Sunday, June 25, 2017

Did You Shoot 'em Too Hard?

What is excessive force?

In combat I suspect it’s waste.  Does it matter if you kill an enemy with three rounds of 5.56X45 or drop a 1000 pound bomb on him?  Dead is dead.  One is a little more (okay, a lot more extreme) than the other.

In self-defense it’s a little different.  Police are authorized to use required force to apprehend someone, but even that has limits.  In Cleveland Dec 2012, following a car chase, the police poured 137 rounds into the stopped car.  "This was now a stop-and-shoot – no longer a chase-and-shoot," County prosecutor McGinty said…. "The law does not allow for a stop-and-shoot."

While the police at the scene felt all that shooting was necessary, the courts seemed to be saying it was excessive and therefor illegal. 

Civilians are required to use equal and proportional force to stop a deadly threat.  It’s the equal part of that equation that gives us the willies.  “What if I’m just a little too short or a little too much?” you ask as if deadly force is like sugar that can be weighed out in advance.  The extremes seem very clear. 

If someone pokes you in the chest with an index finger, shooting him is excessive.  Splashing gasoline on an attacker with a club and setting them on fire will also seem excessive.  And while you may be legally right to shoot someone with ten rounds of .22 LR, I suspect the civil case will suggest that you did not need to use all 10 rounds and that was excessive and you should compensate the survivors.

Now, is this just an internet armchair lawyer blowing steam?  Well, I’ve got a case that’s a little off point, but I think it contains an element of excessiveness.

The case?  State v. Garrison.
Jessie Garrison went to see his sister at her apartment.  Mr. Sharp, the sister’s ex-boyfriend shows up drunk and starts arguing with the sister.  Garrison intervenes and at some point Sharp goes for the gun in his belt.  Sharp is drunk and Garrison is able to remove the gun from the waistband.  At this point Sharp picks up a steak knife and advances, with the knife raised high, on Garrison.  Garrison retreats but finally with the gun he removed from Sharp, shoots him in the left ankle.  Garrison then fires once more and kills Sharp.

The court rejects his self-defense argument on the grounds that Garrison’s act of shooting Sharp was unreasonable.  The trial court felt less drastic alternatives were available to avoid harm.  Especially after shooting Sharp in the ankle. (“Murder and the Reasonable Man” by Cynthia Lee)

Ms. Lee is using this case to help her illustrate her ideas, but I see it a little different.  We don’t know all the specifics and that’s where the devil lives.  But, I believe if Garrison had shot Sharp twice in the chest his self-defense plea would have been better received.  Shooting Sharp in the foot and then in the chest seemed excessive to the judge.

Ms. Lee goes onto to say  “The type and degree of force used by the defendant to ward off the threat may or may not be reasonable depending on the gravity of the threatened harm and whether less deadly alternatives are available…”

It’s worth noting that Ms. Lee is writing an academic publication and may not have given us the entire fact picture.

Still it’s worth observing that the armed citizen needs to use the minimum force required to solve their threat of deadly harm when possible.  This may include changing to hollow points (reduces the number of rounds fired), use normal police calibers (unless you’ve got a good reason like I was hunting bear and it’s all I had when I was attacked), marksmanship (two self-defense rounds are better than seven) and disengage when the threat has stopped.  It might also involve locking ourselves in a bedroom with our sister and calling the police.

We tend to think justified self-defense shootings are like checking off a punch list.  It isn’t.  Courts can be tricky, juries fickle and outcomes uncertain.  It behooves us to understand the devil’s home.


Book Review:  Murder and the Reasonable Man by Cynthia Lee
This book challenged me to think about assumptions and prejudices I have.  You may share some.  Do you believe a black teenager is more dangerous than a white teen?  Does it seem righteous when a man catches his wife in bed with another and kills her on the spot?  Try that last sentence with the genders reversed; the wife catches her husband in bed…

How does gay panic affect your claim to self-defense and does it work for one racial group better than another?  Do police get away with murder?  What can you do to minimize your odds of not being shot by the police?

It’s all there, you just need to read between the lines.  Ms. Lee gives you an academic view of the legal system you will not see on “Law and Order” or from the newspaper.  Our justice system is imperfect and if you intend to protect yourself and your loved ones, you need some understanding of it.

Ms. Lee, according to her bio was an associate of Cooper, White & Cooper in San Francisco, California, where she was a member of the firm's criminal defense practice group.  How many truly innocent people did she work with?  This is not a put down.  It’s been suggested most criminal lawyers seldom deal with innocent people.  You may have to prompt or suggest ideas to your defense counsel to get the best outcome.  The more you know the better prepared you will be for it.


Read her book, it may make your head spin but it will open your eyes.