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.
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