Denver Shooting Errors: “OC is Non-Deadly Force!” and “Han Shot First!”

NOTE: I have unlocked this blog post from member’s only access only for the week of March 14, 2022.

Welcome to today’s Law of Self Defense Members-only content, in which we take a look at some of the key issues in this past weekend’s protest/anti-protest shooting in Denver of Lee Keltner by Matt Dolloff.

As is often the case in such events the initial “facts” surrounding the shooting are a combination of true facts, propaganda, agenda-driven wishful thinking, mind-reading, projection, and outright lies.

Indeed, it’s this factual complexity that so often makes legal analysis of use-of-force events challenging. The use-of-force law itself is pretty straightforward, after all there are only up to the five elements of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. There aren’t 500 elements or 50 elements, there are only (up to) those five elements.

Easy, peasy.

What’s complicated, however, is the real world, because the real world involves messy humans and imperfect information and motives to lie and the human tendency to project and mind-read, and so forth.

The law is simple and straightforward, but the facts are messy and complicated, and it’s those messy and complicated facts that make legal analysis challenging.

We have pretty much all of those messy fact confounding factors at play in this shooting in Denver this past weekend, involving shooter Matt Dolloff and victim Lee Keltner.

Now, a couple of days after the shooting, we’re beginning to get improved clarity of the actual evidence-supported facts and better disclosure of the disinformation so often tightly bound into the first narrative versions of such events. Which is what we should all hope for: increased clarity, decreased ambiguity.

At least, this is true for those who wish to see the disinformation for what it is, and desire evidence-based clarity. In contrast, the agenda-driven activists and propagandists will continue to push the disinformation and ambiguity so long as doing so serves their purposes, which may well be forever—clarity of evidence is poison to the political purposes of such people.

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Unfortunately, I’m obliged to note that such activism and propaganda can be pursued by both sides of aisle, and that’s occurring in this case. Anyone who instantly, based on the initial and clearly incomplete first information available on this case, jumped on the “CLEARLY THE SHOOTER COMMITTED MURDER!!!11!!!” or “CLEARLY THE SHOOTER ACTED IN LAWFUL SELF-DEFENSE!111!!” was doing so for reasons other than having a best-possible understanding of the actual facts of the case and the applicable law.

Indeed, alternative versions of the initial facts could have supported either of those two narratives, given the incomplete nature of the available evidence—in particular, the early evidence, despite consisting of partial video and a closely-spaced series of snapshots, failed to definitively illustrate whether it was Dolloff (the shooter) who was the initial aggressor in the confrontation, or whether Keltner was the initial aggressor, or whether the two men were effectively engaged in mutual combat.

All of those issues touch upon the element of Innocence in the use-of-force analysis, and while that’s not the only element of analysis relevant in this case, it certainly appears to be the initial and most decisive element that must be understood.

Combine that factual ambiguity with projection and mind-reading, and things quickly turn into a soup of confusion.

That said, there are a couple of conceptual mistakes that appear particularly common in discussions of this case. The first of these is the “OC is non-deadly force!” conceptual error, and the second is what I call the “Han shot first!” conceptual error.

Let’s take each of those in turn.

“OC is Non-Deadly Force!”

First, I want to note that I’m aware that the victim in this case, Keltner, was apparently armed with a large bottle of bear spray, as opposed to a more typical self-defense canister of OC of the type many of us may carry around on a routine basis.

In the interests of avoiding getting buried in semantics and chemistry, however, I’ll simply refer to the chemical involved as OC (likely the active ingredient, in any case), because the relevant legal doctrines are the same regardless.

Second, because all of us are law-abiding members of society, we tend to think of OC solely in its (intended) defensive context, and therefore adopt the working understanding that OC spray is invariably a non-deadly defensive tool that inflicts only non-deadly force.

And it’s true that legally speaking OC spray is invariably deemed a non-deadly defensive tool that inflicts only non-deadly force—but that’s true only when OC spray is being used in a defensive and lawful manner, for defensive and lawful purposes.

When OC is being used for offensive and unlawful purposes, however, it is quite common for such use of an intense and disabling chemical irritant to be deemed to be deadly force.

Importantly, we must recall that the legal concept of “deadly force” includes more than just force readily capable of causing death. It also includes force readily capable of causing serious bodily injury (or grave bodily harm, or serious bodily injury—or some other three-word combination describing the same concept common across all 50 states).

When used offensively it’s quite common for courts to find that the burning, pain, sustained irritation, and impaired respiration, as well as the debilitation of the victim’s ability to defend themselves from further attack, constitutes serious bodily injury.

This is true on both the state level, where the use of a chemical irritant is often involved in some interpersonal altercation by adults squabbling like children, as well as on the federal level, where chemical irritants are not uncommonly used to facilitate bank robberies (with the robbers spraying down the tellers and customers inside the bank in order to facilitate their robbery).

In such cases it is not at all uncommon for the person who used the chemical irritant unlawfully and offensively to find themselves charged with an aggravated assault or battery, a felony, on the grounds that the use of the chemical irritant qualified as deadly force (readily capable of causing serious bodily harm), as opposed to being charged with a simple assault or battery, a misdemeanor, based on the use of merely non-deadly force.

Generally the characterization of the use of OC spray as deadly force is only ever attempted when it is incontrovertible that it’s use was offensive and unjustifiable in nature—such as the bank robbery scenario—without any reasonable defensive explanation for its use.

Where OC spray is used in an arguably defensive manner it is invariably characterized as merely non-deadly force—just as all of us were taught would be the case when we took our defensive OC spray courses, which (naturally) considered OC only in the defensive context.

The bottom line is that whether OC spray qualifies as a use of non-deadly force or as a use of deadly force (readily capable of causing serious bodily injury) is a function of the manner of its use. Used defensively, it is non-deadly force. Used offensively, it may well qualify as a use of deadly force.

In other words, the blanket statement or understanding that OC spray is always merely non-deadly force, absent consideration of the manner of its use, is simply wrong.

Imagine, for example, that you were carrying concealed, but were the victim of unlawful aggression by someone who informed you that they intended to take your pistol from you and kill you with it, immediately after which they presented a can of OC spray with which to debilitate you in order to facilitate their seizure of your pistol.

Does their imminent use of OC spray constitute only non-deadly force, such that you would not be privileged to use your pistol to defend yourself?

Of course not. Their use of OC spray is offensive in nature, intended for the purpose of debilitating you, in order to facilitate their ability to follow that attack with the use of unlawful deadly force upon you. The use of deadly defensive force to neutralize that imminent attack would be lawful (assuming, of course, that all the other conditions of self-defense are present, as well).

In the context of the shooting of Keltner by Dolloff, then, it’s not simply a matter of “OC is non-deadly!” such that there could be no way that Keltner could have been justified in using deadly defensive force.

Rather, the question is whether the OC was being used in a defensive manner (in which case it would qualify as only mere non-deadly force) or in an offensive manner (in which case it could qualify as deadly force, justifying a deadly defensive force response).

In other words, the question is whether it was Keltner who was the initial aggressor in the confrontation, wielding the OC spray offensively, or whether it was Dolloff who was the initial aggressor in the confrontation, and therefore Keltner would have been wielding his OC spray defensively.

“Han Shot First!”

Another major area of misunderstanding I’m observing in social media discussions of the confrontation between Keltner and Dolloff was who “fired first.” That is, did Keltner start spraying before Dolloff started shooting, or did Dolloff start shooting before Keltner started spraying.

In available video it would seem that Keltner started spraying a fraction of a second prior to Dolloff firing his single shot into Keltner’s face. Even if so, however, is that decisive?

The answer, perhaps surprisingly, is not really.

Self-defense, and specifically the identity of the initial aggressor in a confrontation, is not determined by who fired the first shot (or sprayed the first OC or struck the first blow, etc.). Rather, the initial aggressor is the first person to use or threaten to use unlawful physical force upon another.

Further, the defender need not wait until unlawful offensive force is actually used upon them, until they are hit with the first shot, or dosed with the first spray, or struck with the first punch. The law of self-defense instead allows us to defend against the imminent attack, the attack that is about to happen.

Understanding this, would you need to let yourself be unlawfully sprayed with OC by an aggressor before you could lawfully use your pistol defensively under those circumstances (presuming the OC is used offensively and qualifies as a deadly force attack)? Before you could even present your pistol? No, you don’t have to first allow yourself to be sprayed, you are privileged to defend yourself against the imminent spraying.

Conversely, would you need to let yourself be unlawfully shot by an aggressor before you could lawfully use your OC defensively under those circumstances? Again, no, you don’t have to first allow yourself to be shot, you are privileged to defend yourself against the imminent shooting.

It’s all a bit reminiscent of the old “Han shot first!” meme. The meme refers, of course, to the scene in the only good Star Wars movie (the 1977 film), in which Han Solo is taken at gunpoint by bounty hunter Greedo. Greedo plans to shoot Han dead and bring Han’s body to Jabba the Hut for a substantial reward.

While Greedo is explaining his plans to Han while holding Han at gunpoint, and Han is purportedly trying to talk Greedo out of those plans, Han is working under the table to surreptitiously remove his pistol from his thigh holster. With Greedo just about to shoot Han, Han finally gets the pistol free, he shoots Greedo without warning.

In this sequence of events Han obviously “shot first.” Does that make his shooting of Greedo unlawful (under modern American use-of-force law)? Of course not. Han was privileged to defend himself against Greedo’s imminent use of deadly force. He need not wait until Greedo actually shoots him. Han can shoot Greedo in self-defense to prevent being shot by Greedo in the first place.

So, did Han shoot first? Yes. Did that make Han’s use of initial force unlawful? No, because he was responding to an imminent unlawful threat of force by Greedo.

The same principles apply in the confrontation between Keltner and Dolloff. What matters is not necessarilyy who sprayed first or who shot first, but rather who was the initial unlawful aggressor. The initial unlawful aggressor has privileged the other lawful party to be the first to use force, to strike the actual first physical blow, in order to prevent the imminent unlawful attack upon them.

So, who was the initial unlawful aggressor between Keltner and Dolloff? Well, based on the video and snapshots I’ve seen so far, that key issue remains ambiguous, and until it’s been made unambiguous it’s going to be difficult to know whether it was Keltner or Dolloff who was acting lawfully.

Of course, it’s also possible that neither was acting lawfully, if both men were acting simultaneously as initial unlawful aggressors. This occurs under circumstances of mutual combat, in which two parties explicitly or constructively agree to settle their differences through mutual combat.

Where we have mutual combat, then both parties are initial aggressors, both have lost the element of Innocence, and both have therefore lost the legal justification of self-defense. Keltner is, of course, beyond judicial sanction, but Dolloff would be left without a legal justification for his shooting of Keltner.

Even there the analysis does not necessarily stop, at least in a theoretical sense. It’s possible that Keltner might have been an initial unlawful aggressor or mutual combat, losing Innocence and self-defense as a result, but then regained Innocence by withdrawing from the fight (it appears from photos that Keltner might have been moving backwards at the end) or regained Innocence because Dolloff escalated what might have been a non-deadly force mutual combat to a deadly force level by bringing his pistol into play.

Had Keltner survived the fight and been facing criminal charges, regaining of Innocence would have been relevant to his defense had he planned to raise the legal defense of self-defense.   Being dead, he no longer has such concerns. As for Dolloff, whether Keltner might have regained Innocence can be of no help to him, so the legal outcome for Dolloff would be unchanged. (I suppose, if we are to get very theoretical, if Keltner had not regained innocence it could potentially mitigate Dolloff’s criminal liability from murder to manslaughter.)

More Analysis to Come: A Hypothetical Narrative to Consider

I assume that further facts will emerge about this event in coming days, and also that instances of disinformation will be exposed (such as the early claim that Dolloff was private security hired from Pinkerton). As new facts emerge, you can expect we’ll do additional legal analysis of this event moving forward.

In the meantime, here’s one proposed narrative that Dolloff’s shooting of Keltner was not lawful self-defense, but rather an unlawful killing. I’m not yet convinced that this narrative will prevail, but it appears consistent with the evidence that I’ve seen—of course, the reason I’m not convinced it will be prevail is I can readily imagine contrary evidence that might support a narrative of self-defense by Dolofff.

In any case, I present this narrative of unlawful killing here as a hypothetical model for discussion purposes, not as a presentation of fact. If you’re aware of evidence that either supports or contradicts this narrative, throw it up against the collective Law of Self Defense comments wall and we can debate what appears to stick.

Full disclosure, this prospective narrative of unlawful killing is not of my own creation, but rather observed by me on Facebook, as published there as a comment by one Hugh H. Tanner (photo compilation also provided by Tanner):

A continuum of force discussion

Doloff tried to take Keltner’s holstered firearm.

Keltner hit Doloff in the face to prevent him from doing so.

Doloff drew his pistol.

Doloff advanced as Keltner retreated.

Keltner sprayed (less than lethal) and Doloff fired (lethal)

First-degree murder.

That narrative unlawful killing is, again, presented not as fact nor as a definitive work of analysis, but merely for discussion purposes. (Also, note that I’ve spelled Dolloff’s name with two “l”s, and Tanner uses one “l”. I’ve seen it written both ways, and am unclear on which is correct—for our purposes we’ll treat them synonymously.)

OK, folks, that’s all I have for you for Law of Self Defense Members-only content for the moment …

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Remember

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Know the law so you’re hard to convict!

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC