Personal Defense

What is it “Reasonable” to Fear in Terms of Death or Grave Bodily Harm?

The law of self-defense holds that individuals can justifiably use lethal force in self-defense when they reasonably fear death or grave bodily harm/injury. Reasonableness here will of course be determined in the legal system, by a prosecutor, a grand jury, a judge, or if it goes that far, a jury.

Those who know — Massad Ayoob, Andrew Branca, Marty Hayes — stress the importance of being able to articulate why it was reasonable to fear death or grave bodily harm in a particular circumstance. The Ability-Opportunity-Jeopardy (AOJ) Triad is frequently invoked as a framework for understanding this reasonableness (I have mentioned it here and here and here).

Photo montage courtesy of BNPS.CO.UK

Photo montage courtesy of BNPS.CO.UK

I was reminded of how broad the “ability” criterion is this morning when I read that another soccer referee in the United States has died from being punched. I immediately recalled the case of the 17 year-old who killed a referee in Utah last year, with one punch to the head. And Andrew Young’s killer in Bournemouth, England (pictured above). And so on.

Although rare, these cases are reminders that fists are a weapon, too. The referee killers were not (to my knowledge) Delta Force operators or masters of Arnis. They were ordinary Americans with bad intentions and fists. That means alot of people have the “ability” to inflict death or grave bodily harm. In fact, as I have discussed previously, according to the FBI Crime data more people were killed in 2011 by “hands, fists, feet, etc.” (728) than by rifles (323) and shotguns (356) combined.

The good thing is that most of us, as we go about our daily lives, are unlikely to be killed by ANY of these weapons. And the fact that almost everyone is always “carrying” their hands, fists, and feet but not a rifle or shotgun means we might be more wary of a person with a long gun than than someone with hands, fists, or feet (or etcetera!). But the news this morning did remind me how broadly a “reasonable” person could define the “ability” component of the AOJ triad.

One Punch Can Kill

POSTSCRIPT: After writing this, I learned that way back in 2007 a “One Punch Can Kill” campaign was initiated by the government in Queensland, Australia to counter street violence, and a similar campaign called STOP. One Punch Can Kill exists in Victoria, Australia (they could ban guns but not fists!).

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8 thoughts on “What is it “Reasonable” to Fear in Terms of Death or Grave Bodily Harm?

  1. Sorry but (as usual) I politely disagree. Not with you, but with self-defense gurus like Masood Ayoob and Branca, both of whom , particularly the latter, will take anything, reduce it to the most simplistic, 4th-grade level stuff and then peddle it to their audience, most of whom think about using a gun to “protect” themselves like I think about the ice cream sundae I’m going out to buy in a minute, namely, it’s wonderful while I’m eating it as long as I don’t think about the consequences.

    Several years ago there were 2 separate incidents in my state, Massachusetts, where the fathers of high school hockey players assaulted referees after games because they claimed the refs had somehow not been “fair” to their sons during the game. In one case a single punch knocked the ref to the ice and he died; in the second the ref was beaten within an inch of his life by this asshole who had to be restrained by a large group of parents.

    Both men were convicted, of course, one for manslaughter and the other for aggravated assault. But it turned out that both of these guys had long histories of violence and assaults which couldn’t be mentioned at their trials but the judges knew about it when they were sentenced. Here’s my point. Most violent assaults (I’m not talking about the World Cup obviously), the kind of assaults that Branca “trains” people to resist with a gun, occur between individuals who not only know each other but have a long history of fighting with each other and fighting with others. The idea that the average person will walk down a street and out of nowhere be assaulted by someone he doesn’t know; the odds of this happening – and it does happen – are about the same as the odds that you’ll get run over by a rhinoceros. And the funniest thing is that you can’t even buy a gun legally unless you don’t have a criminal record and guess what? Nearly all the people who commit serious assaults have a record. You’re not going to hang out with people like that, you’re not ever going to meet people like that in the ordinary course of your day. And you need to carry a gun around to defend yourself against them? Give me a break.

    MW

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    • MW – Thanks for taking the time to comment on this post. Some observations in response:

      1. For my BA, MS, and PhD, I spent 12 years in school, and have been teaching at top national universities for nearly 20 years now. Based on the courses I have taken and other material I have read, the material presented by Branca is college-level and Ayoob at least that. I don’t find their thinking about the use of lethal force in self-defense at all simplistic. For thoughts on Ayoob’s course, see here: https://gunculture2point0.wordpress.com/2012/11/21/massad-ayoobs-mag-40-course-a-humanitarian-approach-to-armed-citizenship/

      2. Related to this, in my experience and reading, Branca does not train people to resist assaults with a gun. He does help people understand what generally is legally permissible and what is not in terms of using a gun to defend yourself (with alot of gray areas determined by prosecutors, judges, and juries). In fact, when he did intersperse his opinion about armed self-defense, his advice was to be aware of your surroundings, avoid trouble whenever you can (as you suggest), and if at all possible, run away.

      3. In terms of the very low probability of needing to use a gun in everyday life, I agree and think most legitimate self-defense trainers would agree also. But if you do need it, you REALLY need it. In the field of risk science, I think this is called a “low odds, high consequence” event. There may only be a 0.001% chance of needing a gun, but if you need it, you need it 100%.

      I don’t go looking for trouble. As John Farnham has said, I don’t go stupid places and do stupid things with stupid people. But one point of my entry into gun culture was a terrifying experience I had with a drug addict and her dealer in my apartment complex. (I wrote about this before: https://gunculture2point0.wordpress.com/2012/05/22/getting-into-gun-culture-2-0/)

      Sometimes trouble find you even if you’re actively hiding from it. “Studies show” that even more dangerous than keeping a gun in your home in terms of being a homicide victim is renting rather than owning your home.

      I think it is interesting to consider that for a law abiding person who carries a gun, a successful day isn’t using the gun but not having to use it. But not having to use it on any particular day, week, month, year, or decade doesn’t mean that carrying it was pointless.

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  2. Interesting commentary. One question, though, about your point that “alot of people have the “ability” to inflict death or grave bodily harm. In fact, as I have discussed previously, according to the FBI Crime data more people were killed in 2011 by “hands, fists, feet, etc.” (728) than by rifles (323) and shotguns (356) combined.”
    Clearly far more fist fights take place than gun fights– therefore, on a per capita basis if you will, fist fights are far less likely to be deadly than gun fights. So saying there are fewer people killed in 2011 by rifles and shotguns than by hands, fists, feet, etc. is misleading because in 2011 there weren’t a lot of people carrying shotguns into bars and getting into bar fights. Also, why did you include only rifles and shotguns and exclude handguns here?

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    • Thanks for taking the time to read and comment. Clearly this issue is more complex than my brief treatment captured, and your comment highlights some other ways we might look at the issue.

      My first response is that this piece is written in the context of attempting to understand the law of self-defense and when a prosecutor/judge/jury might find a person has legitimately used lethal force in self-defense. Part of that determination is whether the person being attacked was reasonably in fear of death or grave bodily injury. How do you assess reasonableness? One part of that assessment is whether the person attacking has the ability to inflict death or grave bodily injury. Most would agree that a person with a handgun, long gun, knife, bat, or rope and bad intentions has that ability. But people armed with no weapons other than their own bodies do as well. So a case could be made – if all of the other components of lawful use of lethal force in self-defense are present as well – that a person had to use lethal force to defend her/himself even against a person with no weapons external to his/her own body.

      Of course, there are other differences, too. If a person points a firearm at you and threatens to kill you, convincing people that it was reasonable to respond with lethal force will be easier than if a person points their fist at you and threatens to kill you. A body builder or martial artist with fists is different. A group of people with fists is different. Even what constitutes grave bodily injury varies, as in some states this is defined so as to include sexual assault. So, the calculus of justifiable use of lethal force in self-defense is very complex – which is one of the themes of my posts on this in general.

      So, that was the main point. Other points could be made as well, as you suggest. There is the question you raise which is more along the lines of probability – what is most likely to kill us? Is this even something worth worrying about? In answering this question of rates/likelihoods, as you note, the denominator is hugely important.

      *If the denominator is dying, then we are our own worst enemies with our poor diets, lack of exercise, smoking, and drinking, which far outstrip firearms as a risk factor for death, much less “hands, fists, feet, etc.”

      *If the denominator is homicide, then handguns are by far the weapon of choice, far outstripping both “hands, fists, feet, etc.” and long guns. [BTW: I didn’t mention handguns in my original post because (1) everyone understands that someone pointing a handgun at you puts you at risk of death or grave bodily injury, (2) I was trying to put fists in the context of other “rare” instruments of homicide, and (3) quite frankly, I think people wrongly vilify long guns as instruments of death.]

      *If the denominator is “violent incidents,” then a violent incident with a firearm is much more likely to be lethal as you suggest. I think this is a great point, one I think Zimring has made also: It’s not the level of violence we see in America that stands out (e.g., compared to England), but the lethality of the violence.

      Beyond denominators, if we start looking at these rates for different demographic groups (age, race, gender), we also find important variation. In October I am making a presentation to community groups here on “gun violence as a health disparity,” so you can check back for more thoughts on that – and share your thoughts on it also, please!

      Anyway, bottom line is how you choose to slice the pie can make a lot of difference. I once saw a person use total number of guns in circulation as the denominator in calculating gun homicide rates by country (rather than total human population), and it changes where the U.S. is ranked globally quite considerably. That is, for how many people we have, our homicide rate is pretty high relative to our peer countries. For how many guns we have, less so.

      I was going to start another line of thinking about bar fights since you mentioned it, but I will leave that for another day. . .

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      • Interesting, and I look forward to the post on bar fights and on gun violence and health disparities. I’d love to see you tackle the issue of gender-based violence, particularly intimate partner homicide. Those are situations in which many of the men lawfully own their guns and are not considered criminals or crazy and yet they off their entire families in one fell swoop when they feel desperate and out of control.

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      • Interesting, and I look forward to the post on bar fights and on gun violence and health disparities. Many defenders of concealed and open carry seem to be those who have few problems with what counts as a “law abiding citizen.” So I’d love to see you tackle the issue of gender-based violence, particularly intimate partner homicide. Those are situations in which many of the men lawfully own their guns and are not considered criminals or crazy and yet they off their entire families in one fell swoop when they feel desperate and out of control.

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