By Marty Hayes Gun Digest
A discussion on the extremely fine line between self-defense and excessive force.
As of this writing, 41-year-old Tyrone Frasier of Stockton, California, is facing several criminal charges in connection with entering a Stockton 7-Eleven and attempting to steal a large amount of merchandise. Frasier commandeered a garbage can and was behind the counter, filling the large garbage can with cigarettes, sweeping them off the rack and into the bin. By the time he was stopped, the garbage can was about half full with hundreds of packs of cigarettes (and at the going rate that would be thousands of dollars' worth of merchandise).
While that's not particularly newsworthy, what happened next to Fraiser is.
The incident was caught on cell-phone video, and the video shows two store employees stopping the theft by beating Frasier with a large piece of wood over and over until Fraiser begged for them to stop. (To watch the video, Google 7-Eleven robbery/beating.)
It's clear that a person has a right to stop criminal conduct by using force—but that force must be reasonable. By my count, one of the clerks used this wooden stick to hit Frasier 37 times. It reminded me of watching the Rodney King beating, and, in fact, there was some similarities.
In the King incident, four police officers attempted to apprehend King after a high-speed pursuit. While the officers were first acquitted of any wrongdoing, later they were found guilty of federal charges, and the department lost a large civil lawsuit. This could happen here, too, because the two clerks are not facing any criminal prosecution, at least at this time.
In the 7-Eleven case, I could see that the thief communicated he was giving up after receiving strikes with the stick 10 times. But, instead of stopping the beating, they continued until the guy recording the incident with his phone convinced the clerk that he had given up.
I can understand the frustration the clerks had dealing with runaway theft from their store, and it's my understanding this was not the first time the thief entered the store and blatantly stole items. But, if you are going to use force against someone who is committing a crime and want to avoid arrest, trial and conviction, then that force must be reasonable.
Defining ‘Reasonable'
What is reasonable force? I can't tell you.
What is reasonable will be determined by the jury, and it will be your responsibility (through your attorney asking you questions at trial) to convince the jury you needed to use the amount you used. Your job will be to convince the jury that the force used was no more than necessary to stop the criminal attack.
I'm reminded of a murder case I worked on as an expert, where my job was to do a shooting incident reconstruction. The incident centered around one individual (defendant) shooting the deceased who the defendant said was attempting to disarm him. They were both inside the cab of a truck, and there was some decent evidence to validate this claim. But the problem is that, after the first shots were fired in response to the attempt to grab the gun, the defendant kept shooting—for a total of 10 times, with the last bullet striking the deceased on the top of the head.
That's not a reasonable amount of force, even if one believed the defense of the initial attack was warranted. I've heard well respected firearms instructors say to “shoot 'em to the ground,” and if they were lawful to shoot him once, they're lawful to shoot him many times.
Maybe, but then again, maybe not. I've worked on several cases where excessive shots meant excessive force, which meant conviction and prison time.
Physical, Non-Deadly Force
Now, let's get back to the use of physical non-deadly force. Black's Law Dictionary states reasonable force is “force that is not excessive and that is appropriate for protecting oneself or one's property.” In this instance, the thief wasn't presenting a deadly threat, although there's some evidence that he had intimated he had a gun. But, as the camera showed, there was clearly no gun.
I have heard the practical working theory is that, when protecting yourself or property, use equal force, then a little more. Continuing to beat someone once they are disabled is excessive force. Most police officers and deadly force trainers recommend not attempting to apprehend someone who is committing a property crime, primarily because you do not typically have the physical means to control the guy after he is stopped. It might be logical to carry a heavy-duty zip tie worked inside the belt, just in case.
As far as self-defense, the force would be just a little more than was being used against you. This is why pepper spray and Kubotans are effective intermediary tools one can easily carry. Training, of course, is necessary, so one can explain how their actions were within guidelines when using that intermediate force. A little self-defense training can go a long way.
Find the original article in its entirety on Gun Digest.
