THE FIVE ELEMENTS OF LAWFUL SELF-DEFENSE
By: Steve Moses
I recently attended a block of instruction taught by well-known attorney Andrew Branca at the 2022 Annual Rangemaster Conference held at the Dallas Pistol Club in Carrollton, Texas. Andrew is a true subject matter expert when it comes to the topic of self-defense (there are fewer of them than we might think). As a concealed carrier who absolutely wants to avoid shooting another person in self-defense but knows that it is possibility that he might be forced to, I never miss an opportunity such as this to become better educated when it comes to understanding what it might take to accomplish the following:
- Win the physical fight without being seriously injured or killed (winning may include successfully breaking contact without using a gun or lawfully using a gun in order to accomplish this objective).
- Not get charged with a criminal offense.
- If charged, to not be found guilty.
- Not be an easy target for a civil lawsuit.
Andrew Branca has been practicing law for thirty years with the focus being on self-defense. Andrew is an accredited CLE instructor in more than thirty states. He teaches classes open to the public, provides legal consulting to other attorneys, is the author of several best-selling books, and has produced multiple DVDs.
The principles of self-defense tend to be approximately the same in all fifty states even though terminology and wording may differ. Each state is required to disprove any one of the five elements of self-defense in order to win the case. What this means is that each element is a target, and the prosecution may work hard to find just one element that they can attack. It is not a matter of whether or not the accused threatened, injured, or killed another person as they have already admitted that they did. However, the accused contends that the action took place because of the direct actions of the other person. Concealed carriers should be aware that judges sometimes make improper rulings during the trial, and that the win rate for cases that prosecutors take to trial may be as high as 90%. The consequences for unlawfully using a firearm to threaten, harm, or kill another person are harsh. Set out below are some examples:
- Murder: Life in prison.
- Manslaughter: 15 to 40 years in prison.
- Aggravated Assault/Battery: 10 to 20 years in prison.
- Brandishing/Menacing: Jail time may vary but attorney costs including fines may be as high as $100,000 or even more.
Concealed carriers should know the five elements of self-defense that are vulnerable to attack and have at least a fundamental understanding of each. Those five elements are:
Innocence: Self-defense is intended to allow an innocent person to defend themselves against an unlawful act of aggression. It is not intended to allow an unlawful act of aggression against an innocent person. Innocence can be lost by initiating the aggression, being the first to threaten to use unlawful force, and engaging in mutual combat. It is important to not act in a manner that might be considered to be mutual combat by third parties whether they are present at the scene or seated in a jury. Concealed carriers should know that is possible to “regain” innocence by making a good faith attempt to withdraw prior to engaging in an act of aggression. The same is true in some states if the concealed carrier unlawfully shoves another and the other person then produces a deadly weapon. I think that concealed carriers need to know that they may be taking on huge risks if they make the decision to confront another person while armed, and if they find themselves on the cusp of mutual combat they need to withdraw immediately and do so in good faith.
Imminence: Imminent danger means that immediate action must be taken in order to avoid being seriously injured, killed, or the victim of certain forcible felonies such as robbery, kidnapping, or sexual assault. In order to qualify as imminent, the attacker must have the ability, opportunity, and intent to commit one or more of the above-described violent criminal acts. I use the word “intent,” but the correct legal term appears to be “jeopardy,” which Andrew described as conduct suggesting that the other party has the immediate intent in addition to ability and opportunity. Imminence is a window that can open and close. Concealed carriers who act before the window opens and after it closes can be prosecuted for having committed an unlawful act. Concealed carriers may find themselves in what Andrew called the “Zone of Ambiguity” during real-world encounters with a potential threat. I think that concealed carriers might benefit by attending a quality force-on-force training class. We should learn in a training environment how to quickly assess such situations as they are unfolding and become adept at clearly articulating afterwards what took place.
Proportionality: Proportionality refers to the degree of force used in a defensive encounter and focuses upon the amount of force applied by the aggressor against the defender. Deadly force is that force capable of causing death and/or grave bodily injury and typically includes the use of firearms, knives, and other objects depending upon the manner in which they are wielded and ability to cause physical damage. Disparity in size, strength, fighting ability, and numbers can also constitute deadly force. Non-deadly force is a lesser degree of force that might occur in a fistfight between two parties similar in size, strength, and fighting ability where there are no significant disparities between the two. Other examples of Less Lethal force are pepper spray, Tasers, and even a finger poke. When it comes to proportionality, concealed carriers in a fearful state of mind frequently end up in trouble with the law because of a combination of stress and inadequate training results in poor decision making. In addition, not possessing multiple defensive tools may encourage them to resort to the only tool available to them at the time, which often happens to be a firearm.
Avoidance: Concealed carriers should retreat rather than fight not only because it removes this element as one that the state can attack but because it is an action that lessens the chance that they will be injured or killed. Not all states have Stand-Your-Ground laws, and trespassing in one of those states can negate that claim. Castle Doctrine means retreat is not required in most states, but it may or may not apply if the student is a visitor in a Duty-to-Retreat state. I advise my students to always retreat (if possible) regardless of state law.
Reasonableness: The use of force must be reasonable from both a subjective and objective perspective. Subjective might mean the defender must have a genuine, good faith belief that his or her life was in grave danger. Objective might mean that a reasonable third-party in the same circumstances upon review of the facts would have also believed that his or her life was in grave danger. A prosecutor or jury in a safe environment will examine the actions taken by the defender and consider the following:
- What were the circumstances?
- What were the capabilities of the defender?
- What specialized knowledge did the defender possess?
- What was the apparent mental state of the defender during the encounter?
Obviously, it is not going to be easy to commit to memory everything stated above. A good start might be having at least a baseline understanding of the elements. Examples are set out below:
- Innocence: Concealed carriers may not threaten or commit an unlawful act of aggression against an innocent party. Mutual combat negates a claim of self-defense. If you get caught up in a heated argument with another person, exit just as soon as you realize what may be happening.
- Imminence: Concealed carriers should avoid threatening or using deadly force against another person unless that party is demonstrating that they have the intent, ability, and immediate opportunity to cause serious bodily injury or death.
- Proportionality: Use no more force than necessary to defend yourself or another person. Deadly force cannot be lawfully used to defend against a Less Lethal threat. Training, skills, and possession of more than one defensive tool can help bridge the gap between too little force and too much.
- Avoidance: Never miss an opportunity to break contact and avoid a physical encounter.
- Reasonableness: Would a reasonable person in the same situation as the concealed carrier have good reason to fear for their health or life?
A good working knowledge of the elements of lawful self-defense is important. I seriously doubt that if I am ever involved in a defensive shooting that I am going to wish that I had not put in so much time investing in training. Andrew Branca is a fantastic source of practical legal knowledge for concealed carriers. He has a blog, legal protection plan, and even books on the principles of lawful self-defense that can be found at www.lawofselfdefense.com.