Innocence in Self-Defense Law Explained

the law of self-defense: element 1 - innocence

In my previous article titled What's Your Self-Defense IQ? I mentioned that five elements compose a lawful self-defense claim. These are as follows:

1. Innocence
2. Imminence
3. Proportionality
4. Avoidance
5. Reasonableness

These elements are cumulative, meaning that you must have all five elements in your favor (unless one or more of them are legally waived) to achieve a lawful self-defense claim. A defendant does not have to prove self-defense. A prosecutor must disprove self-defense. If a prosecutor can successfully attack and disprove any one of these five elements, then your self-defense claim is defeated in its entirety.

Self-defense is inherently an act of confession and avoidance. You are confessing to the underlying conduct (ie, “I shot him,” “I stabbed him,” or “I punched him,” etc.). You are admitting “I did it” but offering a legal justification (self-defense) for your actions to avoid any legal consequences, such as criminal charges and prosecution. If you lose your claim of self-defense, then all that is left is a confession. This is a walk-away conviction for the prosecution. Depending upon the criminal charge(s), you could face decades or life imprisonment if convicted.

Whether you own/carry a firearm or some other type of less-lethal weapon, I cannot stress enough how important it is to know and understand each of these five elements of the Law of Self Defense. As Attorney Andrew Branca from the Law of Self Defense, who is also an internationally recognized use of force and self-defense expert, states, you want to make yourself “hard to convict.” 

How do you make yourself “hard to convict?”

It starts with personal commitment. You must take personal responsibility for the safety of yourself and your family. You must make a conscious decision that you are going to make a personal commitment to educate yourself on the five elements of the Law of Self Defense and become well-informed. You must adjust your mindset to refusing to become a “victim.”

You don’t have to be an attorney to understand general self-defense law – just a strong desire to know the legal boundaries so that if you are ever compelled to use defensive force in self-defense, you don’t find yourself being criminally charged by a prosecutor and facing the possibility of decades or perhaps life imprisonment if convicted by a jury in a criminal trial.

Those who are well-informed and educated on knowing the legal boundaries of self-defense respond lawfully, confidently, and decisively in the “moment of crisis.” Those who are not well-informed and educated on knowing the legal boundaries respond out of emotion (fear) and make poor choices in the “moment of crisis.” Therefore, they find themselves facing serious legal consequences.

How well do you think you would respond in the moment of crisis under stress? Will your decisions be based upon your education and training in self-defense, or will your decisions be based on fear and emotion?

Innocence – What is it?

Innocence, with respect to self-defense, should not be confused with innocent until proven guilty, as in a criminal trial. Nor should it be confused with being found “not guilty” in a criminal trial. If you are charged with a criminal offense, the law states that you are presumed innocent until found guilty “beyond a reasonable doubt”  by a judge or jury in a criminal trial.

The element of Innocence, as it relates to self-defense, states that you must not be the initial aggressor in a conflict. Generally speaking, you must not be the first person to use force or threaten to use force. You must not forcibly sustain or escalate an altercation. In most states, mere words alone are not enough to make someone the initial aggressor; however, when coupled with an overt act, such as a weapon in hand together with threatening language, they can make you look like the initial aggressor.

If you are found to be the initial aggressor, you lose the element of Innocence in self-defense. Thus, you lose your self-defense claim in its entirety.

REMEMBER: As I previously mentioned, the five elements of the Law of Self Defense are cumulative. You must have all five elements in your favor (unless one or more of these are legally waived) to achieve a claim of lawful self-defense. Even if you have the remaining four elements all in your favor, if you lose the element of Innocence, you lose self-defense in its entirety. A prosecutor only has to disprove any one of these elements.

If you are charged criminally in a use-of-force event and claiming self-defense, you can be sure that a prosecutor is going to review the police investigative report, witness statements, and all other evidence to find the “weak spot” in your self-defense claim and attack it. A prosecutor is going to find where you are most vulnerable and will aggressively pursue a conviction on the criminal charge(s) against you.

In addition to being an “Initial aggressor,” there are several other ways in which you can lose the element of Innocence in self-defense. Let’s look at each of these individually:

Mutual Combatant: 

You do not want to be someone who “runs to the fight.” Agreeing to accept an invitation to fight from another person will lose both of you the element of innocence, and neither person will be permitted to claim self-defense. As human beings, especially men, we don’t want to appear weak. We want to appear “macho” and maintain our sense of pride and dignity. If challenged to a fight, we let our emotions take over in the heat of the moment and willingly accept an invitation to fight another person, or we challenge the other person to a fight (“let’s take this outside and settle this like men”). In either scenario, this is considered a mutual combatant, and both individuals lose the element of Innocence and any lawful claim of self-defense.

Provoker with Intent:

Some states distinguish between an initial aggressor and a Provoker with Intent. A Provoker with Intent is someone who “baits” another person into throwing the first punch or using some other type of force so they will have an excuse to respond and claim they acted in self-defense (ie: ‘’Throw the first punch, I dare you!”). If you are found to be a Provoker with Intent you own that fight. You lose the element of Innocence and cannot claim lawful self-defense. There’s no coming back. You’ve crossed the “point of no return.”

I am reminded of a high-profile self-defense incident that originated in Frisco, Texas (April 2, 2025) and involved the fatal stabbing of 17-year-old Austin Metcalf by another 17-year-old identified as Karmelo Anthony.  Karmelo Anthony was charged with first-degree murder and is claiming self-defense. The incident occurred at a high school track meet after a verbal confrontation between Metcalf and Anthony. He is currently awaiting trial.

Witnesses told police that Anthony was sitting under the opposing high school’s tent and was told to leave. Anthony allegedly told Metcalf, "touch me and see what happens," according to an arrest warrant affidavit. One witness told police that Metcalf then pushed Anthony to get him out of the tent. Anthony then reached into a bag, pulled out a knife, and stabbed Metcalf.

While it appears from the witness statements that Metcalf was the first person to use physical force by pushing Anthony, Anthony’s statement of “touch me and see what happens” could be reasonably construed as “baiting” Metcalf into a confrontation, thereby giving Anthony an excuse to use force in self-defense. In such a case, although Anthony appears not to be the initial aggressor in the confrontation, he would lose the element of Innocence if the State of Texas's self-defense laws distinguish between an initial aggressor and a Provoker with Intent.

Pursuit/Sustaining a Fight:

If another person is the initial aggressor and then voluntarily leaves the confrontation, it is important not to “rekindle” that fight. If you pursue the other person in an attempt to “rekindle” the fight, you will then be responsible for starting a second fight and will be considered the initial aggressor in the second fight. You lose the element of Innocence in the second fight and thus self-defense.

Can you regain the element of Innocence once you have lost it?

There are a couple of exceptions where you can regain Innocence even if you were the initial aggressor in a non-deadly force confrontation:

Withdrawal and Communication:

You must genuinely withdraw from the fight and must not re-engage. You must abandon the fight altogether – not retreat temporarily for a tactical advantage – and then decide to re-engage. You must effectively communicate your intention to withdraw from the fight. You can do this by your actions in running or walking away from the confrontation. The best way to communicate your withdrawal from a fight is verbally and do so loudly so that nearby witnesses hear your communication. Doing so verbally, while also attempting to walk or run away at the same time, is clear evidence to others of your intentions to withdraw from the fight.

Escalation of Force:

If you start a non-deadly force fight and the other person responds with the same amount of force, then your use of force is considered lawful. On the other hand, if you use non-deadly force upon the other person and that person responds with deadly force, then they are the aggressor in the second fight. Their use of force is considered disproportionate, and you would be privileged to respond with your own use of deadly force.

EXAMPLE: Jim punches Joe with his fist (non-deadly force). Joe becomes upset and displays a knife, threatening to kill Jim (deadly force). Jim, in response to Joe’s deadly force threat, shoots Joe. Jim was the initial aggressor in the first fight (fist punch); however, when Joe responded with deadly force instead of non-deadly force in response to Jim’s punch, that made Joe the initial aggressor in the second fight. Jim has regained the element of Innocence in self-defense under the law.


Generally speaking, you are allowed to use deadly force in response to a non-deadly force threat and non-deadly force in response to a non-deadly force threat. I will cover more on the use of force in self-defense under the element of Proportionality in a future article.

The element of Innocence is one of the building blocks of your self-defense claim. You want to appear as the “good guy” in any use-of-force event.  

In summary, here are some takeaways to remember:

• Don’t be the initial aggressor in a conflict.
• Don’t be the first person to use or threaten force.
• Don’t forcibly sustain or escalate an altercation.
• Don’t “run to the fight” or accept a challenge to fight (Mutual Combatant),
• Don’t provoke a fight as an excuse to use force against someone in self-defense (Provoker with Intent).
• Don’t pursue an attacker who leaves a fight or attempt to “rekindle” a fight once it has stopped (Pursuit/Sustaining a Fight).

Source content for this article is derived largely in part from the following: Law of Self Defense Principles (Andrew F. Branca) Attorney at Law, internationally recognized self-defense, and use of force expert.

In the next article of this series, I will discuss the second element of the Law of Self Defense - Imminence. In this element, I will discuss when you can legally use defensive force in self-defense. I hope you will join me as we continue through each of the five elements of the Law of Self Defense!