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Self-Defense and the Law: How Well Can You Articulate?


Kyle Rittenhouse Kenosha trial shooting
Kyle Rittenhouse attends a pre-trial hearing at the Kenosha County Courthouse in Kenosha, Wis., on Monday, Oct. 25, 2021. (Mark Hertzberg/Pool Photo via AP)

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Armed self-defense is legal everywhere in America. Even in New York. Even if you’re black, Latino, gay, transgendered, Muslim or maybe all of the above simultaneously.

But no matter where it happens, the color of your skin, who you worship, or who you sleep with, the legal aftermath of using deadly force in self-defense can become a minefield. Prosecutors or personal injury lawyers may play dirty in an effort to either put a good person in prison in order to score political points among their constituents or to maybe hit a big payday in a civil trial.

Avoidance beats using force

The prudent person will practice situational awareness and conflict avoidance. Why? Because avoiding a confrontation is always a win. Always. Similarly, the best way to beat prosecutors and ambulance-chasing personal injury attorneys is to avoid or de-escalate a confrontation from the start.

You have force options without a carry license in those states where they’re still required, but none are as easy to employ or as effective as a firearm. No matter the tool you utilize to defend yourself, though, you have to act to the standard by which you will be eventually judged.

Sacramento Police crime scene investigators place evidence markers on 10th street at the scene of a mass shooting in Sacramento, Calif., on Sunday, April 3, 2022. (Jose Carlos Fajardo/Bay Area News Group via AP)

The aftermath

• You will face investigation if you use force in self-defense, even non-lethal force. This includes use of pepper sprays or any hands-on use of force. Obviously, you’ll face more scrutiny if you use deadly force such as edged weapons, firearms or your Buick.
• You generally have a lot of leeway to use force in self-defense, even deadly force, but only if you can clearly articulate that you were threatened.
• If you can’t articulate the threat, you will probably face charges and maybe even prison.
• You may have to articulate more than just why you used force, but also how you used it.

Reasonable Man Doctrine

The reasonableness of your use of force must be determined from both a subjective and an objective perspective. First, what matters most isn’t only what the objective facts actually were, but how those facts appeared subjectively to the person who used defensive force.

We’ve seen examples of this throughout the country where defensive force is legitimately used even when there was no true deadly threat. For instance, the 16-year-old Japanese exchange student who didn’t speak English looking for a Halloween party in Baton Rouge many years ago. While at the wrong address, he walked aggressively towards the homeowner who was pointing a .44 Magnum at him. The teen ignored commands to stop and the homeowner shot him dead. A jury acquitted the homeowner who they determined reasonably believed he was protecting his family.

It all comes down to the Reasonable Man standard: Whether an objectively reasonable and prudent person, possessing similar skills, training, and knowledge, and in the same or similar circumstances, would have shared that subjective perception of the threat.

And then the follow-on: were the actions take to respond to the perceived threat reasonable to defend innocent life? For example, you made a wrong turn and found yourself amidst a “mostly peaceful” protest where trouble-makers are yelling at motorists and pounding on their cars. Is it reasonable to run a few of them over to escape if the mostly peaceful hooligans haven’t broken any windows or tried to pull anyone out of their car?

Remember, the prosecutor who reviews the case and the ladies and gentlemen of the jury will not be graduates of Mas Ayoob’s MAG-40 training. They won’t be gun rights activists and trainers like me. Instead, a jury will be a cross section of the community, both good and bad. In most states, it will include people who got their legal training from watching ‘Law & Order’. Some of them will be uneasy — at best — about armed self-defense and gun ownership.

In other words, in the real world, your actions should ideally not only meet the Reasonable Man standard, but better yet, they will meet the “Any Damned Fool” standard, a term coined by a dear friend and fellow instructor, one of Guns Save Life’s use-of-force experts, Frank Wright.

Here’s the good news: your actions in using force against an unlawful attack don’t have to be perfect, they merely have to be reasonable. Thank you Graham v. Connor (see also a Federal Law Enforcement Training Center .pdf on the case). The bad news: if you can’t explain how your actions were reasonable, you’re likely going to spend some time in the big house.

Diana Smith, crime scene technician for the Sanford Police Department, shows the jury George Zimmerman’s gun, which was collected as evidence at the crime scene, during Zimmerman’s trial in Seminole circuit court in Sanford, Fla. Tuesday, June 25, 2013. Zimmerman has been charged with second-degree murder for the 2012 shooting death of Trayvon Martin.(AP Photo/Orlando Sentinel, Gary W. Green, Pool)

Articulate not only the ‘why’ but the ‘how’

Investigating officers and prosecuting attorneys may badger you not only on why you used force, but also how. For example: they may suggest that you carried deadly, inhumane and evil hollow-points. “They’re banned by the Geneva Convention!” these hacks may howl to the jury.

They may raise the fact you carried an extra magazine as being indicative that you intended to look for trouble. Or maybe you had a trigger job on your carry pistol. Suddenly you were carrying a gun with a “hair trigger.”

Attorneys will try to taint the jury’s opinion of you by attaching negative connotations to everything you chose to do before, during, and after the use-of-force incident.

To counter those attacks, you and your attorney had better have considered those points and have rebuttals that will make your actions seem reasonable and prudent to the jury.

JHP hollow point ammunition
(Dan Z for TTAG)

In the case of hollow-point ammunition, you should point out that hollow-point projectiles are less likely to over-penetrate, making their use safer for innocent bystanders. Another point: hollow-points transfer their energy to the target most effectively, meaning you have to shoot an attacker fewer times to get them to stop the threat, making it better (safer?) for the bad guy. You could also point out that you carried loads similar to what your local police carry for many of the same reasons their experts chose them.

Should you calmly point these things out to the jury, you will look like the responsible, thoughtful and prudent person, not a reckless, hot-tempered trouble-maker looking for a scalp or two.

Good training will not only help you articulate away seemingly minor things like ammo choice or trigger jobs, but also bigger things like why your attacker had bullet holes in his or her back. Or if today’s high-resolution video shows you failed to stop shooting the instant an attacker dropped his or her knife or gun. (The answer here involves the time it takes the mind to see something, orient itself to what’s happening, decide on a course of action and to implement that action… about seven-tenths of a second, minimum.)

Other questions about your training or the last time you practiced, if particularly relevant, may not be as easily explained. For example, if you missed your attacker (and hit an innocent person downrange) and you haven’t shot your gun since your CCW class four years before, your lack of practice may come back to haunt you as a possible sign of negligence.

Good and experienced criminal defense attorneys should be able to help coach you on these issues, but they may miss some topics. At the same time, some may not have tried a lot of legitimate self-defense cases or be that intimately familiar with guns, ammunition and defensive shooting. That’s where your knowledge, training and expert witnesses can prove priceless to preserving your freedom.

Alternatively, you might have a less-than-stellar criminal defense attorney. In one case, a woman shot her abusive ex after he forced entry to her home, attacking her. She testified she accessed her firearm in the bedroom and defended herself there. At least two rounds hit behind the attacker’s midline.

The prosecutor disputed her claim of self-defense at trial. The prosecutor’s best evidence he had were the bullet impacts in the “victim’s” back. “It’s not self-defense when you’re shooting people in the back,” he claimed over and over.

Without testimony to explain the reasonableness of why she put two rounds in the “back” of her attacker, the jury voted to convict her and she’s now spending life in prison. Don’t let that be you.

Closing thoughts

Hopefully you consider some of these issues. We recommend everyone seek out good training and practice regularly. The training will help you not only with your shooting, but if they cover legal considerations, it could help keep you out of prison or from losing in civil court in the aftermath of using armed self-defense.

Stay safe out there. Have a good lawyer’s number in your wallet, or be a member of a plan like US Lawshield that will defend you if the worst happens. As Andrew Branca is fond of saying, in so many words: you carry that gun to make yourself harder to kill. Make sure you know the law so you’re harder to convict.

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