By February 7, 2012

Rethinking Civilian Rules of Engagement

On New Year’s eve last year, Oklahoman Sarah McKinley shot and killed one of two intruders while on the phone with a 911 operator. The intruder she killed was allegedly armed with a large knife.

Several aspects of this incident were analyzed (and criticized) in the media. Some contend that the 911 operator gave “permission” for McKinley to shoot. After listening to the actual 911 call I disagree that the operator said it was okay.

Before reading the rest of this post, please give the video a view.

Okay, welcome back.

Some people have taken issue that McKinley didn’t know if it was legal to defend herself or not. This is partly due to the ignorance of Mrs. McKinley. Moreover, this speaks to the convoluted, over-complicated, and dangerous decision tree citizens in most states have to follow before legally defending themselves.

What you have to consider before legally defending yourself:

In Minnesota, my current state of residence, here’s the process diagram someone has to follow before they can legally defend themselves with a firearm:

This is actually simplified, as there are sub-routines within several sections of the chart. For example, the disparity of force section has many decision points within it that have to be evaluated before proceeding.

Oh, did I mention this all needs to happen in the three second window during which most violent encounters occur? Once a stressful situation happens, trying to remember what you’re supposed to do and in what order probably goes out the window for most people.

I’ve had a concealed carry permit for the last fifteen years of my life. As a responsible firearm owner and someone who carries a firearm, it’s up to me to know concepts like “continuum of force,” “duty to retreat,” “stand your ground,” etc. It’s also on me to know when and where it is legal to carry a firearm, and the legalities of using one.

Unfortunately, not every firearm owner studies these unnecessarily complex rules of engagement. While we all wish every firearm owner practiced all the time, knew all the legal codes, and was an ethical person, we know that there are bad apples in every barrel.

And frankly, some of the rules here in Minnesota are just plain dumb.

Making the stressful more complicated: Duty to Retreat

“Duty to retreat” places a burden on the civilian to escape whenever possible as long as it doesn’t endanger that person.

The practical aspects of figuring out a safe avenue of retreat is a discipline unto itself. What may appear safe may actually be dangerous. Many assaults and robberies involve multiple assailants, some of whom are concealed from immediate view. Figuring out your escape route in order to fulfill a legal requirement is just one more decision point to make during an incredibly stressful situation.

I also have some ethical problems with this requirement: why should someone being attacked be forced to retreat if possible? Why is the legal burden on the victim and not the aggressor?

Even if you agree with duty to retreat, the rest of the decision tree is tough to adhere to. That’s because a lot of the criteria is subjective. Here’s another example:

Is it bigger than a breadbox? Disparity of Force

“Disparity of force” is the evaluation of the physical, mechanical, or training advantages one person (or persons) may have over another. Two persons of equal size typically means the disparity of force is not great enough to use a firearm — but what if one of the people has a lifetime of training in unarmed combat? Perhaps that person launches a surprise attack that renders the other person at a distinct disadvantage? By then it may be too late to re-evaluate the disparity of force.

The disparity of force evaluation puts unreasonable demands on the victim — both in terms of pressure and in terms of knowledge.

Pressure: Oh shit he’s trying to punch me in the face! Ow that hurts! Is he strong enough to really hurt me? Does he have enough technical aptitude to strike effectively? Am I bleeding? Does he have friends hiding somewhere?

Knowledge: do you know the difference between striking effectively and not? Do you know the difference between grappling and just flailing around on the ground? Worse yet, does knowing these things make you the more dangerous combatant, thereby tipping the disparity of force scales against you in a court of law?

It’s ridiculous, just like the majority of the other gates we have to pass through to legally defend ourselves.

Here’s my proposed decision tree:

Hrm … where are all the boxes, diamonds, lines and decisions?

Gone. Everything is thrown out the window after you answer two simple questions. Our current legal system covers the rest. We don’t need the additional decision points in the current rules of engagement.

Are you or someone else in physical danger?

This distills everything down to something obvious. Note that the degree of danger is not indicated. The victim no longer has to attempt to comprehend every scenario, situation, or complication before deciding to act. The victim does not have to evaluate if the person attacking them is an untrained angry person with a knife, or someone who has had a ton of bladed weapons experience, either formally or in incarceration.

Did you provoke the aggression?

This rule is important. Don’t start shit and then go to your fists, knife, or gun to do your talking for you. One of Sedagive?’s co-workers lamented last week that she couldn’t flip people off in her car any more because, “people have guns, yaknow.” Maybe she shouldn’t be flipping people off in her car in the first place? How about not instigating trouble?

Ward Cleaver said it best in the series Leave It to Beaver: “Never trouble trouble until trouble troubles you.” Sounds corny, but isn’t it the truth? Stop being a dickhead. The world has enough problems.

Why is this system in place?

The theme of the decision tree is don’t stand up for yourself unless you have to. Run away, use as little force as possible, and only defend yourself if there is overwhelming force against you.

In the case of a one-on-one encounter, one person may be dead and the other person has a vested interest in saying that it was in self-defense. Maybe the checklist is a crutch used by the legal system to determine innocence. Perhaps someone thought the tree was a way to increase the possibility that a shooting was in self-defense: “There were three guys armed with knives, so I ran into the bedroom, called the police, got my gun, and then shot them when they came through the door.”

Does the decision tree always point towards innocence? No, but maybe it does more often than not.

However, I have a huge problem with this approach: the burden of innocence is on the victim. You have to prove you were justified in defending yourself. You have to demonstrate you tried to get away, that you tried to use the minimum amount of force to stop the threat, and that you were blameless in escalating the encounter into violence.

That’s a lot of stuff to prove if you’re really innocent until proven guilty.

I have a feeling that the system is also in place to give the legal system a measuring stick for finding murderers guilty. It seems easier to demonstrate that someone was an aggressor if they didn’t do any of the things in the decision tree. That’s understandable and all, but doesn’t help you or a loved one if you are in a violent incident. I feel like the decision tree makes things easier for the government after the incident has occurred, and does little to help the victim during the incident itself. This runs counter to my overall philosophy of government. Government should exist to help and protect its citizens, not to make things easier on itself.

Now, the million dollar question is: will the simplified tree I proposed achieve the same result? Would it cause more problems than it solves?

I am only familiar with self-defense shootings or incidents of predation by criminals on citizens. Maybe most violent incidents occur between two criminal parties, in which case the checkpoint system is an easier way for the legal system to determine guilt. I presume that one side is innocent, and the other is the aggressor. But what if both sides are aggressors?

My simplified system takes care of that, too — if you started shit, you’re in the shit.

Perhaps I’m missing something. Let me know what you think, especially if you’re involved in the criminal justice system. Maybe I’m biased because my training and research focuses on innocent citizens and not a (presumably) over-represented criminal element.

TL; DR

People who are against gun ownership and self-determination rolled their eyes when Sarah McKinley defended herself late last year. There was a lot of scrutiny put on the 911 operator when McKinley asked if she was okay to shoot the two men who broke into her home.

The current civilian self-defense rules are difficult, complex, and open to interpretation. It supports the legal system and not the victim. The checklist is dangerous, and replacing it with a simplified version may make it easier on citizens. It may cloud the issue when both parties are breaking the law, or when situations aren’t clear cut.

This post is not legal advice. Please seek professional firearms training. Make sure you know the applicable local, state, and federal laws for protecting yourself. If you have additional questions you may wish to consult a lawyer.

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1 Comment on "Rethinking Civilian Rules of Engagement"

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  1. Kirk says:

    I stumbled across this blog via a web search for a Rock Island Arms 1911. I’ve read through quite a few of your posts and enjoyed them for their intelligence and humor.

    On the topic at hand, I remember my very first LOAC and RoE briefing in Afghanistan. The rules had recently changed and were presented in a format close to “Err on the side of your men coming home.” This will always be my basis for discharging my concealed weapon. I have a responsibility to defend my family and my friends. However, I am in complete agreement with your “no provocation” qualification. People need to remeber that real pros handle their business and stay quiet. No sense in adding to the five o’clock news if you don’t have to.