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Posted on September 25, 2020 by in In Self Defense

Back to Basics The Legal Foundations of a Self-Defense Claim

Back to Basics

The Legal Foundations of a Self-Defense Claim

As a litigation consultant, I’ve had the chance to work on a few self-defense cases with Don West. Don is National Trial Counsel for CCW Safe, as you may know, and he’s been a practicing criminal defense attorney for nearly 40 years. I first met him working on the George Zimmerman / Trayvon Martin case. These days, Don and I keep track of high-profile self-defense cases in the news, and a few times each month, we connect and talk about what we see. Sometimes we record our conversations as podcasts for CCW Safe members. We’re always looking to identify what the defenders did right, what they did wrong, and what lessons concealed carriers can learn from real-life self-defense incidents.

Our goal is to help concealed carriers and gun owners concerned with home defense make good decisions that allow them to protect themselves and their families while minimizing the legal risk that can result from a self-defense shooting.

Over the years, the way I look at self-defense cases has evolved, as has the vocabulary I use to talk about these use of force events. The more cases I analize, the more I find the same themes surfacing time and again. Now that we’ve developed a comprehensive catalog of cases studies, I thought it would be a good time to go back to basics and really spell out the fundamental elements of a self-defense case and how they affect a defender’s ability to justify the use of force in the wake of a self-defense shooting.

An important disclaimer: this is not legal advice. The laws governing self-defense vary from state to state and from one jurisdiction to the next. As a concealed carrier or gun owner, it’s important that you understand the laws where you live and anywhere else you take your firearm. What I am presenting here are legal considerations informed by actual cases designed to provide clearer insight regarding the consequences of self-defense use of force incidents.

While I’m writing for concealed carriers in all 50 states, I approach self-defense cases from the perspective of the states with the strictest laws. My belief is that, if concealed carriers enter a self-defense scenario with the most conservative mind-set, their actions are more likely to be viewed as justifiable, even if they slightly misjudge the circumstances or make minor errors in judgment.

The core spirit of every self-defense law I’m aware of, although the language may change from one jurisdiction to the next, is that, for the use of deadly force to be justified, the defender must have a reasonable belief that an attacker will imminently cause severe bodily injury or death. The elements we’ll focus on are Reasonable Belief, Imminence, and Severity.

Self-defense laws also come with some conditions, prerequisites that must be met as a preamble to a self-defense claim. Defenders must be in a place where they’re legally allowed to be; they must not be breaking any laws; they must not be the first aggressor; and they may have a duty to retreat before using deadly force. The elements are Location, Lawfulness, First Aggressor, and Duty to Retreat.

What’s tricky about defending self-defense claims is that the defender has to be on the right side of EACH of these elements. Don West says, “If one aspect of your self-defense claim fails, and the prosecution is able to successfully show that to the jury, then the entire claim of self-defense fails. Self-defense is an all-or-nothing proposition.”

But here’s what makes the assessment of self-defense cases even more complicated: none of these elements is a black or white issue. The term “reasonable belief” implies a subjective assessment. What defines an “imminent threat?” How severe does an injury have to be to justify the use of deadly force? What actions make someone a “first aggressor”? Is a homeowner just as justified in using deadly force on his porch as he is in his living room? There are no “yes” or “no” answers here; the truth is more complicated, and conclusions fall on an undefined continuum. The law doesn’t provide clear answers to these questions because it is impossible for the lawmakers to anticipate every possible self-defense scenario. It’s up to investigators, prosecutors, and ultimately jurors to make case-by-case assessments. These are tough decisions, and we’ve seen some heartbreakingly close calls.

Here are some of the cases we plan to revisit over the coming weeks:

We’ll go to Missoula, Montana to meet Markus Kaarma who fired a shotgun at an intruder in his garage. In a similar scenario, we’ll explore the case of David Byron Smith who lured intruders to his basement where he shot them both in the head. We’ll revisit Ted Wafer for the case of “accidental self-defense,” and take a deeper look at Amber Guyger, the off-duty Dallas Police officer who thought she had shot an intruder, only to discover she had come home to the wrong apartment and killed the occupant.

We’ll spend some time in Florida where Michael Dunn shot Jordan Davis in the so-called “loud music” case, and we’ll dive a little deeper into the controversial Michael Drejka case where an argument over a handicapped parking spot ended with the shooting death of Markis McGlockton.

We’ll take a second look at a couple of road rage shootings, including the Gerald Strebent case out of Oregon, and the Ronald Gasser case that will soon be tried for a second time in Louisiana.

Moreover, we’ll look at the justified use of force cases of  Zach Peters, Charles Dorsey, and Sheri McClatchy — not to mention the acquittal of CCW Safe member Stephen Maddox.

For good measure, we’ll look at the mistrial of Andrew Weiss, the tragic conviction of Gyrell Lee. and the hero-turned-convict case of Jerome Ersland.

For those of you who have been following these cases for years, we’ll be including new insights from firearms instructor and CCW Safe contributor Steve Moses, and for newer readers, you’ll discover the shootings that have informed our process for assessing self-defense scenarios, and you’ll better understand the the touchstone cases we reference when we explore new self-defense events as they hit the headlines.


Shawn Vincent is a litigation consultant who helps select juries in self-defense cases, and he manages public interest of high-profile legal matters.  If you have any questions for Shawn, or would like more articles like this, let us know belo