Justifiable Use-of-Force Standard

A Comprehensive Justifiable Immediate Use-of-Force Standard for Employment By the several States

By Mike Straw

I. Purpose: With the sweeping renaissance in the approach by States to the Constitutional carry of Arms under the Second Amendment, the several States have, in most cases, scrambled to play “catch-up” in the treatment of perceived offenses against often misunderstood, misapplied, or even politically-motivated, maliciously prosecuted mala prohibita laws.

With the advent of such ambiguous application, the dearth of a uniform policy regarding the employment of justifiable immediate use-of-force has led to irregular interpretation and even selective prosecution of the identical set of circumstances by differing States: some States, for example, fail to recognize defensive white light as a legitimate tool; while temporarily conditionally licensing the God-given, Constitutional-guaranteed right to carry Arms under the Second Amendment, some States forbid their unorganized Militia members to carry less-than-lethal defensive bridge weapons such as defensive pepper spray and defensive baton as a humane alternative to justifiable defensive countervailing deadly force, setting up a foreseeable scenario in which the unorganized Militia member, given the legal restrictions of State law, has no reasonable option but to justifiably immediately apply countervailing deadly force against a threat, when a more rational Use-of-Force policy could have easily prevented such needles tragedy for all concerned.

Some States, when such preventable tragedies are subsequently prosecuted for whatever reason, and not currently having in place a Use-of-Force Policy for reference, consult a local law-enforcement-employee Use-of-Force Policy for comparison.

Unfortunately, such administrative missives may tend to be structured more chronologically rather than as an actual Continuum of Force, even omitting modern defensive tools if they have never been subject to judicial review, making for poor fare to redeem any unorganized Militia member subject to such official scrutiny.

Instead, I suggest the following reasonable Continuum of Force as a Standard to be employed by the several States by unorganized Militia members:

II. Given that each unorganized Militia member’s Area of Responsibility consists of a sphere forty-two feet in diameter with the unorganized Militia member always positioned in its center, the reasonable and prudent unorganized Militia member continuously adheres to Lieutenant Colonel “Jeff” Cooper’s Color Code of Readiness, incorporating Colonel John Boyd’s O. O. D. A. Loop, where the unorganized Militia member Observes, Orients, Decides, and Acts, sometimes referred to as the P. A. D. E. cycle, where the unorganized Militia member Perceives, Analyzes, Decides, and Executes. These events can be nearly simultaneous. The unorganized Militia member observes, or perceives, as he orients, or analyzes, then he decides and acts, or executes.

White, or unaware: the unorganized Militia member’s heart rate is typically below eighty beats per minute, he is unaware of his surroundings and immediate environment. Any perceived threat in this state would constitute only Mere Suspicion -the unorganized Militia member would have no evidence to support it.

Yellow, or aware: the unorganized Militia member’s heart rate is typically between eighty and one hundred beats per minute, he is conscious of all that goes on around him, especially people; a condition of caution that he should be in twenty-four hours a day. In this condition, the unorganized Militia member should Observe, or Perceive: he has the opportunity to recognize a threat. His perception will be as broad as a floodlight, easily picking up every detail around him. A threat perceived in this state would constitute Articulable Suspicion -the unorganized Militia member would be able to say something is not quite right. It would not, however, allow the unorganized Militia member to engage a threat, even with verbal compliance.

Orange, or alert: the unorganized Militia member’s heart rate is typically between one hundred and one hundred twenty beats per minute, a general state of alarm in which he has perceived a specific threat. In this condition, he should Orient or Analyze: make effective use of his remaining time by practicing autogenic breath control to slow his respiratory rate, thereby lowering both his heart rate and blood pressure, reducing his level of stress, and by quickly assessing the situation, Decide: make a hasty plan, including immediate goals and options. The unorganized Militia member’s perception narrows to a spotlight, making it difficult to discern additional threats. He needs to physically move his head a full ninety degrees to the left, back to center, then a full ninety degrees to the right in order to gain a one-hundred-eighty-degree scan. A threat perceived in this state would constitute Probable Cause -the unorganized Militia member would be able to point to a specific person or object and say, “this isn’t quite right.” This is the first state where the unorganized Militia member’s Command Presence and Verbal Compliance would be legally justifiable in court.

Red, or alarm: the unorganized Militia member’s heart rate is typically between one hundred twenty and one hundred forty beats per minute, a specific threat is acting in a manner immediately detrimental to his personal safety. In this condition, he should Act or Execute: Use loud, clear verbal commands, immediately identify and employ proven cover (not concealment). The unorganized Militia member’s perception has become a laser beam, blocking out everything except the immediate threat: the firearm barrel, the knifepoint, et cetera. This is the first circumstance where in a court of law, a jury would agree that the Preponderance Of Evidence would indicate that the unorganized Militia member was right to point his legal defensive firearm at a specific, identifiable threat. Gain and maintain distance (Tueller drill). Know where the exits are. If shots have been fired and the threat is down: scan left to right; the unorganized Militia member should check behind himself and, without fail, reload before reholstering; the unorganized Militia member should check himself for injuries. Under stress, the unorganized Militia member may not feel being shot, and until he comes down from his adrenalin high, reopening his peripheral veins, may not even bleed. Call for backup: local law-enforcement employees, if available. This establishes the unorganized Militia member as the plaintiff, and will be referenced in court proceedings.

III. The unorganized Militia member is always obliged to first Avoid, then Evade, and only lastly Defend, constantly employing the standard of the reasonable and prudent person, constantly seeking to first depart any scene of interpersonal conflict, then to de-escalate such conflict, and lastly to employ the minimum level of justifiable countervailing force necessary to stop an illegal assault upon the unorganized Militia member. It is always advisable to flee rather than confront. Any Defensive Countervailing Force tool the unorganized Militia member chooses to carry is required to be reasonably concealed at all times, with the intent of creating tactical surprise. The unorganized Militia member is required to have the proper legal theory already in his consciousness before performing any Defensive Technique or employing any Defensive Countervailing Force tool, and be always prepared to verbalize such relevant legal theory after the justifiable employment of countervailing force. The unorganized Militia member can be required to demonstrate competence in any technique or tool he applies in his justifiable defense.

a. Presence: the unorganized Militia member’s standing in his community as a reasonable and prudent citizen should be recognizable in his deportment: his bearing and demeanor. Nothing in his everyday activities should call into question the community’s trust in him.

b. An alert unorganized Militia member is simultaneously less likely to be illegally assaulted by predatory criminals and to recognize such illegal assault upon another.

c. Verbal Interaction: The unorganized Militia member’s first inkling something is amiss may occur when he verbally interacts with a potential threat: the replies may appear vague and deceptive, giving Probable Cause to suspect imminent criminal activity. The unorganized Militia member is required, when practical, to continuously employ verbal commands throughout the continuum of force.

i. Requests: The unorganized Militia member’s first level of verbal interaction will always be polite requests to cease and desist or to respectfully depart the scene.

ii. Commands: The unorganized Militia member’s next level of verbal interaction will be, unheeding of polite requests, commands to the threat to stop, to move back or away, or to depart the scene.

d. Less-Than-Lethal Force: The unorganized Militia member’s next level of interaction will be, unheeding of commands, Less-Than-Lethal Defensive Techniques intended to humanely cause the threat to de-escalate his illegal behavior. Some use-of-force policies primarily directed at law-enforcement-employees have incorrectly instructed the unorganized Militia member to close with the threat, who may outweigh him by a factor of over three-to-one, and who may possess multiple deadly weapons or knowledge of deadly techniques intended to cause immediate death or crippling injury. In view of this, an enlightened use-of-force policy primarily directed at instructed the unorganized Militia member would instead prudently always seek to gain and maintain distance from the threat.

i. Defensive Open-Hand Techniques: The unorganized Militia member is required to always seek to gain and maintain distance from a threat, yet in some instances, or according to law, he may only have Less-Than-Lethal Force Defensive Open-Hand Techniques, epitomized by the application of Jeet Kune Do, such as wristlocks or arm bars available to de-escalate or stop an illegal assault upon him. The unorganized Militia member is required to verbalize BEFORE their application: “Sir! Stop! Don’t move!”

ii. Defensive White Light: Proper employment of Defensive White Light can blind a threat for a short period of time, creating an opportunity to access another defensive tool or to escape the illegal assault upon the unorganized Militia member.

iii. Defensive Pepper Spray: Proper employment of Defensive Pepper Spray provides the unorganized Militia member with a humane alternative to Justifiable Defensive Countervailing Deadly Force to both maintain distance and de-escalate an illegal assault. The unorganized Militia member is required to verbalize its worst-case effects BEFORE its application: “Sir! If you persist, I will spray you! You may die! Stop! Don’t move!”

iv. Taser International eighteen-Watt M18L advanced Taser®: Proper employment of the TASER® provides the unorganized Militia member with a fixed-sight compressed nitrogen-powered tool that projects a laser dot as an aim point that propels two needle-point probes up to fifteen feet at one hundred eighty feet per second as a humane alternative to Justifiable Defensive Countervailing Deadly Force to both maintain distance and de-escalate an illegal assault. The unorganized Militia member is required to verbalize its worst-case effects BEFORE its application: “Sir! If you persist, I will TASER® you! You may die! Stop! Don’t move!”

b. Defensive Impact Weapons: Defensive Impact Weapons such as the Kubotan®/Persuader®/mini-Maglite® and the Defensive Collapsible Baton are opposing ends of the continuum of force in the Less-Than-Lethal Force category.

i. Proper employment of a Kubotan®/Persuader®/mini-Maglite® provides the unorganized Militia member with a safe, reliable defensive force multiplier, legal whether on airplanes or in schools.

ii. Defensive Collapsible Baton: Proper employment of a Defensive Collapsible Baton provides the unorganized Militia member with a humane alternative to Justifiable Defensive Deadly Force to both maintain distance and de-escalate an illegal assault.choice

c. Justifiable Defensive Countervailing Deadly Force: the unorganized Militia member falls under particular scrutiny when exigently compelled to employ Defensive Countervailing Deadly Force and is rightly held to the high standard of properly restricting its use to only those rare and infrequent instances when his very life, a gift from God, is immediately unavoidably in danger of death or crippling injury AND there is absolutely no danger whatsoever to any other innocent person or property besides the threat. The unorganized Militia member is required to both be able to retain any Justifiable Defensive Countervailing Deadly Force tool he carries AND to disarm the threat of any illegal weapon he may wield.

i. The Display Of Justifiable Defensive Countervailing Deadly Force: The unorganized Militia member is required to display the means of Justifiable Defensive Countervailing Deadly Force AND to verbalize its worst-case effects BEFORE its application: “Sir! If you persist, I will shoot! You may die! Stop! Don’t move!”

ii. The Employment Of Justifiable Defensive Countervailing Deadly Force: Only when all other reasonable means have been exhausted is the unorganized Militia member morally justified to employ Defensive Countervailing Deadly Force.

1. Defensive Open-Hand Techniques: Although The unorganized Militia member is always required to seek to gain and maintain distance from a threat, at some point along the continuum of force, the threat may rapidly close to a distance effectively negating the unorganized Militia member’s Defensive Tools, relegating him to the point of only being in a position to employ Defensive Open-Hand Techniques, epitomized by the application of Jeet Kune Do, as Justifiable Defensive Countervailing Deadly Force. ONLY when reasonably safe for him to do so, the unorganized Militia member is required to verbalize its worst-case effects BEFORE its application: “Sir! If you persist, I will strike you! You may die! Stop! Don’t move!”

2. Defensive Collapsible Baton: Although the unorganized Militia member is always required to seek to gain and maintain distance from a threat, at some point along the continuum of force, the threat may unexpectedly oblige the unorganized Militia member to employ a Defensive Countervailing Deadly Force technique with a Less-Than-Lethal Force tool. ONLY when reasonably safe for him to do so, the unorganized Militia member is required to verbalize its worst-case effects BEFORE its application: “Sir! If you persist, I will strike you! You may die! Stop! Don’t move!”

3. Defensive Knife: In certain extremely rare and infrequent instances, such as when the threat is in the process of illegally attempting to disarm the unorganized Militia member with the intent of immediately killing or crippling him, an acceptable Defensive Technique would be to employ a Defensive Knife to strike the threat in order to convince him to reconsider his negative approach to life.

4. Legal Defensive Firearm: Under the specific aforementioned conditions, AND ONLY when the threat has demonstrated he has the ability, opportunity and jeopardy, is the unorganized Militia member morally justified to employ a Legal Defensive Firearm as a final means of Defensive Countervailing Deadly Force. Ability: Does the threat possess a lethal weapon, or is there disparity of force? Could the threat successfully illegally assault the unorganized Militia member, whether through numerical or physical superiority, or an illegal weapon?

Opportunity: Is the threat close enough to employ it? Opportunity is comprised of distance and obstacles. Is the unorganized Militia member alone with the threat or in an area beyond immediate help? Could anyone come to the unorganized Militia member’s assistance within twenty seconds -or less? As many victims have discovered, they can be robbed in plain view or raped with people in the next room. Jeopardy: Is the threat employing it now? Would a reasonable person conclude the threat intends to kill? Is the threat in a mental place where using violence to get what he wants makes sense to him? This is where the threat crosses a nominal mental boundary. From this point, the threat is mentally prepared to commit illegal violence in order to get what he desires -whatever that may be.

a. Legal Defensive Pistol: In most situations, the unorganized Militia member will probably resort to a self-loading Legal Defensive Pistol as a final means of employing Justifiable Defensive Countervailing Deadly Force to protect his life. It should be equipped with at least .40-caliber hollow-points. Tritium-powered sights with a squared-off rear sight are recommended.

b. Legal Defensive Shotgun: In certain situations such as home defense, the unorganized Militia member may choose to employ a self-loading Legal Defensive Shotgun as a final means of employing Justifiable Defensive Countervailing Deadly Force to protect his life. It should be at least twenty-gauge, and be equipped with either slugs or at least number-one shot. A tritium-powered holographic sight and dedicated flashlight are recommended.

c. Legal Defensive Carbine: In certain situations such as home defense, the unorganized Militia member may choose to employ a self-loading Legal Defensive Carbine as a final means of employing Justifiable Defensive Countervailing Deadly Force to protect his life. It should be equipped with only .223-caliber hollow-points. A tritium-powered holographic sight and dedicated flashlight are recommended.

The information contained herein should not be considered legal advice. It would be prudent to contact an
attorney licensed to practice in your state for an interpretation of laws related to the use of deadly force.

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