Hello fellow bikers. If the proverbial “shit hits the fan,” and you have to use your firearm to protect yourself, you may find yourself in a world of legal trouble if the law believes you did not operate within some basic rules. Your freedom will inevitably require you to have a legitimate self-defense claim. There are five basic principles of a successful self-defense claim:
This particular blog post will focus on the first principle: Innocence
Your actions will have to satisfy all five of these principles for a successful self-defense claim. If they are present, you will prevail. If they are not all present, you may spend a very long time in prison. This month we will focus on Innocence.
After the dust settles, you must be viewed as the innocent party. While this may seem easy enough to prove, there are many things which can happen which makes you the aggressor.
In an altercation, the aggressor is generally going to be viewed as the person who threw the first punch, brandished a knife or pulled a gun. In some states, words alone can cause you to be the aggressor. Tennessee’s laws are a bit vague with regards to who the aggressor is:
(e) The threat of force against another is not justified:
- If the person using force consented to the exact force used or attempted by the other individual;
- If the person using force provoked the other individual’s use or attempted use of unlawful force
Provocation is the key to Tennessee’s innocence claim and the fact that Tennessee has not clearly defined provocation, you must CLEARLY be the innocent party – not the provocateur.
Additionally, you can easily find yourself in a position where competing narratives of the event may portray you as the aggressor – especially if the witnesses are friends of the thug you were protecting yourself against. If this proves to be the case, an overzealous prosecutor may well pursue charges against you.
Proportionality, or the lack thereof, can also cause you to be viewed as the aggressor, not the innocent party. If the thug you are protecting yourself from throws the first punch, but you immediately escalate the encounter by pulling a concealed firearm, you will be in serious jeopardy of losing your innocence – and your claim of self-defense.
While the rules of being viewed as the aggressor vary from state-to-state, the Federal court system has simplified it somewhat with their finding:
“An affirmative, unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences…” Michael J. Edwards v. United States
The keys to this are affirmative – meaning not accidental, unlawful – meaning well, unlawful and calculated to produce an affray – meaning the aggressor was the one who deliberately escalated the situation beyond what was necessary. And lastly, foreboding injurious or fatal consequences – meaning there was imminence that you are in serious risk of being maimed or killed. If it can be proven the thug exhibited these, your claim of innocence may be sustained and you will likely be cut loose and not face criminal prosecution.
There are a couple other actions which may cause you to lose your claim of innocence:
Pursuit/Sustainment – If you pursue or sustain the altercation you will no longer be considered the innocent party. In other words, if the thug decides fighting you is not in his best interest, and verbally communicates he is disengaging, and you try to sustain or further pursue him, you will become the aggressor.
Mutual Combat – If after a brush up with the aforementioned thug, you agree to meet him, or take the fight outside, you will have lost your innocence – and perhaps sunk your entire self-defense claim.
Escalation – This was mentioned earlier, and should be reinforced. If you find yourself in a fist fight, or a war of words, do not escalate the encounter beyond what it is – a nonlethal fight. If you pull your pistol at this point, you will be considered the aggressor or provocateur – meaning you are in serious trouble.
Now, if you find yourself in a position where you may have lost your innocence in the altercation, you may still be able to regain your innocence.
- The person using force abandons the encounter or clearly communicates to the other the intent to do so; and
- The other person nonetheless continues or attempts to use unlawful force against the person
The Tennessee statue is clear here. You must attempt to disengage from the altercation and most importantly, you must verbally (preferably loud enough to be heard by everyone nearby) communicate your desire to end the affray. At this point, if the thug pursues the fight – or escalates it – you may well regain your innocence.
One other consideration you must keep in mind. Being under the influence of alcohol or drugs will sink a self-defense claim. If you are planning on enjoying some adult beverages, leave your gun at home – or locked up where you cannot gain access to it. If you are under the influence and find yourself in a life-or-death situation, your best defense is not going on the offense. If you pull your sidearm under these conditions – even if you are the innocent – you are in serious legal jeopardy. If you have your weapon you must make the choice between potential death and a very long incarceration. But you risk much if you put yourself in this situation.
Watch for the next blog post on Imminence.
Grey Beard Biker
Note: Neither the Grey Beard Biker or Michael are an attorney. While he has been involved in self-defense for many years, this article is provided for informational purposes only. Check with an attorney to understand your state’s laws.
This article was originally published in Thunder Roads Tennessee/Kentucky magazine and is used with permission. It was written by Michael Noirot – a/k/a the Grey Beard Biker.
Other articles in this series can be read by clicking on the following links: