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Proportionality of Force in Self-Defense

The Fluidity of Proportional Force

david p douglass

Oct 4, 2023

The main objective of this Florida Gun & Self-Defense article is to educate gun owners about gun law and self-defense law. Ignorance of the state and federal laws is not an excuse for unintentionally breaking those laws. It is gun owner’s responsibility to learn and abide by the law, and practice safe gun handling accordingly. I am not a lawyer; if you need a legal counsel secure a lawyer in your relevant jurisdiction. The following content is my opinion and interpretation derived from twelve years of education in Florida Self-Defense Law and Gun Law.

Memorize the Four Rules for Safe Firearms Handling. Mistakes will not occur by doing so. One, treat all guns as if they are always loaded with a round in the chamber, even when the gun is empty. Two, never point the muzzle at anything you ‘don’t’ want to destroy. Three, keep your finger off the trigger until your gun sights are on the intended target. Four, always be sure of your target and what is beyond it.

In addition, when you pull the trigger, think of all bullets as having a prosecutor and a very expensive lawyer attached to them. If you are unsure of any situations regarding gun usage or handling or what is lawful or unlawful, please refrain from public conceal carrying of your firearm until you have proper training. Contact me, and I’ll point you in the right direction to give you the confidence to safely and legally operate your firearm.

Today’s firearms focus will be on the self-defense element of Proportionality. There are five elements to a lawful self-defense claim, Avoidance, Innocence, Imminence, Proportionality, and Reasonableness. If any of these five elements are disproven’ beyond a reasonable doubt’ by the evidence presented in court, the defendant loses the claim to self-defense. Note: In Florida Avoidance is not required before deadly force is used, as long as the element of Imminence is proven true by the evidence.

The definition of Proportionality is complex and depends on many factors within four steps of legal reasoning and analysis. First in the process of legal determination, there are two main qualifiers, non-deadly force or deadly force, which one was used by both the defendant and the victim. The Second factor is an extension of the first, what weapons if any at all were used? Third, what was the physical and mental status and abilities of the defendant and victim, and what comparisons are there one to the other. And fourth, to what degree and duration was the level of force used.

This four step legal process begins with law enforcement’s processing of the crime scene, namely the collection and production of the evidence. Then the prosecutor and judge consider the evidence and make a determination of charges, which will then be argued in court for a jury to decide the final finding of fact. Proportionality plays a major part in the evaluation of the evidence produced. Therefore, it is imperative the defendant secures for law enforcement all the exculpatory evidence to prove the claim of lawful self-defense.

Now let us consider the four legal steps from the perspective of you in the process of evaluating a potential threat in real time. And you should understand that these four steps are guides to formulate a lawful self-defense strategy, a mindset, a process of analysis that must occur in less than a second. And you would do well to expect the possibility that a real life scenario could happen which causes an immediate reaction without considering any of these four steps. High levels of stress could very likely short circuit rational pre-established thought processes.

It is therefore important to train and develop mental muscle memory, which acts instantaneously when under extreme threats. Repetition of the proper responses to a wide variety of threats will increase the chances of you lawfully responding in a split second. So let us view these steps in the first person.

When faced with a threat the first and second steps in most cases occur simultaneously and must be considered together in order to determine whether to use deadly or non-deadly force. It is easier to determine deadly force than non-deadly force in my opinion. A gun, knife, club, blunt object, ligature, whip, sling, bow, or aerosol chemical are all considered as devices which can cause serious bodily harm or death (The last device depends on the contextual setting of the crime). Devices that are not usually considered lethal or instruments of serious physical injury are hands and feet, cell phones, pencils and pens, belts, nightstick, kubotan, flashlight or roll of quarters in a fist. Are there apparent weapons or concealed weapons due to a hand in a pocket or behind a back, or not, is the immediate question you must answer correctly.

The third step is the physical characteristics and conduct of the potential threat as compared to your physical characteristics and capabilities. Significant disparities in size and weight, age, and physical posturing are indications as to the level of force threatened and whether or not the threat is realistically possible, given the proportionate facts of you and the threat. Do you have the advantage, or does the threat have the advantage. And what weapon if any should be used based on your current understanding? This is, I believe the most crucial part of the four steps and most cases go wrong at this stage of the fluid process. High stress, egos and emotions cloud proper objective analysis. Your training should be customized to address and counter these personal flaws.

And the fourth step involves the degree and duration of force or deadly force you used to stop the threat. These two factors often serve to prove your lawful state of mind or the lack thereof. In other words, if one punch in a non-deadly conflict ended the threat, you must end your act of self-defense. If one gunshot stopped a lethal threat then you must have stopped your deadly self-defense. If a threat gave up and quit at any point, you must have also quit self-defense. When the threat ends stops or quits, you must have done likewise, and terminated your action of self-defense.

Again, the determination process during the moment of potential threat is very subjective in nature. However, the laws of most states and specifically in Florida do not require the defendant to make perfect decisions in real time, but rather in accordance with what seemed to be the case as they deemed it to be at the time.

As is the case with all five elements of a claim of lawful self-defense, a defendant can do all five elements correctly in accordance with state laws and even in accordance with court case law interpretations and jury instructions, and have a jury still convict you of a crime that puts in you in jail for the rest of your life. Or the jury could find you innocent of the charges but you go home free, broke and mentally exhausted, after paying legal fees of a million dollars or more, which usually is the case.

Juries are unpredictable, a true wildcard in the legal process, which cannot be relied on for arriving at justice. And prosecutors, law enforcement, and judges are not always ethical. And in today’s politically influenced world, these three components of the legal system are no better than juries are---judicial political activism. The racial grievance complex of American Society alone, demands that a person like myself take extraordinary steps to avoid, retreat, break contact, at all costs, from any threat, before determining to use deadly force or any force. In other words, I must increase my physical jeopardy to decrease my legal jeopardy.

My personal position and strategy, therefore, is to err on the side of the “risk of death or serious bodily injury” rather than engaging in the risk of spending the rest of my life in jail. I practice repeatedly (and have for several decades) the art and the discipline of waiting as long as possible before going to lethal force. I therefore enter a state of greater risk of serious harm or death, but while doing so employ several very affective non-deadly defensive techniques that allow me to wait for provable, irrefutable, deadly actions to be committed against me. My system works in every case except the ‘surprise attack’ and serves to provide me with the legal evidence upon which to judge correctly the true need to use deadly defensive force or non-deadly force effectively and efficiently.

The fluidity of force demands fluid decisions in determining lawful proportional force. Learning how you fail under extreme duress is essential to fixing those failures, enabling a correct law-abiding proportional result.

If you would like to learn more about my particular risk-taking strategies, feel free to use my contact info below. Like all strategies, the person must apply themselves one hundred percent to the education until success is achieved. Your default proportional force should always be non-deadly, until you know beyond any lawful reasonable doubt you must escalate to deadly force to save life from an imminent threat of death or serious harm. Will your actions produce the evidence required under legal scrutiny?

Contact me and let’s discuss this. Your legal status depends on how well you understand “Proportionality”

Article Information Sources: I use Andrew Branca’s “Five Elements of Self Defense” and all of his publications in all my articles. Seventy percent of this article is based in his teachings and unparalleled work. Massad Ayoob also factors greatly in my thinking and writings over the past twenty years. He provides a broader coverage of guns and self-defense. And along with Andrew Branca, I use Jon H. Gutmacher for Florida statutes and case law information.

This article’s purpose is to incentivize the reader to learn the laws required for lawful gun usage. My hope is that all conceal carry gun owners will become legally proficient and physically capable to “Aim to Win the Physical and Legal Battles” should a self-defense situation occur.” Know the Law, Learn to Shoot.” Consider purchasing the same resource products I use; they are exceptional and essential.