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:
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.
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 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 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, 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: