Posted on 08/31/2014 9:19:21 PM PDT by 2ndDivisionVet
Legally, it doesn’t matter that both Mike Brown and Trayvon Martin were “unarmed” when shot to death.
One of the most common laments to come out of Ferguson these last days has been that surely it was outrageous for Office Darren Wilson to use his service pistol to shoot an “unarmed” Mike Brown. (Earlier iterations of this narrative went further in their misinformation, describing the 18-year-old 6’4″ 292 pound Brown as a “kid” or “child,” as well as falsely claiming that Wilson shot Brown in the back, but such misinformation falls outside the scope of this post.) Similar arguments were made in the context of the shooting by George Zimmerman of the “unarmed” Trayvon Martin.
The notion that a defender may use a firearm in self-defense only if they themselves are faced with a firearm is entertainingly naive, but has no basis in actual law, nor in common sense.
In the eyes of the law a gun is not some magical talisman of power, it is merely one of perhaps an infinite number of means of exerting force. Legally speaking the law tends to divide force into two broad buckets: non-deadly force and deadly force. There is some stratification in the context of non-deadly force–a poke to the chest is not the same degree of non-deadly force as a punch to the face–but really none whatever in the context of deadly force. Deadly force is simply deadly force. For purposes of conciseness, I limit this discussion to cases in which deadly force is involved, as was the case in both Ferguson and Zimmerman.
Deadly Force: Force Likely to Cause Death or Grave Bodily Harm
It should also be noted that when the legal system uses the phrase “deadly force,” it is not merely referring to force than can literally cause death. Of course, force likely to cause death qualifies, naturally. But the law’s view of “deadly force” is broader than the phrase might suggest. In fact, “deadly force” includes BOTH force likely to cause death, as well as force likely to cause “grave bodily harm.”
We all understand “death,” but what could possibly be meant by “grave bodily harm.”? Typically, grave bodily harm means something along the following lines: the temporary loss of an important bodily function/organ, the permanent loss of even a minor bodily function/organ, maiming, rape, or debilitation to the point of defenselessness.
Note, also, that under the law of self-defense, NONE of these must ACTUALLY be experienced by the victim before the victim can lawfully respond. Rather, there must be an imminent threat of one of these occurring, as perceived by a reasonable and prudent person, in the same or similar circumstances, possessing the same or similar capabilities as the defender, having the same or similar knowledge as the defender, and experiencing the same or similar mental stress as would a defender being threatened with such harm.
Proportionality of Force
One of the five elements of the law of self-defense is proportionality (the others being innocence, imminence, avoidance, and reasonableness). Proportionality governs the degree of force that a defender can lawfully use in self-defense. In brief, the defender’s force must be proportional to the force with which he is threatened.
Again, limiting ourselves to instances of the use of deadly force in self-defense, such use of deadly force is permissible only where the defender was facing an imminent threat of deadly force. Or, more accurately, the use of deadly force is permissible only where the defender was facing an imminent threat of death or grave bodily harm.
A gun almost always represent a threat (or, if fired, a use) of deadly force. So in order for a defender to be lawfully permitted to “go to the gun,” they must be facing a reasonably perceived imminent threat of death or grave bodily harm against which they are defending themselves.
Does that mean that they can only go to the gun if they are faced with a gun? Of course not. There are myriad ways that an attacker can represent a threat of death or grave bodily harm, only one small slice of which involve the attacker using a gun. Naturally, an attacker bringing to bear a “classical” deadly weapon such as a gun or knife would represent a threat of death or grave bodily harm. But such a classical deadly weapon is not required.
Disparity of Force
What the law actually looks at is not whether the attacker possessed a classical weapon, but whether the attacker presented the defender with a disparity of force, such that the defender faced a reasonably perceived imminent threat of death or grave bodily harm unless the defender himself resorted to deadly force. Again, for a defender facing a gun or knife, the disparity of force is obvious. This disparity of force also arises, however, in many other circumstances.
Disparity of Numbers
One very common situation that gives rise to a disparity of force is where the defender is facing a disparity of numbers. A defender faced with a single attacker of similar size and fighting ability might be legally obliged to defend himself only with non-deadly force in the absence of the attacker possessing a classical weapon. Where the attackers are numerous, however, that disparity of numbers creates an obvious disparity of force–no man can be expected to defend himself against the simultaneous attack of numerous foes without resort to a weapon to balance the scales.
Disparity of Fighting Ability
Another very common situation that gives rise to a disparity of force is where the attacker possesses an exceptional fighting skill, at least relative to the defender. A defender of no particular fighting skill (most of us) cannot be expected to defend themselves against a highly trained martial artists or even a street fighter, without resort to a weapon to balance the scales.
Disparity of Size/Strength
A third very common situation that gives rise to a disparity of force is where the attacker is substantially larger and more powerful than the attacker. A 120 pound woman cannot be expected to defend herself against a 200 pound rapist without resort to a weapon to balance the scales. Similarly, a 200 pound man cannot be expected to defend himself against a 300 pound man without similar recourse to a weapon. It is worth noting in this context that under Olympic wrestling rules a weight difference of as little as 18 pounds is considered so profoundly unfair that wrestlers are segregated into separate weight classes, and a 100 pound weight difference spans fully five Olympic wrestling weight classes.
Disparity of Physical Fitness
Finally, it is important to recognize that a disparity of force may not be present at the start of a fight, but can come into existence over the course of the fight itself. Imagine two men of equal size and fighting ability, such that there was no disparity of force between them. During the fight, one man’s arm is broken.
Obviously, a disparity of force now exists that wasn’t previously present, and under such circumstances the seriously injured man might well be legally entitled to resort to a deadly weapon even if he would not have been so entitled prior to the injury.
Zimmerman’s Shooting of “Unarmed” Martin
In the case of the Zimmerman/Martin conflict, at least two of these factors were in play. First, there was evidence that Trayvon Martin was an active participant and keen student of street fighting, to the point of having shared with friends his preferred strategy of a vicious first strike followed by a sustained attack until his victim was utterly defeated. Thus, there existed a disparity of fighting ability.
Second, where there was arguably little disparity of force at the start of Martin’s attack up on Zimmerman, after repeated blows to the face (Zimmerman would tell police that it felt like being hit by a brick), having his head smashed repeatedly on a sidewalk, and Martin attempting to muffle Zimmerman’s cries for help by using his hands to cover Zimmerman’s mouth and nose, the two men were clearly no longer on equal footing, if they ever had been.
In addition, every successive blow to Zimmerman’s head on the sidewalk could well be the one to render him unconscious or even to induce a fatal cerebral hemorrhage or skull fracture, thus representing an imminent threat of death or grave bodily harm. Thus, there emerged a disparity of physical fitness.
It was this combination of disparity of force factors that legally justified George Zimmerman resorting to his pistol against an “unarmed” Martin.
It should also be noted that Zimmerman told police that he only drew his pistol after he felt Martin reaching for it. An attacker seeking to seize a defender’s gun is really no different than an attacker reaching to pick his own gun off a table–indeed, it is worse, in the sense that in the former case the defender is being simultaneously disarmed. A defender otherwise in reasonable fear of death from the attacker need not wait until the attacker has gripped the pistol before they can defend themselves–the deadly threat is imminent when the attacker reaches for the weapon.
Finally, it should be noted that being “armed” doesn’t require a weapon, and being without a weapon doesn’t make one “unarmed.” In this case, Trayvon Martin was “armed” with his fists, his body weight astride Zimmerman, the sidewalk against which he smashed Zimmerman’s head, and one might argue the planet Earth itself.
Wilson’s Shooting of “Unarmed” Brown
A similar analysis can be applied to the shooting by Officer Darren Wilson of the “unarmed” Mike Brown.
The pro-Wilson narrative–to which we give due deference, given the presumption of innocence attached to any criminal defendant–is that Brown, along with his cohort Dorian Johnson, first attacked Wilson in his patrol car. There Wilson appears to have suffered a fracture of his orbital bone, the bone that surrounds and protects the eye. During this fight Brown also sought to seize Wilson’s service pistol. In the course of this fight the pistol discharged inside the vehicle.
Brown and Johnson distanced themselves from the vehicle by 30 feet or so. Wilson emerged form the car, and challenged the men to stop. Brown, either independently or in response to Wilson’s challenged, verbally challenged Wilson in return, then (as attested to by more than a dozen witnesses) lowered his head and charged back at Wilson.
It was at this point that Wilson began firing at Brown, striking him (it appears) four times in the arm, once in the eye, and once in the crown of the head. The eye injury was certainly mortal, and likely dropped Brown in his tracks. (Note: There was no evidence of gun shot wounds to Brown’s back, contrary to claims by Dorian Johnson that Wilson had shot Brown in the back.)
Here we have a considerable number of the described disparity of force elements.
There was disparity of numbers, in that Wilson was initially (at least) faced by an attack by both Brown and Johnson.
There was an enormous disparity of size/strength, but during the first fight inside the patrol car when Wilson was fighting both men, but then also when Wilson was facing the imminent charging attack of the 292 pound Brown (Wilson’s own weight appears to be in the range of 200 pounds).
There was also a disparity of physical fitness by the time Wilson deployed his sidearm against Brown. Having suffered a fracture of his orbital lobe it is likely that Wilson had lost considerable visual capability, was in excruciating pain, and was to at least some degree cognitively stunned by the blow. An attacker who has already dispensed such grave bodily harm and who is charging again into the fight against an officer displaying his sidearm can only reasonably be understood to intend to imminently do the same again, or much worse. Having already struggled once for his service pistol, Wilson would know–as all police officers in such circumstances would know–that he was in a life-or-death fight.
And, as was the case in the Zimmerman trial, Brown attempting to seize Wilson’s gun is no different than if Brown had reached for a gun in his own belt–indeed, it is worse, as it would simultaneously arm Brown and disarm Wilson.
It is this combination of disparity of force factors that legally justified Darren Wilson in resorting to his pistol against an “unarmed” Brown.
In many states a person can use deadly force even if they are not protecting themself or another person from an imminent threat of death or serious bodily harm. For example, in many states a person can use deadly force to stop an arson, kidnapping, burglary of a dwelling place, or sexual assault (other than statutory rape).
All these “feel good” stories by Monday Morning quarterbacks are nothing more than keeping the fires burning against Officer Wilson. Lets wait until the Grand Jury comes back with their “recommendations” before we buy new rope. Personally, I hope the cop is NEVER charged but, like Geo Zimmerman, he’s already been “convicted”.
Here in the People’s Socialist RepuliK of Illinois (which mirrors California alot!) once a perp turns his back and attempts to flee a situation, the law says we have to let him go. Unfortunately.
“it is merely one of perhaps an infinite number of means of exerting force. “
another is storing force in your mass to unload at a specific point, as Brown was doing.
North Carolina is the same.
A burglar in your house is not by itself justification to use deadly force. He must be threatening you or loved one.
Big Mike was strong armed.
Is the US about to follow in the ridiculous path of the UK?
This push back by the criminal community is not unexpected as they continue to lose increasing numbers in their ranks.
This is a occupational hazard and they are organizing to increase their workplace safety.
No calls for a work stoppage though!
One word: Texas.
excerpt (distance estimated at 20 to 60 feet noted at the end):
She [the wife] said she was a few steps behind her husband the morning of the shooting when he began running.
“He started jogging down the driveway, waving his arms over his head, yelling ‘Stop! Stop!’ ” Sharon Gerlach said....
Sharon Gerlach went to investigate the scene of the crash while her husband called 911, she said, because she was concerned about her longtime neighbor’s property. She wasn’t aware the SUV had stopped until she saw that it had crashed into the garage, and it was clear the driver was dead, she said....
Earlier Tuesday, jurors heard sharp questioning of forensics expert Gaylan Warren, a former employee of the state crime lab hired by Gerlach. Warren said a shooting scene reconstruction, what he called a “basic examination,” was not performed.
Such a reconstruction, he said, would have indicated Gerlach did not fire directly behind the vehicle, but off to one side. He also said evidence of the bullet found on a car seat in the rear cargo area of the SUV indicated a piece of plastic deflected the bullet before it traveled through the headrest.
Those 9 mm rounds were found about 60 feet from where a trail of glass appeared on Lee Street. The prosecution has said that’s evidence the SUV was that far away when Gerlach shot. But the defense says the vehicle could have been much closer, as near as 20 feet away.
I lie that, bears repeating every time he is described as unarmed
Any ideas as to why the LAPD refused to use common sense?
“Any ideas as to why the LAPD refused to use common sense?”
There was not a clue. It was really perplexing and disturbing. Prior to the final incident, he and his mother had described to me what was happening to them. They showed how the existing deadbolt was being defeated when they kicked the front door open each time. You could see the broken wood door frame and how difficult it was to fix the damage to keep it from being to weak to offer any meaningful resistance to such kicking the next time.
We often discussed the problems and expense of installing a video surveillance system to catch the robbers in the act with videotape proof. The LAPD kept using the lack of independent witness testimony or other evidence as an excuse to do nothing meaningful about these attacks. We discussed how my friend could cut away the damaged part of the door frame and screw on a replacement block of wood holding a new and stronger deadbolt lock. In the final attack, the repaired deadbolt lock defeated the battering for awhile, but it ultimately failed when they battered it enough to breakaway the wood framing the repairs were screwed into. After the final attack it was necessary to remove the entire door frame and replace it with a new door frame. Still, the landlord refused to use a steel doorframe that could defeat such battering.
The son finally agreed to move the mother back to the East coast to live with the daughter to escape this nightmare.
About LAPD so far as I know basically refuse to make any comments justifying the arrest under California law except for the formal accusation that the friend was supposedly brandishing a firearm in violation of the law, and the witness testimony of the robbers was supposed to outweigh the witness testimonies of the mother and son, their smashed door, and their looted home. The LAPD also relied upon the inability of the mother and son to identify the persons who robbed their home to justify relying upon the robbers’ false allegations while giving no credence to the victims’ allegations. All of this happened almost within line of sight of the police station at the end of the block, after numerous complaints about the robberies had already been made to the same police station.
The only other factor was the Jewish ethnicity of the son and mother.
Your friend saw the robbers in his house and talked to them in the front yard and still couldn’t identify them? HUH? Something smells.
I can now understand the hesitancy of the LAPD to arrest them.
Suppose there were multiple individuals as stated, suppose they were about the same size and glimpses of them were caught as they went out the door. Then, the person gets outside, and there are a number of people about the same size, shape and color in the neighbors yard, yelling at them and taunting them.
Can they positively ID the people yelling as the people who broke down their door and entered their house?
Maybe, maybe not. This is one of the reasons that surveillence cameras are such a game changer.
The criminals have no such scruples; and they knew the victims positively. They knew the criminal justice system well enough to use it against their victims.
To the criminals, robbing the victims was not immoral, because the victims are viewed as legitimate prey. In a civilized state, such criminals have forfeited their right to life when they break into your home.
I would make a serious bet that all those people who broke into your friend's home had long criminal records.
Where ever did you get that idea ?
: )
As the police told me, "if you shoot em outside your door, make sure to drag them inside before calling us."
That’s the worst thing in the world you could possibly do. Tampering with the crime scene will be taken as evidence of your guilt.
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