As a firearms instructor, one of the most common questions I hear is, “When can I use my gun and not go to jail?” In light of recent riots and other mass violence, many people want to know when displaying or using a firearm is legal when faced with a mob.
The fact remains that deadly force is only legally justified when it is employed to stop an immediate and otherwise unavoidable threat of death or grave bodily harm to the innocent. What this means is that, before deadly force can be legally applied, three conditions must be simultaneously present: ability, opportunity and jeopardy. The attacker must have the physical ability to cause death or serious injury, the attacker must have the opportunity to use that ability and the attacker’s words or actions must indicate he intends to use that ability. This combination places the defender in imminent and unavoidable jeopardy.
Deciding whether lethal force is justified is rather straightforward when faced with an armed attacker or attackers, but what if the attackers are not armed? When can an armed citizen use deadly force against unarmed attackers? The condition of legal self-defense under which this falls is ability, specifically a concept known as “disparity of force.” Simply put, a disparity of force means that the attackers — even without weapons — had such an overwhelming amount of force available to them that the lawful defender was at risk of death or serious bodily injury.
Case 1: Doctor Sweet
On Sept. 8, 1925, a young doctor named Ossian Sweet moved into a house in a respectable neighborhood in Detroit. Dr. Sweet was black and the neighborhood he moved into was all white. There were several threats against Sweet and his family and, despite police standing guard at his home, crowds gathered at night to protest. Sweet did the prudent thing and exercised his 2nd Amendment rights by inviting several friends over and providing them with firearms to help him guard his family.
On the second night, a mob gathered at his house. Rocks were thrown at the residence, breaking a window, and several members of the mob rushed the house. The defenders opened fire, wounding one man and killing another. Sweet and his friends were held and tried for murder, and legendary attorney Clarence Darrow defended them. The first trial ended in a mistrial; the second in an acquittal.
This case is important because it is cited in the book Warren: On Homicide, which is the definitive book on homicide law in the United States. A critical legal concept for self-defense in Warren is, “Where several are apparently preparing to join in an attack on defendant, his right of self-defense extends to each participant.”1 The concept was set as a precedent in State (WV) v. Foley.
What this means for the law-abiding armed citizen is that, when faced with a violent mob whose words or actions indicate the participants intend on doing violence, each member of the mob shares the responsibility of the entirety of the mob and is equally and individually fair game for the defensive actions of the innocent defender. One important caveat in Warren is that, after the mob is whittled down to one member, any disparity of force caused by the number of attackers is gone.
If an armed citizen uses a firearm to defend himself against an unarmed mob, no matter how many participants there are, no matter what threats the mob makes or how many fires they’re setting, an overzealous lawyer is going to make the argument that, “This maniac used a gun on unarmed people. If they were unarmed, what threat were they against someone with a gun?” The following case will illustrate exactly what threat multiple unarmed attackers can be against a trained person with a gun.
Case 2: Darrell Lunsford
In 1991, Nacogdoches County, Texas, Police Constable Darrell Lunsford initiated a traffic stop on a suspicious vehicle. Constable Lunsford pulled the driver of the car out to speak to him, and, despite being told to stay in the car, one of the other two occupants exited the vehicle. Without warning, the second occupant attacked Lunsford. The third occupant got out of the car and joined the attack. Within five seconds of the initial attack, Lunsford was on the ground and immobile. Nine seconds later, one of the suspects took Lunsford’s pistol from his holster and shot him in the neck, killing him instantly.
Lunsford was considerably larger than his attackers. He was well-trained in unarmed arrest control. One on one, he was more than a match for any them. Two on one, the outcome of the fight could go either way. Three on one, he had no chance.
The lesson here for the armed citizen is that even though your attackers might not be armed, if you are armed and become unable to defend yourself, there is a very real chance your attackers will find your gun, take it away from you and murder you with it.
According to the FBI Uniform Crime Report, between 2011 and 2015, 7.9 percent of police officers killed in the line of duty were slain with their own firearms. These were men and women who were trained in unarmed combat and weapons retention. One can argue that the risk to private citizens is even higher.
One aspect of riots that isn’t new but has recently made headlines is a group of protesters blocking traffic. I’ve been asked many times if deadly force is justified in such a situation, and the next cases are the ones I usually bring up.
Cases 3 and 4: Reginald Denny and the Abortion Clinic Protest
In 1992, Reginald Denny was a construction truck driver who suddenly found himself in the middle of the Los Angeles Riots. He was pulled from his vehicle and savagely beaten, resulting in years of rehabilitative therapy. After being released from prison, one of his attackers said he and the others never intentionally targeted Denny; they just got caught up in the moment.
Mob mentality is well-documented. In short, people in riots will do things they wouldn’t normally do. A riot is a very dangerous organism, and even people who plan on peacefully protesting can suddenly become threats or can block your escape if other protesters become threats.
That was the case when a group of activists were protesting outside a Sacramento abortion clinic. Several protesters decided to lie on the ground in front of an SUV arriving at the clinic, which, by itself, is not a threat meriting a deadly force response. However, other protesters surrounded the SUV and began pounding on the windows. The driver felt threatened enough to drive over the protesters lying in front of him.
The protesters on the ground were passive; by themselves, they presented no threat. However, remember what Warren says about mobs. When the other protesters put the driver in fear for his life, the passive protesters were equally and individually lawful targets of the driver’s defensive actions. The driver was not charged, and, fortunately, no one was seriously injured.
Protests are, by their nature, potentially dangerous, and the prudent course of action is to avoid them. If you do inadvertently find yourself in the middle of a protest or riot, treat it like a wild animal preserve: Stay in your car and keep moving, even if you are only moving at a slow crawl. Be aware of your escape routes and get out of the area as soon as possible.
Case 5: Michael Strickland
Michael Strickland was a conservative blogger who, while filming a protest in 2015, was beaten. His cameras were stolen and he was hospitalized with his arm broken in three places.
In July 2016, he was filming another protest in Portland, Oregon. Several members of the crowd became hostile, surrounding Strickland and yelling at him. Feeling threatened, Strickland drew his pistol, scanned for threats and backed up. The crowd backed off; Strickland reholstered and left the scene.
Strickland was arrested and found guilty of 10 counts of unlawful use of a weapon, 10 counts of menacing and one count of second-degree disorderly conduct. At the time of this writing, he has not been sentenced.
In looking at the facts of the case as dispassionately as I can, I identified three things Strickland did that hurt his self-defense claim. Two of the things Strickland did were what I call “tactically sound legal suicide.”
The first thing? Anticipating a possibly violent crowd, he had an extended magazine in his Glock and possessed five spare standard magazines. The prosecution made a very big deal about Strickland carrying more than twice the ammunition some police officers typically carry.
In the American legal system, the concept of “mutual combat” voids the claim of self-defense: Knowing of the extra risk of attending this protest, Strickland took extra ammunition with him. While not as bad as agreeing to an outright duel, he knowingly went to a location where he anticipated the need to use his gun.
While taking extra ammunition was a tactically smart thing to do, it damaged his self-defense claim. Remember: Deadly force is only legally justified when it is employed to stop an immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent. By going somewhere he thought the need to use a gun was likely, Strickland eroded his claim as an innocent party and that the danger was unavoidable.
Protests are, by their nature, potentially dangerous, and the prudent course of action is to avoid them. If you do inadvertently find yourself in the middle of a protest or riot, treat it like a wild animal preserve: Stay in your car and keep moving.
The second act of “tactically smart legal suicide” was to scan for threats with his gun at high-ready, or with the gun just below eye level. I was taught to do this as a deputy sheriff, in the Army and as an overseas contractor, and many firearms instructors teach their students to do the same.
The problem with this technique is that, when the gun is at high-ready as you scan, you can end up pointing your gun at people who are not threats. Strickland was convicted of menacing for pointing his gun not at the people threatening him but at bystanders who were trying to see what was going on. A more legally defensible option is to scan at low-ready, with the gun pointed at the ground. Yes, your reaction time to respond to a threat will be slower, but it sounds better on the witness stand.
The third thing that hurt his case was, after he was in a safe location, he didn’t call 911. The first person who calls 911 is assumed to be the victim; the other party is automatically listed as the suspect. Equally importantly, if two people call 911 on each other, it should give the cops a clue that there is more going on than what just one of the parties says. The prosecutor made a big deal out of Strickland not calling 911.
Avoid, Evade, Prevail
In any violent encounter, but especially against an agitated mob, there is no winning, just degrees of losing. By knowing the applicable laws and making sure your training dovetails with those laws, you have a better chance of not only surviving the streets but surviving the courtroom. As with any use of deadly force, though, nothing beats avoiding it in the first place, so be certain that remains in the forefront of your consciousness as a responsibly armed American.
(1) Warren on Homicide, Vol. 1, p. 642.