Author: Terry Pittman
What you think you know about self-defense and what the law actually allows can be two very different things. If you carry a firearm, keep a defensive tool on you, or simply want to protect your family, you need to understand the legal boundaries of self-defense.
Self-Defense Is Your Right and Responsibility
Former United States President Ronald Reagan once said, “Self-defense is not only our right; it is our duty.”
People today are more concerned than ever about personal safety. Violent crime remains a serious concern in cities and local communities alike. Political and racial tensions continue to rise. Emotions run high, and it does not take much to trigger someone. Just listen to the daily news and you will quickly see the world can be dangerous. This is not Mayberry. Sheriff Taylor needs to wear a gun, and Deputy Barney Fife needs to keep his revolver fully loaded.
If you are suddenly facing an imminent threat or attack, you do not get to set the date or time. Your attacker does. Will you be ready if, and when, that happens? Taking responsibility for your personal safety includes knowing the legal boundaries of self-defense so you can respond lawfully and decisively in a moment of crisis.
Self-Defense Is a Lifestyle
As a civilian with former law enforcement experience, I am passionate about the study of lawful self-defense and I strongly support the Second Amendment. I dedicated my Facebook page to lawful self-defense and related topics because I want to help others become better educated and better prepared.
For me, self-defense is a lifestyle. I live it and practice it daily. You must be prepared for the physical battle as well as the legal battle that may follow. Your first priority is to survive the physical fight. If you lose the physical fight, everything else becomes insignificant.
A Diversified Self-Defense Toolbox Is Essential
As someone who lawfully carries a concealed firearm every day in my home state of North Carolina, I recognize the importance of also having less-lethal resources available for self-defense. When I carry my concealed firearm, I also carry less-lethal tools. This allows me to be prepared for a range of threats, whether deadly or non-deadly, and respond appropriately. A firearm is not a universal response for every self-defense encounter.
Relevant Training Is Necessary
Once you have a plan and know what self-defense tools you will carry, you must train in their use. You must build proficiency so you can respond decisively in a moment of crisis. What good is a firearm if you carry it but never go to the range to practice? What good are less-lethal resources such as pepper spray, pepper gel, or tasers if you do not practice and learn how to use them effectively? Threats happen suddenly. If you are attacked, you will not have time to think through every detail. You must be ready to act immediately. Once you prepare for the physical fight, you must prepare for the legal fight as well. Unfortunately, the legal fight is where many people fail to plan.
Benjamin Franklin said it best: “If you fail to plan, you are planning to fail.” If you are ever compelled to defend yourself from an imminent threat or attack, you will likely invoke self-defense as legal justification for your use of force. Whether your use of force was legally justified will be determined by the results of a police investigation, reviewed by a prosecutor, and ultimately decided by a judge or jury if criminal charges are filed.
If you used deadly force, you could potentially face charges such as murder, manslaughter, or aggravated assault, depending on the facts of the case. These are serious charges that can result in decades in prison, or even life imprisonment, if convicted.
Burden of Production
Regardless of the type of threat, you do not automatically have the right to argue self-defense in court. You must meet what is known as the Burden of Production. You are not required to produce a large amount of evidence, but you must provide enough evidence to support your self-defense claim. The judge or jury will then hear and weigh the evidence and render a verdict.
The 5 Elements of the Law of Self-Defense
You may believe you did everything right. You were the victim of an unprovoked attack. You did not do anything wrong. So how is it possible you could still be charged for defending yourself?
Because what you think you know about self-defense and what the law actually requires can be two entirely different things.
The legal doctrine of self-defense is not simple. For a self-defense claim to be deemed lawful, there are five elements that will be evaluated by a prosecutor. These five elements are cumulative, meaning all five must be in your favor (unless one or more are legally waived). For example, Avoidance may be waived in a Stand Your Ground state. These five elements are the foundation of a lawful self-defense claim. If a prosecutor can disprove even one of them, your self-defense claim collapses.
So what are the five elements of the Law of Self-Defense?
- Innocence: You must not be the initial aggressor in a confrontation.
- Imminence: The threat must be happening now or immediately about to happen.
- Proportionality: The force you use must not be greater than the force you are defending against.
- Avoidance: Do you live in a Stand Your Ground state or a Duty to Retreat state?
- Reasonableness: Your actions and decisions must be both subjectively and objectively reasonable.
Make Yourself Hard to Convict
There is a fine line between the lawful use of force and a jail cell. Make sure you know the legal boundaries of self-defense so you do not risk spending decades in prison, or even life imprisonment. Self-defense laws vary from state to state. Always check the laws in your state so you understand the legal boundaries in your jurisdiction.
Source content for this article is derived largely from the book Law of Self Defense Principles by Andrew F. Branca, Attorney at Law, an internationally recognized self-defense and use-of-force expert.
In the next article, I will explore the first element, Innocence, and discuss what factors can negatively impact your self-defense claim. I hope you will join me as we continue through each of the five elements of the Law of Self-Defense!
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