Weapons, personal protective equipment, and use of force policies

Criminal Justice - Personal Security

PERSONAL and PHYSICAL SECURITY and USE-of-FORCE ISSUES the Statutory Right to Self-Defense:

As far back as English Common Law, necessary self-defense (including killing in certain circumstances) mitigated or completely eliminated criminal responsibility (Dershowitz 2002). In the contemporary United States, the laws of every state include self-defense as an affirmative defense to violent actions necessary to protect one's self from an unlawful physical attack. That particular defense is known more generally as the right to self-defense, although technically, it is not a "right" but a defense to a criminal charge (Dershowitz 2002).

The precise definition of the so-called "right of self-defense" and the exact nature of the specific elements differs from state to state; whereas some states authorize one to stand and defend one's self, other require the victim of an imminent physical attack to first retreat as far as reasonably possible before violent action is justified to prevent an attack (Schmalleger 2001). Generally, one does not have any duty to retreat in one's own home, or while being robbed or raped; nor must one actually suffer a first blow before reacting in self-defense.

In those situations, a victim is justified even in using deadly force. However, even in such cases, justified acts of self-defense must occur in the immediacy of the event itself and not subsequently: therefore, a woman may use deadly force to protect herself from rape that is either imminent or already in progress; she may not use deadly force an hour later, such as after retrieving a weapon from home and then returning to confront her attacker (Dershowitz 2002).

The right to defend one's self varies substantially with the context in which it arises and hinges most directly on the relative appropriateness of the nature of the actions undertaken in self-defense (Schmalleger 2001). Where the nature (or degree) of violence or bodily harm caused by actions of self-protection is much more extensive than the type (or degree) of those threatened or reasonably feared, even actions initially justified as self-defense become subject to criminal prosecution. One who is physically attacked with fists may not ordinarily respond with a firearm, unless the circumstances of the attack, such as the physical similarity or disparity between the victim and assailant, their relative abilities, experience, and age.

Furthermore, the fear upon which the act of self-defense is predicated must be reasonable too. A large individual who is an accomplished fighter may not use more force than absolutely necessary to repel a feeble attack by a much smaller and completely unskilled attacker who poses no actual physical threat to the larger victim, even if he strikes first. On the other hand, if the large victim truly believed that the attacker was an expert martial artist, he would be entirely justified in responding with a higher level of force to protect himself (Schmalleger 2001). Likewise, there is a very distinct line between actions necessitated as appropriate measures of self-protection and self-defense efforts that cross the line between "defense" and retaliation. Once the initial attack ceases, no further violent action of the victim is protected by the self-defense concept. In fact, an attacker who indicates that he is withdrawing from any continued altercation may also acquire a right to defend himself, such as where the initial victim persists in retaliation for the original attack or escalates the level of violence or threatened type of harm in response to a first attack.

In principle, the right to defend one's self does not extend to anything beyond the minimum amount (and type) of force reasonably necessary to prevent great bodily harm and even justified acts of self-defense must cease the instant an offensive attack ends.

The Principle of the Use-of-Force Continuum:

In law enforcement, the right of a peace officer to use force to effect a lawful arrest also varies with the context and circumstances of every situation (Schmalleger 2001). Police officers are trained to employ the minimal amount of force necessary to accomplish their objectives; in most agencies, this concept is represented and taught as the Use-of-Force Continuum (UOFC) that calls for a specific ascending order of potentially dangerous techniques and equipment deployed (McCauley, 2005).

The lowest levels of the UOFC consist of the police officer's physical presence (known as "command presence"), voice commands, and "light hands" techniques for guiding individuals into compliance with lawful instructions. Only when the lowest levels of force on the UOFC fail to achieve the officer's objectives may he lawfully escalate to the deployment of pepper spray or mace. The higher levels of the police UOFC includes "heavy hands" such as physical restraints and holds, or hand strikes if necessary to gain compliance or subdue a subject (Schmalleger 2001).

If escalation is still necessary, police officers may employ a baton or collapsible "asp" authorized for their use by their agencies, or electric tasers and other pain-inducing or physically incapacitating but non-lethal forms of physical force such as rubber bullets and "pepper balls" in place of standard (i.e. lethal) ammunition. Ultimately, where no lower level of force on the UOFC is sufficient to effect an arrest or protect others from danger posed by subjects, police officers are authorized to employ deadly force, such as their duty firearms (Schmalleger 2001). In general principle, the UOFC also applies to citizens, though not in the degree to which it dictates specific responses to physical attack or resistance to lawful citizen's arrest as recognized in the jurisdiction.

Defense of Others and Liability for Mistake:

Unlike police officers, citizens are not trained in multiple levels of force; consequently, they are not required to escalate their self-defense efforts as precisely and they are more easily able to justify erring on the side of their own physical safety (McCauley, 2005). Nevertheless, citizens are no less obligated to respond with a level of force that is objectively considered appropriate, given the circumstances and the reasonable state of mind of the initial victim. Private citizens may extend the right to self-defense to include the defense of others, provided their actions are justified by the other elements that determine the rightfulness of their own defense: the reasonableness of their state of mind and belief, the appropriateness of the level of force used, and the distinction between genuine defense and retaliation.

Different jurisdictions employ different standards to justify the defender's state of mind and some require the victim and the defender to be related to each other. Finally, some jurisdictions immunize the defender of another who is actually mistaken in his belief as to the need for his intervention, provided that the mistake was reasonable and made honestly and that the force used would have been justified had the situation been what the defender believed; other jurisdictions hold the defender accountable for his actions regardless of motive or mistake and irrespective of how reasonable it may have been from his perspective (Schmalleger 2001).

Self-defense is not a defense to resisting arrest by a peace officer, even including unlawful arrest; that is because the police cannot perform their roles where every subject of arrest is legally entitled to resist arrest based on his subjective beliefs as to the validity of the arrest (Schmalleger 2001). Public policy demands that all subjects of arrest by law enforcement authorities submit to arrest and then adjudicate any issues affecting the validity of the police action through formal procedures.