Bureaucrats' approach to self defense
Via RicketyClick comes this: a Houston defense lawyer has posted the DEA guidelines on use of lethal force. He notes that trainees are given fact patterns and then expected to recite from the standards verbatim. I'm sure that is solid training ... in memory skills.
Only a bureaucracy ... the document is probably 8-10 pages long. A long checklist of factors, which would be of less than no use in a confrontation. With ridiculous standards such as if a knife wielder is aggressive, it may justify use of lethal force IF he is within 21 feet of you. I suppose you are expected to bring a tape measure (and what shooter thinks in terms of feet rather than yards?). Actually, it says use may be justified if he is 21 feet from you, not within 21 feet, so I guess you cannot fire if he is five feet from you. [I don't doubt, as commentors note, that a knife-wielder can close 21 feet in less than your time to draw and fire. But to teach it as some hard and fast rule, as if there is no reason to use force if the guy is 22 feet out, or pretend that with a guy charging you you can estimate the distance, is going a bit far.]
And many criteria are based on probable cause? (p/c). That's for arrests or searches, commonly defined as "strong suspicion." If I were to use lethal force, I'd hope it was based on more than a strong suspicion that the other person posed a threat.
Not to mention instructions such as identify yourself as "DEA". How about "police"? I know what DEA is, and DEA knows what it is, but there are probably a lot of people who have no idea what DEA, ATF, DOJ, etc. stand for.
the continuum of force poster you will find on the wall of any police station is just that: one single poster. doesn't even have a full sentence on it, just sentence fragments.
usually looks something like this, but fancier.
Posted by: jon at October 26, 2008 11:03 AM
I was a Flight Engineer for 17 years on USAF C-141B cargo jets and we had the same nonsense. We were expected to know by rote that the range of the fire extinguisher is eight feet. So, if due to the cargo I could only get as close as nine feet to the fire, I should just watch it burn?
Posted by: Mainsail at October 26, 2008 11:41 AM
David, thanks for the link.
Just to be clear, my understanding from Bennett's introduction is that the purpose of the exercise is to teach agents what to write in their reports, and what to say in court. It has to be in legalese: these are Magic Words of Unbinding, and like any incantation, the exact wording is crucial.
Of course, these spells are written for the Only Ones. David's pointed out some serious deficiencies here for its use by us layfolk, such as the phrase "probable cause", which we never get use.
I'd love to see a similar guideline just for us: the words and phrases we should use to talk about a self-defense shooting.
One other thing: this amounts to a list of ways to commit suicide by cop. If you don't want to get shot, don't do this stuff.
About the "21-feet" rule: I read about that almost first thing when I started to learn about armed self-defense, and darn betcha I got out a tape measure to see what seven yards looks like in my house (it's nearly the longest clear path available). It's based on how far an assailant can move in the time it takes a defender to respond, and again, it's intended as much for use in court as for deciding what to do in a crisis. It is apparently a doctrine that is widely taught to officers. (I think I first read about it in one of Ayoob's books.)
Posted by: DJMoore at October 26, 2008 02:20 PM
In order to demonstrate how quickly an assailant armed with a knife can cover 21 feet I have two students stand back-to-back, one student "armed" with an Airsoft "Glock" facing a silhouette target located 4 feet away, and the other student "armed" with a plastic knife.
Upon command the student holding the Airsoft "Glock" draws and fires at the silhouette while the student "armed" with the plastic knife runs in the opposite direction. The exercise terminates when the plastic BB hits the target.
Without fail, the "knife" wielder always travels 21 feet (+) before the BB hits the target.
Posted by: W. W Woodward at October 26, 2008 06:20 PM
D J Moore: “I'd love to see a similar guideline just for us: the words and phrases we should use to talk about a self-defense shooting.”
Actually, The Texas Penal Code has just such guidelines for the use of force and/or deadly force in Title 2, Chapter 9, entitled “Justification Excluding Criminal Responsibility”. I would hazard a guess that most states also have similar guidelines in their penal codes/criminal laws.
When studying statutes dealing with justification of actions that would otherwise be criminal, please read the entire statute, not just enough of it to make you feel good about doing what you want to do. Pay attention to the words “and” and “or”. Phrases connected with “and” require ALL qualifications to be present while phrases connected with “or” require only one of the qualifications to be present. Missing an “and’ or “or” could mean the difference in prison time or walking free. Do Not read these statutes like you read the Bible.
None of the Texas statutes make allowance for fear, anger, or any other emotion on the part of the citizen who may find it “reasonably necessary” to employ the use of force or deadly force. For example: In Texas, the law doesn’t make any distinction between defending your infant child and defending a total stranger. The Texas laws justify defense, not revenge. “I wouldn’t have slapped/hit/shot/stabbed him if he hadn’t pissed me off.” Is not a valid defense.
Posted by: W. W Woodward at October 26, 2008 06:54 PM
The Tueller Drill
I've found on the web that this is the guy that first described the 21 foot rule. FWIW
Posted by: Tom Gunn at October 26, 2008 08:36 PM
Remember the scene in Band of Brothers, where Winters finds the German artillery map and brings it back to the field headquarters?
Remember how the intelligence guy glanced at it for a moment or two, then laughed, wadded it up and threw it away, explaining that it was useless since it outlined a tactical stance clearly at odds with Allied weaponry and rules of engagement? And besides, their graphic design was totally lame?
No, that's not how I remember it playing out, either.
However, that's what's happening here, folks. This is, essentially, a captured enemy tactical document. I'm not claiming it's anywhere near as significant as Winters' map, but it seems to me that it could provide good insight into how the enemy thinks and what his tactics are likely to be, both on the field and, more importantly, in the courtroom.
This is the DEA's lethal force doctrine in a nutshell, and I bet it's in line with federal LE lethal force doctrine generally, and with what's being taught at state and local levels (where such doctrine is taught at all).
Several possible uses occur to me:
1. Avoid being shot by an LEO.
2. Legally challenge an LEO shooting because the these criteria were not met.
3. Legally challenge an LEO shooting because, although these criteria were met, the criteria are defective. (I.e. is "probable cause" sufficient for taking a life?)
4. Legally defend a lay self-defense shooting that does meet these criteria.
5. Adapt these criteria for lay use. (What's the acceptable lay equivalent of "probable cause"?)
W.W., the Texas Penal Code is a good start, but...
...Well, imagine this scenario:
You are being mugged. Since Title 9, subchapter C is so easily digested, it immediately pops into your head, so you shoot the bad guy and call the cops. The investigating officer asks why you discharged your weapon.
"In accordance with section 9.31, paragraph (b), I reasonably believed that force was immediately necessary to protect myself against the other's use or attempted use of unlawful force."
"Because, in accordance with (1)(C), I had reason to believe that the person against whom I used force was committing or attempting to commit robbery, aggravated robbery, or possbily even murder."
"Really? What gave you reason to believe that?"
"Uh...Well, he had a gun."
"Actually, no, he had a cigarette lighter."
And, you know, backfilling always looks so suspicious....
On the other hand, a student of DEA lethal force doctrine might answer along these lines:
"He told me to give him my wallet or he'd kill me and take it anyway, so I had P/C that he intended to attack.
"Then he pointed what appeared to be a gun in my direction. so I had P/C that he had the power to cause my death or serious personal injury.
"I didn't think it was safe or feasible to give a warning.
"However, I did note he was standing against a brick wall, so I decided there was little risk of hitting others.
"Then he got impatient, I guess, and came at me, so I went ahead and shot him."
"Sounds reasonable. Can you tell me...?"
"Actually, if you don't mind, I'll come in tomorrow for a full debriefing, with my attorney."
That's the value of the DEA document. It gives you the exact way to phrase the details of the encounter to bolster your position under the general provisions of the law.
Again, though, many of the DEA items may not applicable to lay encounters; that's why I want a non-LEO version.
The biggest problem with it that I can see is that it assumes an arrest situation, not likely to be true for a lay encounter. (Although suppose you get the drop on the BG and decide to hold him for the police. Then many of these provisions might well apply, particularly in your home, where you are Lord and Master.)
Posted by: DJMoore at October 27, 2008 01:13 AM
> Not to mention instructions such as identify yourself as "DEA". How about "police"?
Because they would by lying if they called themselves the police, and that lie could cast the rest of their courtroom defense into question.
Posted by: Samuel at October 27, 2008 10:00 AM
Too bad today's LEOs and fed agents haven't the balls cops like my father had in the 50s. Lethal force was almost never used, it was easier to beat the perp down back then. Until the perp, man or dog, actually makes contact with the cop or the perp actually shoots at the cop, the cop should be prohibited from using lethal force.
Don't like the control, don't become a public servant. Too many cops today think they are the boss.
Posted by: FWB at October 27, 2008 10:48 AM
I don't think the cops should have significantly more restrictions on their use of force than I do, I just don't think they should have LESS. I want the rules basically level - if I have a self-defense incident, and it was under circumstances where a cop would be considered justified in using force, I shouldn't have to fear prosecution. If a cop uses unreasonable force, in circumstances where I would face jail, the cop should face jail. If I took a shot at someone fleeing into a building and killed a woman in the doorway, after having already shot the man in the back, I'd be sitting in jail.
Posted by: James at October 27, 2008 12:39 PM