July 2013 - Pg 8
Letter to the Editor
Minimum Force vs. Reasonable Force
To the editor:
Last month’s interview with Lawrence Kane, author of Scaling Force, was incredibly useful material for all of us. However, as a use of force expert witness, attorney, and weapons instructor, I felt there was one point that might dangerously mislead some readers. On the subject of the law-abiding citizen not having to proceed “rung by rung” up the use of force “ladder,” but instead being able to go immediately to the appropriate level of force, the Q&A in the interview (with emphasis supplied by me) was as follows:
“eJournal: Nor must we start at the very lowest level. We are allowed to counter with the minimum force needed to stop the threat.
Kane: Exactly. You want to use the lowest level of force that stops the threat, but if it doesn’t, then you use a higher level immediately.”
The problem, as I see it, with the above Q&A is that it suggests one must use “the minimum force needed to stop the threat.” While that may be the wording of the law in a few states (and I’m not sure where), in most jurisdictions for civilians, and nationwide for police under federal law, one is permitted to use reasonable force in self-defense.
Reasonable force is very different than “minimum force,” and reasonable force is a workable concept in an actual confrontation, while “minimum force” is, often times, completely unworkable. To explain, allow me to use a law enforcement example. Imagine a big, muscular subject is coming at the officer with fists raised, yelling “I’m going to break your jaw!”
The officer could respond, let us say, by (1) verbal direction (“Police – Don’t Move!”), by (2) using pepper spray, by (3) empty-hand physical restraint and control, such as a leg sweep or other take-down, followed by a pain-compliance joint-lock and/or handcuffing, by (4) blocking or avoiding the attacker’s punch, and then striking or kicking, by (5) use of his Taser, or by (6) a baton strike.
While some of the six options presented would certainly be more likely to be effective than others, all of them constitute “reasonable” force when used in response to a big, muscular subject threatening to strike one with his closed fists. As reasonable force options, none of the six options would be considered legally excessive, absent some bizarre circumstances not stated in the hypothetical.
However, the six options can, for the most part, be ranked in order from least force to most force. For example, pepper spray, causing no lasting injury, in almost all cases constitutes a lesser level of force than hitting someone with a baton, that usually results in an injury, although a non-lethal one.
Neither the police officer nor the private citizen when attacked as in the hypothetical is required to use the “minimum force needed to stop the threat.” In fact, we can almost never know what that “minimum force needed to stop the threat” might have been. For example, if we use pepper spray (a very low level of force) and it works, it is always possible that the subject might have stopped had we just used verbal direction.