Self-defense is legal everywhere in America. Even in Chicago. Even if you’re black, Latino, gay, transgendered, Muslim or maybe all of the above.
But no matter where it happens, the color of your skin, who you worship or who you sleep with, the legal aftermath of using force in self-defense can become a minefield. Prosecutors or personal injury lawyers may play dirty in an effort to either put a good person in prison to score political points among their constituents or to maybe hit a big payday in a civil trial.
Avoidance beats using force.
The prudent person will practice situational awareness and conflict avoidance. Why? Because avoiding a confrontation is always a win for you. Similarly, the best way to beat prosecutors and ambulance chasing personal injury attorneys is to avoid or de-escalate a confrontation.
You have force options without a carry license. There are martial arts and Krav Maga. There are sprays, lights and electric stun devices. Yet none are as easy to employ or as effective as a firearm. No matter the tools you utilize to defend yourself, you have to act to the standard by which you will be judged at the time of the incident.
• You will face investigation if you use force, even non-lethal force. Obviously, you’ll face more scrutiny if you use deadly force such as edged weapons, firearms or your Buick.
• You have a lot of leeway to use force in self-defense, even deadly force but only *if* you can clearly articulate a threat.
• If you cannot articulate the threat, you will probably face charges and even prison.
• You may have to articulate more than just *why* you used force, but also *how* you used deadly force as well.
Reasonable Man Doctrine
Okay, sometimes this one is referred to as the Reasonable “Person” Doctrine in today’s PC world. Reasonableness must be determined from both a subjective and an objective perspective. You covered this in your concealed carry class, right?
First, what matters most is not only what the objective facts actually were, but how those facts appeared subjectively to the person who used defensive force.
We’ve seen plenty of examples of this throughout the country where defensive force is legitimately used even when there was no true deadly threat. For instance, the 16-year-old Japanese exchange student who didn’t speak English looking for a Halloween party in Baton Rouge years ago. While at the wrong address, he walked aggressively towards the homeowner who was pointing a .44 Magnum at him. The teen ignored commands to stop and the homeowner shot him dead, right there on the spot. A jury of the man’s peers quickly acquitted the homeowner who reasonably believed he was protecting his family.
It all comes down to the Reasonable Man Doctrine: Whether an objectively reasonable and prudent person, possessing similar skills, training, and knowledge, and in the same or similar circumstances, would have shared that subjective perception of the threat. And then the follow on: were the reactions to the perceived threat reasonable to defend innocent life?
Remember, the ladies and gentlemen of the jury, and indeed the prosecutor in most jurisdictions will not be members of Guns Save Life or attendees of GSL meetings. Instead, a jury will be a cross section of the community. It will include people who got their legal training from Hollywood and TV and others who remain uneasy at best (to put it charitably) about self-defense and gun ownership.
In other words, your actions should ideally not only meet the Reasonable Man standard, but better yet they will meet the “Any Damned Fool” standard, a term coined by GSL’s own use-of-force expert Frank Wright.
Here’s the good news: your actions in using force against an unlawful attack don’t have to be perfect, they merely have to be reasonable. Thank you Graham v. Connor. The bad news: if you can’t explain how your actions were reasonable, you’re likely going to take a ride to the big house.
Articulate not only the ‘why’ but the ‘how’ as well
Attorneys, and even investigating officers may badger you not only on why you used force, but also how.
For example: they may suggest that you carried deadly, inhumane and evil hollow-points. “They’re banned by the Geneva Convention!” these hacks may howl to the jury.
Or the fact you carried an extra magazine as indicative that you intended to look for trouble. Or maybe you had a trigger job. Suddenly you’ve got a gun with a “hair trigger.”
Attorneys will try to taint the jury’s opinion of you by casting negative connotations on everything you chose to do before, during and after the use-of-force incident. You better have rebuttals to make your actions seem reasonable and prudent to the jury.
In the case of hollow-points, you should point out that hollow-point bullets are less likely to ricochet or over-penetrate, making their use safer for innocent bystanders. Another point: hollow-points transfer their energy to the target most effectively, meaning you have to shoot an attacker fewer times to get them to stop their unlawful attack, making it better (safer?) for the bad guy. You could also point out that you picked similar loads to what your local police carry for many of the same reasons their experts chose their defensive loads.
Should you point these things out to the jury, you will look like the responsible, thoughtful and prudent person, not the reckless, hot-tempered trouble-maker looking for a scalp or two.
Good training will not only help you articulate away seemingly minor things like ammo choice or trigger jobs, but also bigger things like why your attacker had bullet holes in his or her back. Or if today’s high-resolution video shows you failed to stop shooting the instant an attacker dropped his or her knife or gun. (The answer here involves the time it takes the mind to see something, orient itself to what’s happening, decide on a course of action and to implement that action… about seven-tenths of a second, minimum.)
Other questions about your training or the last time you practiced, if particularly relevant, may not be as easily explained away. For example, if you missed your attacker (and hit an innocent downrange) and you haven’t shot since your CCW class four plus years before, your lack of practice may haunt you as a sign of negligence.
Yes, decent and experienced criminal defense attorneys should be able to help coach you on some of these issues, but they may miss some topics. At the same time, they may not try a lot of genuinely legitimate self-defense cases or be that intimately familiar with guns, ammo and shooting. That’s where your training and expert witnesses can prove priceless to your freedom.
Alternatively, you might have a less than stellar criminal defense attorney. In Georgia, a woman shot her abusive ex- after he forced entry to her home, attacking her. She testified she accessed her firearm in the bedroom and made her stand there. At least two rounds hit behind the attacker’s midline and the prosecutor disputed her claim of self-defense at trial. The prosecutor’s best evidence was the big deal he made of the bullet impacts in the “victim’s” back.
“It’s not self-defense when you’re shooting people in the back,” he claimed over and over.
Without testimony to explain the reasonableness of why she planted two rounds in the “back” of her attacker, the jury voted to convict her and she’s now spending life in prison. Don’t let that be you.
Hopefully you consider some of these issues. We recommend everyone seek out good training and practice regularly. You don’t want to make mistakes while facing a criminal or civil trial in the aftermath of using force in self-defense.
Stay safe out there. Remember to carry that gun to make yourself harder to kill. Just as importantly, make sure you know the law so you’re harder to convict.