Terry
Pitman recently published a link on Facebook to his article on surviving
the legal challenges of self-defense.
It's a good idea. Too many instructors and students focus on
the mechanical aspects: the draw, reload, Mozambique drill, moving and shooting
- that’s where the fun is. But it is
very likely you'll put yourself in expensive lawyer trouble if you are
unprepared for the legal challenges, both civil and criminal.
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| Your car. What do you want to do and what should you do? What you do could put you in jail. |
Let's look at his five elements of self-defense;
1) Innocent:
not the initial aggressor,
2) Imminence:
the threats must be happening now or immediately about to happen
4) Avoidance:
do you live in a 'stand your ground' state or a 'duty to retreat' state
5) Reasonable:
your actions and decisions must be both subjectively and objectively
reasonable.
Let's visit each one.
But first, in the legal system,
opinions are just that. What your lawyer
says is their opinion. It's a highly
educated, informed, and polished opinion.
But unfortunately, not always right.
Further, remember these are my opinions shaped by years of
professional firearms training and my study.
I'm not a lawyer.
It's fun and educational to play
the game of, "What if…?" It
lets you explore possibilities over a cup of coffee or with cardboard targets
on the range. It's important to know that
changing one fact, one condition and your results go out the window.
Postscript remark: I'm at a point where I'm editing this and
realize how incomplete this series of blogs are. Trainers have written books, revised editions, and additional
publications. The legal environment is
constantly evolving as cases are presented and new concepts are developed. Be forewarned.
But we need to define a few terms
tossed about.
Threat. From the Oxford Dictionary we find "-a
statement of an intention to inflict pain, injury, damage, or other hostile
action on someone…"
It is a word we use to describe a
ball player who can field, bat and steal bases; he's a triple threat. We use it to describe situations, "-he
threatened to sue me if I don't keep my dog inside."
A threat can be verbal, written, or
implied, but for our purposes must involve grave bodily harm, disfigurement, or
crippling injury. In many jurisdictions
that includes rape. You must be able to
articulate this threat to the jury. It
has to be more than "I felt threatened."
Part of this articulation must
touch on disparity of force. In the sporting world we don't play a
professional ball team against a high school team. Heavyweight boxers don't fight
lightweights. The American public
expects a fair contest. As a general
rule most people would say two 18-year-old girls against a single 18-year-old
girl would be an unfair fight. We would
say that disparity of force gives the two girls a significant advantage. That’s pretty clear. Replace the single girl with an 18-year-old
boy and the line blurs. Put a bat in the
boy's hand and the situation reverses, he has the advantage. The girls are now at a significant
disadvantage.
Being able to articulate to the
jury why a 60-year-old man resorted to deadly force when assaulted by a 30-year-old
woman with a broken bottle requires both disparity of force and one more term:
Lethal Force.
I snuck that definition in earlier. Many definitions and concepts involving self-defense
are woven together. My favorite comes
from Massad Ayoob: lethal force is that degree of
force which a reasonable and prudent person would consider capable of causing
death or grave bodily harm.
Lastly, almost a housekeeping
definition: The reasonable man is your
jury.
I should also mention, that several
of these five elements are connected. As
we explore these factors one concept should remain fixed firmly in your
mind. Your actions will be judged later
in the totality of the circumstances.
#1 - Innocent: Absolutely required. You must not be perceived as the aggressor,
or the one who kept the problem going.
You've seen people act that way. They respond to a negative interaction with,
"Oh yeah?" Or: "sez who?"
"You’re a clumsy oaf! What are you going to do about it?" or
other response inviting confrontation.
Imagine a simple accident. You
bump into a person in a crowed location and they slop a little beer on
themselves. They bring that to your
attention and you respond with any of the above remarks above and add a few
more. How do you think it's going to
play?
The reasonable man, aka the jury,
will see you as the aggressor and not innocent.
These occurrences happen all the time.
You take a parking space someone was waiting for. You stare at the wrong
direction too long and someone thinks your eye fucking his girl. The list goes
on. What do you do?
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| You've waited to long to deescalate... |
The safe option is to back out of the situation. Say you're sorry and offer to replace the beer. Say to the other driver, "Oops, I didn't see you waiting there. Let me back out so you can have your slot." Tell the angry boyfriend, "Gee, you’re a lucky man. She's the prettiest girl in the room. I bet everyone is looking at the two of you."
Then make a change, leave, shift
your place on the table so you look elsewhere, find another parking space.
Leave! You can figure it out. There are many excellent books on verbal judo
you can use to help defuse the situation.
No, you're not a pussy, a wimp, or
sissy. You're being smart, Juries like eyewitnesses that testify, "I
saw the defendant try to deescalate."
Even without eyewitnesses, being able to say to the jury, "I tried
to deescalate. I moved back/out/away and
he followed me," carries weight.
Is this perfect? No.
Some people aren’t reasonable, driven by their own insecurities and
needs. Just because you try to calm the waters, the storm can still roll in.
Lastly, use this opportunity to
move to a more tactical location, if you can.
Get a table between you and angry beer drinker. The guy in the parking lot angry about the
loss of 'his' parking space, put a car between you and him. The insecure boyfriend, stand up and move behind
your chair.
Honestly, every situation needs a different solution. Give it some thought in advance.
We'll cover the next element,
imminence, next posting.
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