Month: December 2019
We have learned two of the elements of self defense claims are innocence and imminence. Another element is called “proportionality.” Proportionality simply defined says you cannot use greater force than your assailant uses.
Meaning; you cannot use deadly force to defend yourself against a non-deadly threat. The problem with proportionality is the dynamics of the conflict can change very rapidly and unexpectedly. What starts out as a verbal argument can become heated and escalate to deadly force in the blink of an eye. This happens when your assailant’s force increases, or when your ability to defend yourself decreases. Naturally, if the attacker now employs a knife or a gun, you must have the right to use deadly force to defend yourself. You may use whatever is at your disposal; a baseball bat, a golf club, or your own firearm. I think it might be advisable to carry another weapon if you are carrying a concealed firearm. With the gun, you have left yourself with only one alternative for defense, which is deadly force. Perhaps pepper spray or a stun gun would give another alternative, and if that is effective, no one dies or gets maimed, and you will look better in the courtroom if it goes that far. As a responsible law-abiding citizen you must adapt your defense to be appropriate against his offensive weapon. If the attacker somehow reverts back to non-deadly force, you must do the same. These could be critical decisions made in a “heartbeat.” If you use deadly force against a non-deadly threat, your claim to “self-defense” is now invalid. The best tactic would be to avoid the conflict entirely if possible. Have a safe and Happy New Year.
In order for you to have a justifiable “self defense” claim, one of the five elements required is “imminence.“
This means the threat is immediate, so pressing you have no time to call for help. The threat is timed so a reasonable man or woman would employ an instant defense. Any hesitation could result in grave bodily harm or death. The timing of your response is critical to you case. You cannot use defensive force too early. For example, if I were to say “I am going home to get my gun and shoot you,” the threat is not imminent. One appropriate response would be to evade the threat, go to a safe location call the police. Your attacker must have the ability to harm you, he must be close enough to access you, and his words and actions must indicate he is about to follow through with the threat right now. Being close enough to access you may depend on his weapon. For example if his weapon is a gun, he can access you quicker from a larger distance than he could with a club. One good tactic is to always try to maintain distance between you and the threat.
You can also respond too late to an imminent threat. For example, your attacker knocks you down, takes your wallet and runs away. If you pursue the attacker and bludgeon him with a club, this will be seen as retaliation not self defense. Since the threat has already passed, your actions will be considered a separate crime from the original attack. Innocence was the first, Imminence is the second element in your self defense case. Success will be in your favor if your mind and body are well trained. Know your rights and the law. There will be more to follow on the third element of a self defense case.
Self Defense and the Law
Here is the scene. You are returning to your car after shopping. Suddenly a stranger steps into your path and demands your wallet. He is pointing a gun at you and appears to have every intention to use it if you do not comply. Naturally, you do not wish to give up your cash and credit cards, so you attempt to de-escalate the situation by rationalizing with him. But, he will have none of it and again demands your wallet and packages. You drop your wallet on the ground in front of him and he bends over to pick it up. As he stands up again, he is now looking down the bore of your legally carried Ruger 9mm. He is angered by this tactic and points his firearm at your face preparing to shoot, but he is too slow. You fire a defensive round striking him in the shoulder and bringing the incident to an end. The police and EMT’s arrive and the predator is taken to the hospital. Meanwhile the police begin asking you questions. You reply it was a clear cut case of self defense and invoke your right to remain silent till your attorney is present. A few hours later you meet with your attorney and he advises you the attacker is using a public defender and filing charges against you. Your rightful claim of self defense is not always a easy to employ as it should be. First of all, by claiming “self defense” you are confirming the prosecutor’s case for him. In others words, you are saying yes “I used deadly force against the attacker.”
In order for a self-defense case to be upheld in a court of law, it must contain five elements, if any of the five are absent or insufficient, the self’-defense case is no longer valid and the criminal justice system perceives you as the bad guy legally vulnerable to prosecution. One of those five elements is “innocence.” Meaning you were innocent of any provocation, or instigation, or maintaining this incident, and you did not unjustly escalate the level of force being used. The fact that you were the first to actually employ deadly force is not in your favor, but it also was the reasonable response to an imminent threat. Your attorney must be able to convince the court that your use of deadly force was a lawful and reasonable reaction to an imminent threat of death or grave bodily harm. Otherwise you could be facing criminal charges. Know your rights, the law, and secure a competent attorney to represent you.
There will be more to follow on the other four elements of a self-defense case.