Month: January 2020
The elements of a successful defense claim are, innocence, imminence, proportionality, avoidance and finally, reasonableness. Literally everything you do during a self-defense incident must be considered “reasonable” by law enforcement and the court if it goes that far. The jury will use a “theoretical” reasonable person in which to compare you. I believe this comparison will be skewed by what the individual jury members see as reasonable in their own perceptions. Being manipulated by two skillful attorneys, the jury will attempt to decide whether or not a reasonable person would have believed and behaved as you did under the same circumstances. Will they believe you were innocent of any provocation? Will they agree your perception of the threat was imminent? Will they believe the force you used to defend yourself was reasonable? Do they agree you took reasonable measures to avoid the conflict? They should consider any specialized knowledge you have to evaluate and respond to the threat, such as knowing an impact (knife, club, hammer, etc.) weapon can be employed in 1.5 seconds if your attacker is 21 feet away or closer. Of course, the jurors will be hearing this all from two opposing attorneys, in the comfortable and safe environment of a court room. They will not feel the adrenaline rush, stress or fear that you experienced at the time of the event. They will not feel they are fighting for their life. The best response is to avoid the incident if at all possible. Secondly, be trained and prepared to respond to the threat with the appropriate level of force. This will take some forethought on your part. Be trained, be well informed, be safe.
Thus far we have covered three of the five elements of self-defense; Innocence, Imminence and Proportionality. This article is about a 4th element known as “Avoidance.” It is really common sense to a degree, it makes sense to avoid shooting an aggressor, or risk getting shot if you can avoid the confrontation and call the police instead. There are thirteen jurisdictions that require (to some extent) you to retreat from an attack if you can do so safely. Thirty seven jurisdictions do not require you to retreat as long as you have a legal right to be there and you are not engaged in illegal activity. In Oklahoma, you may use deadly force to defend yourself or other innocent persons if you are in fear for your life, and you are convinced the use of your gun is the only option to stop the deadly force threat. In that scenario, you have no duty to retreat, but if you could have done so safely and failed to do so, expect the prosecuting attorney to question your reasoning. Analyzing a “deadly force” event in a courtroom minus the adrenaline, fear and stress you felt during the event is hardly an “apples to apples” comparison. A comfortable jury might easily be manipulated by an overzealous prosecutor. It is crucial for us who carry a firearm to know the law, and keep a cool head to the extent that is possible, and when necessary seek competent legal counsel. If you can do so safely, avoid the threat. Remember, success favors the trained mind and body.