Lawful Self-Defense as a motorist during a riotous attack

Those of us who have been around a while have the graphic 1992 attack of Reginald Denny burned into our psyche. In recent days, we've been treated to footage from Charlotte, North Carolina, scenes of violent troublemakers blockading traffic, then looting tractor-trailers and attacking motorists based upon the skin color of their drivers.

What happens if that's you in one of those cars? What would you do? If your instinct is to pull out your heater and start administering some ballistic dissuasion, you need sit down and think about things dispassionately.

Professor Glenn Reynolds (a.k.a. Instapundit) found himself suspended from Twitter for posting "Run them down" in response to crowds blockading Interstate I-277, I-85 and other local streets.

It's worth noting that professor Reynolds clarified his original "Run them down" post with some explanation of its meaning. He noted Twitter's character limit handicaps the ability to include nuance. Here it is from Instapundit:

But riots aren’t peaceful protest. And locking interstates and trapping people in their cars is not peaceful protest — it’s threatening and dangerous, especially against the background of people rioting, cops being injured, civilian-on-civilian shootings, and so on. I wouldn’t actually aim for people blocking the road, but I wouldn’t stop because I’d fear for my safety, as I think any reasonable person would.

Professor Reynolds' Twitter account was re-instated in short order, but it raises an interesting question for everyday Americans: in what circumstances could you either use a firearm to extricate yourself from a mob blockading traffic, or press down the accelerator to "run them down," to quote the good Professor?

What's the best way to win a gun fight? Don't be there. Ditto for any confrontation. Our own RF asked in the DeSantis Gunhide Question of the Day, "Best Gun for Personal, Property Defense During a Riot?" If you find yourself outside of your home or business with a gun in your hand, there are some important questions you should have thought about ahead of time. Your family's health, wealth and ability to earn an income will depend on you knowing the legalities of using deadly force justifiably in such an instance.

The same rules apply here as would apply if you're in your car or on foot in a dangerous situation. If you're at home, you have a bit of wiggle room, but the fundamental rules apply.

Avoid the area of the unrest if at all possible. De-escalate if you can. De-escalation includes retreat if you can do it safely. While retreat isn't demanded in many jurisdictions, it surely looks good to investigating officers, prosecutors, and jury members should you eventually find yourself in the sights of a subsequent (possibly politically-motivated) prosecution.

In general, you can only use deadly force when you face a legitimate risk of death or great bodily injury. Attorney Andrew Branca, the well-known expert on self-defense law and author of the excellent book “Law of Self Defense, 3rd Ed.” wrote this over at Legal Insurrection puts it this way:

In short, one would apply the usual five elements of a self-defense justification to evaluate such a use of force against others, just as in any other instance of self-defense.  Those elements are, of course: innocence, imminence, proportionality, avoidance, and reasonableness.

When all required elements are present, the use of force was legally justified. If any required element is missing, whatever that use of force might have been it was not lawful self-defense.

One of the challenges to legally justifying the use of force against highway blockades is the element of imminence. Do people who are merely blocking a roadway represent an imminent threat against which some defensive force might be justified?

A second challenge is the element of proportionality.  That is, if the force contemplated to be used against them is one’s vehicle, this will almost always constitute deadly force–that is, force capable of causing death or grave bodily injury.   Deadly force can be used in self-defense only the force with which you are threatened also constitutes deadly force.

Unfortunately, persons merely blockading a highway do not inherently represent an imminent deadly force threat–simply blocking a roadway cannot normally cause death or grave bodily harm to those injured.  As a result, using one’s vehicle to “run them down,” or even to physically push them aside, is unlikely to be legally justified unless there is some additional threatening conduct.

It is also worth noting that if you respond to even a legitimate threat that is non-deadly in nature with a deadly force response, it’s quite possible that you will be deemed the deadly force aggressor, even if the other party was the non-deadly force aggressor.  In that case the other party could well be legally justified in using deadly defensive force against your deadly force aggression.

Chilling, right?

Branca goes on to explain what happens when rioters begin to attempt to violently or tumultuously enter cars or begin to commit arson against occupied vehicles. This is when the window to use deadly force opens.

Branca continues:

Note, however, that so far we’ve limited the discussion to using force against people who are merely blocking a roadway.  Things change dramatically if they exceed that limited conduct and being to actually direct threats or actual force against those they have blockaded.

Once a person being blockaded has been placed in reasonable fear of an imminent deadly force attack, then that person would be legally entitled to use deadly force in self-defense, including the use of their vehicle to “run them down” and neutralize the unlawful deadly force threat.

The question then is what would be required to generate a fear of imminent deadly force that would be deemed reasonable by police, prosecutors, judges, and juries.

Certainly if the protestors attempt, or reasonably appear to attempt, to forcibly enter the blockaded vehicles, this would constitute reasonable grounds to fear an imminent deadly force attack.  Such conduct would include the smashing of windows or attempts to force open doors.  The same applies to attempts to set vehicles on fire, or to flip vehicles over.

Note that a defender need not necessarily wait until the protestors have turned violent against his particular vehicle.  If they have begun threatening or using deadly force against other blockaded vehicles it is reasonable to infer that your own vehicle is likely to be next — you are, after all, legally entitled to defend yourself not just against the danger already occurring to you but also against the danger that is about to occur, that is imminent.

I caution, however, that you can’t just speculate that some danger about to occur, you must be making a reasonable inference from actual evidence (e.g., observations) around you.  “For all I knew they were about to start setting cars on fire,” is not enough, that’s mere speculation.  “I saw someone approach with a Molotov cocktail,” or “I saw other vehicles ablaze” is, in contrast, evidence from which one can reasonably infer an imminent threat.

So there you have it. Branca and others have noted a couple of excellent articles on "best tactics" for dealing with a violent mob that's trying to attack you while in a vehicle. Again, neither recommend the firearm as anything but literally a tool of last resort: as in, you have to flee your burning vehicle after it's been immobilized.

I highly recommend the following, as did Andrew Branca: Greg Ellifritz of Active Response Training: “Surviving Mob Attacks on Your Vehicle” From Active Self Protection: “Using a Car to Escape a Mob”. Stay safe out there.