Reluctantly, you have had to defend yourself from an attack. You are safe, and the police have been notified by you. Now the real fight maybe beginning. Was the defense of yourself legal and within the boundaries of the criminal statutes? Because what will happen next is a criminal investigation of the incident. The conclusion will either show that your actions were within the boundaries of the law or in violation of the law. This article will not address the civil liabilities you could face or the psychological aspects of fighting for your life and having to seriously injure or kill the attacker.
The importance of taking the time to prepare for the potential use and aftermath cannot be emphasized enough. You need to know the elements that are part of a lawful use of force; your states criminal statutes regarding self-defense and the second guessing that your will do and the Monday morning quarterbacking that will be done with the benefit of hindsight, without a time limit; where you may have had fractions of a second to recognize, decide and react.
As stated earlier, you should have a good working knowledge of the general self-defense laws and be familiar with the specific laws of your jurisdiction. This article will briefly cover the general knowledge of self-defense law and its five elements. Gaining a familiarity of the laws of your jurisdiction will not be addressed, other than where you may find the information.
I have found an excellent resource in equipping yourself with a good working knowledge of the general laws of self-defense in the book and resources of Attorney Andrew Branca. The book; “Law of Self-Defense” is an excellent read, and provides good base for the general self-defense laws broken down into layman terms. The book also has a compiled list of the specific self-defense laws found in the criminal codes of the United States in its appendix. It is this resource that this article is based on.
The five elements of a lawful use of force in a self-defense situation are:
A very brief discussion of each of these elements will follow, but there are nuances for each and I highly recommend Branca’s book because I have left a lot out of this article.
- Innocence. You are NOT the aggressor in the incident. Without the required element of innocence, there is no self-defense. If you start the fight, or continue the fight, your actions cannot be justified as self-defense. Leave your ego home. If someone waves with his one finger, wave back with all of your fingers.
- Imminence. The attack is happening right now. Using force after the threat has passed is considered retaliation, not self-defense. Branca details an excellent way to determine and articulate the imminent attack using the AOJ triad.
- Proportionality. If you are slapped by someone, your response with a firearm is not appropriate. The degree of force that you use to defend yourself must be proportionate to the degree of force used by the attacker(s). Do you know the definitions of deadly force and non-deadly force? Continuing to use force against the attacker after the attack has been stopped will be seen as excessive and not proportional.
- Avoidance. It is the taking advantage of a safe avenue of retreat before resorting to the use of force against an attack. The best fight is the one you avoid. You always risk injury or death from the attacker in a self-defense incident if you have to stay and fight. In a number of states, there is a “duty to retreat” if you can safely do so. There are a number of states that require retreat before using deadly force. You have heard of a number of states enacting the “Stand Your Ground” laws; in which the duty to retreat (avoidance) is not required if you are lawfully in that place. “Stand your Ground” states have removed the element of avoidance in a self-defense situation.
- Reasonableness. Your actions related to the attack will be scrutinized. Was your response to the attack were what a reasonable and prudent person would do if placed in the same or similar circumstance? Here your reputation can be examined and part of the deliberation. Are you known to be slow to anger, sober?
These five elements which provide the foundation of a lawful use of force in self-defense are important to know if you are a lawfully armed citizen.
Now, how do you find the specific nuances of your locale? I recommend checking the state branches of government who are responsible for the issuance of Conceal Handgun Licensing. It maybe state, county, or municipal levels of government. In Ohio, the attorney general website has a publication for citizens obtaining their license to carry and it reviews the self-defense laws specific to Ohio. In my former state of Connecticut, the standardized in the Penal Code Chapter 951; Statutes 53a-4 through 53a-23.
Many states specifically spell out in their statutes that ignorance of the law is not a defense you can use. If you are carrying a firearm or other weapon for defense, learn the law. It could be a life saver in more ways than one.
You carry a gun so you’re hard to kill, know the law so you’re hard to convict.”— Andrew Branca