A reminder, I’m not an attorney. None of this is legal advice. Simply passing along my framework, previous experience, and training.
Reasonable Person Standard - This legal concept is simply that if you pulled the hypothetical perfectly average person off the street and told them your facts and reasoning they’d say “yeah that sounds likely/plausible/okay to me”. As you become more skilled, experienced, and knowledgeable in the law, tactics, and application of force you stop being “reasonable” yourself via your specialized and above average traits. In policing there is a “reasonable officer” standard which assumes levels of training, experience, and judgment that the average person does not have and is, for police, a more permissive standard. Uses of force are generally based on a reasonable person standard, and so it is very important to think of how things would be perceived by that very perfectly average person if they were to judge the totality of events that occurred including what you were thinking and was known to you at the time.
Disparity of Force - People are not equal when it comes to force production, stature, health, and a variety of other factors that relate to someone’s ability to defend themselves from danger. A 6’ 200# athletic male with training and practice in defensive arts is judged by a different and more difficult standard than a 5’ 5” 120# female, even if she has similar levels of training and athleticism. She can much more easily be overpowered even by an untrained person that is simply larger, thus she would be justified using more force sooner. Our female example in a violent defensive encounter with our male example will require a higher level of force to assuredly prevail which makes that higher force justified and reasonable, but against someone of similar size and perceived ability as her that same amount of force would likely be excessive. That training and ability is also of note. Due to my background, ability, and knowledge I am held to a much higher standard than someone who has absolutely no training or experience whatsoever (as in the lay person defending their home from a break in the middle of the night with a baseball bat). Someone in poor physical condition gets more leeway to use more force earlier against someone that is in better shape. This isn’t meant to be taken as being inexperienced, unfit, un-knowledgeable, and untrained is a good thing as these people are the ones that often find themselves on the wrong side of having used too much force out of ignorance, misinformation, misjudging the situation, and panic. Use of force is based on what is justifiable, reasonable, and needed.
To use force the threat must have the ability to carry out the violence, the opportunity to do so, a reasonable person in a similar situation would believe you are in actual danger, and the force is actually necessary to the desired outcome or to prevent an un-allowable one.
Ability - To take an extreme example, a paraplegic in a wheelchair operated by a joystick is unlikely to be able to carry out a threat of immediate violence when you’re standing 15 feet away. As such taking violent action against them is unwarranted. On a similar token a small naked man running around the streets with nobody else around threatening to kill everyone in this zip code likely doesn’t possess the ability to actually do so, as such deploying your AR15 to make sure he cannot is quite excessive. In that example other lower uses of force may be both justifiable and righteous. A person with a handgun or lit molotov cocktail in hand is absolutely able to carry out a lethal threat they may make or display.
Opportunity - Similar to ability but for right here and right now. Someone with a bladed weapon behind a barricade is far less of a threat than if they are within 20 feet with only open ground between you. Someone with a holstered handgun is less of a threat than one with it in hand. Basically do they have the opportunity to actually carry out that threat of violence in the very immediate future? Is the opening present for them to be successful or are they somehow impeded? To say another way, if a person that has the ability to carry out a violent threat were to try, are they in the right time and place to be successful if not resisted?
Jeopardy - Would a reasonable person in your situation make a similar judgment as you about the level of danger you faced? Was that danger immediate and the use of force the only thing that stopped the violence from being successful against you? Would a reasonable person believe that the person with Ability and Opportunity actually was going to carry out the violent act? This is often the murkiest part as you have seconds or less to decide, sometimes even relying on inbuilt training and reflex. Hindsight and speculations may abound as you altered the original course of events by your actions where the original outcome cannot be known. Some prosecutor that sees themselves as the model of reasonableness has a year or more sometimes to scrutinize every microsecond to determine what they think is reasonable. Sometimes inappropriately and unfairly. Facts you could not have known at the time you applied force may be used against you, especially in court of public opinion. While lack of time to make a decision should be factored in and you can only be judged by the facts you knew and could have known at the time; a hostile prosecutor will expect perfection regardless with could haves and should haves that were arrived at after weeks of analysis when you had far less time. A positive here is training and experience allows you to articulate the threat you perceived much better and upgrade your reasonable person’s judgment and options (or lack thereof) in that situation. Training and experience also allow you to dispel accusations of negligence for not knowing facts you did not know at the time you applied force. Do note that emotion such as anger or fear is not considered here where it will absolutely affect your judgment of the jeopardy you perceive. Decisions to use force must be based on rational, objective, articulable factors. “I was in fear for my life” is not a get out of jail free card and can often lead to more problems than it alleviates because that word “fear” will be seized upon by that hostile prosecutor and the press.
Necessity - In some states this pillar will be “Preclusion”, basically you went out of your way to avoid use of force usually by retreating. In Montana, you don’t have to do that so necessity will replace it. Would a reasonable person find your actions in that situation required, justifiable, and even righteous? Was it necessary to hit the thief with a baseball bat when tackling them would do? Was apprehending the thief with force necessary at all considering you know who they are so the police can arrest them later? Was the force chosen and deployed appropriate and proportional with the force threatened or applied to you? Did it actually have to be effected in order to get the desired outcome, that outcome in itself objectively necessary and reasonable? Were lower, less dangerous types of force attempted and found wanting in gaining control or stopping the threat?
On the above sometimes you’ll see it stated Means has tools or physical capability, Jeopardy actually dangerous, Imminence danger is now. In this framework the necessity of the force is considered obvious due to the imminence and being left no choice but to act violently.
Use of force continuum will be next week’s post.