The Reasonableness Element in Use of Force Self-Defense Law - Part Two

Further Examination of Self-Defense Reasoning

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Today’s Lawful2Shoot? Focus: What is ‘Reasonableness’ in Use of Force Law – Part Two. (A 3350-word article which I proofread twice so sorry for any mistakes)

In my last article I addressed the element of Reasonableness as it relates to the legal elements, Avoidance, Innocence, Imminence, and since the level of force addressed was deadly force, I didn’t feel addressing Proportionality was necessary.

Thanks to Andrew Branca for providing the self-defense national community with his system of understanding Use of Force Law in Self Defense. I encourage you to visit his website at Law of Self Defense and obtain your copy of his book, The Law of Self Defense Principles, today.

So after I published the last article, several afterthoughts came to mind and I typed out a rough draft and edited it over the past few weeks. In this article I am setting the deadly force scenario and then address the primary elementary legal meaning of reasonableness without corruption involved, followed by the meaning with corruption involved.

Corruption is defined as any interpretation, understanding, and subsequent applications, which is not firmly grounded in the primary definitions and subsequent meanings of the legal wording within the statutes. And also includes any added interjections of subjective feelings from any person within the legal system.

Your Fictious Deadly Force Self-Defense Scenario:

Today you were threatened and had no choice but to pull the trigger to prevent serious bodily harm or death and the person you aimed at is now dead. Responding officers arrived, you made a basic statement that you had to shoot because that person on the ground tried to kill you and you’d like to call your lawyer asap. Officers take you into custody, you call your lawyer and you’re interrogated by investigators after your attorney arrives. Your lawyer makes the legal claim of self-defense to prevent a deadly threat attack. Your lawyer provides investigators with your version of events, and the prosecutor wants to prosecute, and you are bailed out and now await your day in court.

And now, the entire local legal system wants you to explain your reasoning as to your actions, “What exactly was your thinking when you pulled the trigger?” This will be the main focus of your lawyer and the prosecutor. And if the legal system believes there was and is a political dynamic present, the government could also become involved in the effort to understand your Reasoning when you “killed a person with your gun”.

When anyone takes another’s life and ends it, there is in fact a legitimate question as to the reasoning involved. The responding officers, investigators and prosecutor believes your reasoning must be questioned and investigated or they would not be initiating a legal battle against you.

Your decision to use a gun, and or the manner in which you used your gun in self-defense is legally questionable in their eyes. And perhaps even worse, the eyes of the government are also present and are a motivating force for the investigation to proceed, if so the legal element of Reasonableness is going to become very complicated and the probability for corruption greatly increased.

You will need irrefutable evidence and undeniable proof that you reasoning was in accordance with the historical application of the state laws. And the legal system at this point in the process does not believe such lawful reasoning was and is present---or you wouldn’t be entering court to experience the legal battle.

The Meaning of Reasonableness:

So, what is the Reasonableness element in Use of Force Law? The following is from notes that I took while listening to Andrew Branca and Steve Gosney over the past three to five years.

What most people who lawfully carry a firearm don’t think about is that every element of Self-Defense Law is defined and determined through the wide prism of two aspects of reasoning. First there’s your determinative thinking before and during the shooting—subjective reasoning. And second, the legal system’s scrutiny and analysis of the evidence from the scene is judged and defined and concluded--objective reasoning.

Additionally, there could be third party testimony from on scene witnesses, this too will also be considered as part of the objective reasoning applied to your self-defense case.

There is also after-the-fact witness testimony regarding your character and history, both remotely and directly related to the case, which the prosecutor will be adding alongside the legal system’s objective reasoning derived from discovered evidence.

The prosecutor initially believes your deadly force actions were not lawfully reasonable……even before a full investigation occurs. When this legal process began, responding officers, detectives, investigators, and prosecutors, all believe your actions were not objectively reasonable. They believe they can prove from what they found initially that your subjective reasoning was flawed and therefore you broke the law. And the prosecutor believes a jury of your so-called peers, will agree that they would not have acted as you did if they were in your shoes at that time.

If this fictious scenario became true today and the legal battle begins, are you prepared and have full confidence of your ability to use deadly force in self-defense while remaining completely within the letter of the law? Or are you relying on the chance that you will do the best that you can and hope it goes well in the end because you have a good lawyer and an extra $50,000-$100,000 saved up.

Your reasoning is going to be analyzed, distorted, misrepresented, exaggerated, conflated, misinterpreted, and maligned before a jury comprised of people from today’s political society and the evidence from the scene and from your personal life outside the scene must be assessable for your lawyer to effectively use to prove your reasoning was completely without doubt, lawfully constructed and implemented in the moment of crisis.

Considering Reasonableness without corruption being a major factor:

Reasonableness must be absent of imagination, panicked response, speculation, fearful assumptions of an idea or possibility, or feeling of uncertainty. Instead, IT MUST BE based upon what is actually occurring apart from unrealistic, non-real, speculative thoughts, with no proof of existence.

If a conceal gun owner is in such a physical and emotional state as to not be able to think clearly enough to know evidence is apparent and proof is real and present when they necessitate using deadly force in a split second, the odds of mistakes which result in a lengthy prison sentence are close to one hundred percent.

Reasonableness must be based on actual facts from the scene in question. Evidence must be provable by all the elements of the scene and serve to provide proof that any person there would have considered acting in the same manner, i.e. objectively reasonable conclusion.

It is therefore imperative that you know your own mental and educational weaknesses when you’re in a situation where deadly force could be possible. And you should be able to prove to anyone looking at your life’s educational history that you acted based on what you had learned, and considered that knowledge content to be your legal strength, and thus basis for your actions. And a juror must be made to know by your lawyer that they have to consider your knowledge as an essential base of your mindset and reasoning.

If your actions are strictly based on your imagination, fearful thinking, assumptions, or possibilities as you ‘feel could occur’, your actions will be found to be unreasonable or without any reasoning at all. This result occurs naturally in all people’s minds because of crisis characteristics such as, adrenalin spikes, daily stresses, mental fatigue, mental distractions, and even societal ambiguities which influence your judgement.

A racial component is very real today. Half of society sees your situation as you did, and the other half cannot or will not see it as you did. Instead they believe racism is always a major factor. It is from this segment of society that the jury of your peers will come from. And when you factor in that jurors are selected mainly by your prosecutor and your lawyer doesn’t have much of a say, if any at all, in jury selection it is imperative that you plan your subjective thinking accordingly---add some objectivity in other words.

Unless you have practiced exposing your own weaknesses, both the ones you are aware of and the unknown weakness which you are blind to, any one of the previously stated ‘elements of the prosecution’ could prove you to be ‘Unreasonable’ and therefore guilty of murder.

The only way to address the weaknesses you’re unaware of is to be tested by other educated people. People who will push you hard enough to expose your failures if they exist. It’s better that associates judge you before a jury does.

Simply stated, your subjective reasoning must be verified as objective reasoning by the jurors. Your lawyer’s ability to teach the jurors your subjective reasoning is the key for them to come to the determination that they would have done exactly the same action if faced with the same imminent deadly threat as you experienced.

It should also be understood that 20/20 hindsight is not a factor in determining proven credible reasonableness. For the legal system’s objective reasonableness to disprove or disallow your subjective reasonableness, it must come from the evidence proven to be true in real-time at the scene and understood as the situation unfolded in time.

The totality of the circumstances in question which the investigators uncovered, must collectively contribute to the determination of your subjective reasonableness, and to be found in harmony with the objective reasonableness produced by the legal system and therefore legally credible.

And to be clear, the evidence of record is comprised of everything uncovered by your lawyer and the prosecution. Both are going to dig into your history, your character, your entire life, every aspect of it. Both are going to dig into all third party testimony.

And then evidence from the scene of the shooting will be analyzed, interpreted and applied to everything found in your personal life; what you did since the shooting and what you did from the shooting back to the day you were born.

If you don’t think your family’s history will or could be a factor, guess again. If the prosecutor asks your dog it you’ve been a mean nasty owner and your dog responds by wagging its tail, it will be used against you. What’s your X spouse going to say? What about ‘that bumper sticker’ on your vehicle? And only God can help you if you’ve been known to proclaim publicly, “Kill‘em all and let God sort‘em out. Do you own The Punisher movie or have Punisher stuff on anything you own?

Reasonableness with Corruption Factored In:

The reality is, the legal system has always had a higher element of corruption than most people understand or are aware of---some states are worse than others and Florida is among the best at protecting itself from societal justice corruption and other forms of corruption which act as a cancer on the legal system’s ability to produce justice.

In today’s societal realm some societal elements are defined as essential in defining justice. A non-white person cannot be a racist for instance. Only white people are racist and minorities cannot be racist. Or a financially successful and or an educated person is a bigot because they despise anyone with less money and education than they have. The Have-Nots need to be judged differently than the Haves.

A majority of the time there are racial political components during deadly felony crime events. There’s a social victim’s paradigm which will come into play when Reasonableness is determined within most courts of law today. There is also corruption possible at every level of the states and government’s legal systems which might or might not be at play during the trial depending on the particular jurisdiction in question.

From the responding officers to the prosecutor’s office, there is always a possibility that some form of, ironically, a legal official’s subjectivity, could greatly impact the integrity of the investigation and thus pollute the legal process toward justice. And a rogue aggressive prosecutor always is supported by those of like mind under his office.

Reasonableness I believe, is no longer a two-sided legal element consisting of subjective—mine, and objective—everyone else’s reasoning. The objective component of this element acts as a wildcard today more than ever. Therefore the reasoning which establishes legal reasonableness does not operate with a blindfold on Lady Justice while holding the scales of justice in many jurisdictions across this nation today.

Perhaps here in Central Florida Lady Justice wears the blindfold more often than other areas of the nation but there are 67 counties which all operate autonomously to some degree. I believe that an overwhelming majority of the counties produce true justice, which is one of the main reasons I wish I was born here and lived my entire life here instead of just enjoying a good life here the past twenty-three years.

The Level of Corruption is Unpredictable:

You must do everything you can to improve everyone else’s understanding of your reasonableness in self-defense situations. You must document your education on every aspects of the subject. You must document and record everything related to this subject. You must be able to hand your lawyer more than he’ll need to defend your actions to the highest level. Educating the jurors is the objective your lawyer must have regarding your reasoning to decide to use deadly force.

The must be solid proof that a “reasonable, educated, experienced, belief………..backed your ability to accurately use lawful deadly force, because there was no reasonable doubt that serious harm was imminent.” You knew at that time the evidence would serve to prove your reasoning in real time was accurate.

And by the way, in today’s “Nothing is Absolute” world, can anyone define what Reasonable Doubt actually is…..is there a universal definition which everyone will agree too?? No, there isn’t because everyone’s view on anything is just as ‘good’ as anyone else’s view is the normal feeling in society today. Who is to say which ‘view’ is the right one? The only thing which is “Absolute” is…….that nothing is absolute. Ask any liberal.

There are numerous examples of people watching a video of a killing which results in many conclusions on what happened. And most times those conclusions are diametrically opposed to one another. And violence ensues between the opposing proponents, each fighting for justice.

All it takes is just one juror who has a doubt, for any reason, or lack of reason, about the evidence presented in court by the defense and you’re claim of lawful self-defense is compromised. It just takes a facial expression at the right time during cross examination by an aggressive rogue prosecutor to convince a juror that a lie has occurred. How far that lie will have an impact on the other jurors decisions is anyone’s guess during deliberations.

Here’s a question to consider regarding deadly-force self-defense cases. How many pro second amendment individuals do you think have made it into the juror’s box over the years across this state or in your county? And how about, how many experienced deadly force self-defense individuals were selected, allowed, by the prosecution during jury selection?

When the last time you heard of a conceal-carry individual not finding a way to get out of jury duty?

Hope you’re getting the dismal picture you could face when you decide to conceal carry a firearm today.

I want you to picture each member of the jury looking at you in today’s fictious case as previously defined. None of them know what you experienced. None of them ever carry a sidearm for self-defense. All of them watch movies on television and never miss an episode of Forensics Files. They know if a person being investigated asks for a lawyer right away, that person is most likely guilty.

It’s a fact that the overwhelming majority of jurors go into the box with the mindset that because the person is being prosecuted, that person must be or at the very least is likely guilty of……something somehow. Prosecutors don’t prosecute innocent people very often is the majority feeling prominent throughout society today.

So, it is absolutely imperative that you document every aspect of your reasoning for lawfully carrying a firearm for self-defense. When in doubt, document whatever it is you’re considering. Everything about you must convey your lawful reasonable state of mind.

And the KEY to a provable claim of lawful deadly force self-defense is to be able to prove beyond all reasonable doubt that you were unable to avoid or prevent by avoidance an imminent attack that would certainly cause you serious bodily harm, so you used your gun to stop the immediate unavoidable threat.

Every serious felony assault which could cause serious bodily harm, in my mind, is measured on my One-In-Ten Avoidance Scale.

Level 1-signals which get my attention and avoidance action considered, Level 2-initiates my avoidance action, Level 3-avoidance action along with self-defense action occur at the same time, Level 4-avoidance terminates and full self-defense action takes over, Level 5-presentation of stand my ground combined with threat of deadly force while I retreat slowly, Level 6-visual confirmation of felony assault causes my direct deadly force in self-defense final threat while still backing up, Level 7-compress trigger with point of aim on midsection of felon while backing up, Levels 8-10 - multiple shots fired until threat ends. If during the 8-10 count the felon abandons his attack, I continue to create distance while ceasing firing rounds, take cover out of felon’s natural line of sight and wait for a safe condition by which to call 911and preserve all evidence at the scene. And will call CCW Safe and then Andrew Branca, as time allows.

That’s my practice discipline. The one I use without thinking, It’s automatically adjustable to one second or one minute of total duration of a perceived felony threat. The longer the threat phase the more avoidance tactics are employed, which is solely determined by the threat’s actions, namely advancing on a retreating person or not advancing on a retreating person.

My objective in counting the threat’s physical actions using 1-8 steps is to clearly signal the lawful element of avoidance, which proves my innocence, and serves to help establish the moment of imminence which automatically provides necessary prevention proportionality action required, which when taken in totality establishes my subjective reasonableness as objective reasonableness in harmony with state and federal laws.

Your system of using lawful deadly force self-defense is your business…...obviously. I don’t expect nor do I advise you to use my system unless you have a camera on your gun and have practiced to the point where you know with 100% certainty where all your failures occur in many dozens of high-energy high-adrenalin serious-threat situations.

Using my system without adequate preparation will get you killed and provide a weapon for the felon attacker to further commit felonies against other victims. My system places you in deadly harm’s way by erring on the side of “Avoidance” to the point where death is more than imminent because it’s occurring quickly in real time---already started while in retreat to the highest physical ability to do so….as allowed by the felon.

How much documentation do you currently have? Need help with that, call me. How much physical work have you done to pull your pistol to the half ready position in order to put shots effectively on the waistline area? Need help with that call me for a free consultation and half training session.

Not sure how the laws fit into your particular situation, give me a call, let’s discuss your concerns and see if I can’t provide some direction which is workable for you.

I’m involved with this small self-defense business endeavor in Highlands County and central Florida because I love to be of assistance to law abiding second amendment conceal carrying Florida citizens. Good people who want to remain law abiding when a deadly threat occurs. By preparing you strategically, and to increase substantially the odds for you to remain unharmed, alive and found to be lawful should you enter the legal system meat grinder.

My Information Sources: The following sources are the basis upon which I write my articles. My conclusions, opinions, and assertions mostly are in line with these sources’ content; however, my usage and applications of their content are arranged in according the real-life self-defense situations which I have both experienced firsthand and have studied in hundreds of videos which captured such events.

The following order of sources reflects my educational timeline in the lawful use of firearms, weapons, self-defense, and use-of-force law, since 1998. Prior to 1998, I learned via gun-culture osmosis. The order of my awakening: Rory Miller, Massad Ayoob Andrew Branca Jon H. Gutmacher Katz & Phillips CCWSafe , and many other self-defense, force-on-force, use-of-force law, training publications.

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“Aim to Win the Physical and Legal Battles by Knowing the Law and Learning to Defensively Shoot.”

Call me today for your free consultation and half-day training session. Your life and lawfulness are my concern.

Florida Gun & Self-Defense offers firearms and self-defense education and training. Personal classes and or customized training is available. Visit FloridaGunSelfDefense.com for more information, and to schedule your free consultation call Dave Douglass at 863-381-8474.

I have been a firearms instructor and trainer since 2012 and a skilled tactical and self-defense gun operator since my training began in my twenties. My content is based upon and in accordance with Florida gun and self-defense laws. I am not a lawyer but have studied Florida Use-of-Force Law and Gun Law for the last twelve years. My articles are my interpretation and opinion and do not constitute legal advice for you. If you need legal advice, secure competent legal counsel in your relevant jurisdiction. I am an adamant supporter of an original historical literal interpretation of the Second Amendment. You can email me at davidpdouglass@hotmail.com