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Robbins: The defense of self-defense

Last week, there was a shooting in Denver. Sadly, someone died.

The dead man was taking part in a right-wing “Patriot Rally” near the capitol. A Denver TV station had apparently hired the suspect to protect its crew who was covering the rally and several counter-protesting groups who said they were holding a “Black Lives Matter-Antifa Soup Drive.”

The shooting took place in a courtyard of the Denver Art Museum and much of it was caught on film.

The facts seem largely undisputed. Photographs published by the Denver Post appear to show a confrontation during which the demonstrator struck the security guard and doused him with pepper spray in the instant before the security guard opened fire. What is less clear is if the shooting was a crime. 

The shooter has been charged with second-degree murder

One last thing should be noted. Although the photos seem to make clear that the dead man did not have a gun in his hand at the time of his shooting, two guns were found at the scene and a voice can be heard in one of the videos saying to watch out, he has a gun clip in his jacket. Who the voice was and who he was referring to is uncertain. The shooter, however, was not wearing a jacket.

It will likely be impossible for the shooter to claim that he did not shoot the man. What is more disputable, however, is if he may be exculpated from a crime, claiming self-defense. And that lands us on our topic.

Defending force

What at law is self-defense and when can it be used to absolve one of what might otherwise appear to be a crime?

Self-defense and defense of others are criminal defenses that can be used when one presumably commits a criminal offense but believes that s/he was justified in doing so. Although our legal system generally discourages the use of force or violence against others, courts have recognized that all individuals have the right to protect themselves from harm and may use reasonable force to do so. Similarly when one acts in defense of others, one may be justified in employing reasonable force to protect others who are threatened.

The foregoing, of course, begs the question; what is “reasonable?”

In order for the use of force to be defensible, the threat to which one is responding must be imminent. One must be in fear of immediate harm. The fear and imminence may be sparked by words that imply a threat of force or else an actual show of force. Mere taunts or offensive language is, however, not enough to sustain a defense of self-defense. 

What’s more, the defense is only available while the threat is ongoing. Once the threat has passed, the use of force is no longer either appropriate or forgiven as it would amount to retribution rather than defense.

The force employed must be both reasonable and “proportional.”  “Reasonable” writ large means the act committed is something that the ordinary and prudent person would do when faced with the same circumstance. At law, this is often referred to the “reasonable person test.”  It is not a “what would a specific person do” test but, rather, what would a normal, morally sober person do?

Proportionality means sort of the Biblical test of an eye for an eye. If someone blows soap bubbles on me — even if I have an unnatural loathing of soap bubbles — I cannot be legally excused if I pull out a Glock and fire. If someone punches me, I may punch back. If someone threatens me with lethal force, I may deploy lethal force in return. In the loose vernacular, the punishment must fit the crime; the force must have a reasonable relation to the threat.

Some states add a bit more. In those states — Colorado is not one of them — there is first a “duty to retreat.” A threatened party must first make an attempt to avoid the use of deadly force by attempting to leave a threatening situation if possible. In these states, only after an attempt to retreat may a defendant lawfully use deadly force.

Other states have “stand your ground” laws in various flavors and permutations. Stand your ground laws provide that when an individual is attacked in his or her home — and sometimes elsewhere — there is no duty to retreat and reasonable force can be used.

The argument in the Denver tragedy will center around the precise nature of threat the protester presented, the peril the shooter perceived, whether the threat was imminent, whether the shooter’s perception in light of all the circumstances was reasonable, and whether the force he meted out was proportional to the threat with which he was presented.

Pictures are precisely what they are — a snapshot of a moment in time.  Often, they do not tell the whole, more complicated, story.


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