This case of the week involves an armed employee stopping a vicious bare-handed attack in the kitchen of a Milwaukee restaurant:



The scene is in a cooking area of the restaurant where two women are working, one closer to the camera than the other. A large black male enters the frame just below the camera, stepping behind the counter. He throws a vicious punch into the face of the closer woman, who reels back in stunned pain.

The male continues to advance on the second woman. She, however, guides the punched victim behind her with her left hand and presents a handgun at the face of the attacker with her right hand. The male stops his advance but certainly takes his time departing the scene, apparently speaking at the armed woman the entire time.

This attack touches upon a couple of related legal issues I thought were worth discussing: Proportionality of force, highly defensible property, and how they interact.

Proportionality of Force

For use-of-force purposes, the law defines force as either non-deadly force or deadly force. A use of defensive force must be proportional to the threat. That is, the degree of defensive force must be no more than proportional to the degree of the unlawful attacking force.

So if you are faced with only non-deadly force attack, you may use only non-deadly defensive force. Only if you are faced with a deadly force attack, you may use deadly defensive force. (In both cases, all other required elements of self-defense also being present, of course.)

A bare-handed attack is generally deemed by our courts to be a non-deadly force attack, absent aggravating circumstances. This means it can be defended against lawfully only with non-deadly defensive force. In this case, the second woman defended herself with a gun, clearly deadly force, against a bare-handed attack by an apparently unarmed male. Does that make her use of the gun disproportional and therefore unlawful?

Bare-Handed Attack as Deadly Force

Not necessarily, because of the presence of those “aggravating factors” I just mentioned. Such aggravating factors can include when the bare-handed attacker is much stronger than their victim, or much larger. It can also occur when the attacker has a much greater degree of bare-handed fighting expertise than the victim. Another aggravating factor can be an exceptional degree of viciousness by the attacker. [Added: Note that these aggravating factors do not create an automatic license to use deadly defensive force; they merely contribute to a fact-pattern that may allow the use of deadly defensive force. -AFB]

Interestingly enough, many of the aggravating factors tend to be “baked into the cake” when we have a male attacker and a female defender—the male is usually stronger and larger than the female, often has greater experienced in fist fights, and given the societal norms against males striking females such an attack is commonly perceived as exceptionally vicious.

Indeed, we can see pretty much all those aggravating factors in this case, and thus it is arguable that the woman’s use of the gun against a bare-handed attack was a proportional response on the merits (a position strengthened by the fact that although she threatened deadly defensive force she did not actually shoot him).

Highly Defensible Property

There’s another argument for why her use of deadly defensive force may be legally proportional even against a barehanded attack, and that’s the fact that the attack took place in highly defensible property.

Highly defensible property is specific types of property for which special provisions have been made to allow the use of deadly defensive force in the context of that highly defensible property where that use of force would not be lawful absent the context of the highly defensible property.

Legal Presumptions of Reasonableness

A common special provision of this sort is the creation of a legal presumption of a reasonable fear of imminent death or grave bodily harm. That is, deadly defensive force can be lawful even if the attacker does not actually present a deadly force threat, because it is legally presumed that he presents a deadly force threat.

When triggered, this gives the defender three of the five elements needed to justify the use of deadly defensive force. A fourth element, avoidance, generally doesn’t apply in any case in the context of highly defensible property, under the Castle Doctrine. The only remaining element to justify the use of deadly force, then, is that of Innocence—that is, you still cannot have been the physical aggressor.

Wisconsin, where this event took place provides for precisely that kind of legal presumption in the context of highly defensible property, and they also include place of work as highly defensible property.

Unlawful & Forcible Entry

The only catch, in this case, is that before the legal presumption may be triggered, the attacker must unlawfully and forcibly enter the property. In this instance, the attacker entered the property as a patron, and therefore lawfully and by license. He also, of course, did not use force to enter the property.

That said, I believe a good argument could be made that his license to enter the property extended only to those portions of the property meant to be used by the public. I would argue that the back kitchen was not public and therefore his entry into that portion of the property was unlawful.

I would also argue that his punching of the first woman constituted a forcible entry into the back kitchen. We would then have the unlawful and forcible entry necessary to trigger the legal presumption justifying the use of deadly defensive force, even if the attacker did not actually present a deadly force threat.

Video Column

If you’d like to watch a video version of this column, simply click here.

–Attorney Andrew F. Branca, Law of Self Defense LLC

Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.

[Featured image is screen-capture of surveillance video released by police authorities.]



