Review: the Basics of Lawful Self Defense

Status
Not open for further replies.

Kleanbore

Moderator
Staff member
Joined
Aug 13, 2008
Messages
17,224
In today's turbulence, it may be worthwhile to review a few basic things about the lawful use of force and the threat of force.

The other day, an individual in California was reportedly charged with assault after having pointed a rifle at protesters.

Several friends of mine were appalled by what they saw as the obvious injustice of the situation. After all, that does not happen in screen fiction.

But life is not screen fiction. One may not lawfully point a firearm at someone, threaten someone with one, or display one in a confrontation, without lawful justification.

Such justification requires a reasonable belief of immediate necessity to prevent harm--serious harm when a firearm is involved. Less than lethal defense may be used to defend against a threat of a lesser degree of harm

Attorney Andrew Branca teaches that the use of force against another person is justified only when all of the following conditions are met:
  • Innocence--the defender was not the initial aggressor , or if he was, he has clearly communicated his intention to disengage; the defendant may not have provoked the conflict; and the incident may not involve combat that had been agreed upon.
  • Reasonableness--the defender's actions must have been reasonable, as judged afterwards by others reviewing the evidence.
  • Proportionality--the defender may use no more force than was necessary under the situation; deadly force may be used only to defend persons , and with the exception of one jurisdiction, not mere property , against a threat death or serious bodily harm.
  • Imminence--the danger must be imminent--about to happen right now, and not something that may happen later.
There's one other requirement, which may not apply in all jurisdictions: avoidance. The avoidance requirement may be obviated ty a "Stand your Ground" law. That all a SYG law does. All of the other requirements of lawful self defense remain in existence

Now, how about just pointing that gun? The threshold for the justification for doing that, or even less, for that matter, is the same as that for the use of deadly force, in most states, or the use of non-deadly physical force, in a handful of states.

We have a Sticky thread on the subject.


All of the above relates not to the analysis of the incident after the fact, but to what a reasonable defender person in similar circumstances would have done, knowing what the defender knew at the time.

Even if retreat is not a requirement, however, it is likely that anyone who has any appreciation at all of the risks, time, and money involved when a case makes its way through the justice system will urge avoidance whenever it is safely possible.

The condition of imminence is generally evaluated in terms of the "A, O, J (ability, opportunity, jeopardy) triangle", described in some detail in the article by Lisa Steele entitled "Defending the Self Defense Case", linked below.

Keep in mind that a defender need not be under actual attack before defending oneself. Were that the case, few defenders would be able to remain unharmed.

In a thread some years ago, Frank Ettin posted the following: "Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4."

Some, or perhaps many, of our members may not have needed this refresher.

However, it may benefit others, and it is available for sharing with those whom you may know who are unfamiliar with this important subject.
 
Thanks for posting this and the warning about displaying or worse pointing firearms at anyone. I like to add that it is not lawful to fire a warning shot at all, don't do it.
 
Animals

It goes without saying that the OP has to do with defense against humans.

The use of force to defend against animals is not covered by these laws.

But it is covered by other laws. It is unlawful to destroy someone else's property. In addition, it is a felony to harm a dog in many jurisdictions. Laws against the discharge of firearms come into play. The necessity defense would likely apply.
 
In today's turbulence, it may be worthwhile to review a few basic things about the lawful use of force and the threat of force.

The other day, an individual in California was reportedly charged with assault after having pointed a rifle at protesters.

Several friends of mine were appalled by what they saw as the obvious injustice of the situation. After all, that does not happen in screen fiction.

But life is not screen fiction. One may not lawfully point a firearm at someone, threaten someone with one, or display one in a confrontation, without lawful justification.

Such justification requires a reasonable belief of immediate necessity to prevent harm--serious harm when a firearm is involved. Less than lethal defense may be used to defend against a threat of a lesser degree of harm

Attorney Andrew Branca teaches that the use of force against another person is justified only when all of the following conditions are met:
  • Innocence--the defender was not the initial aggressor , or if he was, he has clearly communicated his intention to disengage; the defendant may not have provoked the conflict; and the incident may not involve combat that had been agreed upon.
  • Reasonableness--the defender's actions must have been reasonable, as judged afterwards by others reviewing the evidence.
  • Proportionality--the defender may use no more force than was necessary under the situation; deadly force may be used only to defend persons , and with the exception of one jurisdiction, not mere property , against a threat death or serious bodily harm.
  • Imminence--the danger must be imminent--about to happen right now, and not something that may happen later.
There's one other requirement, which may not apply in all jurisdictions: avoidance. The avoidance requirement may be obviated ty a "Stand your Ground" law. That all a SYG law does. All of the other requirements of lawful self defense remain in existence

Now, how about just pointing that gun? The threshold for the justification for doing that, or even less, for that matter, is the same as that for the use of deadly force, in most states, or the use of non-deadly physical force, in a handful of states.

We have a Sticky thread on the subject.


All of the above relates not to the analysis of the incident after the fact, but to what a reasonable defender person in similar circumstances would have done, knowing what the defender knew at the time.

Even if retreat is not a requirement, however, it is likely that anyone who has any appreciation at all of the risks, time, and money involved when a case makes its way through the justice system will urge avoidance whenever it is safely possible.

The condition of imminence is generally evaluated in terms of the "A, O, J (ability, opportunity, jeopardy) triangle", described in some detail in the article by Lisa Steele entitled "Defending the Self Defense Case", linked below.

Keep in mind that a defender need not be under actual attack before defending oneself. Were that the case, few defenders would be able to remain unharmed.

In a thread some years ago, Frank Ettin posted the following: "Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4."

Some, or perhaps many, of our members may not have needed this refresher.

However, it may benefit others, and it is available for sharing with those whom you may know who are unfamiliar with this important subject.


One other I would add is one that women and very small frail men could use.

Disparity of force,meaning the attacker has the obvious ability to overpower the victim.

More than a few female officers have used that defense when attacked without deadly force by a male,and the officer used deadly force to stop that attack.

The funny part is,it is VERY hard to find this except in case law.
 
One other I would add is one that women and very small frail men could use.

Disparity of force,meaning the attacker has the obvious ability to overpower the victim.
As Kleanbore cited Andrew Branca's five necessary components for a self-defense claim (Innocence, Imminence, Avoidance, Proportionality, and Reasonableness), it is helpful to remember that the disparity of force aspect is covered in both Proportionality and Reasonableness.
 
Status
Not open for further replies.
Back
Top