with retired police officers. One community is sometimes knows as “Police Estates,” as virtually every other home is owned by an active or retired police officer of some sort.
So there I am, in a tee shirt, shorts, and tennis shoes, holding someone at gunpoint as you turn the corner. My badge is toward the outlaw, so you can’t see it. Can you use deadly force? Is this a robbery, or an arrest? Is there life in danger, or is it just being altered as a result of their criminal actions? Not so easy to know, is it! Unless you are sure to a moral certainty, you should take cover and challenge the person with the gun. Never assume the guy with the long dirty hair and torn jeans is a bad guy, and the clean cut “Joe College” must be the good guy.
Now what is the “Castle Doctrine” – do you have to have a moat around your house to qualify? What if you don’t have a drawbridge? The common name of these laws comes from the saying that “your home is your castle.” Some, but not all, states have said that if someone is in your house illegally, they are presumed to be there to do you harm, and you may use force, including deadly force, to defend yourself and your family and guests. Again, you need to know exactly what the law is in your state – one Eastern State had a law that if someone broke into your home, you were required to retreat, and even leave rather than stop the person! And if a man came home and found someone raping his wife or daughter, the man had to leave – he could not act to defend his family! All you could do in that state was call the police!
Every state has its peculiar nuances in the law, and you better know your state’s laws, and the laws of any state you visit, before you act!
“Stand your ground” – it has a nice ring to it, doesn’t it? Again, some states have a law that says “if you are in a place where you have a right to be, and someone assaults you, you have no duty to retreat. You may defend yourself.” Yup, that sounds good too. BUT (yes, there is always a ‘but’), is it worth it? Someone challenges you on the public street – if you respond, you may be once again in the ‘SPDST’ mode. What, exactly, are you defending? So some jerk calls you a name, or calls you a coward? SO, EXACTLY, WHAT? Is that going to affect your income, status, or whether your friends like and admire you? If it does, you need better friends! Do you really care that some mope that you may never see again thinks you are a coward? If you do, you need to reconsider your priorities in life.
I am a great advocate of what I call the ‘Nike Defense’ – RUN AWAY! Why?
First of all, you may be deemed the aggressor if you strike the first blow. Second, you may end up taking someone’s life – which for many forever changes their life, even if it is legally justified. Just think about how you, your family, and your friends may react to that! Third, you will spend a lot of time talking to Municipal, County, or State employees, who all dress exactly alike, and drive funny cars with lights on the roof. Fourth, it is going to cost you money – lots of money. I saw one estimate that an absolutely justified use of force, with witnesses and video tape, will cost you at least $10,000. I don’t know about you, but I don’t have that much spare change around right now. Fifth, you will be videotaped, and end up on worldwide media like facebook. Your life may never be the same.
Using force, particularly deadly force, is not something to be taken lightly. Anyone who thinks so is a fool – and any “instructor” who thinks it is like TV, where you can just reholster your pistol and walk off without the stress, paperwork, lawyers’ fees, and public disapproval is a giant class fool, to be avoided at all costs! It is not just a matter of picking the right gun and ammo, and knowing how to use it.
In my particular case, as part of my duties as a Federal Agent, I had to use force as part of my employment. It occurred two weeks to the day before my planned retirement (I had already submitted my paperwork), on an Indian Reservation where I was stationed. There were other officers present, and two of the three suspects were unharmed. So, I had witnesses, but no video tape at that time. Follow along on how things went:
As soon as the scene was stabilized, I requested another agent be sent out (we were in a remote area) to conduct the investigation, as the other agents present had all been witnesses. I declined to make any statement (In Part 2, we will go over actions after the use of force), and left the scene to the other officers present. I had been careful to not do anything that could be considered celebratory – no high fives, smiles, etc. Several officers did congratulate me on ending the event with no officers (there were no bystanders) hurt.
After I got home, I received a call from our Internal Affairs Office, saying I “needed” to make a statement, as the Agency Head wanted to know what happened. I knew all the Internal Affairs agents, but I declined to make a statement. I said “Whose name will be first on the lawsuit, his (The Agency Head), or mine?” I knew there would be a lawsuit, and my name would be first.
The next day, I went into the office and wrote out my statement – I did not make any verbal statement. After I reviewed it several times, I turned it over to the investigating agent, and made no further comments. This way, I could not contradict anything in my statement, even by accident. Of course, I kept several copies.
My actions were investigated by the Tribal Police (their officers had also been present), Internal Affairs, and the Federal Bureau of Investigation, to make sure I had not violated anyone’s civil rights. All three concluded that I only did what had to be done. I retired as planned.
About a month after I retired, I received notice that I was being sued by a lawyer representing the (alleged) common law wife. The lawyer had gone to Mexico and found someone to claim that status. The suit, as usual, alleged “wrongful death,” and demanded $30 Million dollars.
Since I had been acting “within the scope of my employment,” the Government provided me with a lawyer – a really good thing! As I had predicted, the lawsuit named, me, my wife, all the other officers present (although none of them had used any force) and all my supervisors up to and including the Agency Head and the Secretary of the Treasury (my agency was part of the Treasury Department at that time). After all, the Treasury Department had $30 Million – I sure did not!
To make a very long story short, after 5 years, the Federal Judge dismissed the case against me “with prejudice,” meaning it could never be reinstated. Think about how much you would have to pay a lawyer – it would have ruined us. Also, because I fully understood the process, and remain convinced that had I not acted others would have died, I avoided any of the side effects such as Post Traumatic Stress Disorder.
In Part 2, we will go further into actions to take – and not to take – immediately after any use of force, and if it results in a death or not.