Get a cup of coffee. Even with my ability to make complex subjects simple, this is going to take a while.
Add to that, I'm taking a wide spectrum approach. What I'm talking about has three uses. Which one you choose is up to you.
1) To give you tools to assess what you're being told about an incident.
2) So you can recognize when someone who is opining about an incident
a) if they understand what's involved, or
b) if they are having a knee jerk reaction.
3) Show how these same elements will apply if you have to defend yourself.
With any incident there are are four —arguably five—overlapping considerations. Think of them as different filters to run an incident through to gain understanding. A) how violence/crime works, B) the law, C) how the legal system works, and D) what were the circumstances of the incident? When run through these filters the outcome is often rather damning. That's why people often try to introduce a fifth consideration —that of ideology and/or social narrative. That distracts people from A-D.
How can that become problematic? Let's look back at number two. Every time the news reports someone getting killed legions of instant-experts on law, self-defense and use of force magically appear across social media. These folks know...wait, I'm sorry, let me rephrase that... they KNOW WHAT HAPPENED! And by gawds they're going to tell you what to think about it.
The problem is they usually aren't running it through the four filters, but often only through the fifth —and questionable— one. When these people are preaching (because that's usually what they're doing), I'm sitting over here drinking my coffee with the ghost of Wolfgang Pauli. Pauli was a theoretical physicist who upon reading a crackpot paper written by a student, famously exclaimed "That's not only not right, it's not even wrong."
Nobody likes to be told they're wrong. While we can all be wrong now and then, this is way beyond that. I mention Pauli because to reach the level he was talking about, you have to compile misunderstanding, misinformation, ignorance, and dismissal of those four filters. I'm talking a layer cake of "that's not how it works," "there's other ways to look at it," misinformation, partial information, and outright lies the person believes. All of which the person is usually ferocious about defending. Often they are dismissive of other people's knowledge and direct experience with the subject. I can almost hear them say (because I actually have been challenged this way), "Oh yeah and what makes you an expert?"
Ummm, how about that I actually am a court recognized expert witness on —among other things—self-defense and violence reconstruction? In this job there are key elements I assess and analyze. Yes, I've testified and undergone cross-examination to defend my conclusions. On top of that I have nearly thirty books and videos published on the subject of violence and have taught these topics internationally.
"Yeah okay, sure. Fine. But my opinion is just as valid as yours!"
Hate to tell you this Sparky, but there's a difference between an opinion and an analysis. Now you might think I should have used the word "conclusion" there— which I could have. I'm about to share twelve key points to be taken into account, the process to come to a conclusion AND an informed opinion. (But even the latter is less useful than a solid conclusion based on evidence and analysis.)
Let's start with you can instantly form an opinion on one 'fact' and a whole lot of baggage. By baggage I mean what you believe and what-you-think-you-know. Often this baggage has absolutely nothing to do with the incident, how 'things' work (e.g., law and the legal system), or the dynamics of violence (i.e., how violence happens). Instead these are social narratives you have come to believe because you've been told them so often. (e.g., 'police shooting are driven by skin color' or 'I'd rather be judged by twelve than carried by six.) But because you believe it to be true, it is —to you at least—unquestionably true. In a very real sense, your 'understanding' of an incident is plug-and-play. Because you 'know' all this other stuff, your opinion of a situation is an automatic extension of those beliefs.
And usually deserve Pauli wagging his ghostly finger at you.
Conclusions, on the other hand, take time, effort, knowledge and a firm understanding of the process. A big part of that is you don't form a conclusion until you have as much relevant information as possible. In plain English, conclusions are reached a lot of step-by-step, slow work. Work that can be documented, verified, understood, and defended. Opinions don't meet this standard—no matter how loud someone is about defending theirs.
Another standard opinions don't reach is: The addition of extra (or clarification of) factors WILL change the conclusion.
Let me give you an example. Some years ago the self-defense world was in an uproar about an 'innocent' in England who 'defended' himself against home invaders with a 'samurai sword.' The outrage was over he was charged with murder. Oh the injustice! The undermining of our right to self-defense! Yeah right sure. While that was the narrative, there was more to the story. A whole lot more. What those who confuse opinion with conclusion missed was:
A- He was a drug dealer working out of his flat (apartment),
B- It was a home invasion/robbery of drugs and money,
C- After the initial threat of violence, the home invaders had tied him up then ransacked the place,
D- After they left the apartment, he finished freeing himself,
E - He grabbed the sword, ran into the hallway, chased them down the stairs where he sliced one,
F- The rest ran out of the building and down the street,
G- He caught up to one more and killed him.
Little different than the 'he's in prison for self-defense' narrative, isn't it? Aside from there being enough felonies to go around for everyone, from the moment he laid hand on the sword, he'd left self-defense. But to this day there are still people convinced he went to prison for 'defending himself.'
Welcome to my world. When it comes to violence, there isn't just a lot of unfamiliarity about what is 'actually' involved (as opposed to baggage), but there's a lot of misinformation. Much of that is intentional. That has to be considered whenever someone is giving you their opinion about what happened (Because often it's accompanied with why you should believe and respond a certain way to this tragic and wrongful death.) That's no longer opinion, it's an agenda.
So, instead of just falling into the opinion trap, what do you look at to do an analysis? Well a short and fast twelve point check list. (There's more, but let's start with these).
- Illegal activity
- Known danger
- Presenting/ Doing (Known Danger)
- Level of response
- Murder, manslaughter, line of duty, self-defense
- Duty to act
- Small but important details
- What isn't known
One— Was there illegal activity involved?
By this I don't mean petty licensing or nit-picky details, I mean crime and/or major illegal behavior. Newsflash, most homicide 'victims' are involved in criminal/illegal activity. A good measure for this is at the time of death being on parole or probation. Or, as was the case in the UK, being an active drug dealer.
From a public standpoint there are many people who are happy to dismiss criminal activity as a small and insignificant detail, but to the legal system and the rest of us, it's kind of a big thing. A thing that is not so easily dismissed.
This is especially true when it comes to police involved shootings. What was the behavior that got the police involved in the first place? Contrary to the popular narratives about these incidents, people are not shot for petty crimes. But it is true is illegal behavior is what originally caused police involvement. It's when the situation escalated to violence/resisting arrest that force was used.
Getting all legal argle-bargely and specific, was the person actively engaging in the creation, escalation and execution of the violence? In layman's terms, was the person (who used force or it was used on) part of the problem? A problem that resulted in violence.
When I mention this often people try to find loopholes and excuses. So let me set the foundation for understanding. I'm not talking about you walking to your car, some stranger tries to mug you and you defend yourself. That isn't the type of 'participation' I'm talking about. I'm talking about you marching over to your neighbor's house to confront him over his dog pooping on your lawn— and things escalating.
Part of what confuses people is legally it doesn't matter what someone 'meant to do.' What matters is what the person did. Participation is a really tricky subject that lawyers try to push up and down the field like a football. But know, this is where most people blow it. While the whole situation will be gone over with a microscope to find fault with what someone did in the lead up to violence, more times than not it was mutual participation. Participation that's about as easy to spot as a buffalo stampede. (At least to everyone else, the adrenalized and emotional participants usually doesn't see it that way.)
Where did it happen? Simple question right? The answer is a game changer. While many people are convinced that their rights trump all, it really helps to understand that "rights come in bundles." Bundles that often rub up against each other. Your right to do something stops at the point where someone else's rights begin. One of the bigger examples is property rights.
The absolute simplest example is he on your property or are you on his? The rights and privileges of the property owner is a strong influence on how things will be looked at. Sounds easy right? Yeah about that. Are we talking private property without public access? (For example, your home.) Private property that allows limited access? (For example a business that allows paying customers.) Private property with a much wider public access? (For example a mall.) A public thoroughfare (sidewalk), park or public parking structure? Or are we talking government property/building (For example City Hall vs. a military base.)
It's sad that so many people don't understand how such a 'small detail' should matter. Let me put it to you this way, it can be the difference between you shooting someone who broke into your house and threatened you in you bedroom, and you shooting someone whose house you were in.
While ownership/legal control of a property carries great weight,what doesn't —and in fact can weigh against someone—is when two parties/side decide to clash on the 'property' of someone else. This includes public property. This gets complicated, but often problems arise because people don't understand, "Nobody has more rights on the sidewalk than someone else."
This brings up the idea of 'turf.' Yes, I'm talking about gang warfare kind of turf. Certain ideologies and ethnic groups have decided that sections, if not whole cities, 'belong' to them. A lot of ideological and political violence arises from one group daring to enter what another considers their turf. Stop and take a moment to consider the implications of one group of citizens trying to run another group 'out of their town.' Aside from the sheer arrogance of that assumption, it often leads to physical violence.
Four— History/ Build up/ Affiliation/ Pursuit of a quarrel.
This is a bit of a catch-all consideration that goes beyond just the creation and escalation that immediately proceeds an incident. If you know what a 'time horizon' (in investment and planning) is reverse it. This not only is what happened before the two sides came into proximity of each other during the incident, it can be preexisting situations, sometimes dating back years. Number four can come in many forms and flavors
For example, the Mongols and the Hells Angels have long standing enmity that periodically flares up and bodies hit the floor. Then peace is negotiated again and the cycle starts over again. This makes any incident less about the specific, but part of an ongoing pattern. Other groups like Antifa and Proud Boys go out of their way to run into each other. To the point of planning, announcing, gearing up, and traveling to where they're going to 'run into each other.' Many a person sitting in prison today, made the decision to put a weapon in their pocket 'just in case' before they left their homes to go 'straighten things out' with someone.
The example I like to use is Raul Rodriguez in Texas. There was a noisy party down the street that he'd called the county police (who had responded and the volume was turned down), but things weren't enough for Rodriguez. Early in the morning Rodriguez strapped on his gun and filmed himself leaving his property and then stood across the street, shining a flashlight, and recorded the party. (This would later be adjudged that he left his property in pursuit of a quarrel.) When a confrontation resulted he called 911 again reported he was in fear for his life and then shot three people, killing one. His original conviction of 40 years, turned into a life sentence after his appeal failed. In both his trial and the appeal his history of conflict with his neighbors was introduced as proof that the shooting was part of ongoing troubles and bad choices.
Raw truth most homicides occur between people who know each other. While certain crimes, police shootings and political/identity violence can occur between strangers, know this relationship issue will be —and deserves to be—looked at very closely. If there is a history of conflict, that's a game changer.
Five—Advance or Retreat.
Which way are participants moving at the time of the violence? Are both of them moving aggressively towards each other? One advancing, one standing? One advancing, one retreating? One standing, one retreating. Both backing away (this occasionally happens with shootings). While not an absolute, the direction someone is moving is usually indicative of aggression.
There are three complications in this. Orientation, Predatory Pause, and After Attack Withdraw.
Orientation just means which direction is the person facing? If someone is shot in the front that means they were oriented on the shooter. That's an important factor in considering if that person was offering the shooter a threat. Was he oriented on and closing distance with the shooter? But what about if the back is turned? Without the presence of a gun, if someone has turned his back and is running, odds are he's trying to escape. So unless you have a duty to act or there are extremely specialized circumstance, chasing him is crossing the line. Got that? Chasing someone puts you in the wrong. So too does shooting him the back as he's running away. On the other hand, if a gun is present it's real easy to be running in one direction and shooting back the way you came. (Like I said, it's not cast in iron.)
Predatory pause doesn't mean the danger is over, it's simply paused while the predator decides what to do in the face of unexpected resistance. This is something difficult for people —inexperienced dealing with predators and the lifestyle violent—to understand. Yet, it's a well known, but often poorly articulated reality for those who are experienced with predators. Many people in the self-defense world think if they pull a weapon, the 'bad guy' will turn and run. Why shouldn't he? That's what they would do. They're shocked when that doesn't happen. Odds are good predators and violent people have looked down the barrel of a gun before. They might have even have been shot before and survived. As such, this pause is neither a cessation of aggression or him changing his mind. It's him deciding what he's going to do next. Yes he could decide to back off or, he's just as likely to decide to continue to attack. So just because someone momentarily stops advancing (or even takes a step back) that doesn't mean the danger has passed. It's not over until he's out of attack range.
After-Attack-Withdraw this is where things get complex, real complex. I'm going to take a hugely complicated subject and try to reduce for fast and easy communication. Start with the English language falls down on a distinction. Is an "attack" a single action (e.g., a punch) or collective actions (e.g., a beating)? We use attack interchangeably —and that causes all kinds of confusion. A very common occurrence during a loud argument is one person steps forward, strikes, steps back, and continues to yell and threaten. Make no mistake, a physical attack (first definition) has happened. But, it was more of a bluff than a committed attack (second definition). This behavior part of a threat display/display aggression pattern, and —this might confuse people— that attack (singular) is an attempt to intimidate, not injure. Will it work? Well that depends on many things. What happens next will determine if further physical violence will occur. However—and this is why a single step back is not necessarily a retreat or the end of violence—the hostile person who just struck is still in attack range and 'posing' an immediate threat. And there's another English stumble. By posing' do we mean legally (presenting an immediate danger)? Or common usage (pretending and/or displaying a false image)? The answer is "It depends." But a good rule of thumb is 'still hostile while in attack range means the danger isn't gone.' It could go either way.
This advancing, retreating issue is a critical component of "immediate threat." Another factor is how fast the closing of distance happens. Again, a complicated subject worth looking into, this is just an introduction.
Six —Known Danger
Known danger is pre-existing knowledge that a behavior is (or circumstances are) dangerous. It's basically 'how you knew' something was dangerous. Let me put that in plain English, it's not what you knew, but how you knew it. This can come from training or experience. Having said that, six and seven are two sides of the same coin.
But six is the more academic or experienced-based knowledge. It's the understanding and knowledge you have before the incident. Once again going into legal argle bargle it's known dangerous behavior likely to result in injury or death. In layman's terms it's how you knew the screaming, naked, crazy charging you waving a knife was dangerous.
That may sound absurd (i.e., who doesn't know a crazed attacker with a knife isn't dangerous?). But it is an important element in both a legal context and in analysis. This is where you get into more than just 'would a reasonable person understand the danger of what was happening?' You also have did the person who acted have extra training on—or experience with — how danger works?
Often people without experience refuse to listen to experienced people telling them how dangerous a set of behaviors behavior is. What they also don't understand is how fast things can happen or how easily it is to be rendered helpless if you wait to long. Understand it's always a balance between acting too early and acting too late. Lacking the context of known danger, it's difficult to make an accurate assessment of what to do and to understand what happened.
Seven — Presenting/ Doing (Known Danger)
This is the non-academic side of six. This isn't knowledge, it's action. What was the person doing at the moment someone else acted? That is a simple question with profound implications. Again, this is an incredibly complex subject with many factors.
An example of which, is how long will it take for countermeasures to take effect? If an individual is engaging in dangerous behavior, how long will it be before that attack 'lands?' Will your countermeasures stop him before then or are you going to be trading damage if you wait too long? Or —and this is an important consideration—given the circumstances will a lesser level of force 'solution' work in the available time you have. If not, then it's off the table as a viable option.
You should know that six and seven are where people looking for an excuse to condemn (especially when they're operating from a 'baggage' perspective) don't just 'not understand,' but often do so intentionally. This can range from, 'they don't know and they don't want to know,' to —the far worse —know, but pretend not to know (e.g., a prosecutor intent on prosecuting no matter what).
Eight — Appropriate Level of Response
What is the least amount of force it would take to end the danger? Sounds like an easy question, right? It's not. Let's add some conditions. What is the minimum amount of force necessary to effectively end the danger — in the available time? Putting that concept of available time in personal terms, how much time do you have before the attacker puts you into the hospital?
Let's start by saying there are people who believe no use of force is ever appropriate. We'll just set them aside for the moment so we can look at reality. On one hand, we have failure from using insufficient force. The most recognizable version is trying to defend yourself and getting rolled over by an attacker who is using more force.
On the other hand, there's excessive force. Excessive force comes in two main flavors, too much and too long. Conceptually 'too much' could be understood as shooting someone because they shoved you. That is considered disproportionate to the danger that persons action poised. 'Too long' is you keep attacking after the threat from the other person has ended. Basically you're beating him after he's down or is now trying to escape. It really doesn't matter the reason for these continuing attacks, it's that you keep on going on.
In these last sections I've given you four aspects to consider when it comes to levels of force. This whether it is you deciding what level you need or looking at how much was used in an incident. Here they are summarized.
- Will it work?
- Will it work in time?
- Is it disproportional to the danger?
- Did it stop when the threat stopped?
When police have to use force, you will encounter no end of instant-experts who will condemn them. Those four points I just gave you allow for a much more reliable criteria to assess appropriate use of the officer's force. Do police occasionally go overboard with force? Yes, they do. However, those four points are overwhelmingly the case with police use of force. There is another issue that I'll mention in passing, that's the difference between stopping a threat and putting someone into a position to be cuffed. Officers often have to use force until someone is safely cuffed. Even then, some people continue to attack and resist while cuffed. So look for that as well.
Let's talk about those people we set aside earlier. There are many people who are operating from a baggage-is-my-guide perspective who might consider one or two of those. The key word in that last sentence is 'might.' I've not only run across people who believe any force is excessive, regardless of the situation, but that anyone who does is evil and wrong. Many also believe owning a gun should be illegal. They also tend to believe that any death is automatically murder. These are the assumptions (often unstated) they are arguing from. Which brings us to the next point.
Nine—Murder, Manslaughter, Line of Duty, and Self-Defense
While those are all homicides (death caused by another human), legally speaking, they are not the same thing. Each mean something very specific and are varying degrees of 'bad.' Some are punishable, some can be legally justified. While it may be a reach to say they are clearly defined, they are understood as different. In court, the challenge is to prove that an incident met with a particular criteria.
Even in common parlance (where people don't know the exact details) it's understood there are differences in these terms. That's why you should be careful of someone who tries to frame any homicide as murder. Often this goes past simple sloppy thinking and moves into agenda. They're using the word 'murder' because of the horrible connotations it has.
This includes when it's the District Attorney's office. First, in these days of plea bargaining, it is not uncommon to hang a higher charge on someone with intent to let it be plead down. (Another common strategy is to pile on so many charges there is no chance of being acquitted on all of them.) Second, anytime something is caught up in the news cycle odds are it is going to go political. When it goes political —I need to put a caveat here—while not automatic, in a vast majority of the case, the prosecutor will find the highest crime possible to prosecute. This includes if you have to squat down, turn your head and squint to see how the prosecutor can try to prosecute that particular crime given the circumstances. But once again, it's political —especially if there's a special prosecutor assigned to the case from outside the district.
I'd also like to point out people who want to paint a situation in the worst way possible will often grab onto these politically motivated charges and use that as their justification for claiming it was 'murder.' After all, that's what the prosecutor said it was. So it must be true. A small—but rather important detail— is you can be charged with something, but that's not the same thing as a conviction. To get a murder conviction the prosecutor must prove beyond a reasonable doubt that it was the higher crime. Often they fail to do so. (If you remember George Zimmerman, was convicted neither on the charge of murder or manslaughter —despite the special prosecutor's best efforts.)
Ten- Duty to Act
Many self-defense laws start out with a qualifier like "may use," "can use" or "is justified.' That basically means —as a citizen—you don't have to act. In fact, it's encouraged that you don't.
Police and military don't have that luxury. They have what's called "a duty to act." They are legally obligated to step up to situations that most people run from. If they don't they can be sued, fired, and the department sued. Now there are all kinds of complications, safety issues, and bigger picture considerations of that statement. But before you get lost in the weeds, know that those are exceptions. The majority of their time the police have to go into dangerous situations and engage with dangerous people, crazy people, angry people, and just plain stupid people. They won't know what the situation is until they get there. Worse, in the middle of it all, the situation can take a bad turn.
What the police cannot do is let a violent or mentally unstable person in crisis 'just be.' Also once they become aware of a driver's intoxication police can't let that person drive away (or leave them in a position to do so.) Once the police are involved in those sort of situations there is no backing down. The further a situation goes the more force they are going to use. As they are legally required to do to keep the public—not the individual—safe, it's usually not going to work out well for the individual.
There's something I mentioned in passing earlier. Despite how often it is interpreted as such by people intent on condemning the police, nobody is killed by the police for a petty crime. The initial contact may have been over a minor issue, but what lead to use of force was escalating actions after contact was made. While police occasionally are responsible for unnecessary escalation and excessive force, in a vast majority of cases it's the person the police are dealing with who dictates the level of force that will be used against him.
Medical students are often told "When you hear hoof beats, think horses not zebras." In other words, when making a diagnosis look first to the likeliest causes rather than rare diseases. In the same manner, when it comes to the question of 'why did police use of force?' look first to the suspect's behavior. If the answer isn't there, then consider the possibility zebras.
Eleven— Details (often small but important)
I want to start with the bigger idea first. Certain details are small, but they have a far greater gravitational weight than laypeople imagine. A few years ago a bouncer was shot by police while —according to his family's lawyer—"he was just doing his job." Unfortunately, while there had been a shooting in the bar where he worked, the suspects fled. The bouncer had left the property of the bar, chased one of the shooters down and knocked him to the ground. He was kneeling on the back of the shooter with a gun to his head when police arrived. (Basically the bouncer looked like he was going to execute the actual shooter.) The police were responding to a call about a shooting, but with precious little other information. It was night and the bouncer did not have a uniform on. The only item identifying him was a baseball hat with 'security' on it, yet he was off the property —past where his authorization from the owner ended. The officers claimed the bouncer didn't respond to order to put the gun down so he fired. The bouncer didn't have a concealed carry permit for the gun and in Illinois it is illegal to carry a gun in a bar anyway. In addition, the bar itself was operating on an expired license and was functioning in an illegal after hours capacity (the shootings happened at 4 am, 'last call' in Illinois is 2 am). Each of the small details I listed make for a maze of complexities about that shooting. (BTW, did you notice how because of this 12 point list you now recognized why they were important?)
The second part of this idea —and this tracks back to the difference between a conclusion and opinion—is you are NEVER going to get the full set of details
- From a single media source
- Immediately after an incident
As such do not form an opinion—disguised as a conclusion—on first reports. Those are inevitably wrong. Wait and gather more details.
Equally important is often the details you get from particular media sources are going to be either factually wrong or agenda spun. The last especially applies to head lines. It takes time and effort to find as many relevant details as possible. So don't be a buyer of the first reports you hear about an incident.
Twelve—What isn't known
I'll conclude this list of twelve, with another list.
- What you know
- What you know you don't know
- What you don't know you don't know.
A shorter version Known, Known-Unknowns, and Unknown-Unknowns (unk-unks). Once you get the hang of using this list, you can run through it pretty fast. That's a really useful habit to have.
Earlier I mentioned one of the considerations/filters is knowing how violence/crime works. Let's hypothetically say there are five elements common to a kind of violence. There will be varying details of those five, so that's no real thing. However, when a news source only tells you two, you know the other three that are missing from what you're being told. That is a known -unknown. Keep looking until you find them. In addition to you knowing what information is missing from what you're being told, you will also be able to spot when someone has formed an opinion based on insufficient knowledge.
The first two are pretty solid and easy to figure out. Unk-unks tend to be more shadow forces. You can't necessarily see them, but once you understand they exist, you can take things to the next level. In other words, on occasion you won't be able to figure out what is going with what is known and known-unknowns. Getting allegorical if what is known and known unknown don't make sense, that's the footprint of an unk-unk. Something else is going on with the situation. Something that is influencing the situation, but isn't clear and more importantly, isn't being talked about. To the average person, unk-unks are invisible. With a little experience though you start to recognize the foot print that an unk-unk is in play, even if you don't know what it is.
Let me give you an example of not only an unk-unk, but a cluster of them. With all the rioting going on in 2020, why weren't the rioters stopped? You may have all kinds of suspicions and opinions about why, but the real answer is a huge collection of unknown-unknowns. They will remain that way, because you weren't in the room when they were decided.
When it comes to you having to defend yourself the relevance of this idea is two fold. One is what you knew and didn't know at the time you acted. Two is you are going to be convicted or acquitted by what the jury is allowed to know or doesn't know about what happened.
So there it is. twelve things that must be taken into account with any violent incident. The question is will they be?
Now much of what I have said here is to help you to analyze a situation that happens to someone else and you hear about it on the news or social media. In these days of narratives and media spin this will be a handy set of tools to filter the misinformation and opinion driven perspectives you'll run across. (Or be attacked for not buying into the narrative.) Having these twelve points will help you recognize when the person who is opinioning about the incident hasn't actually analyzed it. Often once an opinion is formed, Pauli's 'not even wrong' comes into play.
But it goes beyond just that. If you are involved in a self-defense situation, you will be facing these issues. These are things you need to bring to the attention of your attorney. Having said that, knowing these factors, you can do more research into them to help you with your use of force decisions. My final warning is be aware that some of these issues will come into play in whether or not you are charged or if you should even claim self-defense.