Wednesday, February 5, 2014

Realities and Legalities of Child Snatching: Part One

Note: Throughout this blog I refer to some legal code and legal issues. All codes quoted are for the state of Iowa. Check for differences in your own state code. I am not a lawyer and all opinions are from a layman's perspective.

A scenario came up a few days ago that reminded me of a blog I wrote a few months ago titled: Will Your Passion For Your Loved One Save Them? If you haven't read it already feel free to click over and read. In a very small nutshell the blog is about people (particularly parents) who believe their passion for their loved one or child will provide them with needed skill they haven't learned or practiced.

In this extension of that blog we will talk about a very specific aspect of parental passion and terror: possible kidnappings and/or a potential hostage situation.


The scenario was presented to me on an armed motherhood Facebook page I sometimes pop into. A mother is putting her baby on her back in a baby carrier when another woman, thinking the practice dangerous, grabs the child from the carrier and begins to lecture the mother on safety, refusing to give the child back.

Nothing incites terror in a parent quite like the idea of a stranger snatching their child. Nothing. And it's understandable that a bunch of armed mothers, when presented with said scenario, would consider preparing to pull a gun on such an individual. Several mothers either said they would draw or at least prepare to draw their firearms. Some even admitted that they would outright shoot.


PART ONE: IS IT LEGAL?

Before we even get into the practicality of shooting someone who is holding your child I think we should talk about the legality. And, as a reminder, I'm no lawyer. The bottom line is that no matter how angry it makes you, someone snatching your child may not be immediate justification for lethal force. One must be able to point out what made him (or her) believe his child was in jeopardy of serious bodily harm or death before lethal force can be used.

I can't think of a single state that does not allow force (up to and including lethal force) to be used to stop a forcible felony (which is what kidnapping is). However, one has to define kidnapping and reasonably believe that such a crime is taking place. Is this kidnapping? Can a woman who snatches a child out of her own concern for the child's well-being, who neither flees the scene nor threatens the child or the parent be reasonably believed to warrant the use of deadly force?

The scenario has a lot of potential to progress many different ways but as the scenario stands is there a legitimate threat to the child's life or limb?

The fact that there could be serious question as to whether or not a crime warranting lethal force is actually being committed should make parents think very carefully about their actions in such a scenario.

There were three main self-defense principles that came to mind when I read the above scenario:

1. AOJP
AOJP stands for Ability, Opportunity, Jeopardy and Preclusion. The AOJP must be satisfied in order to justify use of lethal force in self defense (including self defense of another).
A = Does the attacker have the ability to do serious bodily harm or kill the child? Using the scenario above, if we assume the woman is a healthy adult then yes. She likely has ability. 
O = Does the attacker have the opportunity to do serious bodily harm or kill the child? Yes.
J = Is the child in jeopardy or serious bodily harm or death? Let's be honest here, this is a big unknown. Again, arguments could be made with all sorts of speculation but with nothing but the information we have to go on I'm inclined to say no (at this time).
P = Preclusion. Is there anything else that can be done besides lethal force? Or, in other words, is it absolutely necessary to use lethal force in this situation? Again, with the information given, I would have to say no. There are lots of less than lethal options at this point.

2. Intent
Intent is rarely brought up and heavily debated as to where it stands in the use of force continuum. Many proclaim you can never know another individual's intent. And even if one was to state his (or her) intent, how is one to know he is telling the truth?

When intent is clearly stated (especially when there are witnesses) it should not be (and usually isn't) ignored.

Behavior often immediately backs up stated intent or is considered "implied" intent. If the man who said he had a grenade and was going to blow himself up suddenly does fly to pieces, it's safe to say he correctly stated his intent. If an EMT says he's on scene to help and immediately starts to stabilize the C-spine, checks for breathing and pulse, it's safe to say he has correctly stated his intent. But if nothing is said the actions of violence or assisting imply an individual's intent.

In the case of the scenario above, intent is not exactly clearly stated but the woman's actions do not imply harm.

My husband and I had an interesting debate while picking through Iowa code where he plead the case of the parent and I plead the case of the woman doing the snatching. We looked at what, if anything, the woman could be charged with (in Iowa) for snatching the child and the level of force a parent could use in response that would be reasonable and lawful. Let's just say I would hate to be a lawyer, judge and/or jury in that case.

Kidnapping in our state means taking someone with the intent to do harm.

Snatching a child from a parent or legal guardian for the purpose of detaining a child but with no intent to harm by Iowa law is called "Child Stealing" and it's a felony. Not a forcible felony (such as kidnapping), but still a crime. And the witness pool (if there are witnesses) could be split on who they empathize with--a woman's ill-attempt to help a child or a mother.

In the end we both agreed that some sort of physical response could be justified. However, we could not find justification in our own minds for bringing a lethal weapon into the equation for a woman snatching our child and arguing without demonstrating intent to do harm or without being able to articulate why we believed our child was in danger of serious bodily harm or death.

Which brings me to my third point:

3. The Reasonable Man Doctrine (and the principles of reasonable force)
In a nut shell, you have to prove, in a court of law that the actions you took were reasonable given the circumstances and information you had at the time of the incident and that any other reasonable individual would do the same thing if he were in your shoes. Then the jury has to reasonably weigh that evidence and decide whether or not they believe you acted reasonably.

Per Iowa code, reasonable force is defined as follows (look up your own state codes and see if they differ):
"Reasonable force" is that force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss and can include deadly force if it is reasonable to believe that such force is necessary to avoid injury or risk to one's life or safety or the life or safety of another, or it is reasonable to believe that such force is necessary to resist a like force or threat.
Would pulling a gun be considered reasonable in this case with the information given? What do you think?

And how would you articulate to responding officers, a lawyer, a judge or a jury why you chose that particular course of action?

In this case, I'm inclined to think it would not be reasonable (yet) and I would defer back to the excellent advice or Rory Miller:
"It is better to avoid than to run; better to run than to de-escalate; better to de-escalate than to fight; better to fight than to die. The very essence of self-defense is a thin list of things that might get you out alive when you are already screwed."

Would I grab my child back? Try to deescalate? Use threat of force (calling the police included)? Pepper spray? The options available before getting to the gun are as vast as the imagination. As long as the woman was not attempting to leave the scene or demonstrating intent to harm, I'm inclined to try many different things before going to lethal force or even the threat of lethal force.


Part 2: Force Against Someone Holding Your Child
Part 3: Lethal Force Against Someone Holding Your Child

4 comments:

  1. I think if anyone took my kid and stood there lecturing me and refused to give my kid back I would talk over her, informing her that she gets a three count before my fist meets her face.

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  2. The woman would certainly get a piece of my mind about minding her own business when I am caring for my child with an act (babywearing) that is perfectly legal. If she still refused to give my child back the police would be called. At this point in my own training, if lethal force became an option, I would probably try to fall on the little bit of Hapkido training I have than my weapon. While my training with either is not where I would like to have them...my training with my weapon is not at a place where I would try to shoot the woman and risk injuring or killing my own child.

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  3. Great discussion. I am looking forward to part 2. It seems your options become severely limited when the threat holds your child four feet off the hard ground.

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  4. What about drawing the weapon but keeping it pointed downward at your side while calmly, but firmly, suggesting she hand the child back to you?

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