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Law of Self Defense: FedEx Driver Not Charged in Fatal Punch of Man Who Hurled Racial Slurs at Him

Law of Self Defense: FedEx Driver Not Charged in Fatal Punch of Man Who Hurled Racial Slurs at Him

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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    NGAREADER in reply to Paul. | December 6, 2018 at 8:14 am

    The only confusing part in this is calling the guy that died the “victim”.
    He was the violent offender. The instigator. If he was a robber with a gun and was shot by someone in defense, you wouldn’t call him a victim.
    He caused the incident, without his actions this never would have happened.
    The outcome, if anyone was to have to die, was the correct one. He was the aggressor, not the victim.

In today’s world it’s fairly evident that a black person being subjected to racial epithets pretty much has a free fire zone.

    Fedex guy responded to the initial verbal assault with a verbal response. It was only when the guy swung on him that he beat his ass (with a single punch.) It’s not Fedex guy’s fault that the mouthy dude had a glass jaw.

      JPL17 in reply to Paul. | December 5, 2018 at 10:38 pm

      … or as we used to say in first year of law school, an “eggshell skull”.

        Milhouse in reply to JPL17. | December 5, 2018 at 11:07 pm

        Eggshell skull would be relevant if the driver had been the aggressor. You take your victim as you find him. But here he was the victim, not the aggressor, so he is not responsible for the aggressor’s eggshell skull.

      forksdad in reply to Paul. | December 6, 2018 at 9:47 am

      I saw a guy convicted about thirty years ago for the exact same situation. Except both parties were white and the slurs were about the man’s wife. The aggressor tried leaving the bar, when they blocked him and his wife he still did nothing. They punched him and grabbed his wife, he punched the guy grabbing his wife first, the ‘victim’ hit his head on a pool table. The other three lived but were in no condition to fight.

      Guy did all his time. Model inmate never gave a lick of trouble. This is all from his, ‘jacket’. He lost all that time I do believe if he’d been black it would have been different. Or maybe because he was a logger and looked scary to the jury, a guy can’t hide twenty years in the woods.

    Munich in reply to maxmillion. | December 5, 2018 at 7:33 pm

    And a woman, a person of unclear sexual orientation and a couple of others. You wretched white men out there, you watch it! At least be a Democrat!

    Insufficiently Sensitive in reply to maxmillion. | December 5, 2018 at 9:35 pm

    In today’s world it’s fairly evident that a black person being subjected to racial epithets pretty much has a free fire zone.

    So a white or red or yellow person subject to race-based insults also owns a free-fire zone.

    Paul In Sweden in reply to maxmillion. | December 6, 2018 at 12:41 am

    The shouting racial epithets seems completely immaterial and the only thing that matters is the initial attacker’s punch thrown and the reasonable physical force needed by the victim to neutralize the attack.

    Q: Andrew Branca, could you elaborate on the criteria when the physical attacker is much smaller and or a woman or a minor? Another Q: In the absence of physical contact or the absence of threatening words such as kill, punch, beat etc what criteria would justify a physical self-defense by a much smaller and weaker victim? How does the law of self defense handle perceived imminent harm?

Let’s add a hypothetical fact. What happens if the driver is, say, a Golden Gloves (or semi professional) boxer (and the victim had no such experience)? Or is skilled in MMA fighting? Do we potentially lose proportionality?

    casualobserver in reply to Bruce Hayden. | December 5, 2018 at 9:20 pm

    Seems irrelevant. Otherwise height and weight and age and fitness, etc., must also be considered in defining proportional.

    That would probably go to their being reasonably in fear, and the proportionality of their response.

    An interesting discussion:

    “Research has failed to reveal any statutory, regulatory or other requirement that boxers — or anyone skilled in martial arts — “register” their hands or any other body part as “lethal weapons” in the U.S., UKoGBaNI, Canada, or any other common law nation. However, a criminal defendant’s experience in boxing, karate, or other forms of hand-to-hand combat may be relevant to determining various legal issues.

    “First, in the United States at least, the question of whether hands (or other body parts) of a boxer, martial artist or any other person even qualifies as a “deadly” or “lethal” weapon depends largely upon how “deadly weapon,” “lethal weapon,” or “deadly force” is defined (usually by statute, which is then interpreted by the courts). _See,_ _e.g.,_ Vitauts M. Gulbis, “Parts of the Human Body, Other Than Feet, as Deadly or Dangerous Weapons for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery,” 8 A.L.R.4th 1268 (1981 and supplements); Christpher Vaeth, “Kicking as Aggravated Assault, or Assault With Dangerous or Deadly Weapon,” 19 A.L.R.5th 823 (1995 and supplements). Most statutes have been interpreted to require an object external to the human body before a “deadly weapon” element can be met. For example, in _Minnesota v. Bastin_, 572 N.W.2d 281 (Minn. 1997), the Minnesota Supreme Court overruled the trial court’s conclusion that the left fist of the defendant, a former licensed professional prize fighter, was a “deadly weapon.”

    “Some courts in the United States have concluded, however, that a criminal defendant’s experience in boxing or martial arts should be considered when deciding whether s/he possessed a required intent to cause harm. For instance, in _Trujillo v. State_, 750 P.2d 1334 (Wyo. 1988), the Wyoming Supreme Court found that there was sufficient evidence to support the defendant’s conviction for aggravated assault after he punched someone in the head. His history as a trained boxer was one bit of evidence supporting the jury’s findings on his mental state. Likewise, in _In the Matter of the Welfare of D.S.F._, 416 N.W.2d 772 (Minn. App. 1988), the Minnesota Court of Appeals held that there was sufficient evidence to conclude that the actions of the defendant, who had “substantial experience in karate,” were sufficient to demonstrate his knowledge that he was hitting the victim with sufficient force to break the victim’s jaw.

    Similarly, a criminal defendant’s boxing or martial arts experience may be relevant to determining the validity of a self-defense claim. For instance, in _Idaho v. Babbit_, 120 Idaho 337, 815 P.2d 1077 (Idaho App. 1991), the defendant shot the victim and claimed self-defense. The trial court admitted evidence regarding the defendant’s past training and experience as a boxer, concluding that it was relevant to a determination of whether the defendant truly believed it was necessary to shoot the victim in order to protect himself and others. The Idaho Court of Appeals affirmed.”

    tom_swift in reply to Bruce Hayden. | December 5, 2018 at 11:18 pm

    What happens if the driver is, say, a Golden Gloves (or semi professional) boxer

    Such a person knows how to hit with the force appropriate to the immediate situation. The rank amateurs who learned everything they know from TV are another matter. But all practice in any sort of fighting is basically about learning control—control of the opponent and control of self.

      The thing is even if the driver had been three times Golden Gloves winner with a black belt in somethingjitsu, the result seems like it would not have changed. Driver hits assaulting thug, thug falls down and hits head on concrete and dies. There is no amount of combat training that can stop somebody from falling down wrong after you’ve hit them.

Special heads-up to black delivery drivers in Massachusetts. Avoidance element is lacking, so off to prison you will go.

The guy who died was twice the aggressor in that altercation, and now there’s one less racist around. Karma.

Diversity or color judgments, including “racism”, has been a losing proposition for over a century in our community.

God bless George Zimmerman. I thank him for his service to Sanford, Florida, to the State of Florida and to humanity at large for protecting us from Trayvon Martin.

Had a young thug get into my face one time trying to provoke me. He was bragging about how he was a trained boxer and could beat anyone. As an older person with a herniated disk in my neck I was thinking, great, you just gave me a reason to shoot to stop you if you lift your hand to strike me. Because I kept calm and didn’t return his hostility it made him confused enough to just back away himself.

    pro tip to thugs… size of mouth varies inversely with the amount of actual fight training.

    iconotastic in reply to jack burton. | December 6, 2018 at 11:41 am

    Maybe he remembered the aphorism:

    Don’t pick a fight with an old man. He will just kill you if he is too old to fight.

      Twanger in reply to iconotastic. | December 7, 2018 at 4:42 pm

      Sadly, I have entered this realm.
      It does make you think about proportionality… because there’s little change of me pulling off a proportional response without getting my butt kicked. All the hope I got is in non-proportional surprise.

In other news, after Netflix cancelled all their Marvel deals, Luke Cage apparently found a gig at fedex

In today’s political climate with traitor activist judges if the scenario had a White UPS driver harming or killing a Black aggressor I fear manslaughter charges, at the least, would be levied.

I don’t disagree that the victim should not be charged but I’m confused…

If punch can be fatal why isn’t considered deadly force?

Only if the person yelling the epithets is white.

    SDN in reply to Paul. | December 6, 2018 at 9:43 am

    George Zimmerman would like a firm definition of “white”.

    CaptTee in reply to Paul. | December 6, 2018 at 11:28 am

    Under the principle of “equal justice under the law” race or skin color is irrelevant!
    Jerk starts fight, so only jerk suffers consequences.

The title to the thread is misleading. Insults started it, but it was the aggressors offensive punch (fail) and the defenders counter punch (success) which resulted in the fatality and the lack of charges. Play stupid games, win stupid prizes.

Unknown3rdParty | December 6, 2018 at 5:23 pm

Years back, Charles Barkley, the Round Mound of Rebound, went to a bar for what he thought would be a quiet drink. My personal feeling is that somebody in that bar saw–imagined, really–dollar signs, thinking they could agitate Barkley (no shrinking violet) into a response and get a few dollars out of him. In the end, they were sadly and badly mistaken.

In an Orlando bar in 1997 Barkley found himself in an altercation where someone threw a drink over him.

Barkley picked up the man, who was a foot shorter, and threw him through a glass window.

At the trial the judge asked if Barkley had any regrets, he replied, “Yeah I regret we were on the first floor.”

“What [police and witnesses) said happened, happened,” Barkley said. “What he did was inappropriate. I’m going to defend myself. Let there be no debate. If you bother me, I’m going to whip your ass. The guy threw ice in my face, and I slammed his ass into the window. I’m not denying that. I defended myself. He got what he deserved.”