Improving The Law Of Self-Defense With The “Reasonable Expectation” Standard


One of the areas of needed improvement that I see in America when it comes to law enforcement is a clearer system of self-defense. I am not a liberal and not a conservative. I am an independent thinker, and fairness is my only goal. I won’t stoop to using race for any argument, and race has literally nothing to do with my opinions. You will see below that I believe that Darren Wilson was innocent, but some other cops in recent cases are probably guilty, although subject to a presumption of innocence until trial. The self-defense rules govern all citizens, not just segments of society. Problems with law enforcement affect everybody, and they are not primarily race issues. The simple fact is that self-defense statutes are problematic, but they can be better. And that is my only goal, with zero ulterior motives.

The Problem With Self-Defense Statutes In America:

One of the major reasons people so often disagree with self-defense claims in law enforcement shootings has to do with ambiguities in existing statutes.

A typical self-defense statute says that a person may act in self-defense if he reasonably believes it is necessary to prevent an imminent use of unlawful force. If the defending person is to use force likely to cause death or serious bodily harm, then he must reasonably believe that the unlawful force will also cause death or serious bodily injury. For example, if you are an able-bodied 200-pound guy, you could not use a weapon like a gun if a 70-pound woman tries to slap you. But you could use the force reasonably necessary to halt her attack, which would usually mean not seriously hurting her since you have a big physical advantage. But if that 70-pound woman comes at you with a large kitchen knife, you could usually use a lot more force, including using your own weapon if necessary under the circumstances.

Although it can be a problem, the amount of force used is usually not the issue in police shootings. The problem lies with ambiguity about what it is that the defending person must reasonably believe before shooting. Some people interpret the statute as saying that the actor must reasonably believe that an imminent use of force MIGHT occur, and that it is reasonably necessary to use force to stop that aggression if it occurs, even though it is not necessarily likely to occur. But others will interpret the statute as saying that the actor must reasonably believe two things:

1. that the imminent use of force WILL or is at least likely to happen, not just that it might happen; and

2. that the force used to counteract that imminent use of force is necessary.

Thus, some people believe that self-defense is appropriate even if the actor only believes that an attacker might use unlawful deadly force, even if the likelihood is small. But others say it should be more difficult to prove self-defense. They believe that the person claiming self-defense must reasonably believe that the aggressor will actually use such unlawful force.

Note: By the way, the vast majority of police shootings are justified. Thousands of cops thousands of times a day interact with the public in America. Most shootings involve armed suspects, with many of them committing suicide by cop, attacking a victim, committing a violent felony, or using a weapon when trying to evade capture. But the small percentage of cases that do present a problem are important enough to call for some positive changes. These are still human lives. And while most cops do the right thing when it comes to use of deadly force, we need to do more than simply prosecute those trigger-happy police out there. Instead, we need to try to stop some of these shootings from happening in the first place.

Let’s look at an example in real life. As I am writing this, Jason Van Dyke, a Chicago police officer, has just been charged with first-degree murder in the shooting death of 17-year-old teenager, Laquan McDonald. Laquan was holding a knife and walking in the street. Police had him at least partially surrounded. Although his behavior appeared erratic, it seemed that he was trying to get away from the police, not to attack anyone. Several police were within feet of him, but he did not approach them. Suddenly, Van Dyke shoots McDonald multiple times, with some of the shots allegedly coming when the teen was already on the ground.

Van Dyke’s case appears particularly troublesome because McDonald was clearly on the ground and barely able to move when the final shots appeared to occur. He will have a very hard time defending those shots. A causation defense might work, although that’s beyond the scope of this article.

Let’s only assess the situation before he hit the ground, not after. Were the initial shots self-defense? Well, the answer to this is precisely why the law of self-defense needs to be less ambiguous. The answer to this is that it depends on how the trier of fact interprets the statute.

Argument That Van Dyke Acted In Self-Defense:

Keeping in mind that we are talking about the first shots only, it is really not hard to construct a theory of self-defense if the law means that McDonald MIGHT imminently use unlawful force. If the statute is interpreted that loosely, Van Dyke would only need to show that McDonald, who did clearly have a deadly weapon in his hand, may have been able to quickly run towards and stab one of the officers. And he was acting strangely enough to justify a reasonable belief that that might happen. After all, he clearly was not interested in surrendering. And if he does decide to run or lunge at an officer with the knife, said officer may be stabbed before he can act in self-defense.

Indeed, this line of thinking is precisely what police officers have used for decades to evade prosecution or get acquittals in homicide cases.

In essence, they argue that an armed person (or physically dominant unarmed person) presents enough of a possibility of imminent use of force, even if not necessarily likely, that the cop should not have to second-guess and take the chance that he waits too long to defend himself. This is the “I was in fear of danger” defense. I am not going to dispel this interpretation of the law. Rather, I consider it preferable to change the law to partially eliminate this kind of self-defense argument. Of course, any change in self-defense law would fairly apply only to future cases, not past cases. This is because ex post facto criminal prosecutions are unconstitutional in the United States.

Argument That Van Dyke Did Not Act In Self-Defense:

Now, let’s interpret this statute as saying that Van Dyke must reasonably believe that McDonald will or is at least likely to attack with the knife. Now, the argument for self-defense is substantially weaker. McDonald was not approaching any officers, and he appeared to be trying to get away. And it doesn’t appear that he is even holding the knife in a threatening manner or otherwise making threats that he will use the knife. At least from the video, there is simply no evidence that McDonald will or is likely to imminently use that knife.

Those who argue that Van Dyke is guilty are clearly using this interpretation of the self-defense law, assuming they believe the very first shots were not self-defense. Surely, there was some reasonable fear of danger. McDonald did have a knife, and he was not surrendering. But to say that imminent use of deadly force was likely is not supported by the obvious evidence (other evidence not obvious from the video might or might not change this analysis).

Eliminating Generalized Fear of Danger As a Defense
“Fear of a Reasonably Expected Use of Force” As Proper Standard

There are two types of fears of danger that I will discuss here, only one of which I believe should be valid for self-defense. One is a generalized fear of danger. Certainly, Van Dyke and the other officers did have this. Any person holding a knife is going to give you some fear of danger. After all, that person might get aggressive and try to use it. In my view, that is simply not enough. Instead, a person claiming self-defense should need to prove a fear of a reasonably expected use of force. The fear of a reasonably expected use of force is true self-defense, while a generalized fear of danger is just guesswork.

What I seek to do is make the law clearer while providing for true cases of self-defense. I am a firm believer of self-defense when it is necessary. But in my opinion, juries are given too much leeway in interpreting the statutes. It makes it very easy to acquit a police officer or civilian (especially women and physically smaller victims) who was really just guessing that deadly force might be used, not that it was actually likely to be used.

Note that, if there were evidence that McDonald already attacked an individual, and that Van Dyke was aware of that fact, then he possibly could reasonably argue that he believed deadly force was imminent. Nothing about the “fear of a reasonably expected use of force” standard precludes the use of a comprehensive threat assessment and the use of information beyond the instant circumstances. For example, if an officer knows that an armed suspect has a long history of violent crime, then that can absolutely be used in deciding whether an attack is expected.

As an aside, in no way am I saying that McDonald was not grossly negligent in endangering his own life. He should have dropped the knife immediately upon realizing that the police were approaching him. But being on drugs is also not a good way to help in making rational decisions. Nonetheless, the fact that a suspect was negligent is not a legal defense in criminal court.

Proposed Change In Self-Defense Statutes:

Of course, each state will have a somewhat different statute or set of statutes for self-defense. But what I propose is adding language that clearly requires a person to have two different kinds of reasonable beliefs:

1. the reasonable belief that imminent use of force will or is likely to happen; and
2. the reasonable belief that the force used is necessary to stop the imminent use of unlawful force.

And to clarify, a statute should ideally have the following or similar language:

“The belief that imminent use of force is merely possible is not sufficient to invoke the right of self-defense or defense of others. The quality of the threat must be such that it creates the reasonable belief that imminent use of force is reasonably expected to occur. A reasonable expectation that use of unlawful force is imminent is more than reasonable suspicion. It means a person reasonably believes that an actual attack is more likely to occur than not, plus that the attack is imminent.”

In other words, a “preponderance of the evidence” standard is required to establish that the actor reasonably expected an attack to occur. This is certainly not a perfect standard, but it is less ambiguous than the current language, and it provides better guidance.

Also, to cover law-enforcement situations, the following language should be used:

“An attempt to elude police, by itself, is not grounds for a reasonable belief that imminent use of force will or is likely to occur. But this rule does not preclude the use of force against a knowingly dangerous fleeing felon so long as the requirements for self-defense or defense of others are otherwise met.”

“A mere refusal to comply with police orders is not grounds for a reasonable belief that imminent use of deadly force will or is likely to occur. But this does not preclude the use of reasonable non-deadly force necessary to subdue a suspect.”

“Attempts by a suspect to remove the wires of a Tazer or similar device from hisĀ  body or to prevent the attack of a police dog or other animal or attacking device shall not be grounds for a reasonable belief that use of force is imminent. However, this rule does not apply when a suspect is attacking the officer at the same time. This rule does not preclude the use of force against a suspect who attempts to take possession of a weapon away from a police officer.”

“A mere refusal to show hands shall not be grounds for a reasonable belief that use of deadly force is imminent. However, reasonable non-deadly force may still be used to subdue a suspect who refuses to show hands.”

“Placing of hands in a pocket or concealment of hands, by itself, shall not be grounds for a reasonable belief that use of deadly force is imminent, even if the police order the removal of the hand or hands. However, reasonable non-deadly force may still be used to subdue a suspect who continues to place a hand or hands in his pocket or otherwise conceal his hands.”

“Encountering a suspect in the dark, by itself, shall not be grounds for a reasonable belief that use of deadly force is imminent, even if the suspect fails to comply with orders by running into or refusing to leave a dark place.”

Are these changes good or bad for cops?

I believe, first and foremost, these changes are good for society as a whole. Law enforcement, as a whole, is only a segment of society. And they do sometimes form opinions and act out of self-interest, rather than doing their job, which is serving the best interests of the public.

I believe the changes will cut down on unnecessary shootings while also preserving the opportunity to defend in legitimate cases of self-defense. Any attempt to use a weapon or intimidate with a weapon or to use physically imposing strength to attack an officer still gives rise to the right of self-defense. Any attempt to take an officer’s weapon can also be met with self-defense force. Similarly, use of a car to ram other cars or hit or try to hit someone is clearly an actual danger and would give rise to justifiable self-defense. These changes simply remove cases where a cop is simply guessing that deadly force might be used.

An added benefit to these changes is that police will have a clearer set of guidelines as to what constitutes and does not constitute self-defense. They know a simple refusal to show hands is not going to give rise to justifiable self-defense. They know that placing of hands in a pocket, by itself, or running or driving away will not provide the opportunity for self-defense. In short, under my proposed rules, a police officer may absolutely act in self-defense any time a suspect attacks him or attempts to take his weapon. But a police officer who doesn’t see actual aggression can’t simply guess his way into a self-defense scenario.

There should be no such thing as a preemptive strike in self-defense. If you are under attack, then by all means defend yourself. If you are not clearly under attack, then you have to wait even if that entails some level of danger.

The following should NEVER be considered an adequate claim of self-defense:

“Well, he didn’t comply with my orders, and I couldn’t see his hands. So since it’s POSSIBLE that he could have a weapon, I felt scared and shot him just in case.”

Similarly, this kind of defense should never be accepted:

“I ran into a dark alley. Since it was dark, I knew I wouldn’t know for sure whether he had a weapon. So I went ahead and shot him to be on the safe side.”

Yes, that kind of bogus defense has worked before. And this is what happens when the statute is so open-ended that people interpret a MERE POSSIBLE threat as grounds for self-defense. The statutes must be rewritten to address these trigger-happy cops who shoot first and ask questions later. They need to know they can’t use an “it was dark so I was scared” or “I thought he might have a weapon, so I was scared” defense.

These are the exact kinds of fanciful claims of self-defense that have been working for decades. And it should not be allowed anymore. There is a reason it’s called self-DEFENSE, not self-offense. And for far too long, police have offensively shot suspects with impunity over and over again. All too often, they seek to find justifications to use force instead of withholding fire until the facts show them it’s clear that an attack is imminent. This should stop now.

In most cases, these changes would not affect the outcome of recent cases. Using my standards, here is how I predict things would shake out in recent highly publicized cases:

Michael Brown:

The result would be the same in the Michael Brown case. Even the feds, under Obama and Holder, said this was self-defense. Brown was not unarmed. His body was his weapon, and the evidence shows he used it.

George Zimmerman:

Zimmerman should have never been prosecuted. And under my proposed rules, there would be no change. It was self-defense, and my rules would not allow the twisting of facts and attempts to railroad someone for political reasons. You can’t just ignore one side of the evidence (including corroborating physical evidence and witnesses), accept the damning side without question, and presume guilt. That’s exactly what happened on a wide scale in this case.

Albuquerque/James Boyd Case:

This is another case caught on video that is actually similar to the Jason Van Dyke case. But it doesn’t fit the current media-driven narrative because the victim is white. So you don’t hear about it as much.

Police officers attempted to arrest James Boyd in Albuquerque, who was mentally ill and would not leave the mountainside where he was being kicked out. He was camping outside and did have a couple of small knives on him, which were there already because they were apparently part of his camping equipment. He was there a long time (about 3 hours) and never approached a single officer, at least as far as what has been reported. When police used a flash bang or similar device on him, Boyd appeared to freak out from the sound of the bang. He put his hands up and turned around, and this is very obvious from the video. You can’t say for sure whether he was trying to surrender or run away. But there is zero credible evidence that he tried to attack anyone. Suddenly, more than one cop shoots him while Boyd is freaking out over this flash bang thing.

Even under current rules, it would be hard to describe Boyd as an imminent threat, at least to the extent that deadly force was necessary to stop him. Boyd was too far away to attack with such speed that a locked and loaded gun would not have stopped him if he had been stupid enough to make such a foolish attempt. And we are talking about multiple police officers with locked and loaded weapons, bearing down on Boyd in case he tried something silly. But Albuquerque is notorious for never prosecuting its cops. After months and months of dragging her heels, the district attorney finally indicted two of the cops – Dominique Perez and Keith Sandy.

Under any standard, I don’t see how Boyd would be considered an imminent threat who had to be shot to death. Rubber bullets were already being prepared to aid in arresting him. In fact, those bullets were used after the police shot him. Now, that’s something special, isn’t it? They shoot the guy with real bullets first. Then, they decide it’s time to use rubber bullets.

The only difference my rules would make here is that it would be even more obvious that the prosecution is justified. But the end result is the same. These cops need to be prosecuted. And a jury will decide if that tape is lying to all of us, as it clearly shows he is dead even though he never approached a single cop.

Eric Garner:

This was not a case about self-defense at all. It was a case about what qualifies as reasonable force used to arrest a resisting suspect. So my rules would not apply in this case. The same goes for McKinney, Texas, and similar cases of non-lethal force in connection with making an arrest or dealing with crowd control, such as the Freddie Gray case. I am dealing only with self-defense here.

Lisa Mearkle:

This female officer would absolutely be guilty under my proposed rules. She GUESSED that a suspect might have a weapon and shot him in the back just to be on the safe side. Not surprisingly, he was unarmed. The suspect was lying on the ground. Even if he did put his hands in his pocket, there are several reasons why someone might do that and not have a weapon. The bottom line is Mearkle did not see a weapon, and the entire contact with the suspect consisted of his trying to escape, not attacking her. What Mearkle did should never suffice as self-defense. It was the exact kind of “generalized fear of danger” that should not be justification to kill a fellow human being and citizen. I am not saying she is guilty under current rules. The whole problem with current statutes, though, is that an officer can dream up just about any possible threat scenario, claim she was scared, and then claim self-defense.

Mearkle was acquitted. The jury foreman said that they found a reasonable doubt. They just weren’t sure whether she was legally guilty based on the wording of the self-defense rules. My rules would make it clearer that you can’t simply guess that someone has a weapon and shoot him.

Note, though, that an officer who receives proper training in my rules and acts accordingly would have never shot the suspect in this situation in the first place. And isn’t this the point? The main idea is to save lives, not to make it easier to convict a defendant.

Jason Van Dyke:

As explained above, Van Dyke would likely be found guilty under my proposed rules. He is likely to be found guilty of some crime, anyway. But the clear reason for this is the decision to shoot an obviously disabled suspect who is on the ground and not posing an imminent threat.

University of Cincinnati Case (Ray Tensing)

This one is a no-brainer under any self-defense standard. This was highly unlikely to be self-defense, as the suspect, Samuel DuBose, was simply trying to drive away. He was not endangering anyone because the cop was standing next to the car, and he was not hung in a door, etc. But my rules would not change anything here since the case is so obvious on its face even under the current ambiguous self-defense statutes. If Tensing had said from the very beginning that he accidentally pulled the trigger, he might have had a believable defense. But since he claimed he was in danger, and the video puts the big lie to that, he is in big trouble now.

Michael Slager (Charleston, South Carolina)

Slager shot Walter Scott in the back as Scott tried to escape. The act of shooting someone for simply trying to escape would not be allowed under my rules. There would likely be no change here under my rules. The officer shot an unarmed suspect in the back. Under any self-defense standard, I don’t see that passing muster without some good explanation of why he thought that was necessary. While Slager claims Scott tried to take his Tazer, Slager seems to have been caught planting the Tazer next to Scott after the shooting. Nonetheless, this defense that “he was dangerous because he tried to take my Tazer” would be allowed under my proposed rules, as well. Then, it would be up to the jury to decide whether they believe the officer and whether the threat was imminent since Scott was clearly running away. Considering what appears to be a planting of a Tazer, it’s not likely that a jury is going to believe anything he says.

Derrick Stafford and Marshal Norris Greenhouse, Jr.

Stafford and Greenhouse shot and wounded a motorist during a traffic stop and killed a 6-year-old autistic boy in the car. The video has still not been released, and it is not clear what defense the cops are preparing to present. There is woefully little info in the media on this case. It does not fit the white cop/black suspect narrative. Without the video, it is going to be hard to say how my proposed rules would change this case. So it can’t be analyzed at this time.

Also, any time you have more than one defendant, you must look at the facts and circumstances from the vantage point of each defendant on an individual basis. So you could possibly have one guilty and the other not guilty. Also, we don’t know for sure yet whether they even saw the child. Finally, if the shooter or shooters in this case had a reasonable basis for shooting the driver, then the child would be an innocent bystander who just happened to be hit. And the shooting of an innocent bystander who was not targeted in the self-defense act is usually not considered a crime. But again, this comes down to whether the driver posed an imminent threat. All I have heard is that he may have been backing up since he hit a dead end.

Tamir Rice

While an extremely sad case, the officer might still be not guilty under my proposed rules. The officer saw a gun, and it is reasonable to assume it is a real gun. Unlike a knife, a gun can be used from a good distance. So if a cop believes that the gun is likely to be used, then the use of force would reasonably be perceived to be imminent. While we don’t know exactly what the cop was thinking, the “reasonable doubt” standard in criminal cases would likely come down in his favor. Yes, it happened only in about 3 seconds. But there is simply no “waiting period” requirement for self-defense. it’s not a clear-cut case, but it appears to have a reasonable doubt.

The main problem with this case is that the dispatcher’s instructions may have been incomplete. It is not clear whether it was the dispatcher who did a horrible job, or if the training provided to the dispatcher was terrible. But a dispatcher should say that the gun might be a toy in this situation since that is the information that the dispatcher reportedly received. I am not attesting to this, but that has been reported. If this claim is true, the failure to give police that information while also simply saying they were being sent on a gun run was gross and extreme negligence. But that would not be a crime on the part of the cop.

Summary of effect the “reasonably expected use of force” standard would likely have on high-profile cases:

Out of all these high-profile cases, I really only see one case where the outcome is likely to be different. That is the Lisa Mearkle case. However, it is too early to say what is going to happen with the Albuquerque case. Under my rules, Mearkle would likely be guilty. This is not an anti-cop self-defense scheme. Even under my rules, Lisa Mearkle and Michael Slager would clearly be alive today even if they had not used deadly force. Ray Tensing (University of Cincinnati) would still be alive today. It is extremely likely that all Albuquerque officers would be alive today. Any attempt by Boyd to approach with a weapon would have been easily squashed by a hail of bullets from multiple cops. He simply approached no one, and the fact that the other officers are staunchly defending these shooters makes me want to stay as far away from Albuquerque as possible.

Darren Wilson (Michael Brown case) would be allowed to use self-defense under my rules. He was in actual danger of a real attack, not just guessing that something might happen. So my rules would not change this situation at all. The same goes for the much-maligned George Zimmerman. Hate him or don’t hate him, the evidence is that he was being attacked. Nothing in my rules would prevent legitimate self-defense.

While we don’t know enough about the Stafford and Greenhouse case yet, we do know the driver did not have a weapon. So they would be alive today, as well.

Out of all these cases, there is not one credible example where the cop would be dead if he or she chose not to shoot the suspect. Self-defense is fine when it’s actually defensive, not a proactive offensive strategy to remove every conceivable threat.

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Analysis of Natalee Holloway’s Mother’s (Beth) Lawsuit Against the National Enquirer

Beth Holloway has sued the National Enquirer for allegedly publishing false stories about the murder investigation of daughter Natalee Holloway. Natalee disappeared in Aruba while on a high school graduation trip. Joran van der Sloot is the prime suspect, and he is now in a Peruvian prison for admitting to killing a girl down there.

This lawsuit does not appear to have merit. Let’s assume for the purposes of argument that the National Enquirer intentionally published false information. Why would that false information be illegal? It is generally not against the law to publicize false information, but there are some exceptions.

The first exception would be defamation. However, giving false facts about the disappearance of someone like Natalee Holloway is not defamation unless you somehow besmirch her character in the process. Saying that Joran had a hand-drawn map of where to find her body, for example, is not even close to defamation.

The second exception could be intentional infliction of emotional distress. I don’t see how stories with false leads carry any intent of causing Beth Holloway extreme emotional distress. For starters, unless the stories had hard evidence with specific allegations that were designed to trick Beth into believing the rumors, it would be odd to say they cause extreme emotional distress. Instead, they were really just tabloid stories that had no credibility whatsoever.

To prove intentional infliction of emotional distress, Beth Holloway would have to show that the National Enquirer intended to cause her extreme emotional distress. This is far from likely. Their intent was to make money publishing rumors about Natalee’s disappearance, not to give extreme emotional distress to Beth.

An example of extreme emotional distress would be telling someone you just killed her daughter, not publishing rumors in a criminal investigation. It is accepted that rumors are going to get spread and crazy people are going to make false claims in high-profile criminal cases. I don’t believe that this is the type of “extreme” emotional distress contemplated by this cause of action.

Besides that, allowing a lawsuit for IIED in this type of case would severely limit free speech. A publication would have to do a thorough investigation before even publishing rumors. That is absurd and bordering on China-level muting of free speech.

A plaintiff could also seek an injunction that forbids a publication to publish anything in the future that is false. Courts rarely ever grant such an injunction due to 1st Amendment free-speech protections. Otherwise, a publication would be frightened into not publishing anything at all unless they are 100% sure that it is true. Think of the standard this would set up. Pushed to its extreme, you wouldn’t be able to even report on a criminal case until after the verdict came in. You wouldn’t even be able to interview the victim in a criminal case. After all, he or she might be lying. At least the defendant (and some defendants have a good reputation) is saying that the victim is lying. So how do you know who is telling the truth? No injunction of the sort is going to be upheld in court.

The article that was released by the Associated Press does not specify the actual cause of action by Beth Holloway against the National Enquirer. But unless I am missing something here, she doesn’t seem to have a case at all. There is no law I have ever heard that allows you to sue a tabloid or any other publication for publishing rumors absent a thorough investigation to see if they are true or not. It is up to the reader to decide how strong the rumor is and whether it should be believed. Permitting a Beth Holloway to sue and win in a case like this would pretty much be the end of free journalism.

We should all hope Natalee is somehow still alive. But we should also hope that Beth Holloway loses this case. Otherwise, why would any publication do investigative journalism?