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This is the last post in the five-part series, Principles of a Self-Defense Claim and deals with Reasonableness. In review, the five critical components to a successful self-defense claim are:

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

If you find yourself in the unfortunate position where you have to defend yourself with lethal force, your continued freedom will depend on whether the police, prosecutors and courts believe all five of these components were properly met. If there is any doubt in their minds, that each one was met, your legal team will have to convince a jury that you did in fact meet them.

Principles of a Self Defense Claim – Reasonableness

Reasonableness

Reasonableness of your actions is judged both objectively and subjectively. In the event that the police turn your case over to the prosecuting attorney, objective reasonableness will primarily be determined by interviews with witnesses, physical evidence – and if the case goes to court – testimony by expert witnesses. Subjective reasonableness is primarily going to be determined by your actions and any statements you make (Hint: a subject of an upcoming article). Let’s examine both of these.

Objective Reasonableness

Objective reasonableness is an imaginary litmus test. Essentially, it implores someone to consider if a reasonable person would make the same decisions and take the same actions you did if in exactly the same situation.

This imaginary person is a law-abiding citizen, does not have anger issues, does not do drugs and never drinks to excess. He/she would be cautious by nature. Average in every way, he/she would not have above average intelligence or super human strength.

When considering objective reasonableness, the police and district attorney may well transfer your physical characteristics to the imaginary person. If you are old, frail, small or handicapped you would likely fear for your life more quickly than a healthy man in his mid-20s. As such, a lower threshold would have to be exceeded before you began to become fearful and the fight-or-flight instinct kicked in – that point in time when you believed the threat was imminent.

In a self-defense case the court may also allow Mr. Reasonable to have specialized knowledge which you possess. A good example would be if you knew the person was extremely violent, unstable or had a reputation as a vicious fighter. If you were to find yourself in a position where he was coming quickly at you with clenched fists, and in an obvious rage, you may believe the threat to be imminent more quickly than if you did not have this specialized knowledge. Having this knowledge transferred to Mr. Reasonable is only fair because a reasonable person with such knowledge would be more likely to react quickly.

Other specialized knowledge, such as your previous understanding of the Tueller Drill (for more information see the article on Imminence) can be passed to Mr. Reasonable – and he, like you – will know that a knife wielding man is an imminent threat at 21 feet – which may not seem reasonable to everyone. But if you were to find yourself in court, you will most likely need to prove that you knew this before you used lethal force. Owning a book which cites the Tueller Drill, with a receipt, would be proof. Attending a self-defense class, prior to the incident, which provided information on the Tueller Drill may well suffice as proof.

If Mr. Reasonable would have taken the same actions you did, you have passed the litmus test for objective reasonableness. But that does not mean you are out of the “proverbial woods” yet.

Subjective Reasonableness

Subjective reasonableness takes into consideration all of the things you did and said. Just because Mr. Reasonable would have acted like you did, from an objective standpoint, if you did not believe you were innocent, there was not an imminent threat or your actions were not proportional, you are at risk of not passing the subjective reasonableness test. You may be wondering, “How would the police or prosecutor know I did not believe this if I did not tell them?” This is where your statement to the police may come into play. If you were to say, “I was not afraid for my life,” or “I could have taken him with my fists,” you are in jeopardy of losing your self-defense claim because there was not an imminent threat and your actions were not proportional to your perception of the threat.

Other things which can cause police and prosecutors to fail your self-defense claim, due to subjective reasonableness, would be running from the scene, hiding from police or tampering with evidence. These actions will immediately cause them to believe you were not the innocent party.

In Closing

In closing, remember that you must be able to prove the following to claim self-defense: you are INNOCENT, you believed there was an IMMINENT threat of death or serious injury, your use of force was PROPORTIONAL, there was no reasonable avenue of AVOIDANCE and a REASONABLE person would have taken the same actions.

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:

Grey Beard Biker’s last blog post on Principles of Self-Defense dealt with Imminence. This post will deal specifically with Proportionality – the third component of a successful self-defense claim if you use deadly force. In review, here are the five components which must all be answered affirmatively for you to prove you acted in self-defense:

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

From a law enforcement and legal perspective, pulling a gun during a fist fight would not be considered a proportional response. Doing so would fail the third component and would certainly put you at risk of being charged and spending time in prison. But before I get ahead of myself, let’s take a look at weapons that are always considered deadly:

  • Guns and other firearms
  • Bows
  • Crossbows

That is the entire list. So, would it be correct to assume only these projectile weapons are considered deadly? NO! Common items can be used as a contact weapon and be deadly: baseball bats, hammers, clubs, walking canes, bowling balls, bricks, tire irons, etc. Even one’s fists can be used to deadly effect if the attacker is much larger, he’s choking you or you are no longer able to defend yourself. But the use of any of these other weapons would have to clear the AOJ Triad hurdle in order to be considered deadly-force:

  1. Ability – The attacker has the ability to cause death or grave bodily harm
  2. Opportunity – The attacker can get to you with the force to cause death or grave bodily harm
  3. Jeopardy – The attacker intends to do grave harm to you

As an example, if you were having an argument at a softball game with the batter and he poked you in the chest with his bat, he would have ability and opportunity. But unless he intended to attack you violently with it (jeopardy), you could not immediately resort to using deadly force. Your self-defense claim would fail the third leg of the triad.

Now, if you were approached in an alley by a thug carrying the same bat, and he gets in your face, saying he’s going to kill you, the shit-bag has ability, opportunity and there is most certainly jeopardy. In this scenario, your use of deadly force should be considered justified. But only if you are innocent. You cannot be the person who started the altercation, you have to be in a place you are legally allowed to be and the threat to your life has to be imminent.

The last thing which must be considered is escalation of force. If you are arguing with someone and they throw the first punch, you have the right to defend yourself with non-lethal force. Your fists would be the most logical response. But if you are overpowered and the attacker is on top of you, pounding you in the face, this could represent a deadly threat or an attack which could cause grave bodily harm – the amount of force has escalated and you have the should have the right to protect yourself with escalated force. But again, you must be the innocent party.

My son-in-law is a sheriff’s deputy in Florida. He carries roughly 25 pounds of gear on his belt when he is working. His defensive tools include pepper spray, a TASER and his service pistol. Law enforcement officers are trained to use what’s called the “continuum of force.” This would involve going up-and-down the ladder of lethality of their available tools. Their first tool is yelling, “Stop!” This is obviously everyone’s first tool. Next would be pepper spray, then their TASER and lastly their service pistol. Obviously, if they are experiencing an imminent threat from a gun wielding robber, they are not going to start by pulling out their pepper spray or yelling, “Stop!” But if, during a routine traffic stop, the person becomes belligerent, they may well go to the pepper spray and escalate force as necessary. This is a useful illustration because many civilians often carry only their fists and their firearm. And while some of you may carry a knife, as your lovable Grey Beard Biker always does, don’t fall into the potential legal trap of thinking it is considered less lethal than your pistol. If you are in close combat with a thug, pulling your knife is the same a pulling a gun and can certainly be considered an escalation of force. Remember, from a legal perspective, it is just a deadly as your gun.

Darrel Ralph Designs
Keychain Kubotan

So, what other non-lethal weapons should you consider carrying? Pepper spray is the most obvious. It is quite effective and will give you time to separate yourself from the bad guy and call 911. But pulling pepper spray may also be considered an escalation of force if the threat is not imminent. Case law in many states has shown that juries will convict a criminal of aggravated assault if they use pepper spray in the commission of a crime. So, remember, you must always be the innocent party before you do so. Another tool which you might consider is a key chain mounted kubotan. A kubotan is essentially a mini-club and is quite effective at taking the fight out of an attacker if used correctly. But training and speed are essential with such a tool. And again, you will still need to be the innocent party in order to justify your use of a kubotan – and it must be used only when an escalation of force is required.

In summary, you cannot use force that is not proportional to the force an attacker is using against you. During a fight, your attacker may escalate their force against you, and you may escalate proportionally to their force.

Watch for the next Grey Beard Biker blog post on Avoidance!

The 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:

From Grey Beard Biker’s Friends at USA Carry! Like their website!

Greetings, fellow bikers. This article deals with the second critical component of a self-defense claim: Imminence. The first column in this series dealt with Innocence and can be found HERE.

As stated in article one, the use of lethal force is justified if you are acting in self-defense, protecting yourself, your family, friends or another person. But in order for a self-defense claim to be successful, all of these components must be successfully proven:

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

In the event that you have responded to a situation with lethal force, you first need to be the innocent party – meaning you were not the aggressor or provocateur. Without innocence, your claim of self-defense will quickly fall apart. Next, there has to be imminence. A quick Google search of legal websites will lead you to Black’s Law Dictionary. Imminence relates to their discussion of homicide in self-defense and is defined as:

“….immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or protection of the law…. such an appearance of threatened and impending injury as would put a reasonable and prudent man to his instant defense.” – Black’s Law Dictionary

In other words, you have to respond immediately to the threat or risk being seriously maimed, injured, disfigured or killed. Lethal force, or for that matter non-lethal force, used too early, or too late (after the threat is gone), will fail the imminence test.

Massad Ayoob has been training in self-defense principles for years and I have read several of his books, most recently, “Deadly Force: Understanding Your Right to Self Defense.” Mas has written much on building a self-defense case and it might be helpful in our discussion on imminence to bring into play his concept of imminence, which is often referred to as the AOJ Triad: Ability, Opportunity, Jeopardy.

Ability:             Is your attacker able to hurt you?
Opportunity:  Can the attacker get to you?
Jeopardy:        Does the attacker, who has ability and opportunity, intend to use illegal force against you?

I will take a deeper dive into Ability in this series’ next article on proportionality, but it is worth mentioning now that anyone has the ability to hurt you. Be it with their fists, an impact weapon – like a knife or hammer – or with a gun. It is, however, germane to the next leg of the AOJ Triad, opportunity.

Opportunity relates specifically to whether or not the thug can get at you. If you are in your locked car, at a stoplight, and the thug approaches you with nothing more than his fists, yelling he is going to kill you, he does not have the opportunity to get at you. Using lethal force in this scenario will likely fail in a self-defense litmus test. However, if the same thug is coming at you with a large brick in his hand, he may well be able to get to you. The car, in the first scenario, can be an obstacle and obstacles are something you need to use to your advantage.

Let’s consider another scenario. You are walking to your car in a dark parking lot. You are being approached by a person that appears intent on doing you harm. Can you put an obstacle between you and the thug? Perhaps you can get behind a car in the parking lot and use it as a shield against a potential attack? In this scenario, immediately resorting to lethal force on the individual would be a bad idea.

Distance is also a consideration when speaking of opportunity. If the same thug is coming at you with a gun, distance becomes a non-issue since he can reach out to you with hot lead. But if he is brandishing a machete, distance is certainly an opportunity limitation. Granted, he might throw the machete at you, but he is unlikely to hurt you from more than a few yards away. The same holds true with other impact weapons like a hammer of a knife. But at what distance does the hammer or knife wielding thug become a substantial threat?

This is dependent on how quickly you can bring proportional force into play. A good rule of thumb is the Tueller Drill. Sergeant Dennis Tueller, of the Salt Lake City police department, came up with this drill by measuring how much ground a knife wielding attacker could cover in 1.5 seconds – the time it took an average police officer to un-holster his service pistol and accurately fire two rounds, center mass. Using many volunteers, Tueller came up with a distance of 21 feet. Your Tueller Drill distance will likely be greater than 21 feet since your ability to draw your pistol and fire two rounds accurately may well take longer than 1.5 seconds.

The last leg of the AOJ Triad is the most important – Jeopardy. Does the person intend to use illegal force against you? An armed police officer standing next to you has the ability and opportunity to hurt you. But the AOJ triad would fail because he does not intend to hurt you. However, a thug standing less than 21 feet away from you, brandishing a knife, does possess all of the elements of the AOJ Triad.

In review, if you are the innocent person, and there is an imminent threat of severe injury, or death, you have two of the five components of a self-defense claim.

Watch for the next blog post on Proportionality.

The 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: