Legal Considerations of Self-Defense

  In a recent article, I wrote about the Police “Use of Force Continuum” describing it in the context of a case study of the Aidan Elliot incident in Lakewood, CO. on Feb. 22, 2011.  Since then, I’ve gotten several emails asking if there is something akin to a “Use of Force Continuum” relative to civilian self-defense.

   The answer is, “No – not really.”  But there are some legalistic considerations civilians should keep in mind.

   The Police “Use of Force Continuum” is a complex series of protocols established to assist officers in deciding when, where and how to defend themselves and to establish control and custody of criminals and assailants.  Civilians need not concern themselves with control and custody – just escape and survival.  The “Continuum” is generally the same across the Law Enforcement discipline with slight variations from agency to agency driven by the implements (tools) of self-defense the agency elects to issue to its officers.  (For police and civilians alike, the implements and tools you carry for that purpose dictate your self-defense tactics.)  Law Enforcement officers are usually not allowed to select self-defense implements other than what the agency issues.  Civilians, of course, have the luxury of selecting whatever implements the market offers – within limits.  

   Civilians must ensure their appropriateness and legal compliance by investigating their state and local laws and ordinances for restrictions on self-defense implements.  For instance the State of Michigan  has placed various restrictions on the composition of pepper spray implements that can be carried and used in that state.  In response, the industry has designed and produced a number of pepper spray implements that meet the perimeters established by Michigan.  The State of Wisconsin  has placed restrictions on both the potency (no more than a 10% OC concentration) and effective range (no more than 20 feet) of pepper spray implements.  Most states restrict the carrying and use of self-defense implements to persons aged 18 years and older.  Civilians should also check to ensure that they are not violating institutional policies as well – such as policies governing self-defense implements at their place of employment or on their college campus, etc.

   Beyond the restrictions on the implements themselves and the age of the user, there aren’t really many restrictions on a civilian’s use of force with respect to self-defense except that it must be “reasonable.”  It doesn’t necessarily even have to be proportional to the level of threat the he or she is facing.  Bur even civilians can’t use lethal force unless they are reasonably certain that they are facing a lethal threat.  

   Other than that, a civilian need only be concerned that he or she can justify using force to defend him or herself.  That is a relatively simple matter as the reasonableness of defending oneself when faced with an assault is almost a given.  The primary issue would be the person’s reason to believe that he or she was truly the target of an assault.  Not only must a person reasonably believe he or she is the intended target of an assault, but also they must be able to articulate those reasons and tell investigators why that belief was reasonable.  The test will be whether or not any average, reasonable person would conclude that he or she was being targeted for an assault under the same or very similar circumstances.

   Things that would reinforce a person’s conclusion of being targeted for assault are: 

(1) situational awareness of crime trends and incidents in your area; 

(2) location of suspected assailant(s) in proximity to where you are or in proximity to your immediate destination; 

(3) actions or movements of the suspected assailant(s); content and context of any dialogue or utterances made by the suspected assailant(s); and

(4) any furtive actions or movements made by the suspected assailant(s).

   Civilians who reasonably believe they are being targeted for assault are not necessarily required to engage the assailant with verbal tactics, as are police, although it couldn’t hurt.  In the stress of launching an assault, it’s difficult to say that an assailant might not get cold feet, respond to a verbal command and break off the assault.  But, obviously, you can’t count on that, so be prepared to immediately apply the other strategies, tactics and techniques you’ve decided on for your self-defense tool bag.  

   Another advantage of combining verbal techniques along with your other techniques is something we call “perception management.”  When people in close proximity to you and your situation (witnesses) hear you issue commands and instructions and see how the assailant(s) responds (or doesn’t respond) to them, it helps them to understand better whose doing what to whom and why.  Just don’t waste time in the process.  The simultaneous application of verbal tactics along with pepper spray, an EACD (electronic assailant control device – stun gun or Taser®) or any other self-defense tool is preferable to staging and escalating.

   Whatever techniques you use in defense of yourself, once the assault is interrupted to the extent that you can escape, do just that.  Don’t stick around and admire your handiwork.  You don’t want to be there when / if the assailant recovers.  Don’t continue the application of your preferred techniques unnecessarily or experimentally.  Any excess will cast your original ‘reasonable cause to believe you were targeted for assault’ to come under question.