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Law of Self Defense: Was McDonald’s Guard Justified in Going to His Gun?

Law of Self Defense: Was McDonald’s Guard Justified in Going to His Gun?

There are only five elements of a claim of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.

There’s a video making the internet rounds of an apparent security guard outside a McDonald’s being attacked by two young black men, and I’m being asked if the guard pointing his gun at the two was a lawful threat of deadly defensive force, on the one hand, or a crime, on the other.

Before we begin with the analysis, here’s the video:

And here’s the analysis as this week’s Law of Self Defense Case of the Week.

Five Elements of a Self-Defense Claim

As I always tell folks this kind of use-of-force analysis isn’t rocket science—there are only five elements of a claim of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. Every element is required (unless legally waived), and if any required element is missing, the claim of self-defense fails.

Innocence

We don’t know how the confrontation started, but for purposes of this discussion, I’m going to assume that the two young men were the initial aggressors, rather than the guard. Check this element in favor of the guard.

Imminence

A threat needs to be at least imminent, about to happen right now, in order for defensive force to be justified, but a fight that’s actually in progress clearly qualifies as well. Check this element in favor of the guard.

Proportionality

The guard ended up threatening the two men with deadly force—his pistol—and the law generally requires that the guard be facing a deadly force threat in order to be justified in using or threatening deadly defensive force. This, as well as the element of Reasonableness, are the key elements of this case, so we’ll cover this in more depth in a bit.

Avoidance

Even in the minority of states that impose a generalized legal duty to retreat, that duty is imposed only if a completely safe avenue of retreat is practically available. The nature and setting of this attack suggest that the guard had no practical means of completely safe retreat when he presented his handgun, so no legal duty to retreat would have applied even in a duty-to-retreat state.

In most states, of course, there is no generalized legal duty to retreat before defending yourself against an unlawful attack. Regardless of the jurisdiction in this case, then, we’ll check this element in favor of the guard.

Reasonableness

As mentioned, this element of Reasonableness, as well as Proportionality, are the key issues of this case, so we’ll cover them in more detail now.

Reasonable Perception of a Deadly Force Threat

For the guard to be justified in using deadly defensive force, he must have reasonably perceived a deadly force threat against him. But what’s that really mean?

In terms of a “deadly force threat,” we mean a threat readily capable of causing either death or serious bodily injury. Pretty straightforward . . . or is it?

In terms of “reasonably perceived” the guard’s perception of a deadly force threat must both have been subjectively held in good faith (which we’ll assume for purposes of this discussion) as well as be objectively reasonable. But what’s “objectively reasonable” mean?

Objective reasonableness asks whether a hypothetical reasonable and prudent person would have shared the guard’s (presumed) subjective perception of a deadly force attack. For such a perception to be objectively reasonable, it must be based on more than just speculation, imagination, or what the law calls a “bare fear,” meaning an irrational fear.

Instead, for a perception to be objectively reasonable, it must be based on the application of the powers of reason to actual evidence, observations, experiences, in the broader context of the totality of the circumstances, the guard’s training and experience, and in consideration of the guard’s naturally challenging job of making important decisions quickly while fighting off an active attack.

To quote the US Supreme Court:

“Detached reflection cannot be demanded in the presence of an uplifted knife.”

Brown v. United States, 256 U.S. 335 (US Supreme Court 1921)

So, was there evidence from which this guard could objectively reasonably infer that he was the subject of a deadly force, rather than a merely non-deadly force, attack? Indeed, there is.

When a Bare-Handed Attack Becomes Deadly Force

Generally speaking, the law generally treats a bare-handed attack as a non-deadly force attack unless there are aggravating circumstances that suggest the bare-handed attack is likely to inflict serious bodily injury.

Such aggravating circumstances could include where the attacker is substantially larger or stronger than the defender, or possesses an exceptional fighting ability that the defender lacks. None of those would appear to necessarily apply in this case.

Other aggravating circumstances, however, do apply in this case. These include the disparity of numbers involved, with two attackers upon a single defender. Another aggravating factor exists when the defender is substantially older than the attacker—those of us of a certain age are well aware that we’re generally not quite as strong or fast as we were as younger, and that we’re also more vulnerable to substantial injury than when we were younger.

Both the disparity of numbers and the apparently much younger attackers, relative to the defender, are consistent with an objectively reasonable perception of an attack likely to cause serious bodily injury, and thus constitute a deadly force attack.

When OC Spray Becomes Deadly Force

Notably, however, the attack did not remain a bare-handed attack. The guard was carrying various defensive tools openly exposed on a utility belt, including a canister of OC (pepper) spray in addition to his pistol.   At one point in the attack, as he was being swarmed by both attackers, one of them stripped him of his OC spray and sought to deploy it against him.

In normal circumstances we generally consider OC spray to be a non-deadly means of force, and it is routinely used for this purpose by both law enforcement and civilians. (Indeed, I personally carry OC as my primary means of non-deadly defensive force.)

OC as non-deadly force, however, rests on the presumption that it is used defensively. When used is such a manner, it is intended to neutralize an unlawful threat, after which the defender ceases their use of force on the person sprayed.

The context is entirely different, however, when OC is used offensively. An offensive application of OC is intended to debilitate the target’s ability to defend itself against unlawful attack, presumably so further harm can be committed to the target and/or to facilitate the user’s ability to continue some other criminal act. A familiar offensive use of OC spray has been observed in some bank robberies. There the robbers OC spray the bank’s employees and customers in order to facilitate their robbery.

When these robbers are captured and brought to trial, it is common for prosecutors to argue that in this offensive context the pain and suffering caused by the OC spray to the bank’s employees and customers qualifies as serious bodily injury. This argument justifies a much more serious charge of aggravated assault based on the use of a “deadly force” weapon rather than the much lesser charge of simple assault if the OC was considered merely a “non-deadly force” weapon. This argument has been successful in federal prosecutions of bank robbers who use OC in this manner.

In this instance, of course, the OC spray seized by one attacker from the guard’s belt is being used in an offensive, not a defensive, manner, in order to debilitate the guard’s ability to defend himself and to facilitate the attackers’ ability to continue their assault on the guard. This is arguably, then, a “deadly force” (capable of causing serious bodily injury) application of the OC spray.

This attempted offensive use of the OC spray is consistent with an objectively reasonable perception of an attack likely to cause serious bodily injury, and thus constitutes a deadly force attack.

Inferring the Future from the Past

A speculative or imagined threat cannot be the basis for an objectively reasonable fear of a deadly force attack, so one can’t merely presume that another person is going to attack in a particular way. “Well, for all I know he could have had a gun” is not a legally-sound basis for treating someone as if they actually had a gun.

That said, the law does allow us to make reasonable inferences from observed evidence. So, for example, if a prospective attacker tells you he has a gun and then reaches for his waistband in a manner consistent with presenting a gun, it’s reasonable to infer from that evidence that he’s about to bring a gun into action and to defend yourself accordingly. It is not necessary that the defender wait until the muzzle of the attacker’s gun is on them, nor necessarily even until the gun itself is visible.

In this case, it’s clear that if the attackers possessed a handgun they would constitute a deadly force threat to the guard. The same holds true if they seize the gun of the guard himself—indeed, it’s worse, because then not only would the attackers have armed themselves with a gun they would have simultaneously disarmed the guard.

But does the guard have any evidence from which he can reasonably infer that the attackers intend to seize his gun, if possible?

Certainly: the fact that they have already seized another of his defensive weapons, his OC spray.

Strictly speaking, if someone punches you once, and stops, you have no grounds to use defensive force against them. To do so would be vengeance or retribution, not self-defense.

That said, a pretty good basis on which to infer that a person is going to punch you a second time is that they punched you the first time, especially if they don’t clearly and immediately cease their offensive conduct. It is reasonable to infer future conduct from demonstrated past conduct, especially when that conduct is ongoing.

In this instance, a pretty good basis from which the guard could infer that the attackers would seize his gun, if possible, is that they had already seized his OC spray, and that they were continuing their offensive conduct.

An attacker who is attempting to take your gun from you is arming himself with a gun no less than if he were reaching for a gun on a table (indeed, as already described, it’s worse than that), and thus constitutes a deadly force threat.

The guard’s (presumed) reasonable inference that the attackers were attempting to arm themselves with his gun is consistent with an objectively reasonable perception of an attack likely to cause serious bodily injury, and thus constitutes a deadly force attack.

Conclusion: Lawful Use of Deadly Defensive Force

There are, then, at least three grounds—disparity of numbers, offensive use of OC spray, and inferring future conduct from past/ongoing conduct—from which the guard could objectively reasonably perceive that he was the subject of a deadly force attack against which deadly defensive force would be legally justified, and that his pointing of his handgun at the youths was therefore lawful conduct.

It should also be noted to the guard’s credit that he did not fire his handgun at the attackers as they fled. Such conduct would almost certainly have been unlawful, but not hard to imagine happening given the stress of the life-threatening attack the guard had just been subject to by the two youths. To his credit, the guard kept his cool and ceased using force once the threat against him had been neutralized.

In closing, remember:

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

[Featured image via YouTube]

If you enjoyed this case of the week I urge you to take a look at the Law of Self Defense Blog, the premier source for authoritative education and insight on self-defense law. There’s always free content, as well as premium content for members of the Law of Self Defense Community.

Disclaimer: The contents of this post are provided for generalized informational purposes only, and do not constitute legal advice. If you are in need of legal advice you must consult competent legal counsel licensed to practice in the relevant jurisdiction.

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Comments

Good analysis, but you don’t mention the biggie… this was no ” guard ” .. this is a off-duty cop. Even off duty, police officers have enormous legal rights that just a armed guard would never have… that’s why they cost more to hire for security.

There is ZERO difference, to a court, that these youths attacked a uniformed police officer, off duty or on. I don’t know why you even reviewed this case without pointing this out. Explains probably why he didn’t shoot them too. He knew better.

makes sense…

too bad it happened in 5hitCloggedHole.

guard is white, attackers are black, he’s guilty.

(hope i’m wrong)

thanks for laying everything out nice and neat, so folks can understand it.

Most appalling is that the recorder and/or other people in the restaurant couldn’t have cared less that the guard/cop was getting attacked; they started squealing only when the perps had a gun pointed at them.

Disgusting.

    redc1c4 in reply to hrhdhd. | April 13, 2019 at 7:11 pm

    pretty sure, from the voices, that the customers were black too.

    i’d speculate more, but that would be rayyyyycissss…

In teaching police use-of-force classes, we always stressed the fact that police (especially when in uniform) can generally draw down on a suspect without getting into legal problems. The HUGE difference occurs when the trigger is pulled. Every police bullet carries three lawyers with it: The prosecutor, the suspect’s lawyer, and your defense lawyer.

The cop in this video reacted the way 99% of cops would react. When the attackers persisted and started grabbing his equipment, he drew down on them. The 1% of cops (the ones that shouldn’t be cops) would have shot them. In any sane justice system (ie, not Chicago), this cop would never be reprimanded in any way.

The problem with drawing down on a violent suspect lies in the fact that your options are now limited. Your gun is now exposed, and you only have one hand free to fight the opponents. So if the threat of shooting them doesn’t end the assault, you probably will have to shoot them. This is the situation that Darren Wilson (of the Ferguson PD) found himself in, with a 300-pound assailant charging him, and having only one free hand to keep the suspect from taking his gun and killing him.

    RobM in reply to OldProf2. | April 13, 2019 at 7:48 pm

    Yep. That’s exactly why this guy was obviously a off duty cop. HE showed extreme control. He knew. Good comment.

    Andy in reply to OldProf2. | April 14, 2019 at 2:00 am

    I think you mean to say it was good restraint while the perps were retreating. It was poor use of restraint to not give them the room temperature challenge during the fight.

    DaveGinOly in reply to OldProf2. | April 14, 2019 at 2:49 am

    Almost certainly, the attackers were going for the gun. They got the OC, but were using it possibly in an ongoing attempt for the gun. As Massad Ayoob says, “A person going for your gun is a person going for a gun,” justifying its use before it is taken away and used by the perp(s). This is not that different in some respects from the M. Brown case, in which Brown was coming at the officer after a failed attempt to take his gun. It was reasonable for the officer to conclude that Brown was going to make another attempt for the gun, and no defender should have to allow that to happen.

    amatuerwrangler in reply to OldProf2. | April 15, 2019 at 3:20 am

    What is taught does not always hold. In several situations where federal prosecutions have resulted from claimed force situations the DOJ has entered into (read forced upon) lesser jurisdictions oversight by monitors who change the rules of the game. An example is Oakland CA where “presenting” (unholstering) of his firearm by an officer is a “use of force” and must be reported and investigated as such.

    The current administration would have become the darlings of the Boys in Blue had they reviewed these consent decrees established under Eric Holder’s reign and ended them or at least placed some reasonable limits to the process.

stevewhitemd | April 13, 2019 at 8:17 pm

Andrew, thank you once again for a cogent and clear analysis. If you aren’t already, you should be teaching this to the 1L and 2L students at a good law school.

Two things. The first thing is that threatened use of deadly force does not always equate with the USE of deadly force. Until 2014, threatened use of deadly force was not the legal equivalent of the use of deadly force. Until the changes to chapter 776, the threatened use of deadly force, in self defense, was actually governed by FSS 790.10. It was not addressed elsewhere in statute. Pf course, that changed when the “pro-gun” activists got involved. Now the threatened use of deadly force, in self defense, is directly equivalent to the actual use of deadly force. In order to threaten to shoot an attacker, a person has to be justified in actually shooting him.

So, in this jurisdiction, it might be completely legal to use the threat of deadly force in self defense even if the actual use of deadly force would not be allowable.

The second thing is that due to the length of the attack and the disparity of force, the use of deadly force might well be justifiable, even if the attackers did not attempt to disarm the victim. As you note, taking a weapon from the victim, adds additional justification for both the threatened use of deadly force and, possibly, for the actual use of deadly force.

Now, if the victim of the attack was, in fact, a LEO, the rules change. LEOs are authorized to use levels of force, in order to do their jobs, that non-LEOs can not. That would include deploying weapons, both non-deadly and deadly, and to use the threat of using those weapons to enforce the law. Now, in almost all jurisdictions, relieving LEO of his weapons is considered a felony; in some cases a violent felony. And, in most jurisdictions a LEO can employ deadly force to stop the commission of a violent felony. In fact, in many jurisdictions, a non-LEO has the same authority under law.

The laws of self defense are complicated.

    Mac45 in reply to Mac45. | April 13, 2019 at 8:53 pm

    Edit: the sentence, “Until 2014, threatened use of deadly force was not the legal equivalent of the use of deadly force.” should read, “Until 2014, threatened use of deadly force was not the legal equivalent of the use of deadly force, in the State of Florida.”

    Being there were two of obama’s sons in on the attack of an older man, the older man could have become exhausted, leaving his exposed to possesion by the two animals attacking him. (The two of them look like they took fighting lessons from michelle obama.)

    If he drew his gun and fired in that circumstance, that would have been interesting.

TheOldZombie | April 13, 2019 at 9:57 pm

Totally justified. He’s being attacked by two men who know he has a weapon on him. They’ve grabbed his OC spray. He doesn’t know if they are trying to get his gun or not but he must assume they will try to go for the gun as he was probably taught like most LEO that in a fight if the people fighting you are reaching for your belt it’s probably reaching for your gun. If they get your gun there is a very high chance you catch a bullet from your own gun.

I am glad though that once they backed off after he pulled the gun he didn’t shoot at them. Good call on his part to keep his cool.

The only weird thing about this case is that Chicago PD says no one called 911. If this guy was a off-duty cop why didn’t he call it in?

If obama had sons, they’d be these two morons.

The shame of it is, these two animals aren’t facing charges. Maybe the cops can find them a Kim Foxx’s house.

He’s innocent

Two black men try to beat you to death

I think he used restraint by not blowing their heads off

I can’t believe it’s even a question.

In what universe does a cop (even off duty) not fire when bad guys go hands on and actually get this tools. ASP has at least two videos this week of perps getting shot for that.

IMO- this guy was afraid of the repercussions both legal and gang related of firing on these thugs.

    The Friendly Grizzly in reply to Andy. | April 14, 2019 at 8:16 am

    In what world is this questioned even if it is just a mere “civilian”, as law enforcement personnel likes to refer to the peasantry?

    The ordinary man on the street would be justified in use of deadly force if attacked two-on-one, if we lived in a common-sense time. But, we do not. We live in a time of “what his body mostly in or mostly out of the window?”. “Did he intende to rape your wife or did he just throw her on the floor and get on top of her?”. “Is he grabbing for your firearm, or just keeping you from falling over?”

    Yes, this is a topic on which I am very, very cynical. A family member defended his property and person, and was put on trial for murder one, reduced to something called “misdemeanor manslaughter”. Why? 1) It took place about six weeks from an election. 2) The one shot dead was one of our Exalted Minorities and 3) The DA wanted those Exalted Minority votes.

    The sheriff said right to my family member’s face that had this gone down a few months earlier, there’d hardly have been a blip.

“Well, for all I know he could have had a gun” is not a legally-sound basis for treating someone as if they actually had a gun, but it is a reasonable presumption if your objective is to survive an attack, and not merely defend yourself within the law. Because I believe people have a right to survive all criminal attacks, they likewise have a right to presume the worst and to take action necessary to mitigate the possibility that the worst is coming. Therefore, if sitting on a jury, I would refuse to convict any person who was innocently and lawfully going about his own business who was criminally attacked and resorted to deadly force, whether or not “justified” by the law. Innocent, law-abiding people have a right to survive criminal assaults, and assaulters have no right to presume that they will survive the response they elicit. They surrender their right to survival when they assault an innocent person. At that moment, they are “outlaws,” meaning not only that they are operating outside of the law but they are also outside the law’s protection, insofar that the law generally inhibits the victim from responding suitably by imposing standards upon the victim that he or she is expected to apply while under the duress of a physical attack. I believe this is also unreasonable.

    The Friendly Grizzly in reply to DaveGinOly. | April 14, 2019 at 8:20 am

    I am the same way. Were I on a jury I’d do the very same thing, and if questioned by the foreman or other jurors as to my line of thinking, I would tell them,

    I commented above about a situation involving my family about this very sort of thing.

The attackers had no fear of attacking a Police Officer and even when he pulls his gun they don’t run. Just calmly walk away. Chicago is what happens to a city when liberals run it for generations.

The Friendly Grizzly | April 14, 2019 at 8:25 am

Not just leftists (what you are calling liberals) running things. It is politicians who shake in their boots every time one of the “revrunns” threatens a riot or makes a demand.

Right or left, the correct response would be “looters, arsonists, and batterers will be shot on sight”.

As for the calmly walking away scenario: the feds have rule over what goes on. Investigations, consent decrees, and other things. Maybe the Chicago Police Department brought it on themselves; not all police are your friend. But, the point remains, the CPD is, well, handcuffed.

krjennings312 | April 14, 2019 at 10:18 am

The most sick think about this is M D need armed guards

What’s sickening is that there is even a question that this man (off duty cop, guard, bystander, makes no difference) had a right to pull his gun in defense of himself.

We’re a nation of pussies when we allow the law to be perverted.

If he was an off duty police officer, why (once he pointed gun at them and they slowly gathered their things and walked slowly away) didn’t he radio for backup and pursue the attackers to make an arrest for assaulting a police officer or attempted capital murder of a police officer? He just let them walk away?? Why? Is this how bad things are for cops in Chicago??

I also agree with comments about others how the onlookers only started squealing when the white guy pulled his gun against the multiple black attackers. Also noted how store employees didn’t appear on the scene until after the attackers had slowly walked away.

    amatuerwrangler in reply to garybritt. | April 15, 2019 at 10:23 am

    Why not? Try one of these on for size… 1) When off-duty, cops don’t carry radios; 2) I believe CPD is a proud owner of one of those consent decrees that The Griz (and I) mentioned earlier. It is possible that all kinds of poo-poo would come down upon him should this become official; 3) While off-duty, officers do not usually enjoy the legal leeway in such matters as they would on-duty, and this varies state-by-state. This means that if an officer suddenly becomes involved in one of these things, he announces his status as police in hopes he has activated the legal advantage– and started the OT clock.

    This all varies, probably widely, state-to-state, and even within jurisdiction within a state.

      Actually, most LEAs issue radios to their sworn personnel which those personal take home with them. So, this LEO should have had a working radio.

      Off-duty LEOs usually enjoy the same protections as on-duty LEOs enjoy, if they are acting under color of law. There is essentially no difference. In this case, the LEO was in a readily recognizable CPD uniform. So the attackers knew, or should have known he was a LEO.

      Now this may have been an unauthorized off-duty detail. Most LEAs require that a LEO working an off-duty security detail have departmental approval. The reason for that is departmental liability. Now, I do not know if this is the case, here. If it was, then the LEO may not have wished the department to find out about it.

      What this illustrates is that the breakdown of law and order is so complete in Chicago, that thugs feel reasonable secure in attacking a uniformed LEO in broad daylight on the street and then calmly walking away .

I agree with the analysis. In fact the guard was extremely patient. No doubt trying to reason with the thugs. The two are lucky this was a cop (not named Noor), because his training allowed him to pull back and not shoot. If he were a mere security guard, I suspect a shot would have been fired.

I don’t understand only one thing: Why the guard did not do a citizen’s arrest after he pulled his gun? He could order the two “drop on the ground (or hands up) or I’ll shoot.” Why did he just let them go unpunished? After all, these two assaulted and battered him!

I’m sure that if they didn’t comply with his order he could be justified in shooting AT THE GROUND as warning. If they still fled he at least tried to do a citizen’s arrest

The guard should have Trayvonized Obama´s sons. How many people will those two anomals hurt in the future?

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