A reminder, I’m not an attorney. None of this is legal advice. Simply passing along my framework, previous experience, and training.
Continuing from last week’s post on disparity of force and the pillars of justified force.
Most if not all law enforcement agencies around the country have a policy that describes escalating uses of force to control subjects based on the subject’s level of resistance. Your opponent chooses the level of force you may justifiably use. Your goal is deescalating the level of force needed by increasing the level of control and gaining compliance or removing the ability to resist. Generally the defender may use one level of force above the level being used by the aggressor in order to quickly resolve the situation and ensure the defender prevails. This “one level” is often very unclear because the continuum is not linear and has overlapping levels on each step.
Minimum effective force should be deployed whenever practical and possible. Keep in mind one may have to rapidly escalate force, sometimes skipping whole levels, in a manner of milliseconds in order to prevail. It is not necessary or wise to rip through the entire continuum against someone actively shooting at you by being there, yelling commands, grappling with your opponent, punching them, using pepper spray, then finally shooting them. The goal of increasing force is to stop the need for further force and escalation, without becoming excessive. Once the threat is stopped your application of force must also stop. Your application of force must be reasonable vs what is being used against you. As such, your opponent chooses how severely you break or restrain them, you do not.
Presence - This is the lowest level of force, but it is force as it does alter the behavior of individuals and groups. Your mere physical presence at a location is often enough to prevent or stop a crime in progress or about to be committed. Criminals do not want witnesses to their crimes, nor do they generally want a confrontation with a citizen that may turn them over to police for that crime. Inside each level of force is another continuum that sometimes overlaps with later uses of force. Mere presence is the lowest form of presence, highest is holding someone at gun point, with all sorts of other actions of varying attention and action in between. Note that holding someone at gunpoint while “presence” is also the crime of aggravated assault if unjustified. As such holding someone at gunpoint is generally a more severe action than using grappling skills to physically restrain someone until police arrive, even though it could be argued that grappling might be more effective or cause more damage. More force does not mean more effective force, just more violence. Excessive presence has a related crime, particularly the crimes of trespass and burglary MCA 45-6-20X.
Verbalization - Speaking to another person alters their behavior, thus is a type of force. Just like presence there is a continuum here as well. Your manner of speech, volume, word selection, and combination with other types of force will determine the severity of verbalization. This is of note because in Montana simple assault includes purposefully causing reasonable apprehension of bodily injury MCA 45-1-201 and/or disorderly conduct can be charged by “quarreling, challenging to fight, or fighting” “using threatening, profane, or abusing language” 45-8-101. Verbalization is often the most generally used, and most effective form of force and one of the best to deescalate a situation so no further force is required. This level of force is also the one that gets people in the most trouble. Poor application can cause force to become required and as such the defender is now a participant and has little standing to justify their use of physical force as now the best case scenario is they are a mutual combatant. Once one has taken on the conceal carry lifestyle it is wise to adopt a policy of no more arguments, no more ego stroking. If it prevents a fight it’s the right thing. Because now every encounter you’re in is a gunfight, by deescalating the situation and letting your opponent believe they have gotten their way what you have actually accomplished is saving their life even if your opponent does not know it.
Open-Hand Control - This level of force is the first where actual hands are being laid on a person. Lowest would be guiding a person by physically touching them, highest would be full jujitsu techniques involving joint locks, pain compliance, and choking maneuvers. Note any use of this force level in an unjustified and unwanted fashion can be a crime from simple assault up to homicide. Open-hand control can very quickly become deadly force if executed incorrectly as one can inflict serious bodily harm or death, and certainly can inflict apprehension of death on the person the force is being applied to (which then may justify their use of deadly force to stop your excessive use of force). However as far as physical force goes, this is one of the most effective and lowest levels of force that can be applied giving your opponent no choice but to comply provided you have the fitness and skill to use it.
Closed-Hand Control (Striking) - This level of force is generally thought of as fairly severe and almost or at the level of the next use of force level. The continuum inside this level of force is more about where the blows are intended to land rather than a wide degree of variability in use of force. Punches to the head are more severe than strikes to the body, or upper arms or legs. It is of note that intent does matter, and if the force is justified, accidents are expected and permissible. If attempting to punch someone in the body they duck and take a shot to the nose, that is not the fault of the defender. Again this level of force can go deadly quite quickly and often accidentally. The totality of the circumstances will determine whether that accident is an issue or not. Obviously every use of this level of force is a crime if used unjustifiably, again from simple assault to homicide. Striking as a level of force is generally going to require compliance by your opponent giving up from pain to deescalate. Sheer damage via bone breaks or knockout strikes to the head could incapacitate thus removing the opponent’s will from the equation, but could also be considered deadly force depending on the circumstances.
Less-Lethal Weapons - Once upon a time, TASERs (real TASERs; not stun guns) were at a fairly low level of force. Somewhere around the high levels of open handed control. If someone was physically trying to escape arrest it was permissible to tase them in order to avoid the wrestling match. For a citizen a TASER was justified for just about any type of assault being committed, that’s less true today. Case law since has moved the level of force much higher in most localities, some to just below the level of firearms. Chemical sprays (generally Oleoresin Capsacin - OC) exists in this level as well. Today for a citizen pepper sprays are considered generally less severe than a TASER, but still a fairly severe level of force so a physically assaultive crime must be in progress to justifiably use OC. Blunt impact weapons (including certain projectiles) are also in this level of force and overlap easily into deadly force depending on intended striking location and the manner of weapon. Obviously any use of this level of force in an unjustified manner is a crime, generally aggravated assault MCA 45-5-202 or assault with a weapon MCA 45-5-213.
Deadly Force - At this level we have all uses of force very likely to cause serious bodily harm or death. This can include firearms, knives, your vehicle as a battering ram or striking implement, a pen to the eyeball, chopping off a limb (severe bodily harm), and many other extreme levels of violence. Serious bodily harm is any that is likely to permanently alter or destroy a bodily function or limb. In Montana it is also permissible to use deadly force to stop the commission of any forcible felony, commonly these crimes would be aggravated assault MCA 45-5-202, kidnapping MCA 45-2-302 & MCA 45-5-303, robbery MCA 45-5-401, and rape MCA 45-5-503. Of note is depending on the totality of the circumstances the forcible felony may require reasonable threat of severe bodily harm or death. For example a mugging (robbery) where the person is clearly unarmed and is threatening to beat you with fists probably does not justify discharging a firearm to stop that crime or the flight of the perpetrator. In the “occupied” portion of one’s home a person is generally automatically considered in fear for their life upon discovering an intruder, if the entry is “tumultuous” then absolutely (kicking in a door or breaking a window, using significant force to enter a secured structure). Again the totality of the circumstances at that point will determine if deadly force is permissible and justified, though benefit of the doubt is generally given to the lawful occupant. MCA 45-3-103 Use of Force in Defense of Occupied Structure is worth reading to understand the gray area that a hostile prosecutor might use. This level of force comes with the most severe consequences, it is the least able to be walked back, and when necessary there is absolutely no substitute, must be applied immediately, and decisively. As such it is a topic all on it’s own that this short piece barely scratches the surface.
Next week will be discussion on various Montana Codes and some popular culture myths.