Hey f0lks,
In July 2020 Michael Mitchell shot and killed 22-year-old college football player Jahneil Douglas. The evidence indicated that Douglas was the initial aggressor in the confrontation, with Mitchell shooting him only after Douglas had punched him at least once in the head and had continued throwing blows at Mitchell. After being shot the mortally wounded Douglas had fled from Mitchell.
Although Mitchell was criminally tried for this killing, the jury ultimately acquitted him on grounds of self-defense—in other words, Mitchell’s shooting Douglas dead was found by the Ohio jury to simply not be a crime and therefore carried zero criminal liability.
Despite the acquittal on the killing of Douglas, however, yesterday the 26-year-old Mitchell was sentenced to 9 to 12 years in prison. Why? Because Mitchell had fired an additional three “warning shots” at the fleeing Douglas. These three shots too many were found by the jury to constitute felony assault, with yesterday’s sentence being the consequence. (Source news story here.)
This event is a good opportunity to remind ourselves that fights are often highly dynamic in nature, including periods in which defensive force—even deadly force—may be perfectly lawful, only to be swiftly followed by periods in which the continued use of force constitutes felony conduct.
The law allows a defender to continue using defensive force as long as that force is necessary to neutralize the imminent unlawful threat against them—and that necessary defensive force may consist of one shot, or three, or five, or ten, or whatever.
Once the threat is no longer imminent, however, the privilege to use defensive force ends—and any continued use of force by the defender beyond that point is simply criminal conduct.
This requirement of Imminence is one of the five elements of any claim of self-defense. Collectively, these five elements are Innocence, Imminence, Proportionality, Avoidance & Reasonableness (You can get your own 100% free “Five Elements of Self-Defense” cheat sheet by clicking here.)
It can be useful to think of this element of Imminence as being a window, one that both opens and closes. Before the window of Imminence opens—before the threat has become an imminent danger—there is no privilege of self-defense. Once the window of Imminence opens, the use of defensive force is lawful (assuming, of course, the other elements of self-defense are also satisfied).
Just as the window of Imminence opens, however, it also invariably closes. That window of Imminence might close because the defensive force has neutralized the threat, or because the aggressor has decided they suddenly have other business to attend to, or for any reason whatever—the controlling fact is simply that the once-imminent threat is no longer an imminent threat.
Once that window of Imminence closes again, for whatever reason, the privilege of self-defense ends.
Further, any use of force not specifically directed at an actual imminent threat and that endangers either the no-longer threatening target or innocent bystanders—such as the purported “warning shots” fired here in pursuit of the fleeing Douglas—presents fertile ground for a prosecutor to charge, and a jury to convict on, some variation of reckless endangerment—and if that undirected force is deadly in nature, felony reckless endangerment, carrying a felony-length prison sentence.
The law of self-defense allows any of us to defend ourselves against unlawful attack, even to the point of making an instantaneous decision to inflict deadly force upon one’s aggressor. This incredibly powerful legal right, however, is highly constrained and conditioned by the law, as it ought to be when human life is at stake. Violate those legal boundaries, even if acting in mistaken good faith, and prepare to spend many years, perhaps decades, in a cage in the company of extremely unpleasant people.
As we always caution here at Law of Self Defense:
Carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Interested in learning how to be prepared to win the physical fight, and also be hard to convict?
Sign up for our 100% FREE “Hard to Convict” webinar, here: https://hardtoconvict.com
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
https://lawofselfdefense.com/
If the officer characterized the three shots as “warning shots,” he convicted himself. Warning shots are never justified unless your intent is to blow holes in the person as a “warning.”
The proper defense in this case would have been the justified use of deadly force to arrest a felon who was in the process of attempting to commit a capital felony and attempting to escape after the attempted commission of a capital felony. A perfectly legal use of deadly force that is justified by the permission of the law.
Police officers very seldom and quite possibly never need to claim justification for a use of force on the grounds of “self defense.” A self defense claim is for a “non-aggressor.” Police officers attempting to take a suspect into custody are aggressors and their use of force is or isn’t justified by the law that permits police officers to use force, including deadly force, in the performance of their duties.
You need to know all the laws justifying or excusing a use of force upon others before you open your mouth and try to justify or excuse a use of force. And you certainly need an attorney that knows those laws when you find yourself in a situation where you are called upon to justify or excuse your use of force.
Here is the way Missouri law puts it: “3. In effecting an arrest or in preventing an escape from custody, a law enforcement officer is justified in using deadly force only:
(1) When deadly force is authorized under other sections of this chapter; or
(2) When the officer reasonably believes that such use of deadly force is immediately necessary to effect the arrest or prevent an escape from custody and also reasonably believes that the person to be arrested:
(a) Has committed or attempted to commit a felony offense involving the infliction or threatened infliction of serious physical injury; or
(b) Is attempting to escape by use of a deadly weapon or dangerous instrument; or
(c) May otherwise endanger life or inflict serious physical injury to the officer or others unless arrested without delay.
To Big O,
The convicted self defender is not a police officer.
He has no right to use deadly force to make a citizens arrest.
My mistake, I thought this was another officer case.
As for the right to use deadly force to make a citizens arrest, that is a part of the common law of the United States. If citizens did not have the right to use deadly force to make an arrest then p0lice officers would not have the right to use deadly force to make an arrest. The people cannot delegate to their agents an authority that the people do no themselves posess.
Here is Missouri’s codification of it:
563.051. Private person’s use of force in making an arrest. —
3. A private person in effecting an arrest or in preventing escape from custody is justified in using deadly force only:
(1) When deadly force is authorized under other sections of this chapter; or
(2) When he or she reasonably believes deadly force is authorized under the circumstances and he or she is directed or authorized by a law enforcement officer to use deadly force; or
(3) When he or she reasonably believes such use of deadly force is immediately necessary to arrest a person who at that time and in his or her presence:
(a) Committed or attempted to commit a class A felony or murder; or
(b) Is attempting to escape by use of a deadly weapon.
Clearly, if the homicide victim was committing a forcible felony that justified the citizen in killing him in self defense, the common law justified the use of deadly force to prevent him from escaping.
Using deadly force to make an arrest a fleeing suspect is what gets police in trouble all the time. Police are overweight, never go to the gym, and have no ground fighting skills, so they just shoot the suspect and then handcuff him. The lazy corrupt policeman shoots to arrest. This also avoid getting their police uniform dirty or torn, not to mention contact deseases. Police are only allowed to shoot a fleeing person who has committed a felony in their presence, or who is armed with a deadly weapon and is traveling in the direction of a fellow officer or innocent bystanders, or who is a convicted felon escaping detention and represent a danger to the general public. When a policeman shoots a fleeing unarmed suspect, this is considered murder, attempted murder or man slaughter.
A private citizen may make a citizen’s arrest, but that is sketchy business. Attorney Andrew Blanca would, I believe, advise against it. Just let him go. Let the authorities deal with him. Maintain control of the area where you are, and never chase a fleeing felon. Holding him at gunpoint is crazy. If he gets up and says bye, unarmed, don’t shoot him. Just let him go. If you have the skills, you may jump him, with the help of others and hold him till police arrive. Of course, he has the right to claim he did nothing wrong and that you illegally restricted his freedom. A private citizen is not sworn to be a policeman, should never be confused with a wannabe policeman and the jury will not look kindly at vigilantes. These are just my thoughts. I don’t know very much about the law.
Prosecutors have an air tight argument for warning shots. If you didn’t shoot him, then you were not in fear for your life.