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.
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.
I think it is fair to say most of us would like to believe justice will prevail in a criminal courtroom procedure. And yet, many if not most of us have our doubts about the verdicts of certain high profile cases. As history has shown us, there are “technicalities” and “loopholes” which may result in an unexpected verdict. There is the concept that the jury will never really know what happened at the scene of the crime. They will only know what two skillful attorneys who are presenting opposing arguments tell them. They will only hear and see evidence and testimonies the judge deems admissible in the courtroom. This may or may not exclude actual events leading up to the incident, it may exclude the testimony of witnesses who saw or heard something relevant. Without a video and audio recording of the entire incident, the jury will make their decision based on what they are told and who they consider believable. “Guilty beyond a reasonable doubt” is left to be determined in the minds of 12 jurors, who will likely come from different cultures, differing educational levels, different values and political and spiritual views. Therefore, it can be very difficult to predict what a jury will decide as the verdict.
Oliver Wendell Holmes Jr. was an Associate Justice of the U.S. Supreme court from 1902 to 1932. He once remarked: “Courts are courts of law and not courts of justice. My interpretation of that remark is that we can expect to receive a decision based on what the law allows, but it may or may not be a decision founded on justice.
Those of us who carry a firearm for defense of self and family assume an enormous amount of responsibility. Getting a conceal and carry license or carrying based on the constitution is not an end to your potential worries. In worst case scenarios, it could be just the beginning of severe legal, emotional and financial problems for you and your family. (Do you expect justice?) My recommendation to every member of my classes is to make every effort to avoid a violent incident and the use of their firearm whenever possible. This begins with knowing what is going on around you, and being aware of what people are doing in your immediate area. Take a look around and notice who is watching you. Never go someplace with your gun, that you would not go without it. In today’s society, road rage seems to be all too common. Do not let some reckless, angry nut draw you into an unnecessary conflict. Prosecutors can be experts at convincing juries you were now the aggressor if you chase your attacker who is trying to run away, it gets worse if you shoot at the attacker.
Remember, you are carrying that firearm to defend the lives of people, not to shoot some thug who is stealing your hard earned property. Human life is more valuable than mere property, and the jury will be persuaded of that. If you find yourself in the terrible situation of trying to defend the life of a stranger involved in a “critical incident,” be sure you know who the good guy is, and the circumstances surrounding the incident. The last thing you want is to interfere with “deadly force” on behalf of the wrong person. Call 911 and be a good witness for the police.
I would feel justified in using my gun only when I knew I was facing a genuine, immediate threat to my life or that of my family which I could not escape, and the use of my gun was the only means of stopping the threat. Finally, I would have the phone number of competent legal defense attorney on speed dial on my phone. This is by no means everything you need to know if you carry, but it is a step in the right direction.
Be safe, be prepared, be well represented.
According to the Crime Prevention Research Center approximately 17,250,000 citizens possess a conceal and carry permit. That basically means those people probably had to pass 2 background checks before they could purchase a gun and obtain a permit to carry. Those background checks are conducted by the National Instant Criminal Background Check System (NICS), which is located at the FBI Information Service Division in Clarksburg, West Virginia. Just for the sake of conversation, let’s say the average gun owner possesses 3 guns. That would be 51 million 750 thousand guns. Let’s further assume each gun owner has 2 boxes (50 rounds each) of ammunition for each gun. That would be 310 million, 500 thousand rounds of ammunition. I suggest these numbers are quite understated.
If legal gun owners were a problem in the United States, I believe we would surely have known long before now. Stricter gun laws are constantly being argued by those who are not pro-gun supporters, and those who are. My opinion is it depends on what the new law requires before we can determine if it will deter crime, or simply make things more difficult for law abiding citizens who own or purchase a firearm. I suspect most of the criminals who possess guns did not buy them legally at any retail store. What reasonable law will be passed that stops the criminal element from buying guns in streets and alley-ways? How much better will we enforce the law that already prohibits the theft of firearms?
One of the ideas being argued is making background checks more strenuous, closing loopholes, etc. I do not oppose any reasonable, vigorous background check when buying a firearm, or applying for a permit to carry. My belief is the responsible, law abiding American citizen would pass such a check. If we initiate new stricter background checks, let’s likewise when it comes to immigration, voter identification, and candidates running for political office. In my opinion these are also serious problems in our society. Currently, politicians are not submitted to background screening, this includes, members of congress (both houses) and candidates for President. It would seem to me that candidates for federal political offices should be required to hold the same ideology that founded this country and has kept it free for 243 years, and have a crime free background. Perhaps, they should be scrutinized much more strenuously before being given law making power and secret security clearances. Just food for thought.
Never let bad situations bring out the worst in you. You are better than that.
The following is based off reports of an actual event (true story). The names and location have been changed to keep my young self out of court and jail.
It was a typical hot, humid evening in Chelsea, Oklahoma. Andrew Tolson a prominent attorney in town pulled into the post office parking lot. At 8 p.m. there was minimal traffic so he took a “handicapped” parking space while he quickly checked his legal firm’s mail. He did not have a handicap nor the required placard to hang from his rear view mirror.
Charlie Gillman, a 69 year old retiree who did have a “handicapped” permit parked his beat-up pick-up in the space next to Tolson’s car. Charlie was apparently perturbed that Mr. Tolson took a handicapped parking space without the required permit. Charlie confronted the lawyer and told him he couldn’t park there. As they often do, the exchange became heated and eventually culminated with the two men exchanging punches. It seems Andrew Tolson landed a fist in Charlie’s face, then squared off prepared to continue but did not advance further. Charlie attempted to strike back but was unsuccessful. He does have a health condition and felt he could not defend himself and claimed he was in fear for his life. Charlie then pulled his 380 caliber handgun and shot Andrew Tolson who later expired from complications from the wound. Charlie was legally carrying his pistol and possessed a conceal and carry permit.
There were no witnesses to the incident, and post office security cameras were not positioned adequately to record what happened. So, it was Charlie’s word against a man who could not tell the other side of the story. Initially Charlie was released with no charges filed. But eventually, a grand jury indicted Charlie and he has been charged with murder, and faces a potential prison sentence that could last the rest of his life.
The most unpredictable thing about self-defense law is that it varies radically based on the interpretations of the investigating officer, the prosecutor who presents the case, the grand jury who determines if there is enough evidence to indicate a crime was committed, and finally the jury that hears the case to arrive at a verdict of innocent or guilty.
The law allows a citizen to defend himself or herself, as long as they can reasonably believe that they were in immediate danger of death or grave bodily harm and the use of their gun was the only way to stop the threat. The test is: Was the shooter’s behavior reasonable at the time of the shooting, not evaluated in hindsight. Additionally, the shooter’s response must be substantiated as “necessary.” If in the opinion of the jury, it was not necessary to shoot the opponent, it cannot be used as “self-defense.”
In every Oklahoma Self Defense Act class I teach I advise students in this way. “The best violent incident is not the one in which you emerge victorious, wounded or not. The best violent incident is the one in which you are not even involved.” If you can turn and walk away from a verbal confrontation that has the potential to escalate to violence, perhaps walking away is the wisest choice.
If you are involved in a shooting, be sure you have competent legal representation immediately available.
Be informed, well trained, and be safe.
Anyone with an interest in guns in the state of Oklahoma knows by now there is a new law in town. On February 27th, 2019 Governor Stitt signed into law house bill 2597. This new law allows citizens who are 21 years of age or older to carry a handgun concealed or on open display. However don’t start carrying a gun without a permit just yet. The new law does not go into effect until November 1st, 2019. Till that time, the current laws in effect today will remain the law with which we must abide till November. If you already have your conceal and carry permit, keep it with you even after November 1st. Some states you travel to may not recognize our constitutional carry law.
Oklahoma becomes the 15th state to enact such a law. Other “Constitutional Carry” states include, Alaska, Arizona, Arkansas, Idaho, Kansas, Maine, Mississippi, Missouri, New Hampshire, North Dakota, South Dakota, Vermont, West Virginia and Wyoming.
Active duty and reserve military personnel aged 18 years and over will be allowed to carry without a permit under the bill. Veterans under age 21 who have received an honorable discharge will also be eligible.
The new law does not allow any county, town or city government to enact laws contrary to the states age requirements. However, business owners, private property owners and houses of worship may prohibit the carrying of handguns on their property. Institutions of higher learning and technical schools may also set their own policies regarding the possession of handguns on campus.
Persons who have been convicted of assault and battery or stalking will not be allowed to have a gun in public. There are also limitations on where you may carry your pistol. For example, court houses, the capitol, and other public buildings such as sporting arenas will prohibit firearms on their premises.
There are two other striking differences contained in the new law. The previous requirement for training and proof of proficiency in operating the handgun have been eliminated. After teaching almost 600 students, I can honestly say the thought of some people carrying a gun with zero training concerns me. Secondly, when encountering a law enforcement officer in the performance of their duties, such as a routine traffic stop; “No person shall be required to identify themselves as a handgun licensee or as lawfully in possession of any other firearm if the law enforcement officer does not demand the information.”
Only time will tell if this new law works to the benefit or detriment to the safety of Oklahomans.
It takes only a cursory search in the computer to find vehement arguments on both sides of the political fence, each quoting statistics and anecdotes to support their positions.
Constitutional (permitless) Carry is our right as guaranteed by the 2nd amendment. With rights come responsibilities. We are responsible to know how to safely transport, carry and operate a firearm. It is our responsibility to know and obey the laws (and there are many) that govern the ownership and use of a firearm. Employing the use of force or deadly force is an awesome responsibility. Let’s not give the “anti-gunners” any opportunity to criticize our rights, they already do so enough. Investing a few hours in training in someone’s Self Defense Act class would be a wise decision.
Be informed, be trained, be safe and be well.
Wyatt Jacobson strode out of the bookstore just before sunset. At six feet six inches tall and 220 pounds he was an imposing figure. His tanned face was jagged with crevices from too much sun, time, and some degree of long standing stress. He donned his narrow brimmed Stetson and stepped of the curb bound for his Ford pick-up. With the sun directly behind them, 3 strangers closed off Wyatt’s path, and made no attempt to allow his passage. With a heavy accent, one of the trio demanded his wallet, wrist watch and rings. He could see the other two had pistols pointed at him. Then from behind him, he heard another voice “Looks like yo got yo’self some trouble mista’ cowboy.” Wyatt began slowly removing his watch, discreetly repositioning himself laterally between the four strangers. Now with direct and peripheral vision he could see all four of his would be assailants. His calm eyes and easy grin agitated one of the trio’s members who now stepped closer aiming directly at Wyatt’s head. “Hurry it up jack.” Those were the last words he would ever utter. In what seemed a fraction of a second Wyatt withdrew his legally carried FN 9 millimeter. The streets of Claremore lit up with flashes and white smoke. The closest threat was downed with two shots at center mass. Shock appeared on Wyatt’s face when he saw the muzzle flash from the second man in the trio. Obviously those shots were intended for him. But the surprise was the man behind him dropped the shooter with three well placed 45’s. The third assailant didn’t like his odds and quickly retreated on foot, still at large. Wyatt walked over to the 4th man and extended his hand in gratitude. “My name is Wyatt Jacobson, thanks for having my back.” “I’m Ezra Washington” came the reply. They both retrieved their carry permits and I.D.’s and laid their guns on the ground in front of them as the black and white screeched to a stop. Fortunately, Ezra knew the law allowed him to come to the defense of another innocent person. Later that night after a visit to the police station, Wyatt and Ezra went to their homes. As he entered his house, Mrs. Washington turned to Ezra and said, “Honey did you hear what happened in town tonight?”
If you positively know the circumstances and know who is the assailant and who is the victim, the law allows you to intervene and defend the victim. If you do not know the facts, take cover, call 9-1-1 and be a good witness for the police. Never forget the best critical incident is the one you are not involved in.