Cases of the Week: June 16, 2020

Hey folks,

In this show we take a look at the shooting death of Rayshard Brooks in Atlanta GA, and ask one critical question at the center of the case:

Did Brooks’ use of the TASER he’d seized from one of the arresting officers against the second pursuing officer constitute the use of deadly force, against which the officer’s use of deadly force (his pistol) was lawfully justified.

In short, can a TASER ever constitute deadly force against which a deadly defensive force response would be warranted?

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TRANSCRIPT

Welcome, everybody. Welcome to the Law of Self Defense Cases of the Week Show. I am of course Attorney Andrew Branca for Law of Self Defense. Thank you very much. Coming in, folks, as you come in, if you could please leave a comment with your city and state, that would be greatly appreciated.

If you could also be kind enough to click that share arrow above the comments and that thumbs up like button that helps fool Facebook into sharing our content more broadly. So your help with that is always appreciated. Obviously Facebook will not do that on its own initiative.

And before we jump into the substance, I do of course, need to thank our sponsor, which is CCW Safe a provider of legal service membership, what so many people mistakenly call self-defense insurance. In effect CCW safe promises to pay its members legal expenses if they’re involved in the use of force event. There are a number of companies that offer this kind of service. I’ve looked at all of them as you might imagine, and for me personally, CCW Safe is the best fit. I’m a member of CCW Safe. My wife Emily is a member of CCWSafe. Whether they’re the best fit for you is something only you can decide. But I do encourage you to take a look at what they have to offer at http://lawofselfdefense.com/ccwsafe and if you do decide to become a member, at that same URL, you can use the discount code LOSD10. For those of you on the podcast, that’s the letters LOSD for Law of Self Defense and the number 10, all one word LOSD10 to get 10% off your membership with CCW Safe.

I also want to mention we are also working on, and this is turning into a much bigger project than I had anticipated, but actively working on completing our newest course “Lawful Defense Against Rioters, Looters, and Arsonists.” II keep writing and writing and writing and it gets longer and longer. But we want to make it as comprehensive as possible. And we’d rather put out a close to perfect product than something that’s not quite perfect, especially when we already have the draft of this course, have made available to all of you.

By the way, if you are a Law of Self Defense Member, you can access the draft of this course “Lawful Defense Against Rioters, Looters, and Arsonists” at the Law of Self Defense website, either in the blog post [https://lawofselfdefense.com/after-action-analysis-june-3-2020/] or in your members area, your members dashboard. So I would encourage you to take a look at that.

The final product is going to be substantially more extensive than the the draft include a lot of videos to illustrate various points and so forth.

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Okay, so let’s get into our cases of the week content. Now, normally what we do with cases of the week for those of you who are new is every week review all the self defense appellate court decisions, the case law from around the country of the prior week. And that’s typically 50 or 60 cases, appellate court decisions, and yes, folks, I read them so you don’t have to. And I find the two or three most interesting ones and translate them into plain English. So you can see how the courts apply the actual law of self defense to actual people in actual use of force events.

And every once in a while, we get a week in which frankly, the appellate court decisions for the prior week are not all that interesting. That happened two weeks ago. And for better or worse, it happened again this week. So we’re going to have a bit of a variant of the show.

We’re going to talk instead about a case in the news, the case of Rayshard Brooks, who was shot and killed by Georgia Atlanta PD officers after he fought or resisted arrest, grabbed one of their tasers, and shot the taser at a police officer who shot back with an actual gun, inflicting mortal injuries outside a Wendy’s. So I’m not going to go into the case in detail because I think we’ll cover it in tomorrow’s After Action Analysis Show.

For those who don’t know, we do three regular shows every week. What you’re watching right now is our Cases of the Week Show. We do it every Tuesday live 2pm eastern time right here on Facebook. That’s what you’re currently watching, if you’re watching it live and then we have it available as a replay for our members at the Law of Self Defense website (http://lawofselfdefense.com).

On Wednesdays we do our After Action Analysis Shows where we take a use of force event captured on video and we do a plain English legal analysis of that video use a force event. I think tomorrow what we’ll cover in the After Action Analysis Show and we do those every Wednesday at 2pm Eastern, again live here at Facebook and then available for our members on our website. I think for tomorrow’s after action analysis show we will cover the taser shooting death of Rayshard Brooks in Georgia. So that’s where we’ll dive into that video in more detail.

And then of course, on Thursdays we do our News/Q&A Show, which is a less structured show, Thursdays 2pm Eastern Time live here on Facebook again, and then available as a replay for our members at the Law of Self Defense website. It’s less structured, I just touch upon some use of force events that might be in the news, and we certainly have plenty of those these days, as well as take questions live from the audience. And for folks who might have mailed in questions and if you would like to mail in questions, you can send those in to us at the email address show@lawofselfdefense.com. We can’t promise to cover every question. Unless you’re a Platinum member of Law of Self Defense, in which case you have a priority Q&A form that’s dedicated to that level of membership. We always answer those questions promptly. But if you send in questions to show@lawofselfdefense.com we’ll certainly take them under advisement for the News/Q&A Show.

So one last thing I wanted to touch upon. I just came up minutes before the show started to air. And that is there’s been, of course another use of force event that’s in the news. I expect it’ll be getting more attention. It’s this shooting event in Albuquerque, New Mexico, where a bunch of, I don’t know what to call them anymore, protesters were attempting to pull down a statue. The statue is apparently also being protected, at least transiently by some armed people who did not want the statue pulled down. The defenders of the statute seem to have given up, the statute pulled down was happening.

And then something happens in the crowd and there’s one particular individual who appears to get into a tussle. It’s unclear to me what the facts actually are. I haven’t looked at it that closely yet. We’ll probably cover that in more detail as more facts develop, but he may have pepper sprayed someone in the crowd or some kind of tussle. And then he runs down the street. And when he runs down the street, he’s pursued by it appears to be four or five, six members of the protester crowd. One of them, it appears to me has a skateboard tries to hit him in the head with a skateboard. And the person fleeing, pulls out a pistol, fires shots, strikes one of the protesters pursuing him. I believe the protester is still alive, but it looked like they were stuck in the neck, which is never a good thing.

So people are talking about this, of course, and a lot of its obviously this was a politically energized defense. So people are taking political sides depending on what your team is. And I’m seeing the usual amounts of bad self-defense law information being propagated over places like Twitter, and unfortunately, a good chunk of it is being propagated by people who, I don’t know them, but they claim to be actual lawyers, criminal defense lawyers.

And I’m bringing this up because it’s another cautionary tale. You must not assume that somebody actually knows self-defense law just based on their job title. I don’t care what the job title is. I don’t care if it’s criminal defense attorney, prosecutor, police officer, firearms instructor. The only thing that determines whether or not something is actual self defense law is the law itself. The statutes, court decisions, jury instructions, which is why we base everything we do here at Law of Self Defense on the actual law. If you just take people at their word based on their job title, you will get a lot of bad information.

And here’s another example of this. Again, I don’t know who this person is. He goes by the name T. Greg Doucette. He says he’s a criminal defense and first amendment attorney in North Carolina and Texas, host of whatever that is. And a Never Trump conservative. And he’s got over well over 100,000 followers on Twitter. Folks, I’ve got about 7000 I got 7000 the first few months. I was on Twitter because I was tweeting about theGeorge Zimmerman trial, and that was in 2013. And in the seven years since I’ve acquired exactly zero additional Twitter followers. I got 7000 in a couple months, zero additional followers since then, I still have 7000 followers. This guy’s got 120,000 followers. So there’s people I guess, who like what he has to say.

Unfortunately, what he has to say is largely wrong, at least in the tweet I’ll use in this illustration, I can’t claim to have right everything he’s ever tweeted. But he’s referencing this New Mexico case where the gentleman got into a tussle, ran down the street, was pursued. And in this version of this conversation, this gentleman is suggesting that the people pursuing the man who fired the shot, were unarmed. They just had their bare hands at worst, the man with the gun was going to take a beating, and he says, in a very sarcastic and dismissive tone, not to me to somebody else on Twitter, he says: “-10 points for thinking use of a firearm is self defense as you’re beaten with fists.”

So obviously what he’s saying is, Hey, if you’re being beaten with fists, you cannot use a firearm in self defense.

Folks, this could not be more wrong and it indicates an absolute misunderstanding of what the relevant legal issues are here. If you’re using a gun for self defense, you’re firing that gun, you’re using deadly defensive force. The laws in no state say, well, you can, if you’re using deadly defensive force, they do state of course that you must be facing a deadly force threat before you’re justified in using deadly defensive force. I’m speaking generally here there are some outlier situations in which deadly force can be justified even if you’re not facing a deadly force threat, but the norm is before you can use deadly defensive force you must be facing a deadly force threat.

There’s no state that says you can use deadly defensive force to defend yourself against a deadly force threat UNLESS the threat is in the form of bare hands. No state says that, because the issue isn’t the precise means being used to cause you harm. The issue, the determining factor, and whether or not you’re justified in using deadly defensive force is whether you’re facing an imminent deadly force threat.

It doesn’t matter what form that threat takes, as long as it’s a deadly form threat. It could be a gun being threatened to be used against you, or a knife. It could be a piano dropped from a great height on your head. It doesn’t really matter what the precise form of the deadly force threat is. It just matters that it is in fact a deadly force threat against which you’re defending yourself with deadly defensive force.

That’s that element of proportionality, that your your defensive force has to be proportional to the threat that you’re facing.

Now, this lawyers, criminal defense attorney 100,000, 120,000 followers on Twitter suggesting well you just as a blanket statement, you can’t use a firearm in self defense if you’re being beaten with fists.

Folks, the answer is maybe you can and maybe you can’t. It all depends on the nature of the beating. If the beating is of a nature that it’s likely to cause death or serious bodily injury, and we’ll dive more into what we mean by that, as we dive into this Rayshard Brooks case, if the nature of the beating is such that it’s likely to cause death or serious bodily injury, it is a deadly force attack.

And if it’s a deadly force attack and the other conditions of self defense are met, you are privileged to use deadly defensive force. You don’t lose that privilege just because the person trying to kill you or maim you is doing it with their bare hands.

Now, in the normal circumstance of two men of similar size, strength and fighting ability having a fistfight, the courts are going to deem that to be a non-deadly force confrontation because they so rarely result in death or serious bodily injury, a traditional fistfight,.

But there are plenty of circumstances that would qualify as a deadly force threat Now I’m going to show you a very short video here. It’s of a woman being apparently attacked in a park. It’s it’s pretty violent. So if violence makes you uncomfortable, you may want to turn away from the screen. It only takes about a few seconds for the video to run. I don’t think there’s any audio worth mentioning. There may be a little bit of background noise. But this is an example I would suggest of a barehanded attack against which the victim would be privileged to use deadly defensive force.

Let me pull that up, I’m gonna go fullscreen on this again, it only lasts for a few seconds. Here we go.

And that is the whole video. So, I would suggest to you that that is a barehanded attack that reasonably threatens death or serious bodily injury, a large male punching a woman on the ground, largely defenseless, much smaller than him.

And if it is a sustained beating, is there any question that if that beating continues, that woman will have suffered death or serious bodily injury?

And if you do agree that that’s the likely outcome of that beating, well, then she’s facing a deadly force threat against which deadly defensive force would be justified. To argue differently, would be to argue that that woman cannot use say a gun to defend herself against that bare handed attack because it’s only a bare handed attack. No big deal, right, Attorney Doucette?

So watch out folks, just because someone’s on the internet and has a law degree and even practices criminal defense law does not mean they know anything about self-defense law, based on the job title, learn the law yourself.

And of course, as always, a great place to do that is right here at Law of Self Defense.

Okay, so let’s dive into the substance of what we want to talk about today.

We are of course, this is all based on the Rayshard Brooks case down in Atlanta, where Rayshard was being subject to lawful arrest for DWI, he blew point 0.1 something, 0.105 or 0.108, which is a good 20% above the legal limit 0.08 in Georgia.

They say fall asleep, he had passed out obviously in this car in the drive thru to Wendy’s and the police were called and they did their DUI investigation, made the decision to arrest him. He was pretty drunk. You could tell just from the video, and there’s a lot of video out there again, we’ll cover this in more detail tomorrow.

So the police decide to make the arrest. There’s two officers, they go to cuff him, and Mr. Brooks decides to fight the police, so he starts punching, them fighting them, resisting arrest, ultimately manages to grab one of their TASERS, starts running.

He’s pursued by initially one of the officers in a short distance later by the second officer whose TASER had been taken. And as Mr. Brooks is running, he turns his arm back over his shoulder, fires his stolen TASER at the police officer pursuing him. You can clearly see the discharge of the TASER, even hear the pop in the audio.

And at that point the officer pulls out his service pistol fires three shots at Brooks, strikes him twice, who knows what the third round went. It didn’t miss, folks, because it hits something eventually. But then in case Brooks was shot twice, hit twice, mortally injured and he would die as a result.

And of course we have the usual theater political theater around all this, you know “Brooks was shot in the back as he was running away!” suggesting he was harmless. Of course, it’s very arguable whether he’s harmless. If you’re running away, but you’re shooting, employing weapons over your shoulder, you’re not harmless. You’re still a threat, obviously.

But the real issue here is one of the big arguments I see being raised is “Hey, at worst, Brooks was armed with a TASER. And isn’t a TASER, non-deadly force, less than lethal force?” In which case the argument goes, “Brooks was presenting only a non-deadly force to the officer, and therefore the officer could not have been justified in using deadly defensive force in response.”

Again, that element of proportionality, before you can use deadly defensive force. you have to be facing a deadly force threat. Well, if a TASER is non-deadly force then could Brooks possibly have been presenting a deadly force threat against which deadly defensive force would be justified?

So that’s the issue we’re going to discuss today. I put together way too many slides for this class, so you’ll have to bear with me. But the core question here is: “Is a TASER and for those who hopefully everyone knows that TASER is an electrical charge device that can either be used in two modes, one mode is it fires two dart projectiles, that if they strike the intended target appropriately can induce a muscular lockup through electrical shock. The other mode they can be used is in what they call drive mode where you drive or press the device against the person’s body, that does not induce the same kind of muscular lockup disabling lockup, but it is extremely painful and can be used as a compliance technique kind of a contact compliance technique. So that’s what TASERs do.

So police are issued TASERs as less than lethal weapons as an alternative, a prior step in the use of force continuum, before they go to deadly force, before they go to their handgun. So it’s on par for police purposes with things like OC spray pepper spray, a baton, a beanbag rounds fired from an appropriate gun, for example.

So the question is “Can any of those instruments but in this context, particularly TASERs, be a deadly weapon.”

And before we jump into the answer, let’s show you that video. The relevant video. It’s only a few seconds long. It’s the very end of the confrontation with Brooks. The video does show Brooks getting shot and falling over ,also shows him firing the taser shortly before that. So again, if that’s disturbing to you, you may want to turn away from the show for a moment. Again, it’s only a few seconds we’ll see Brooks running from left to right behind the the row vehicles in the drive thru. He’s being pursued by the officer who would ultimately shoot him. Brooks points the taser over his shoulder fires at the officer. The officer then draws his service pistol fires three quick rounds about three quarters of a second pop pop pop. Two of those rounds., we know now of course struck Brooks, he falls to the ground and that’s the end of the chase. So let’s just share this so you get a sense for the dynamics of what happened. Here we go.

And that’s it. That’s the whole thing. So the question is: “Can a taser be a deadly weapon? And the answer is?

The answer is no. And also, yes.

So the answer is both no and yes, or yes and no, depending on what sequence you prefer.

Now, one of the things that’s causing confusion in these discussions is that we’re conflating what qualifies as a dangerous weapon for use-of-force law purposes versus weapons law purposes. So it’s very common for a term to exist in the law, the same word and have different meanings depending on different legal contexts. So what we do here at Law of Self Defense is use-of-force law, not weapons law.

But there are a lot of items that are classified as deadly weapons or dangerous weapons as a matter of law for weapons law purposes, and this is done for purposes of restricting access to those items, requiring a license, or banning them entirely, making them contraband, just completely illegal to own, or restricting the privilege to possess them in certain controlled environments, secure environments, like aircraft, airports, courtrooms, police stations, prisons.

Typically a state would have a list of dangerous weapons will include guns, knives, clubs, saps, slung shot, that’s not a misspelling folks, it’s not meant to be slingshot, if you don’t know what a slungshot is, and lots of states ban this as a dangerous weapon, go ahead, Google it after the show, I think you’ll find it interesting.

But these are lists of items that are classified as deadly weapons for weapons law purposes to restrict access, and the privilege to be in possession in sensitive environments.

That has almost nothing to do with whether or not an item qualifies as a dangerous weapon for use-of-force law purposes. For use-of force-law purposes almost anything can qualify as a deadly weapon, because just like we talked about, previously, with the the woman being attacked in the park, even bare hands can be deadly weapons, depending on the manner of their use.

What matters is not whether it’s an inherently dangerous weapon, but whether it’s likely to cause death or serious bodily injury in the manner of its use. So, for example, a shoelace on your shoe is not something anybody would characterize as a deadly weapon. But if you wrap it around somebody’s throat, it’s being used as a deadly weapon, in a manner likely to cause death or serious bodily injury, for use-of-force law purposes. You’ll never find [a shoelace] on a list of dangerous weapons for weapons law purposes. It’s just a shoelace.

But if you use anything, even a fluffy pillow that you’re using to smother somebody in a manner likely to cause death or serious bodily injury, it’s being used as a deadly weapon.

And of course, it’s also important to keep in mind that when we say deadly force, we mean more than force that can kill. Obviously, it includes force that can kill, but we also include in that deadly force bucket, force that can cause serious bodily injury, or grave bodily harm or serious physical harm or grave bodily harm, grave bodily injury.

Every state has a three word phrase for this, they all pick a different three word phrase, it seems randomly, but it always means the same thing: deadly force is force likely to kill or cause serious bodily injury.

And what we mean by serious bodily injury is sometimes a little ambiguous. Sometimes states don’t really define it. Sometimes they do define it by law in statute or jury instructions. Sometimes they leave it to the discretion of a jury whether or not a particular injury should qualify as dangerous injury.

And, of course, the definition of “deadly force” has a lot of have applications in use of force laws. So whether you’re charged with simple assault or aggravated assault or whether you’re charged with simple battery battery or aggravated battery is often determined by the nature the degree of injury. You’re causing simple battery, non deadly force, not force likely to cause death, versus serious bodily injury, aggravated battery. Either you use the deadly weapon or otherwise use force likely to cause death or serious bodily injury.

And it also has application and self-defense law. If you’re only facing a non-deadly force threat, something not likely to cause death or serious bodily injury, you’re generally privileged to use only non-deadly force in self defense. If you’re facing a deadly force, that’s when you’re privileged to use deadly defensive force. So being able to know what qualifies as a deadly force event is important for all those reasons.

Now, here’s just an example of serious bodily injury being defined as a matter of law, I just picked a representative example, Alaska was the first state that came to mind, because it’s an alphabetical order. But here’s a typical definition very common that you see this definition in essentially identical form across the states. And this is from Alaska criminal pattern jury instruction, 11.81.900(b) Definitions [https://lawofselfdefense.com/jury-instruction/ak-a-c-p-j-i-11-81-900b-definitions/] provides definitions defined serious physical injury as of course, injury that creates a substantial risk of death, obviously, but also injury that causes serious and protracted disfigurement, protracted impairment of health protracted loss or impairment of the function of a body member or origin.

And what all this means, really, of course, is something more than just a minor injury, something more than a minor bruise or contusion, usually something along the lines of scarring, disfigurement, maiming, broken bones, although I’ve seen even chipped teeth qualify as serious physical injury.

Also folks, loss of consciousness, if you knock someone unconscious, you’ve caused them serious physical injury, especially the more we learned about traumatic brain injury.

It’s also important however, to understand what qualifies as serious physical injury is also a function of the circumstances. Is the injury being caused for defensive purposes, or offensive purposes?

Because it makes a difference. You can’t just look at the injury in or threatened injury in isolation, you have to look at it in the overall context.

So if we’re looking at defensive purposes, that force is being used to stop a potential escalation of violence, to reduce injuries to everyone involved. You’re being attacked by someone, you pepper spray them to stop the attack. The police are trying to compel compliance with a lawful arrest, they use something like OC spray or a TASER to compel compliance so they can arrest the suspect

The idea being without having to cause any more injury or harm to the suspect, than necessary, to not have to go further up that use of force continuum where more intense degrees of force are being used. That’s a defensive application of a force.

An offensive application of exactly the same force, whether it’s pepper spray or TASER, that force is being used offensively and by offensively I mean, unlawfully. So obviously, technically, police using force to compel compliance. Arguably, they’re using offensive force, but they’re privileged to do that, as long as it’s within the constraints of a lawful arrest.

So unlawful force, the force is being used maliciously, to disable the victims ability to defend themselves, right. If someone attacks you with pepper spray to facilitate a robbery, or they they go into a bank, they’re committing a bank robbery and they pepper spray in that context, that’s not being used to limit harm to people, that’s being used to make the victims of that force more vulnerable to further criminal predation. Okay, it’s being used maliciously.

So you can’t compare a force being used for defensive purposes where it’s stopping the use of force, the escalation of force, it’s keeping things from getting worse. You can’t compare that to an offensive application which is intended to facilitate further harm and predation of the victims. It makes a difference whether the force is being used defensively, meaning lawfully or offensively unlawfully.

So let’s take a look now at common less lethal weapons and these are some of the most common ones Batons, like ASP batons, OC or pepper spray, beanbag guns, TASERs. And these are all widely issued to law enforcement as less lethal weapons. These are less lethal, really what we mean is less lethal than their firearms, than the pistol on their belt or the patrol rifle in their cruiser. It’s something that’s intended to allow for the use of something other than the firearm to compel compliance or control of the suspect, to minimize the amount of harm, the suspect has to suffer in enforcing compliance without lawful arrest.

Now remember when we’re talking about deadly force, and we’re going to explore to the extent to which any of these items batons, OC spray beanbag guns, tasers can inflict deadly force, remember that deadly and force includes not just force capable of causing death, but also force capable of causing serious bodily injury.

So if a force is readily capable of causing serious bodily injury, it’s in the deadly force bucket, even if the prospects of causing actual death are minimal. This serious bodily injury is enough. And all of these buttons OC spray beanbag guns, tasers can inflict deadly force, again, meaning death or serious bodily injury, especially if they’re being used offensively rather than defensively again, it makes a difference.

So let’s take a look first at batons. So batons have been issued to cops forever. Very common now for cops to have the expanding buttons, the ASP type of batons rather than the rigid batons. And most police officers today are trained in the use of a baton to use it in a non-deadly manner, meaning mostly that they’re using it to strike a non-compliant suspect in the meaty part of the thigh as a pain compliance technique. And it’s pretty good at numbing the leg if you do that forcefully enough, and it will be done forcefully.

And the baton applied in that manner to the meaty part of a suspect’s thigh to compel compliance with say a lawful arrest or other lawful orders is almost certainly not going to cause death or serious bodily injury. That particular application of the baton is a non-deadly force application of the baton.

You take that same baton and apply it with the same force to a suspect’s head, however, you better expect to cause death or serious bodily injury, that is a traumatic brain injury. That person, if they’re not killed or knocked unconscious is going to have a scrambled brain for quite some time.

So the same exact instrument, the baton, depending on the manner of its use, can be either a non deadly force instrument or a deadly force instrument.

What about pepper spray? Right, we’re all taught that pepper spray is non-deadly force. I personally carry pepper spray for the purpose of having a non-deadly force option for defensive purposes. I do it every day, carry it every time I carry my gun, and I carry my gun just about every day, everywhere I’m legally permitted to carry it.

So OC spray as non-deadly force, when pepper spray OC spray is used for defensive purposes and again, that means defense for civilian or to compel compliance by a law enforcement officer consistent with their training, it’s almost always deemed non-deadly force, in fact, I never see an exception [used defensively].

But if it’s used offensively, it’s not uncommon for OC spray deemed to be deadly force meaning not necessarily that it causes death, but that it causes serious bodily injury.

I’m going to provide you with some examples of that. The most common examples are actually federal examples rather than state examples, because they typically they involve bank robbers. So here’s just one case the federal appellate court, case law is full of these cases. I just picked one as an example. United States v Dukovitch. And if you’d like to read the case, and I always urge you to do that you can access it at http://lawofselfdefense.com/dukovitch.

This is a case where a OC spray was used to facilitate a bank robbery. So let’s look: the bank robber got convicted, he’s appealing his conviction. That’s how it got into the appellate court records.

So here we have the defendants bank robber. He goes into the bank, he sprays every everybody down with pepper spray to facilitate his robbery of the bank. And then, of course, like they almost always do, bank robbers are don’t tend to be the smartest people in the world, they get caught. And they get tried in federal court, because of course, it’s a bank, so it’s a federal charge.

And they get charged with the battery on the bank employees through their use of pepper spray. And of course, the prosecutor wants them to get the most aggravated form of that battery possible. So the prosecutor argues that the pepper spray is not just non-deadly force, but it’s actually deadly force, it falls into the deadly force bucket, because it causes serious bodily injury.

That’s what happened to this defendant, Dukovitch, and he got convicted, and he got the federal sentencing enhancement for having used a deadly weapon in a bank robbery.

On appeal, he says no, no, no. Pepper Spray can’t be a deadly weapon. Everyone says it’s less than lethal force, so can’t be deadly weapon, doesn’t kill people.

So he appeals his conviction on that aggravated charge, on that sentencing enhancement, on the ground that pepper Spray cannot be a deadly weapon

This is a quote from the court opinion, the appellate court opinion:

Defendant argues that the district court meaning the trial court arrived in finding that tear gas [they mean pepper spray, they say tear gas throughout but it’s OC spray] is a dangerous weapon capable of inflicting death or serious bodily injury. [So that’s the basis for his appeal.

So the appellate court considers that argument and they say that well,:] a dangerous weapon is defined as an instrument capable of inflicting death or serious bodily injury as we’ve just been discussing, what a serious bodily injury mean, while the court continues serious bodily injury means an injury involving extreme physical pain or the impairment of a function of a bodily member organ or mental faculty, or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.

So you see the definition here is a little different than Alaska had its jury instruction, but the sentiment is the same right, something more than just a minor injury.

So the appellate court continues the district court meaning the trial court found the following one, the defendant sprayed tear gas again, OC spray into the bank, where the victims lay facedown on the floor. All the victims present suffered a burning sensation in their faces and throats.

And if you’ve ever been exposed to OC spray, I certainly have known what that feels like.

And some experienced eye pain and severe headaches and tear gas can cause eye damage, vomiting, loss of breath or rash.

That’s largely true of tear gas, not so much true of OC spray really. But again, the courts are not experts on this stuff, so sometimes they get a little confused.

The court continues, based on these facts, the trial court correctly concluded that tear gas is an instrument capable of causing extreme physical pain or the impairment of a function of a bodily member like your eyes burning your throat, burning organ or mental faculty and thus can be a dangerous weapon.

So that is OC spraying as a dangerous weapon. You see a lot of federal court cases around bank robberies where they use OC spray where they they deem it to have qualified.

You also see cases where they say in a particular application, it doesn’t qualify as a deadly weapon.

The point is not that OC is always a deadly weapon when used offensively but that it can be characterized as such.

Alright, that’s OC spray. Let’s look at beanbag guns now.

So, beanbag guns they fire a beanbag round. When they’re used as per training, they are a useful pain compliance tool. These things hurt when they hit you.

Unfortunately, they can not only hurt you, they can also kill you. I’m going to bring up an example, from when I was still living in Boston. In 2004 the Red Sox had just beaten the Yankees in the World Series. There was, as you might imagine, unbelievable, jubilant celebration in Boston, especially around Fenway Park where this event occurred.

In fact, it reached riot like levels, so property was starting to be destroyed. The police were called in to restore order. And one of the responding officers fires a beanbag projectile at one of the unruly riders. So that would be an appropriate application of the beanbag as a non lethal compliance device to help restore order.

Unfortunately, the officer misses he misses his intended target completely, and instead he hits an entirely innocent young woman, Victoria Snelgrove. She was not acting in a riotous manner, but the beanbag round hit her in the face.

And that pellet opened a three-quarter inch hole in the bone behind her right eye, shattered that bone, and hurled the pieces of bone fragment into her brain. And she would die 12 hours later of that injury. And frankly, if she’d survived, the very difficult as you might imagine, to come to anything like a full recovery from having bone blasted into half your brain. In case she did not survive, she died.

So just an example, the beanbag non-deadly force when used in accordance with training and appropriately but if used outside those boundaries, it can inflict deadly force, force likely to cause death or serious bodily injury.

All right, so let’s get to the point now of this Rashard Brooks case with the TASER. So TASERs are used for training and for lawful purposes, a very useful pain compliance tool not reasonably expected to cause death.

Now, can they cause serious bodily injury? Well, if you’ve ever been subject to a taser, and I’ve never been subject to the full force of a taser, but I’ve been subject to a fraction of that electrical impulse, it’s pretty disturbing. And I can only imagine that the full jolt is really unpleasant when it achieves its goal of inducing muscular lockup. When you see video of a taser being used and the taser works perfectly, basically, the suspect’s whole body goes rigid and they just fall over, which is what’s intended to have happened.

So that muscular lockup, is that enough to qualify as serious bodily injury? And again, we have to consider the context, so the context of whether it’s being used lawfully, defensively, or unlawfully.

When used for defensive lawful purposes, the very purpose of using the taser is to minimize harm and injury. So whatever degree of injury the taser may inflict in this defensive lawful application is presumably less harm, less injury than would be inflicted if the officer instead took the next step up the use of form continuum.

So we’re choosing the lesser of two evils. Under the doctrine of lesser harms, that’s a justification itself. If I didn’t do this lesser harm, this lesser injury, I’d be compelled to cause greater harm, greater injury. So whatever harm I’m causing with a TASER, it’s less than what otherwise occurred. That is a perfectly justifiable position, but it only applies when the TASER is being used in a defensive role.

If it’s being used offensively that justification does not exist, you’re not being compelled to use a taser at all. You’re simply using the TASER to disable an innocent victim, presumably for purposes of facilitating further criminal predation of that victim and the victim.

If the suspect has taken the cop’s TASER and is tazing the cop with the TASER, we have to infer that the further criminal predation is going to be to seize the cop’s sidearm, his pistol, his rifle from his patrol car, nothing good is going to happen. There is no non-malicious purpose. There is no lawful purpose for a suspect to take an officer’s TASER and use it on the officer to disable the officer.

So again, that role, that context of whether it’s being used defensively lawfully or offensively unlawfully is critical.

Now, having said that, it’s also of course possible for police themselves to use TASERs in an unlawful manner. Sometimes police use force that’s excessive to what the circumstances warrant And when that happens, they ought to be held criminally responsible. So if an officer uses a TASER, for example, as a torture device, well that’s not lawful to use the TASER for such a purpose, it’s not per training, it’s excessive force, and it’s going to be a crime, it’ll be an unlawful battery, and unlawful use of force, and that’s no more lawful when a cop does it then when anyone else does it, and it strips away that officers legal justification for the use of that TASER.

So here’s a case right out of Georgia, by the way, which is, of course where Rayshard Brooks was taser got himself shot outside the now burned down when these. This is a Georgia Supreme Court decision from just last year, Eberhart v. State and you can read that full decision and I urge you to do that as always at http://lawofselfdefense.com/eberhart, and I’m not going to go into detail on it, but the case involves officers who used a taser excessively on a suspect who it turns out had a heart condition and the suspect died as a result of the combination of now having fled police and gotten caught, and the fight, and but then getting tased a lot, and I mean, he got tased a lot, read the whole weed decision for yourself to get brought up to speed on just how egregious this was.

And so the officers had tased the guy repetitively he ended up dying as a result. And they were charged and tried for felony murder, predicated on aggravated assaults. So the overuse of the TASER was characterized as aggravated assault, which is, of course a felony. If the jury believes that they’re guilty of the aggravated assault, and the suspect died as a result, in the course of the commission of that felony, they’re guilty of felony murder.

And that is what the jury concluded that these officers were guilty of, felony murder predicated on an aggravated assault for the excessive use of the TASER.

So is a TASER just non-deadly weapon? Well, it depends on the context of the use. In this particular case, the context was deemed to be excessive, inappropriate, unlawful. It was the basis for a felony aggravated assault charged predicate for felony murder. And these officers, two of them at least were convicted of felony murder and they appealed their convictions.

And their convictions were affirmed on appeal. And this appellate court decision just last year, here’s some language from that appellate court decision just to give you some context, this is how the courts actually look at this stuff, quote:

When properly viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above in the decision was sufficient to enable a rational jury to find that the appellant, the defendant at trial, the officer assaulted the victim with his taser which actually did result in serious bodily injury to the victim.

And that made the TASER, a deadly weapon in that context. Now, if the officer had used the TASER appropriately, and only tased the suspect once and the suspect turned out to have a bad heart he died as a result, so long as the underlying use of force itself was appropriate per training, non-excessive, the officer would not be held responsible, criminally responsible, for that death. He becomes criminally responsible when his use of force becomes excessive and therefore unlawful and therefore the basis for an assault charge.

The court continues: Accordingly, the evidence was sufficient to support appellants conviction for felony murder based on aggravated assault with a deadly weapon to wit, the taser, judgment affirmed.

So, whereas that bring us to an even more recent case just last few weeks, May 30. And this has been in the papers, May 30, 2020. There were two people two young black adults, a male and a female sitting in the car near where writing was happening. They were, I guess, filming it on their camera and the police ordered them to move out of the area. And the facts are a little unclear. They may have moved a little bit and got caught in traffic.

But whatever the case, I guess some of the officers believe they were not being compliant. They were going to be subject to some kind of compliance effort by a half a dozen police officers, a couple of whom deployed TASERs on this young couple, and apparently under circumstances that did not justify the use of the taser, at least that’s what their bosses and the prosecutor have concluded.

And those officers have now been charged with aggravated assault. So use of a TASER by a police officer beyond the bounds of lawful application, excessive force under the circumstance, unlawful use of the TASER, qualifies as aggravated assault, assault involving death or serious physical injury and or deadly weapon.

So TASERs can be a deadly weapon.

Now another question that’s come up, and this is still a little ambiguous, but I just thought I’d explore the factual boundaries of this is that people are arguing that even if Brooks use the TASER, if his use of that TASER, the TASER, he took off the second officer, even if his firing the TASER at the cop pursuing him, even if that constituted unlawful deadly force, again, maybe it wouldn’t have killed a cop, but all it has to do is be likely to cause serious bodily injury.

And by the way, you should have taser someone who’s running and it works and they lock up they’re going to go sliding across the ground. In fact, Atlanta PD itself, their training use-of-force protocol is to not use a TASER on a suspect who’s running because of the risk of much greater injury than would normally be the case.

But in any case, even if the use of the taser constituted unlawful deadly force because it could cause the person, the cop serious bodily injury, wasn’t that threat over after the TASER was fired, meaning isn’t it true that a TASER can only be fired once? And then it’s not a TASER anymore.

Well, that’s not necessarily true, the TASER company does make a version of its TASER, they call it the X2, that’s a TWO shot taser. And, in fact, Atlanta PD has purchased TASER X2 models with the two shots.

Now, it is true that the far more common model of TASER bought by Atlanta PD is the one shot version of the TASER. But they have also bought the two-shot versions and so the pursuing officer would have to, he would know that the two-shots have been purchased by the department, likely have been issued to at least some officers.

Could he know in the brief instant he had to make a self defense decision, could he know with any certainty that the TASER Brooks had seized, which was from his partner, not the cop who ended up shooting Brooks, could he know with any certainty that Brooks did not have a two-shot TASER?

I would suggest he couldn’t be sure of that by any means, especially considering the TASER taken was taken from his partner, not himself. But even if he did somehow know that, it’s also worth keeping in mind again that a TASER can be used in more than one way, it can be used not just in the dart version, but also in the drive mode version. So even if it was just the one-shot version of the TASER, the drive mode method was still available to Brooks, which means if the pursuing officer went hands-on he’d be fighting not just Brooks but Brooks armed with a TASER with the drive mode capable.

Which is not as debilitating as the full muscular lockup caused by the dart method of application, but let’s face it, folks, if you’re fighting a suspect, who’s already demonstrated they’re willing to strip weapons off your belt, do you want to be fighting with him in possession of a drive mode TASER? I don’t think so.

I think that qualifies under those circumstances as a deadly use of force by that suspect, in the resistance of lawful arrest, and with a demonstrated willingness to take weapons off the officers belt.

It’s also important to keep in mind that the the time between when Brooks fired the taser at the pursuing officer and the officer begins to fire his pistol. at Brooks, that’s only about one second, folks. It’s not a lot of time.

It takes it takes time for anyone, their brain to recognize a threat, their brain to formulate a course of action their their body to execute on that cause of action. And if you’re doing all that, and then your brain then perceives the threat’s been neutralized. Well, it takes even more time for the brain to recognize a threat may no longer be present. Of course, in this case, it might still be present if it’s a two-shot TASER. The threat might no longer be present, to choose an alternative course of action then what you were going to do and execute on that alternative course of action.

I’m not sure one second is a reasonable amount of time to expect a normal, hypothetical reasonable & prudent police officer to do all that. Certainly there would be reasonable doubt in my mind about it.

And in particular, it’s also true that the actual firing of the shots themselves from the first shot to the third shot only takes about three quarters of a second. Again, it’s pop, pop, pop, those are quick shots being fired. everything’s happening very quickly, and the law takes that into account.

These US Supreme Court itself has said “Detached reflection cannot be expected in the presence of an uplifted knife.” The law recognizes that when you’re making self defense decisions in a life or threat environment, that you’re making decisions quickly under stress, and we’re not required to make perfect decisions in self defense, and neither are police officers. we’re required to make reasonable decisions in self defense. We can be mistaken and still not have criminal liability if our mistakes are reasonable mistakes.

In particular, this was not the same, I would, suggest as the Walter Scott shooting in South Carolina some years ago. You may remember that Walter Scott, there was some kind of traffic stop, I forget what it was for. He resisted arrest, he fled. He got into a physical scuffle with the police officer who would end up shooting him.

There was a TASER involved for some moments. And then Walter Scott broke away from the police officer attempting to arrest him and fled, fled the scene and as he’s running away, the officer who’d been attempting to make the arrest pulls out a service pistol and begins rather systematically firing a series of shots at Walter Scott.

So this was not the three shots fired in 0.75 seconds, as occurred with Mr. Brooks in Georgia, this was eight shots over more than 2.5 seconds.

And these were not shots fired only one second after Brooks had tried to tase the officer pursuing him. This was eight shots fired when Walter Scott was fleeing, not firing weapons over his shoulder as he ran away, pretty clearly no longer an imminent deadly force threat to the officer.

And you hear those eight shots over two and a half seconds. And especially frankly, folks, there’s this kind of almost deliberate pause between the seventh and the eighth shot. And then Walter Scott falls to the ground, mortally wounded.

That’s a very ugly police use of force event for which that officer is now serving 20 years in federal prison, meaning it’s real time it’s federal time. It’s none of this nonsense, do a third of your sentence and get out on parole. So the officer’s held legally accountable for what he’s done.

And I’m going to share that video with you just so you can see the difference. In fact, first I’ll show you the Brooks video. Again, it’s only a few seconds, it does show someone being shot. So if that makes you uncomfortable, you may want to look away here is the Brooks event and how fast everything happens how close in proximity to the just deadly force threat against the pursuing officer. And then the three shots fired in about three quarters of a second. Here we go.

And then we have the Walter Scott shooting, which is more like this.

That folks just doesn’t look necessary at all.

All right, folks, we’re coming up on the top of the hour. I want to take just a minute to scroll through all the comments and see if there’s any questions that we need to address before we sign out.

Yeah, so folks, if any of you who came in late, just remind all of you about our newest course we’re just finalizing, it is going to be probably a couple hours, maybe more of content, “Lawful Defense Against Rioters, Looters & Arsonists.” If you’re a law, self defense member, you’re going to get access to this for free, so you don’t need to be prepared to buy it. If you’re not a member, you will need to pay for the course.

And if you’re not a member, I have to ask you again, why not folks, it cost something like 33 cents a day less than 10 bucks a month, and you get access to a absolute ton of world-class self-defense law expertise.

http://lawofselfdefense.com/trial

But that course will be finalized this week. If you are a member, you can get the draft version of this on the Law of Self Defense website. It’s in your member area, on your member dashboard, so you can access it there, right now. The final version is probably gonna be about twice as long as the draft version. So there’s a lot more content a lot more illustrated videos.

John Watson asks, how would the police officer know if it was a TASER or handguns shot at him by a fleeing Brooks. Yeah, so it’s a good question. We may not, he may not have known. We see him interviewed afterwards and he says, Yes, Brooks had my partner’s TASER. But he may not have discovered that it was his partner’s TASER until after the fact, not during the pursuit itself. There may have been reason to believe that Brooks in fact, have a firearm. I have the entire like 45 minutes of the exchange between Brooks and the two officers. I haven’t had a chance to watch it in close detail. So I don’t know if the police did a thorough frisk of Brooks prior to the confrontation? If not, of course, it would not be unreasonable to expect that someone who’s fighting the cops and taking weapons off their belt might themselves be armed with a gun, especially when they reach their arm back as they’re running and point something at you that makes a bright flash. So absolutely, it could be quite possible the officer thought he was being threatened with a gun, which only of course buttresses his reasonable perception of self defense again, he would have been mistaken about that. Right? It was not a gun. It was a TASER, and it might even have been just a one shot taser. But if he could reasonably perceive it as a firearm, that’s what he’s allowed to defend themselves against. We’re not required to make perfect decisions in self defense, we’re required to make reasonable decisions in self defense.

Isn’t a true police are not required to be proportional but are allowed to go at least one step above to defend themselves. Yes, not just defend themselves, but of course, compel compliance with lawful orders and lawful arrest. So police have a privilege that those of us who are not police do not have, they can initiate the use of force and have it be lawful. And they can escalate the use of force a step beyond whatever the suspect is attempting to do. And in order to compel compliance, you know, you fight the police, a lawful arrest, and folks doesn’t end well ever. Well, rarely. They’re just going to keep using force until you comply. The only difference between you complying early and you complying late is going to be a bunch of bruises and contusions and abrasions. Maybe getting sprayed with pepper spray which is no joy either.

Steve raises an interesting point here he says the officer may not know if the TASER prongs have made contact or not. Just like a lot of people don’t know if they’ve been shot. TASERs are very often ineffective, folks, very often. So I don’t mean to knock them as a product. I’m sure the company does as good a job as possible. But I’ve just seen more videos than I could possibly count of people being hit with–by the way, Brooks here is hit with a TASER, so he’s tased by the officers and it doesn’t work. So right here, in this instance, as an example, when they do work perfectly they’re amazing, but they often don’t work very well. And it’s possible for the prongs to have made contact and then they move and they either work better or they work worse. So it’s it’s quite possible the officer could still have perceived a threat, even if it was a one shot taser event, even if he wasn’t worried about drive mode, because a Brooks could hit the trigger again send another jolt of current through those prongs, and if the prongs happened to have stuck to the officer, and he wouldn’t likely know whether or not that was the case in the heat of the pursuit, he could get a shock the second time that he didn’t get the first time.

Art asks, I guess is referring to that Supreme Court quote, where detached reflection cannot be expected in the presence of an uplifted knife. The decision might be Brown. The Justice would have been Oliver Wendell Holmes. [AFB: Brown v. United States, 256 U.S. 335 (1921), https://lawofselfdefense.com/law_case/brown-v-united-states-256-u-s-335-us-supreme-court-1921/] But Art, you’re just almost a lawyer. I’m sure you can look it up.

Jim Kirk, and what did they just let him run impound the car and arrest him later? Well, he committed a lot of crimes by then. You know, he committed an aggravated assault against the officers. He was punching them, beating them. And he’s stolen their weapon, their TASER. So he’s a felon now, a felon in flight. And with the TASER, a reasonable argument can be made that he’s still a deadly force threat to the public, just like he tried to use a TASER against the pursuing police officer.

Now, having said that, certainly an argument could be made that that ought to be Atlanta Police Department policy. That could be the policy for any law enforcement agency. Hey, if the suspect fights you and runs, don’t chase him. That is a public policy argument. But it’s not really a use of force law argument, which is why I’ll leave it up to the public policy mavens out there.

Okay, folks, I think that’s about all I have for everyone today. I think I’ve gone through most or all of the comments.

As always, before I let you all go I just want to remind you that if you carry a gun, and I personally carry a gun, have my whole adult life expect I will for the rest of my life. I carry that gun so I’m hard to kill. That’s the only reason, so my family is hard to kill

If you carry a gun so you’re hard to kill, you also owe it to yourself to make sure that you know the law so that you’re hard to convict. You don’t want to survive the physical fight only to end up in a cage for the rest of your life.

Make sure you know where the legal boundaries actually are. Don’t trust people just because they have a job title, learn the actual law of self defense. And hopefully I’ll see a bunch of you at the After Action Analysis show tomorrow. That’s where we’ll go into that Brooks video in more detail. That will be at right here on Facebook Live at 2pm. Eastern Time, 12 Noon Mountain Time where I am. So hopefully I’ll see a bunch of you there.

And until then, as always, stay safe.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC