A Case Study in Maintaining Proportionality in Use-of-Force
I came across this brief news article about a confrontation between a black FedEx driver, Timothy Warren, and an angry man who repeatedly shouted racial epithets at him. The driver killed the man.
Prosecutors have decided against bring charges against the driver, despite the death of the victim. Based on the facts as reported, that appears to be the legally correct decision.
More specifically for our purposes, the facts of the conflict as reported appear to be a case study in the element of proportionality. Indeed the driver’s conduct appears to check all the required elements of a justified use of defensive force: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
FedEx Driver Receives Racist Insults
The conflict appears to have begun when the victim started shouting racial epithets at the black FedEx driver. As anyone who has taken my instruction knows, I advocate not getting into fights you don’t need to get into. I would discourage folks from getting into fights over insults.
Verbal Response to Verbal Response
That said, when the FedEx driver responded to the verbal aggression of the victim, the driver limited himself to a verbal response. Thus, his response was proportional. All good, as far as self-defense law is concerned: Driver is the non-aggressor (Innocence, check), the verbal aggression is actually taking place (Imminence, check), his response is proportional (Proportionality, check), Oregon is a stand-your-ground state (Avoidance, doesn’t apply), and there’s nothing particularly unreasonable about a black person returning verbal heat to someone throwing racial insults (Reasonableness).
Non-Deadly Response to Non-Deadly Aggression
The confrontation escalated from verbal to physical, but the physical aggressor was once again the victim. He threw a punch at the FedEx driver, who responded with his own punch to the Victim’s face.
Again, the driver was not the physical aggressor (Innocence, check), physical attack was actually taking place (Imminence, check), driver’s non-deadly force response to non-deadly force aggression was proportional (Proportionality, check), Avoidance doesn’t apply, and again there’s nothing here the driver is doing that’s unreasonable (Reasonableness, check).
Unfortunately for Victim, Driver’s Punch Proves Fatal
Things do go sideways at this point because the driver’s punch proved fatal. The victim fell to the ground (where he likely struck his head) and died of his injuries.
Fatal Blow Not Necessarily “Deadly Force”
Does that mean that the driver inappropriately used deadly defensive force against the victim’s non-deadly force attack? Or, as the article suggests, the driver inappropriately used deadly defensive force in response to racist insults?
No. Just because the victim of force dies doesn’t mean that force necessarily qualifies as deadly force for legal purposes (it obviously does for physical purposes, but that’s not our concern in legal analysis).
In this instance, there’s no evidence that the driver either intended or expected his defensive punch to cause death or serious bodily injury. As a matter of general principle, a thrown punch is reasonably expected to constitute merely non-deadly defensive force.
In this instance, then, the victim simply got unlucky.
Stay Inside the Lines, Be Hard to Convict
As always, I urge folks to not get into fights at all if they have a safe means of avoiding it, but once engaged if you can stay well within the bounds of lawful self-defense you can make yourself extremely unattractive as a target of prosecution, and awfully hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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