The amount of defensive force used must not be disproportional to the threat faced
Well, this weekend I learned there’s a guy named Ray Rice who’s got a pretty mean left hook, at least when he’s punching his wife in the face on an elevator.
It seems he also plays something called “football,” or at least he used to do so until surveillance video of the punch was released by some kind of news organization called TMZ.
What caught my attention about this story was not, of course, Mr. Rice or football or TMZ, about all of which I know pretty much nothing, but a raging series of debates I see on Twitter today about the matter.
As is typical of such debates argued in the 140 character “jabs” of the Twitterverse, there’s a great deal of mis- and cross-communication, undoubtedly much of it deliberate.
(UPDATE: Note that this topic can now also be viewed as a Law of Self Defense University Video Lecture, or listened to as a Law of Self Defense Podcast, here: http://is.gd/1HOsaT)
The key issues leading to angry pitchforks and torches appear to be:
- Is it ever permissible for a man to physically strike a woman? Here the two sides are “No, never,” and “Yes, if done in necessary self-defense.”
- Was Ray Rice’s punch to his wife’s face an example of a lawful use of force in self-defense?
Addressing the the first question from a legal (and, I dare say, a pragmatic) perspective, the answer is of course the latter. If one meets the necessary conditions of lawful self-defense, one may use necessary force against any aggressor, regardless of their gender.
Of course, one of those conditions is the element of proportionality, and it is this element that would appear to undermine any claim that Rice’s punch could be characterized as lawful self-defense.
Proportionality in the Context of Deadly Force Self-Defense
In the aftermath of the Ferguson shooting I’ve done several posts here on the issue of proportionality in the context of deadly force, in particular noting that a weapon, such as a gun, can be used against even a nominally “unarmed” aggressor if that aggressor nevertheless represents a threat of death or grave bodily harm:
The legal issue in these cases, from the perspective of self-defense, is one of proportionality–was the gun, a weapon capable of causing death or grave bodily harm, used to counter a threat that was also capable of causing death or grave bodily harm. If the answer of yes, the demands of proportionality are met. If not, proportionality fails, the use of the gun was excessive force, and the claim that the gun was used in lawful self-defense collapses.
Once the threshold of deadly force has been achieved, the law sees little variance in degree in terms of that force. Deadly force is deadly force.
It is important to keep in mind, when we say “deadly force” in the context of self-defense law we always mean “force capable or likely of causing death or grave bodily harm (e.g., maiming, broken bones, unconsciousness, rape, etc.) A broken bone may not threaten a loss of life, but it is “deadly force” for purposes of self defense law.
Whether that deadly force is presented by a gun or a knife or a bat or a bone-crushing blows to the face or a stomp to the head makes really no difference to the law. The law is concerned with the possible or likely mortal outcome, by whatever means it might be achieved.
Proportionality in the Context of Non-Deadly Force Self-Defense
But what about the issue of proportionality in the context of non-deadly force?
Somewhat counterintuitively, the analysis of proportionality is actually more difficult and subtle in the context of non-deadly force than it is in the context of deadly force. As mentioned, deadly force is deadly force. Period.
The matter is quite more varied in the context of non-deadly self-defense, however. Some gently places a hand on your arm may well be committing a simple batter, if the touching is offensive and unwanted. But that is a much lesser degree of force than if they poked you painfully in the chest, which in turn is a lesser degree of force than if they powerfully shoved you in the chest. Yet all of these fall under the umbrella of non-deadly force.
And because they all fall under the umbrella of non-deadly force, they can be defended against only with non-deadly force in return–and, as required by the element of proportionality, only by a degree of non-deadly force that is proportional to the aggressive force.
So, certainly, if an angry person grabs you by the arm in the absence of any intent to cause you death or grave bodily harm, the requirements of proportionality would clearly prohibit you from responding with, say, a gun. Further, it would prohibit you from responding with force that would predictably result in grave bodily harm.
Anybody foolish enough to grab an appropriately trained defender by the arm is putting themselves in a position to have that arm’s elbow vigorously broken–but such a “grave bodily harm” counter to a non-deadly offense would almost certainly be deemed disproportionate, and therefore not lawful self-defense.
What about responding to the arm grab with a multiple blows to the aggressor’s face, with such blows causing contusions and abrasions, but no broken bones? This is far more proportional than the snapped elbow, but still leaves room for a jury to conclude that these lasting injuries were disproportionate given that an arm-grab is not itself likely to cause any lasting injury.
In contrast, a joint-lock a few millimeters short of the elbow bending in ways its geometry does not intend would almost certainly not qualify as “grave bodily harm,” nor cause any lasting injury, and thus be proportional to an unwanted arm grab. Similarly the simpler but perhaps less satisfying expedient of simply knocking the arm away.
(Note: These dynamics naturally vary if the aggressor is much larger, stronger or possesses an exceptional fighting ability relative to defender–under such circumstances the defender would be permitted to use as much greater degree of force as necessary to avoid a disparity of force that prevented them from effectively defending themselves.)
Ray Rice’s Punch: Proportional Non-deadly Force?
For purposes of this discussion, I’m going to assume that Rice’s punch constituted merely non-deadly force. Were I the prosecutor of such a case, however, I would argue very vigorously that the punch was, in fact, deadly force, because the victim lost consciousness as a result. Remember, in the context of self-defense deadly force includes force causing grave bodily injury. Unconsciousness qualifies as grave bodily injury. (Were I the defense, I’d counter that the unconsciousness resulted from the wife’s head striking the handrail in the elevator, to which the prosecutor me would argue that event occurred as a predictable consequence of the punch. Sheesh, lawyers.)
Let us also assume for purposes of discussion that Ray’s wife was the aggressor in the conflict, launching an unjustified physical attack upon him in the elevator, to which he responded with his punch to her face. Under such circumstances Rice would clearly have the legal right to use necessary non-deadly force to defend himself from that attack.
(I note, however, that in the video embedded above at the 0:25 second mark, before the knockdown punch, the wife’s face turns abruptly to the right of the frame, as if she had been slapped hard. Immediately afterwards comes her advance on Rice. Clearly, if Rice were actually the initial aggressor in the conflict he cannot claim self-defense for his later punch–at 0:27–regardless of whether it was proportional to his wife’s force against him.)
Even with those assumptions, the question remains, was Rice’s punch proportional to the threat he faced form his wife?
Here the law requires that we take into consideration the degree of threat likely presented by the non-deadly force his wife could bring to bear against the degree of non-deadly force at Rice’s disposal for purposes of self-defense.
I know nothing about Rice’s wife except that she appears to be a modest-sized healthy female with a weight and stature less than that of her husband. I’m unaware of her possessing any special capabilities that would endow her with exceptional fighting ability for a person of her size and gender.
Rice, on the other hand is (regardless of what one might think of him from a moral perspective) a premiere professional athlete. I understand he was a second round draft pick into the NFL in 2008, which presumably is an indicator of exceptional physical strength and abilities among an already highly elite pool of athletes. And based on the Twitter screams of the football fantasy fans on Twitter at word of his expulsion from the NFL, I take it that his physical abilities had remained potent to the current day.
These disparities alone would mean that any physical act of Rice’s–even a mere shove or smack–could well be several times as powerful as any similar act of his wife. Thus, if his wife were shoving or smacking at him, the powerful left hook to her face would clearly be disproportionate response. Indeed, this disproportionality would exist even if she had struck at him with her own left hook to the face.
This is especially so when we know Rice’s left hook to the face dropped his wife instantly to the ground, where along the way she struck her head such that either the punch or the head strike was sufficient to render her unconscious.
What actions on Rice’s part might have been proportional to his wife’s supposed attack? Simply extending his arms and holding her at arm’s length would have been a prudent choice, even if he’d had to grip her firmly to keep her at a distance. Alternatively, he could simply have wrapped his arms around her to immobilize her arms–a less prudent choice, perhaps, if she was angry enough to make use of her teeth or knees).
A punch to the face hard enough to instantly drop her to the ground, however, is going to be a very difficult sell to a jury on the issue of proportionality.
If Rice’s Punch Wasn’t Lawful Self-Defense, What WAS It?
Absent proportionality, then, Rice’s punch could not have been lawful self-defense, which would make his use of that force at a minimum a simple battery (typically good for as long as 5 years in prison). Indeed, if the blow could be characterized as deadly force (on the basis that it caused grave bodily harm in the form of unconsciousness), his punch could be characterized as an aggravated battery (typically good for as long as 15 years in prison).
Very unhelpful to any defense against such charges, by the way, would be Rice’s patently callous treatment of his victim/wife in the immediate aftermath of the blow, dragging her unconscious body along the floor and even nudging it with his foot. But that’s a topic for another day.
UPDATE: I see now that Rice was, in fact, charged with aggravated assault at the time, and the grand jury indicted him on that same charge. He initially pled not guilty to the charges. Prosecutors, of course, had possession of the elevator footage just now released to the public, and this would of course have guided them and the grand jury in their decisions. Prior to trial, however, Rice pleaded guilty to aggravated assault in the third degree in exchange for acceptance into a pre-trial diversionary program named PTI. Usually this program is not offered to violent offenders, and almost never in cases of physical domestic abuse. Under the program no further criminal justice actions could be taken against him if he avoided future legal difficulties for one year, at which time he could request to have his record expunged.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.