On Reasonableness
by Gila Hayes
“Reasonable and prudent” are words encountered in classes, articles, books and videos that discuss use of deadly force in self defense. Like the ideal of “common sense,” I have to wonder if the emotional “it’s all about me” attitude so prevalent today blinds many to the objective standard of what is a reasonable, prudent person. I started pondering the concept of reasonableness after Massad Ayoob’s August interview about legal defenses for innocent people. The concept came up again in the interview with MN Attorney Blair Nelson, which leads this edition of the journal.
Acting to the standard of a reasonable person has been described as a duty. Failing to act reasonably or with prudence has been long recognized as creating liability for loss and injuries. This goes all the way back to 19th century England, legal commentators relate, when a farmer who stacked hay too close to some dwellings was warned that sparks from stoves and lanterns could ignite the hay. He stubbornly failed to acknowledge the risk of fire. Predictably, the haystack did indeed catch fire and damage the cottages.
While it is not hard to understand why a 19th century English court of common pleas found the farmer had not behaved within the standard of a reasonable person, he had not been given a specific model individual to mimic (as in the popular theme “What Would Jesus Do”) because the “reasonable person” is hypothetical, something of an amalgamation of all the good, careful people we know who practice caution, care, and consideration. Although not specific, that’s what is held up as the objective standard when our actions are being judged. Want examples of what doesn’t meet the standard? Look to case law, as illustrated by Blair Nelson’s explanation of the incident behind Minnesota’s expansion of the duty to retreat. Blevins’ actions on that train platform were so far outside normal standards that several courts have found his reaction to “come over here out of view of the cameras and let me slit your throat” unreasonable.
Digging deeper, the question of what is reasonable gets even more interesting. For example, children aren’t expected to exercise the same good judgment a reasonable adult should demonstrate. There are interesting cases that point out that a two-year old that starts a fire isn’t individually liable for the resultant destruction; a blind person isn’t expected to act to the same standard as a sighted person, found another court. Reasonable behavior during an emergency is evaluated against what would be reasonable for an ordinary person facing a highly stressful situation where immediate response is required to avoid catastrophy, death or injury.
I found myself musing about these principles after August’s interview with Massad Ayoob in which he emphasized the importance of defense attorneys striving to keep juries continually aware that the actions they are judging resulted from decisions made and actions taken during extremely compressed time frames when failure to act was likely to cost innocent life. Then, Blair Nelson, answering questions about how armed citizens should apply the expanded duty to retreat spelled out in the MN Supreme Court’s Blevins’ decision, emphasized the value of reasonable reactions and non-aggressive demeanor in word and action.
A third discussion of reasonableness reinforced Ayoob and Nelson’s words when columnist and retired police officer and trainer Rich Grassi commented in his Tactical Wire (thetacticalwire.com) column about Supreme Court decisions applying standards to police use of force. His column mentioned Graham v. Connor, which the USSC decided in 1989, and held that officers are expected to be objectively reasonable when using force during a stop, arrest or seizure. Objective reasonableness relies on considering the facts and circumstances related to the use of force when analyzing whether what was done was appropriate to the situation.
In Graham, the USSC ruled, allow me to paraphrase, that the reasonableness of police use of force could not be judged through hindsight, which weighs not only the beginning, middle and end, but also what comes afterwards. Police, and by extension, private citizens aren’t required to possess and exercise the gift of prophecy before using force to stop criminal violence. In Graham, standards may only reflect what a reasonable officer involved in the incident would perceive, “rather than with the 20/20 vision of hindsight … (t)he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation,” said the court.
While not requiring omniscience, people who have special skills may be held to higher standards, as we see illlustrated in our expectation that doctors will know what to do in response to most medical emergencies.
There’s an interesting spin-off to that expectation – what extra level of responsibility, if any, is expected of someone who controls something out of the ordinary like a dog or a bull that could be dangerous or one of those extra large motorhomes we see trundling down the highway with cars in tow? Unlike doctors, lawyers, or even drivers who navigate big freight trucks through traffic (albeit often longer, heavier and serving a commercial purpose so subject to stricter governmental regulation), Americans stand strong for the freedom to travel in motorhomes without begging a government bureaucrat for permission to pilot a high capacity vehicle, and although some states require additional license endorsements, not all do.
Like an onion, thinking about reasonableness and who determines what is reasonable just gets increasingly interesting (or in the case of the onion, pungent) with each layer you peel away. In August, I was gifted a second pistol that’s nearly identical to the one I carry. It had been quite a few years since I’d bought a new gun, and in the intervening time, Washington State had – no surprise here – implemented mandatory training before the gun store can hand over the firearm.
Despite my bad attitude about the mandate, the online course hosted by Vancouver, WA’s Sporting Systems was pleasant, attractively produced and stressed at every opportunity the God-given rights of American citizens. Their online certification course tells the truth about gun restrictions while also meeting the requirements of WA’s law requiring gun buyers to present a training certificate in order to take possession of a firearm. While it probably didn't make me any more reasonble, it was a great example of making lemonade out of a ton of lemons.
In other states and federally, the past several decades have been a time of regaining a goodly number of freedoms armed citizens had lost to aggressive governments. To protect and expand on that progress, may I respectfully suggest, as Don Hammond did in his lead interview, that it is critical at every opportunity to come out of the closet and tell friends and relatives how you have invested in exceeding what society considers reasonable through taking multiple training courses (you have, haven’t you?) over the years (yes, continuing education bears valuable dividends), your personal gun safety protocols (securing guns when they’re not under your immediate control, in other words details that don’t breach home or personal security) and the extra layers of security you place between your firearms and thieves, children, and others who visit or live in your home who aren’t trained and responsible with deadly weapons.
Standards of reasonableness and prudence also apply to actions taken to protect human life. Whether taking extra cautions while driving, or going out of your way to avoid confrontations that may turn hostile, the things we talk about many times turn into the things we do – or the things of which we’re accused. Like Blair Nelson suggested toward the end of his interview, eliminate the bombastic statements about “what I woulda done.” Don’t type it into an online discussion, don’t say it out loud, and frankly, don’t even think it. The thoughts we entertain tend to manifest as actions or slip out in our speech. When the behavior you imagine is voiced, it’s not funny; it doesn’t make you look invincible or admirable.
That’s the small-scale version of how to avoid losing more self-defense rights. If Blevins had just shaken his head and walked past his verbal persecutors, if Rahimi had accepted his punishment for his violent and dangerous behavior, Americans would not face further incursions into self-defense rights in MN, and on the federal level, government would not have eroded some of the freedoms regained in the Bruen decision. Shutting up and moving along would have been the reasonable thing to do.