Essential Self-Defense Law Part I: Imminence
I am not an attorney, nor do I propose to offer legal advice of any kind. I am, however, a gun writer and trainer that has become propelled to pen this article because I see an incredible deficiency in many a concealed carrier’s knowledge base regarding what constitutes the justifiable and legal use of force. The problem is that this ignorance can end up putting well-intentioned people in jail, or at least through a costly legal ordeal. For those new to this discipline this three-part article is intended to provide you with a solid starting point. Those of you that are knowledgeable in this field should seek to educate your fellow armed citizen and my synthesis of the primary concepts involved may prove helpful to you as well.
The reality is that we cannot eliminate all legal danger from our lives, any more than we can eliminate physical danger entirely. However, a complete ignorance of self-defense law is a good way to ensure that you will have legal trouble in the aftermath of a use of force defensive encounter. A solid understanding of these principles will not eliminate that possibility, but will certainly go a long way to mitigate it.
There are, unfortunately, very few attorneys that focus specifically on the field of self-defense law. The foremost one that I do know of is Andrew Branca, and he has an excellent book called The Law of Self Defense: The Indispensable Guide to the Armed Citizen. Read it if you can. Trainer and author Massad Ayoob also does significant work on this issue, and while not a lawyer he has extensive experience in the courtroom as an expert witness. What I provide here is not at all in depth, but it is the absolute essentials of the knowledge that you should have if you carry a firearm for self-defense. Let this article be only your beginning into this self-education, but here I seek to pass along the most essential elements of this crucial topic.
When I first obtained a carry permit at the age of 21 I did so in a state that had a really good program in which the bulk of the required state-mandated CCW course focused on legalities related to using lethal force in self-defense. I think that proves a good model as it exposes new concealed carriers to at least some knowledge of self-defense law. Most states do not require this and the vast majority of concealed carriers have absolutely no training in self-defense law. Therefore, all responsible armed citizens should take personal responsibility to educate themselves in these legal principles and seek this knowledge out. I have spent a great deal of effort in further refining my knowledge of self-defense law throughout the years and I wish to share with you here what I have come to consider the three most critical points that you need to be conscious of and these three principles will serve as a good knowledge foundation:
Three Basic Tenants of Self-Defense Law to be Aware of:
1) Recognize Imminence: Only a threat that poses an imminent and reasonable risk of death or grave bodily harm to yourself or others justifies a lethal force response.
2) Appropriate Force: You only have the legal right to use the force necessary to neutralize a threat. Anything further than neutralization may be considered excessive force.
3) Maintain Innocence: You must be an innocent party in the confrontation for you to argue that you used self-defense, not an active aggressor that starts or escalates a situation.
These are three big picture principles to hold in mind and they are the three I offer for your consideration as a bare minimum in understanding self-defense legalities. These are the areas in which a lot of well-intentioned people have made costly mistakes. Regardless of state specific laws such as stand your ground, castle doctrine, or the lack thereof, these principles I lay out here usually apply. In the remainder of the first installment of this article I am going to provide an overview of the first principle and in part two and three we will discuss the others. So, to begin, how can we identify a legitimate threat that warrants lethal force? Let’s discuss:
Recognize Imminence and the Reasonable Risk of Death or Grave Bodily Harm
It is time to learn three new terms if you are unfamiliar with these: Ability, Opportunity, and Jeopardy. These are the three traits that a threat MUST display to be reasonably considered a lethal threat that warrants a lethal force defensive response. If even one of these elements is absent then lethal force is not justified. Let’s take a look at these basic legal tenants:
Ability: The principle of ability stipulates that for a violent actor to be reasonably considered a deadly threat he (or she, or they) must actually have the ability to kill or significantly injure you. Sounds obvious right? So, for example, a guy pointing a gun at you obviously has the ability to kill or hurt you. An old lady in a wheel chair who is angry at you for bumping into her while standing in line and swinging her pocket book at you probably does not have the ability to kill or seriously hurt you. The most obvious example of an attacker’s ability to hurt you is when armed with a weapon. If an aggressor has a gun, knife, or blunt instrument the ability is legally there. If an adversary is armed the decision to use force is typically clearer cut, at least as it concerns the ability clause.
Now, within the domain of the ability principle comes the subject of disparity of force. This means that an opponent may legally be considered to have the ability to pose you grave bodily harm or death even if unarmed because he or she is a superior combatant for some reason. The most obvious example of this is male-on-female violence. The average man is significantly stronger than the average female and a violent attack perpetrated by a male against a female usually constitutes ability even if the male is unarmed. Superior numbers can also constitute disparity of force, for example, if a male defender faces multiple male attackers. Also, some circumstances can constitute disparity of force, such as one appointment being in a position of advantage, such as punching another physically equal person who is at the moment strapped into a seatbelt, or an aggressor mounted on top of a grounded combatant and bashing his head into the pavement. So, disparity of force is not at all straight forward, but it is often at play. A general understanding of these principles is warranted.
Opportunity: The second trait that must be present and demonstrated by an attacker to justify a lethal response is opportunity. This means the attacker must have the opportunity to harm you. For example, a guy with a knife who is 100 yards away and screaming at you, as you are getting into your vehicle so that you can safely drive away, has the ability to do you harm, but due to the distance he does not reasonably have the opportunity to hurt you yet. Now, what if that same knife wielding lunatic was standing only a few yards away and you are not yet in your vehicle? Now the opportunity is certainly there. Despite having the ability to do you harm, an assailant must have the opportunity, which typically means he needs to be present and at a close enough distance to do you harm. Otherwise, there is no opportunity as it stands legally.
Jeopardy: What jeopardy means is essentially that the assailant is clearly manifesting the will to hurt you or another innocent party. A good example is this: if you live in a gun friendly state like my own state of Virginia it is common to see people open-carrying guns in public. If you are standing in McDonalds and a guy with an openly carried gun stands in line next to you, do you have the right to respond to that with lethal force? He has the ability to hurt you because he is armed. He has the opportunity to hurt you because he is standing right next to you. But, is he showing any signs of threatening you or others? No. He has ability and opportunity but he is not placing anyone in jeopardy. Now, if a guy walks into the establishment with a gun in hand pointing it at people and screaming to put the money in the bag, now ability, opportunity, AND jeopardy are all present, and now we are dealing with a legitimate lethal threat.
Going further on with this discussion on these conditions let me say that it often boils down to using common sense, but things are not always clear cut. There are a lot of situations that may be gray, not black and white. For example, an active shooter that starts massacring people in a public space in front of you is going to pose an obvious lethal threat to yourself and others, and an immediate lethal force response like gunfire is going to be warranted and entirely justified. The ability, opportunity, and jeopardy are all clearly present. But, what about a suspicious looking fellow following you in a dark parking garage? Even if he gives you a bad feeling, has he done anything yet? If confronted by a seemingly hostile individual who may be aggressive but is not yet attacking and does not appear armed, how do you handle that? If you act too soon and pull a gun on a person who ends up being innocent then you are going to be charged with aggravated assault. If you act to late and don’t take action against a legitimate threat then you may end up dead.
The more knowledgeable you are about self-defense law, the more likely you are to make the right decisions, which often must be made in fractions of a second. Spend some time thinking about these principles and do some research so that your understanding of these legalities becomes familiar and instantly available in your mind. In part two of this article we will continue our discussion and analyze appropriate force.
Disclaimer: The above are opinions of the author. In any situation dealing with self-defense, it is your responsibility to understand the laws in your area, and what you can and cannot legally do. It is also your responsibility to use your best judgement, given the situation that you may find yourself in. In no way should this information be viewed as legal advice. When in doubt, consult a lawyer for any clarification that you may require. Simply put, use your best judgement and always abide by the law.