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Law of Self Defense: Milwaukee Restaurant Attack

Law of Self Defense: Milwaukee Restaurant Attack

Proportionality of Force & Highly Defensible Property

This case of the week involves an armed employee stopping a vicious bare-handed attack in the kitchen of a Milwaukee restaurant:

The scene is in a cooking area of the restaurant where two women are working, one closer to the camera than the other. A large black male enters the frame just below the camera, stepping behind the counter. He throws a vicious punch into the face of the closer woman, who reels back in stunned pain.

The male continues to advance on the second woman. She, however, guides the punched victim behind her with her left hand and presents a handgun at the face of the attacker with her right hand. The male stops his advance but certainly takes his time departing the scene, apparently speaking at the armed woman the entire time.

This attack touches upon a couple of related legal issues I thought were worth discussing: Proportionality of force, highly defensible property, and how they interact.

Proportionality of Force

For use-of-force purposes, the law defines force as either non-deadly force or deadly force. A use of defensive force must be proportional to the threat. That is, the degree of defensive force must be no more than proportional to the degree of the unlawful attacking force.

So if you are faced with only non-deadly force attack, you may use only non-deadly defensive force. Only if you are faced with a deadly force attack, you may use deadly defensive force. (In both cases, all other required elements of self-defense also being present, of course.)

A bare-handed attack is generally deemed by our courts to be a non-deadly force attack, absent aggravating circumstances. This means it can be defended against lawfully only with non-deadly defensive force. In this case, the second woman defended herself with a gun, clearly deadly force, against a bare-handed attack by an apparently unarmed male. Does that make her use of the gun disproportional and therefore unlawful?

Bare-Handed Attack as Deadly Force

Not necessarily, because of the presence of those “aggravating factors” I just mentioned. Such aggravating factors can include when the bare-handed attacker is much stronger than their victim, or much larger. It can also occur when the attacker has a much greater degree of bare-handed fighting expertise than the victim. Another aggravating factor can be an exceptional degree of viciousness by the attacker. [Added: Note that these aggravating factors do not create an automatic license to use deadly defensive force; they merely contribute to a fact-pattern that may allow the use of deadly defensive force. -AFB]

Interestingly enough, many of the aggravating factors tend to be “baked into the cake” when we have a male attacker and a female defender—the male is usually stronger and larger than the female, often has greater experienced in fist fights, and given the societal norms against males striking females such an attack is commonly perceived as exceptionally vicious.

Indeed, we can see pretty much all those aggravating factors in this case, and thus it is arguable that the woman’s use of the gun against a bare-handed attack was a proportional response on the merits (a position strengthened by the fact that although she threatened deadly defensive force she did not actually shoot him).

Highly Defensible Property

There’s another argument for why her use of deadly defensive force may be legally proportional even against a barehanded attack, and that’s the fact that the attack took place in highly defensible property.

Highly defensible property is specific types of property for which special provisions have been made to allow the use of deadly defensive force in the context of that highly defensible property where that use of force would not be lawful absent the context of the highly defensible property.

Legal Presumptions of Reasonableness

A common special provision of this sort is the creation of a legal presumption of a reasonable fear of imminent death or grave bodily harm. That is, deadly defensive force can be lawful even if the attacker does not actually present a deadly force threat, because it is legally presumed that he presents a deadly force threat.

When triggered, this gives the defender three of the five elements needed to justify the use of deadly defensive force. A fourth element, avoidance, generally doesn’t apply in any case in the context of highly defensible property, under the Castle Doctrine. The only remaining element to justify the use of deadly force, then, is that of Innocence—that is, you still cannot have been the physical aggressor.

Wisconsin, where this event took place provides for precisely that kind of legal presumption in the context of highly defensible property, and they also include place of work as highly defensible property.

Unlawful & Forcible Entry

The only catch, in this case, is that before the legal presumption may be triggered, the attacker must unlawfully and forcibly enter the property. In this instance, the attacker entered the property as a patron, and therefore lawfully and by license. He also, of course, did not use force to enter the property.

That said, I believe a good argument could be made that his license to enter the property extended only to those portions of the property meant to be used by the public. I would argue that the back kitchen was not public and therefore his entry into that portion of the property was unlawful.

I would also argue that his punching of the first woman constituted a forcible entry into the back kitchen. We would then have the unlawful and forcible entry necessary to trigger the legal presumption justifying the use of deadly defensive force, even if the attacker did not actually present a deadly force threat.

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–Attorney Andrew F. Branca, Law of Self Defense LLC

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[Featured image is screen-capture of surveillance video released by police authorities.]

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Comments

Oversoul Of Dusk | July 11, 2018 at 9:48 am

Thanks for the clear analysis and explanation!

Could the hot cooking surface make a difference? It seems that it could cause grave injury if the unarmed attacker punched a victim and made her fall on or against the hot surface.

Luckily for the victim in this case, she bounced away from the heat.

“A bare-handed attack is generally deemed by our courts to be a non-deadly force attack, absent aggravating circumstances.”

Thus showing that the law is an ass; more people are killed yearly by blows of fist / feet than rifles.

    MarkS in reply to SDN. | July 11, 2018 at 11:15 am

    My intended comment, too. If force is countered by only proportional force then what outcome does the law intend, that if I am punched with a force of 20 ft/lbs I may only legally respond with a punch of 20 ft/lbs and this is to continue infinitum? I was under the impression that self defense was to put an immediate end to the threat at hand.

      stevewhitemd in reply to MarkS. | July 11, 2018 at 12:18 pm

      I don’t think that is what he is saying. He’s saying, in the absence of aggravating circumstance, Castle Doctrine, etc., that you can’t use deadly force in response to an attack with non-deadly force. You don’t have to pull your defensive punch, you can certainly punch to put the attacker on the ground (ask any bouncer handling a miscreant who takes a swing).

      david7134 in reply to MarkS. | July 11, 2018 at 12:45 pm

      One of the best things my father said to me in the 50’s was never to get into a fight unless you were going to kill the person, because that could easily happen with fist.

      This business of the law defining a physical attack with hands is junk. Working the ER and hospitals for 50 years, I have seen my share for people either seriously hurt for life or dead as a result of just such an attack. The woman should have shot the guy as it is the same as stepping on a roach.

        Char Char Binks in reply to david7134. | July 12, 2018 at 6:13 pm

        I get that, and that’s about the only thing I would argue about from the article, or with law of self defense training in general. I will never willingly engage in mutual combat, and if someone does put his hands on me, I’m going to assume he means business, and it’s on.

        Anyway, no one would do that unless he’s stronger than I, or thinks he is, and since I would never willing throw down with anyone, or let anyone bully me, I’ll open fire, if I see fit.

      Gremlin1974 in reply to MarkS. | July 11, 2018 at 1:00 pm

      I think the problem comes in when you try to codify that into the words of the law?

      I mean, I have been in the medical field for more than 20 years and I can tell you right now that a blow to the head is very serious, regardless of if it is delivered by a bare hand. But blows delivered with a bare hand do not usually cause as much trauma as those delivered with a blunt and/or penetrating weapon, but it would be foolish to codify into law that all blows to the head are deadly force, since my 5’8″ 100 lb sister can’t generate nearly the force I can so there is a stark difference between us hitting someone in the head.

      Which is why you have to use context, biology, and other matters to decide if that bare handed attack raises to the level of Deadly Force.

I would find the lady innocent if the gun “accidently fired “on purpose”” even as the guy was walking away.

    harleycowboy in reply to Joe-dallas. | July 11, 2018 at 11:23 am

    You NEVER fire on someone walking away. The courts frown heavily on that.

      mrboxty in reply to harleycowboy. | July 11, 2018 at 1:29 pm

      If he said, “I’m going to come back and kill you when you don’t have your gun,” then I would acquit, and he was clearly mouthing something as he walked out. I don’t care if the law says otherwise. Don’t like it? Well I don’t like it when the judges make up law and law enforcement acts like criminals and are allowed to get away with it either.

        Milhouse in reply to mrboxty. | July 11, 2018 at 1:49 pm

        It doesn’t matter what he says he’s going to do later. The right to use force in self-defense exists only if you are in reasonable fear of imminent violence. Even if you’re 100% sure someone is going to come and try to kill you later, you have no right to use force against him now to prevent it. If you don’t want to be killed you must either run away, or armor yourself, or call for help, but you have no right to use force until the threat becomes imminent.

          Arminius in reply to Milhouse. | July 12, 2018 at 3:37 pm

          You are as usual so wrong. If you are in a vulnerable position and you are convinced your assailant is NOT retreating but merely attempting to improve his position, you are justified to use deadly force.

          Milhouse in reply to Milhouse. | July 12, 2018 at 4:40 pm

          No, Arminius, it makes no difference whether the person is retreating, advancing, holding still, or doing cartwheels. The only thing that ever matters is whether you are in reasonable fear of imminent violence likely to cause you death or serious harm. And those words “reasonable” and “imminent” are not there just for decoration. If either one is absent you have no right to use force, period, end of story. There is simply no such thing as a right to use force to protect oneself from violence that is not imminent, even if it reasonably anticipated.

          Char Char Binks in reply to Milhouse. | July 12, 2018 at 6:21 pm

          You are right. Arminius doesn’t understand imminence, or pretends not to.

          Char Char Binks in reply to Milhouse. | July 12, 2018 at 8:09 pm

          Actually, Arminius is right about a tactical retreat to improve position to continue an attack (if it meets the reasonableness requirement). It’s mrboxty who is wrong about the verbal threat to attack at some later time being a justification for shooting, because it fails on imminence.

      Joe-dallas in reply to harleycowboy. | July 11, 2018 at 2:04 pm

      Just the same – I am still not going to give a guilty verdict – self defense – The lady would have prevented a murder later with that guy.

      Second point – the lady had her hand the gun (under her apron) – Apparrantly the two ladies knew this guy was trouble. Likely multiple repeat attacks by this guy.

      All the more reason to find not guilty even if he was “walking back”

      I aint convicting

      Char Char Binks in reply to harleycowboy. | July 12, 2018 at 6:18 pm

      Even when he took a step-and-a-half back, he was still close enough to be a threat, a major threat. No reasonable jury would convict her if she had fired at almost any time in the video, except when he was clearly walking away, and not even then, if he had stopped, turned back toward her, or made any threatening move at all.

“I would also argue that his punching of the first woman constituted a forcible entry into the back kitchen. We would then have the unlawful and forcible entry necessary to trigger the legal presumption justifying the use of deadly defensive force, even if the attacker did not actually present a deadly force threat.”

I’m glad all ended well without life threatening injuries to the victims, and that the criminal left upon the threat of a firearm.

However, when I was trained in proper firearm use, I was counseled that “If dumb enough to point a weapon at someone, be smart enough to pull the trigger because you most likely won’t get a second chance.”

A very good post. Thank you, AB.

    Gremlin1974 in reply to locomotivebreath1901. | July 11, 2018 at 12:15 pm

    You are, of course, tactically correct, however the law and good tactics don’t always align.

      Char Char Binks in reply to Gremlin1974. | July 12, 2018 at 6:29 pm

      You have it backwards. She would have been legally justified in shooting at almost any time during the video (expect at the very end when he was clearly retreating), but the reason she didn’t was probably tactical. If she had shot, and the shot didn’t stop him, he could have rushed her, disarmed her, and caused a lot of harm. Likewise, he knew that if he rushed her, or didn’t back off, he would probably catch lead. So it was a standoff. He decided to back away, and she declined to shoot.

      As much as I would love to see the contents of his skull on that floor, she did the right thing.

    However, when I was trained in proper firearm use, I was counseled that “If dumb enough to point a weapon at someone, be smart enough to pull the trigger because you most likely won’t get a second chance.”

    I wouldn’t call that “proper firearm use.”

    You don’t shoot somebody because you have an opportunity to do so. A bit more than that is required. As it should be.

    Char Char Binks in reply to locomotivebreath1901. | July 12, 2018 at 8:31 pm

    If drawing the weapon stops the threat, that’s a win. If you’ve already won, you don’t need to shoot, and you won’t be justified in doing so, unless things change, of course.

I’m not comfortable with the gray area surrounding bare fists as non lethal. FBI stats over 5 year period indicate approx 750 deaths to fists out of 13,000 deaths per year.

I’m not arguing against you – the law is the law. But you spoke of male vs female as a lethal force use qualifier. Could you comment on age, particularly “seniors” and what age, if any, has a standardized legal definition of “senior”. I noticed that some laws have harsher punishments if the victim is elderly.

Also, thanks for all your advice. I think it was you who lectured us to never argue with police about legality on the roadside, to instead cooperate and save it for the court room. That advice kept me from potential injury, maybe from even being shot, a few years back. I owe you a bottle of your preferred brew 😉

Andrew, I’m very glad you’ve decided to examine this case. This was addressed on another blog and I got into a bit of a pi$$ing contest with some of the other commenters.

In my view, the level of force used by the woman was entirely appropriate and proportional. Actually, I believe that if she had fired on the man in this instance, she would not have been justified in using that level of force.

The other commenters believed that she should have shot the man. They were insistent that he should have been shot.

My response was that we might want to do lots of things to jerks like this, but “proportionality of force” demands we not react too strongly in such cases to remain within the law.

As soon as the man saw the pistol he immediately stopped and then began retreating. From my perspective, from that moment on the woman would not have been justified in firing. If he had stopped retreating and begun advancing toward her again, then yes, she could have fired, but not before.

With the circumstances shown in the video, if she had fired, the video would have been damning and there could not have been a claim of self-defense.

Am I way off base here?

    Fair point. He’s backing off when confronted with the threat of deadly force. Desisting.

      Tom Servo in reply to Fen. | July 11, 2018 at 10:36 am

      And all that just because he thought his burger was undercooked.

      Correct within certain boundaries.

      Just because the attacker was backing up doesn’t mean he’s not planning to rush the woman the instant the gun is lowered. (Taylor rule) She would have been justified in shooting him the instant she pulled out the gun AND in the first second or two of his slow withdrawal, BUT not after he had demonstrated he was leaving without inflicting any more violence on the two victims.

      Where that line breaks is dependent on the prosecutor. All the more reason to hold her up as a shining example of defensive gun use. It doesn’t take a shooting to have a gun save your life, and the lives of others.

        murkyv in reply to georgfelis. | July 11, 2018 at 11:26 pm

        The way she calmly drew the gun, moved the victim out of the danger zone and defused the situation without firing makes me think she’s had military, law enforcement or private training in firearms.

        Or maybe a Dad who brought her up right

    NotCoach in reply to NavyMustang. | July 11, 2018 at 10:40 am

    If he was not yet walking away when she fired you will never convince me she wasn’t justified. He initiated violence, and she responded. She showed restraint, and thankfully he eventually retreated.

    Gremlin1974 in reply to NavyMustang. | July 11, 2018 at 1:11 pm

    No she would not have been justified in shooting, imho. However, I hope the perp gets to spend a good deal of time in jail. He is obviously unstable and a danger as is anyone who would take such action.

    “In my view, the level of force used by the woman was entirely appropriate and proportional. Actually, I believe that if she had fired on the man in this instance, she would not have been justified in using that level of force.”

    Look up something called the 21 foot rule, or Tueller drill. Basically, if an aggressor is within 20 feet, you can be attacked and killed hand-to-hand before you can draw and fire.

    Joe-dallas in reply to NavyMustang. | July 11, 2018 at 2:14 pm

    As i noted above, the lady had her hand on the gun under her apron, as the man was walking into the room. It would seem logical that both ladies knew this guy was trouble and probably had multiple physical atlercations. It is very likely that this guy will continue to beat up women.

    Char Char Binks in reply to NavyMustang. | July 12, 2018 at 6:34 pm

    He only backed up a step-and-a-half, at first. She would have been justified in shooting, because he was still a threat, and was clearly still belligerent, at least verbally. When he did walk away, the threat was over. Not shooting was probably tactical on her part, and a smart decisions. Her quick thinking, and gun, helped him make the smart choice, too.

    Char Char Binks in reply to NavyMustang. | July 12, 2018 at 7:23 pm

    Her use of force was entirely appropriate and proportional. Although I disagree with those who say she “should” have shot him, she would have been legally justified in doing so, at least until he clearly retreated.

    She probably reasoned that if she shot him, and the shot didn’t immediately stop him, he could close distance, maybe disarm her, and do who knows what, just as he reasoned that if he rushed her she’d probably shoot him.

    At that point it was dealer’s choice, and although it would have been satisfying to watch the lifeblood pour out of him, she won the fight.

Excellent analysis but just a minor point: I don’t think it was necessary to describe the attacker as a “large black male” as his race doesn’t add anything in this context. A “large man” or something of the sort would clearly communicate the disparity, specially when we are looking at the video of the incident.

    Fen in reply to Ulises. | July 11, 2018 at 11:20 am

    Disagree.

    1) My cellphone is junk and rarely finishes loading video before I finish reading the related article.

    2) You may be operating under a sensitivity affecting objective judgement. Race and sex is a common identifying characteristic of the perp. Would you object to identifying a Hispanic or again perpetrator? I can’t see into your head, so I’m not judging you, just simply pointing to a potential blind spot that you may want to at least consider.

    3) There are scientific studies claiming Blacks have a lower average IQ. If true, this would indicate lesser cognitive and required to resolve conflict nonviolently, resulting in greater odds the aggressor would resort to violence nire readily than someone who could imagine more nonviolent options before coming to that final point. I’m skeptical of the validity of such studies, but if true then race becomes a factor in determining the level of threat encountered.

    4) Even if not true, wouldn’t we still need to consider the effect of such a “bigoted stereotype” on the defender’s state of mind. Would a jury consider her belief that less intelligent people resort to violence more quickly, thus is her “reasonable fear of grevious bodily injury or death” valid from her pov (even if she is racist)?

      Fen in reply to Fen. | July 11, 2018 at 11:23 am

      Edit

      Would you object to identifying a Hispanic or _Asian_ perpetrator?

      Sorry for your cellphone, but I don’t think that’s a common problem for most people; besides, this particular video went viral and probably a lot of the people that clicked on this post are aware of what happened and the context. I understand that race and sex and usually an identifying characteristics of perpetrators, but in this particular context I think it doesn’t. We’re watching the video and clearly see the disparity between the perp and the potential victim.

      The focus of the whole think is her and her right to self-defense; so “a large man” would have been more than enough. And you’re right, I might be overly sensitive and the “large black man” immediately caught my attention.

        Fen in reply to Ulises. | July 12, 2018 at 1:51 am

        Understood. We may still be in disagreement, not that it matters much in the great scheme of things, but thanks for not taking my remarks out of context, for being fair.

        I agree with you, Ulises. Race doesn’t seem to be a factor here since no “hate crime” or other race-based allegation is made.

        One thing, though, that drives me straight up the wall about the left’s current hold on the culture war is that they have reinforced to the nth degree that race is everything, that black men are dangerous and to be feared and that every stereotype about every race is true and real. If this sort of thinking played a part in the altercation simply because it’s become so ingrained by the racist left, then we can’t dismiss it.

        This gets me into territory I hate: that leftist-created land where everyone thinks of race first, last, and always, and everyone makes every decision, even unconscious ones, based on race. But we can’t really ignore what they’ve done to us; we are not Americans anymore, we are blacks, women, gays, trans, a zillion genders, a zillion races, and all of it BEFORE we are Americans. Of course that plays out in the way people think, speak, and act.

        We can’t say certain words or our careers are over, but we are still supposed to respect (and revile our respect for) the “angry black man,” and etc. It makes things murky. Not because they are murky or because any crazy ingrained racism actually exists but because it does now; it’s been created by the leftist insistence that race defines us. We are all racists now: black, white, brown, yellow, green, purple, and rainbow.

        We’re all subject to the same rules that have been forced upon us. A big black man is black first, that’s what we all are in this horrific leftist world: I’m white first, female second (unless I’m among feminists, then I’m a female first, but only after all females of color are counted, so I’m like female eleventieth in that case but since I’m white, I’m so standing out in the hall until everyone else–including trans and gay men since they are deemed more female than me–has had their say).

        I still agree with you because you’re right. But I think we also need to acknowledge the hellish world into which we’ve been thrust and in which we all must all live.

      Char Char Binks in reply to Fen. | July 12, 2018 at 6:42 pm

      That’s quite a can of worms. Just some friendly advice: Don’t ever mention your racial-IQ-and-aggression theory to a cop, judge, or anyone, if you’re ever investigated in a use-of-force incident, or ever, really.

    Fen in reply to Ulises. | July 11, 2018 at 11:43 am

    Apologies if point 3 was offensive. I don’t believe in any of that racial superiority crap. I’m a Black Irish mutt. And those studies claim Asian IQ averages are highest anyway.

    I’m just considering how quickly the aggressor resorted to violence over an undercooked meal. And that some honest science may have been censored and leads cancelled over fears that actual racists would use such findings for evil purpose.

    Gremlin1974 in reply to Ulises. | July 11, 2018 at 12:46 pm

    If facts bother you then you are an overly sensitive snowflake and/or trying to make a sideways claim of racism.

    Of course the race of the attacker matters, if it didn’t the MSM wouldn’t go through such lengths to hide the race of non-white attackers. Also, it matters because of the proportion of crimes committed by different races per capita. Don’t let feelings overrule the need for context and facts.

      No, facts don’t bother me and I’m not making sideways claim of racism. I’ve been following this blog since the days that Professor Jacobson hosted it on blogspot.com and although I don’t claim to be buddies with the author I have always been an engaged reader.

      He even had responded to some of my comments in social media, a level of engagement with readers that I truly appreciate. I even submitted a few bumper stickers when that was a regular feature of this blog. So no, I don’t think the author is a racist and I’m not a sensitive snowflake.

      As I’ve said, we’re discussing the video that we are all watching and the focus on the woman and his defensive use of a gun. I honestly don’t see what context we would be missing if the aggressor was described without any reference to his race.

      Is not like there’s no video evidence that can provide that information; there is no racial context on this, just a guy behaving badly and his motives are irrelevant to the analysis of his potential victim gun use.

        Gremlin1974 in reply to Ulises. | July 11, 2018 at 7:47 pm

        Ok, I accept that and yes I know you have been around for at least as long as I have. However, does it really matter if the perps race is noted? Why make an issue of it? I mean maybe if it was used in a “see what blacks do” kind of way I could understand, but that isn’t the case. It is simply stating the facts, he is in fact a large black man.

    tphillip in reply to Ulises. | July 11, 2018 at 1:02 pm

    “I don’t think it was necessary to describe the attacker as a “large black male” ”

    You mean the large, black male in the video? Is the description inaccurate?

    It seems your sensitivity meter is busted to the point where you’re complaining about accurate descriptions of actual video evidence. I suggest you stay away from Academia and large coastal cities and attempt a reset.

      I suggest that you stop making snarky comments about people you don’t know. I graduated 25 years ago from a small town college and have been working in the real world ever since. We’re watching the video and commenting on the woman defensive gun use. The race of the perp adds nothing to the discussion, unless this was a racial attack.

        Gremlin1974 in reply to Ulises. | July 11, 2018 at 7:50 pm

        Oh, ok, so you are making a sideways accusation of racism, even though you said above you weren’t. Why does it need to be included, because FACTS MATTER and obfuscating a fact because of some kind of misguided idealism is both dishonest and evil. How’s that?

    tom_swift in reply to Ulises. | July 11, 2018 at 5:59 pm

    Accurate information is good.

    Let the readers decide what’s topical and relevant. No need to make that decision for them. That’s what a “rational adult” is—someone who can handle information.

      There are three people in the video; only the race of one of them is mentioned and only in the opening paragraph and from them on he’s referred to only as “male”. I’m not accusing the author of racial animus but of including a detail that is irrelevant.

        Gremlin1974 in reply to Ulises. | July 11, 2018 at 7:51 pm

        Yes you are accusing the author of racism.

        “unless this was a racial attack.”

        That is from your own comment. Which makes you a liar.

          No, you just have reading comprehension problems or need to take a break. I’m talking about the scene we’re watching on the video: is there a racial angle to this? I don’t think so, I haven’t read anything about that so this is just a random troublemaker who lost his cool and came within an inch of getting a bullet in the head. That’s the only issue here, so again…his race and that of everyone involved is irrelevant. That was my only point.

          Gremlin1974 in reply to Gremlin1974. | July 12, 2018 at 6:22 pm

          @Ulises

          No, you admitted that it had to be a racial attack in your own words. But if you need a reason why, the race of the perp is usually included in reports and has been for years, the race of the victims is not. It’s not racism or whatever you are thinking it is just how people in Law Enforcement and Legal circles operate and have forever. Don’t read more into it than it is.

Society has forgotten just how much stronger and better at fighting men are than women. Even some biometric science guys are (or say they are) surprised at the huge differences.

A top female athlete in the 90+ percentile has the same or less upper body strength as a male athlete in the 50th percentile. Watch any of the top female combat sports competitors when they are training with men.

Any reasonably fit man can kill or maim any woman even those bigger than him. Women are on average, smaller, weaker, slower, more fragile and have lower endurance.

I see no problem with a woman ending an attack with with a gun. Especially as to be able to retreat you have to actually be able to. You can’t defend yourself running away and backpedaling makes you a vulnerable target.

    Fen in reply to forksdad. | July 11, 2018 at 11:31 am

    Yup. We dealt with this dilemma in the Marines, and upper body strength was just one of several advantages in hand to hand combat. Just off the top of my head, the 10 percents

    10% more body fat than men
    10% less hemoglobin (less oxygen available)
    10% less bone density (crunch)

    txvet2 in reply to forksdad. | July 11, 2018 at 11:40 am

    All of those things used to be considerations. Now they just make you “sexist”. Men used to defend women because of all of those considerations. Now THAT makes you “sexist”.

This legal analysis is nice and all, but if I am sitting on a jury because a prosecutor was stupid enough to charge this woman I am acquitting in microseconds. The legal niceties of “aggravating circumstances” go out the window for most rational adults once any violence is committed. It’s no one’s responsibility to determine when lethal force is OK. It is only necessary for sane adults to know someone is defending themselves from violence.

    Mac45 in reply to NotCoach. | July 11, 2018 at 12:10 pm

    Unfortunately, most jurors are not like you.

      Joe-dallas in reply to Mac45. | July 11, 2018 at 5:14 pm

      “Unfortunately, most jurors are not like you.”

      I am with NoCouch on this one – except the acquital will be in miliseconds

    Char Char Binks in reply to NotCoach. | July 12, 2018 at 6:48 pm

    Maybe so, but all the legal niceties would have been on her side even if she had shot at any point except when he was clearly walking away.

4th armored div | July 11, 2018 at 10:55 am

what is the current status of the attacked cook ?
initial reports that i had seen was severe and costly facial surgery needed for an uninsured woman.

thanks for this clear description of defensive use of force.

btw – had the man not stopped or had he grabbed a knife etc then a clear and present danger situation would apply.

Interestingly enough, in Texas, the production of a firearm does not necessarily rise to the level of deadly force.

TPC 9.04: THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

    RITaxpayer in reply to Hexenjager. | July 11, 2018 at 11:25 am

    “does not constitute the use of deadly force”

    Sooo, in Texas, you have to wait for the offender to… what…pull the trigger?!? That’s ridiculous.

      Hexenjager in reply to RITaxpayer. | July 11, 2018 at 11:29 am

      You misread that. Basically what it is saying, is that if you attack me, and I draw my firearm and point it at you with the “intent to create apprehension (in you) that I will use deadly force if necessary”, then I did not actually use deadly force despite pointing a firearm at you.

      Hexenjager in reply to RITaxpayer. | July 11, 2018 at 7:01 pm

      I don’t know if RITaxpayer is a troll or not, but I don’t think it’s necessary to downvote him/her just for a simple misunderstanding of the statute.

Once again, one has to be intimately familiar with the laws governing the use of force or the threatened use of force in the jurisdiction in which they are at the time. Here are a couple of things to consider.

First, is whether a distinction exists between the use of force and the threatened use of force, in self defense law. In many jurisdictions there is a clear distinction between the actual use of force and the threatened use of force. In such jurisdictions, threatening to use deadly force against another, in lawful self defense, is legal where the actual use of force would not be. However, one thing that has to be remembered in these situations is that, even if the threatened use of force is legal, while the actual use of force is not, then you have a significant problem if the threat does not deter an attacker. then you need to consider other factors before you use deadly force.

One of those factors is the definition of deadly force and disparity of force. Deadly force is usually defined as being force which is likely to cause death or great bodily harm [which can result in death]. The use of any weapon which will likely cause either of those results is considered deadly force. Also, a significant disparity in the level of force which can be generated by the aggressor and the defender can meet those conditions and be classified as deadly force, though this is usually limited to its applicability to use of force in self defense. In a case such as the one above, such a disparity of force might well exist, which would allow the female to use deadly force against an unarmed aggressive male.

Also, there exist jurisdictions which require a person to retreat before using deadly force, if it can be done safely. Many of these jurisdictions have statutory exceptions to this duty to retreat and a person must know what those are.

Finally, there is a broadening trend, law enforcement and judicial circles, to ignore common sense. Laws are so poorly written, or written in such a way as to make it impossible for a person to legally defend themselves, and LEOs, prosecutors and judges are so reluctant to state that such laws are an unconscionable restriction upon the common law right of self defense, that innocent people are being arrested, charged and tried, as well as being dissuaded from defending themselves or others from physical attack.

As to whether the threatened use of deadly force by the waitress was lawful in Minnesota, I do not know. I would have to extensively research Minnesota law to make an accurate assessment of the legality of the threat to use deadly force in this case. However, here is a link to using a firearm in self defense from a Minnesota CCW Blog.

https://www.minnesotaccw.com/blog/legal-use-of-force-in-mn

    Hexenjager in reply to Mac45. | July 11, 2018 at 7:14 pm

    Mac45, while you aren’t wrong, in Texas at least, I know of 1 case where this was a non-issue. I was personally in such a situation and got no-billed. The continued attack by the offender, in the face of a drawn firearm by the innocent person, was perceived to be an escalation of force. I.E. – the idiot staring down the barrel of a .45 didn’t care that he would be shot him if he persisted.

      Mac45 in reply to Hexenjager. | July 11, 2018 at 8:39 pm

      As I said, you have to have a good working knowledge of the laws concerning what constitutes lawful self defense in your particular jurisdiction. They are different in every state of the Union.

      Minnesota is a duty to retreat state. This makes it more complicated when deciding when you can stand your ground. I do not know if threat of deadly force is equated with the actual use of deadly force in Minnesota, but if it is, this further complicates how one can respond to a threat.

      Take a look at Florida’s use of force laws. A decade ago, the state had very lenient standards for threatened use of force. Threatened use of deadly force did not appear anywhere in the use of force statutes. It appeared only one place, in FSS 790. 10, which addressed the reckless display of weapons in public. It specifically said that display of a deadly weapon in a threatening manner was NOT a violation of law, if done in necessary self defense. So, for about 100 years, a person could point a firearm at a person approaching them in a threatening manner and tell that person to leave him alone without violating the law. Then, some numb-nuts jurist ruled that threatening someone with a firearm was the legal equivalent of using deadly force. This in spite of the half dozen existing criminal statutes which draw a clear differentiation between a threat and the actual use of physical force. This was never heard by the SCOF. Then to make matters worse, pro-gun activists got involved. Instead of arguing that the threatened use of deadly was clearly different from the USE of deadly force and that its use was already regulated by existing statute [790.10], these yahoos had the use of force statutes changed to equate the threatened use of deadly force with the actual use of deadly force, making it a criminal violation to THREATEN to use deadly force against a non-deadly threat or force. Things change. And not always for the better.

    MajorWood in reply to Mac45. | July 11, 2018 at 8:08 pm

    If it weren’t justifiable force at the beginning, I would immediately move from that state. It just occurred to me that most people who act as victims live in states where being a victim is statutory.

    Char Char Binks in reply to Mac45. | July 12, 2018 at 6:53 pm

    Wisconsin has Castle Doctrine and SYG, and the woman would have been justified in shooting. I think she chose not to for a tactical reason, and the man backed off also for a tactical reason. A win is a win.

A few points that I would like to know…

1. What was the man saying to the women? Did he know either of them and did he have prior contact with either of them? IT was late at night, so was he drunk or on drugs? His words and tone of voice could have increased the perceived threat.

2. We don’t see the face of the retreating woman, but the other woman did see it. We also know that the woman has significant facial injuries. So, could the presence of a smashed face and blood impact the perception of threat?

3. The woman holding the gun moves the injured woman behind her and then there is something on the ground. Is that the injured woman or something else fall? Either way, the other woman would have heard something behind her. So, does that impact her perception of danger since a path of retreat has been eliminated.

We are only seeing a video that shows an attack, but the interviews may indicate that the threat was greater.

The Left: “This cannot be possible. We have been told that untrained people cannot use firearms without being a danger to themselves and the people they intend on protecting, as well as the sheer impossibility of drawing a gun while under attack, the inevitability of the drawn firearm going off and shooting ten or twelve people in the process, and other such inviolate facts. Maybe we’re dealing with Photoshop here. Or actors. Yeah, that’s it.”

The Right: “That reminds me, I need to buy a better retention holster for concealed carry.”

BrokeGopher | July 11, 2018 at 1:13 pm

White restaurant worker threatens to kill unarmed black man. Edited film at 11.

Excellent overview, I would like to add something from many moons ago.

I’m a cop, been on for 20 years. When I was a rookie, one of my field trainers, John, gave him a story of how he was almost knocked out.

“Mike, I answered a call about a bar room fight. I get in, have my baton (wood…nothing beats a good piece of hickory!) in my hands, and I entered the place. I never saw this coming; the dude knocked me three times before my eyes had adjusted to the light in the place. He was going back to knock me out, so I took the baton and cracked it over his head. I had to lean against the wall to get myself stable…”

And I was ashamed to say I answered his question incorrectly, “What did I just do?”

The correct answer was he used deadly force. Blunt strikes over the shoulder can easily cause serious bodily injury. And John was investigated by the DA, the Internal Affairs officer, and his case was put in front of a grand jury. They no-billed.

If the man had knocked John out, he would have been defenseless, and the suspect would have access to all of John’s weapons. He had legitimate fear for suffering loss of life or serious bodily injury.

Back in the academy, the Asst DA who thought us penal code made an example of how sex makes a difference. He brought out the biggest member of the class, Jones (names changed to protect the guilty) 6-4, 260, former college linebacker. And be brought out Smith, 5-4, 120 soaking wet in her uniform. And he made the point, “OK, if Ms. Smith attacks Mr. Jones with just her fists, does anyone believe Jones has legitimate fear for his life or serious bodily injury? No way. Now, switch it, Jones attacks Smith, what do you think? Basically, Ms. Smith has a lower threshold to reach than Mr. Jones.

    MajorWood in reply to Mike Thiac. | July 11, 2018 at 7:59 pm

    One of my gun nut buddies pointed out that smaller LEO, I’ll not use his pejorative description, likely have tendency to go for a weapon sooner than a large male who believes that he can handle the situation by physical means. The increased number of po-po shootings could be accounted for by this shift in demographics.

    We also discussed the recent Portland State shooting, and it was the group’s opinion that a CHL holder dare not get involved in an altercation not focused directly on them. I know that my CHL instructor was very adamant about not thinking the CHL suddenly made you Superman, protector of all. While it is unfortunate that the guy got shot while trying to break up a fist-fight, that wasn’t his responsibility. He might not be fully culpable for what happened, but there is a strong partial involvement in the outcome. This will prove to be both an important teaching and learning incident.

    There are two rules I live by. Do not produce the gun until it is needed, and once it is produced, it is used as the threshold has already been crossed. In this case, threshold was crossed and the opportunity to use it was in the first few seconds. After that, it became more debatable. Producing it in a situation that does not warrant it is technically brandishing, but her situation warranted that response. The homeless in Portland are fond of wearing huge hunting knives on their belts. Not cause for brandishing, but hand on and safety off are strong options when I am in near proximity. Open display of a weapon by a person likely mentally ill is my justification for lowering defcon a few notches. My MAX station is the one where the cray-cray killed the two people recently. Second, better to be judged by 12 than carried by 6.

    Mac45 in reply to Mike Thiac. | July 11, 2018 at 8:47 pm

    The answer to the question was actually, “he did the correct thing.”

    Attacking police officers, especially in the lawful performance of their duties is a more serious violation of the law than is attacking someone who is not a LEO. In the trainer’s case, the man attacked him not once, which could be explained as a mistake in the heat of the moment, but three times. This indicates that the attack was intentional and that the assailant knew his target was a LEO. This is a violent felony in most states. If the attack is allowed to continue, and the LEO is disabled, then the assailant has access to the LEO’s firearm, a deadly weapon, and he can use that to inflict death or great bodily harm on the LEO and others. So, under the circumstances, the LEO’s actions were not only legal, but proper.

    In the 1980s, jurisdictions went overboard in justifying any use of force. Some departments required that use of force report forms be filled out if a LEO pulled his gun [even if he did not threaten anyone with it] or handcuffed an arrestee. It has gotten a little better, but not much.

What if she were to purposely shoot him in the leg? That would be a non-life threatening attack, no?

    SDN in reply to Mark. | July 11, 2018 at 3:59 pm

    Two things.

    1. Look up femoral artery and re-consider life threatening.
    2. Only someone who’s never been in a gunfight thinks aiming for an extremity is a reliable way to stop a threat.

      MajorWood in reply to SDN. | July 11, 2018 at 8:05 pm

      I always look upon my registered SBS as an “area weapon.” If you are in the area, you are screwed, therefore, it is technically a “zero shot stopper” as anyone with two firing synapses will realize that it is game-over. Still working on the shoulder-fireable claymoor.

    Fen in reply to Mark. | July 12, 2018 at 2:18 am

    It seems like a gimme putt at 5 feet. It’s not. Good example too – watch the Masters Cup and, if you can stay awake, you’ll witness professional golfers miss 6 inch putts for a $100,000 loss.

    It’s the stress and adreniline.

    My first roleplay scenario I pulled on two static targets (friend/for) and hit the mag release button instead of the safety. And we shall speak of that no more.

    In Baderra, Somalia a group of thugs tried to intimidate a Red Cross working by firing into the ground in front of him, like in the movies. Round richoceted up off the gravel and killed him. I’m not a ballistics expert, but it seems a complete miss (of the leg shot) has a greater chance of bouncing around and finding an innocent target, as opposed to one that has to plow through the perps torso.

    Even the experts don’t attempt to get tricky in these scenarios – always aim center mass.

    forksdad in reply to Mark. | July 12, 2018 at 12:06 pm

    No, it would not be a, ‘non life threatening attack’. Gunshots are a very life threatening attack.

    Char Char Binks in reply to Mark. | July 12, 2018 at 7:01 pm

    Any use of a gun is deadly force. In fact, even drawing the gun at all and not shooting was deadly force. She handled it well.

      Gremlin1974 in reply to Char Char Binks. | July 14, 2018 at 2:27 am

      Not necessarily on the brandishing aspect, in some places just drawing and presenting is allowed, though not many.

        Char Char Binks in reply to Gremlin1974. | July 14, 2018 at 11:23 am

        She was allowed to draw her gun, for sure. Notice which person the cops are now trying to arrest. The law justifies deadly force in that circumstance.

She should have shot him, the attack on the first woman was a deadly force attack. Watch the video the blow he threw was clearly aimed for the side of her head just behind the eye socket, that is a killing blow only he fact she move saved her life.

    Mac45 in reply to gbm. | July 11, 2018 at 8:58 pm

    No, the initial punch was not “deadly force”. As it was not delivered by the use of a deadly weapon and it did not kill her, it was non-deadly force. What would have allowed the other woman to threaten to use deadly force against the man was the fact that it appeared that the man was intent on continuing the attack. The possibility of continued blows raised a very reasonable concern that the woman would suffer death or great bodily injury at his hands. We saw this in the Zimmerman case. These nuances are both tricky and important for a legal defense.

      Fen in reply to Mac45. | July 12, 2018 at 1:59 am

      I’m not following your line of reasoning. In the UDlD, there are approx 750 deaths due to fists, feet etc per approx 13,000 total, per year (FBI stats from 2009-2013, linked upthread) and…

      “According to the website onepunchhomicide.com, which tracks such things, just one county in Washington State — King County, where Seattle is located — has four to six one-punch homicides every year.”

      Perhaps a better definition is that punches NOT directed at the head are not deadly force? Or are you arguing the legal definition vs how it should be defined.

      Although I do see the problem, if head shots are deemed deadly force then every bar fight could end with (justified) shots fired in self-defense.

      I really don’t like how gray this area is.

        Fen in reply to Fen. | July 12, 2018 at 2:01 am

        US not UDID. Sorry.

        Hey Smartphone, WTH is UDID anyway? Here, let me teach you how to fly…

        Mac45 in reply to Fen. | July 12, 2018 at 12:28 pm

        Any strike to the head, with a closed fist, is potentially lethal. However, if it was automatically considered to be deadly force, then we would not have any legal pugilistic contests in the US. Any punch to the head, thrown in self defense, would be considered deadly force and would only be allowed under very stringent conditions under use of force laws. But, this is not the case. A punch, with a closed fist, even to the head, is considered to be non-deadly force. There are conditions which change that. If a blow is clearly directed with the specific intent to cause death or great bodily harm and is directed to a point where such death, or great bodily harm is very likely, it may be considered deadly force. Repeated blows can raise the likelihood of suffering death or great bodily harm to a point where deadly force in self defense is justified. But rarely does a single punch rise to that level. And, once the blow is delivered and neither death nor great bodily harm is apparent, deadly force can not be used, unless the attack continues to the point where the reasonable likelihood of death or great bodily harm is reached.

        Now, the homicide statistics that you cite are irrelevant, because they do not give any correlation between the number of punches and kicks delivered and the number of deaths from a single punch or kick. If 1,000,000 blows are landed each year and 700 people die from those blows, this is statistically insignificant.

          Fen in reply to Mac45. | July 15, 2018 at 3:28 am

          That makes more sense to me now. Good points and thanks for taking the time to address my concerns.

      Char Char Binks in reply to Mac45. | July 12, 2018 at 7:05 pm

      The ferocity of the punch, it’s unexpectedness, and the disparity in strength, and possibly age, between the attacker and the attacked, made it deadly force.

The Great Equalizer, beautifully illustrated.

Most men are not experienced street thug brawlers. Where’d that come from?

    Vancomycin in reply to maxmillion. | July 12, 2018 at 8:39 am

    I think it means that men are likely to have more experience and be better at fighting. Not that all mean are experience street thug brawlers.

    How many fistfights and scuffles did *you* get into as a kid?
    Now, how many did the girls you know get into?

    See?

      Dathurtz in reply to Vancomycin. | July 12, 2018 at 3:16 pm

      I think Maxmillion has a point about modern young people. I’m not very old and it was pretty much expected that pretty much every guy had been in a few fights. That really isn’t the case anymore. Used to our parents would get called and a big coach would deal with it and we might get a day or three out of school. If you get into a fight at school now, then you will almost always leave in a police car. The result of this that I can see is that almost no young guys get in fights. And I’m in a reasonably rough area in Louisiana.

      If I had to guess, I’d guess there is a 1 in 20 upper threshold of young guys that have been in a fight that lasted for more than a few seconds.

        Vancomycin in reply to Dathurtz. | July 16, 2018 at 8:22 am

        That’s entirely possible.

        But I’m not even talking high-school age. More middle school and younger even.

        *shakes cane at the youngsters*
        Back in my day there was almost always some kind of scuffle going on between the boys in the school about once every week or two. Nothing serious, just two kids that got a little physical (normally pushing and shoving and words before the teachers or coaches could break it up).
        And this was in a non-rough suburban school. By high-school though, all that stopped. Kids had gotten bigger, and fights were more dangerous. I remember exactly 2 fights that happened in high school, and both of those weren’t cool (people actually hurt).

Also, Mr. Branca, thanks for going on youtube with John Lovell. I’m off to watch the interview about carry insurance now.

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