Saturday, September 10, 2022

Is It Legal: The complexity of self-defense law

A common post on this sub is one in which the author lays out some circumstance regarding a potential self-defense incident, and solicits the community for legal advice on the situation. Such posts are currently in violation of this sub’s rules. The purpose of my post is to discuss the reason why such a rule might be warranted, and to provoke a discussion of the topic more generally.

First I should state that I am not a lawyer, nor would I consider myself any kind of expert on the topic. My information comes from countless books and from conversations with my previous self-defense instructor of eight years who had spent his career in law enforcement. If I haven’t cited something, it’s likely that it comes from my instructor.

One of the most valuable lessons I learned from him is how complex and subjective the legal system is, especially on a topic like self-defense. If you ask me if some self-defense act is legal, my answer will always be “it depends”. But on what does it depend?

The Location of the Incident

The location where the act of self-defense takes place will determine legal jurisdiction. It is very possible that something enacted on one side of a street will not get you arrested, while on the other side of the street it will land you in prison for 20 years.

There are laws applicable to self-defense at city/county, state, and federal levels. These laws vary widely. Those who concealed carry a firearm in northern Virginia (USA) know well that making a wrong turn in your car could turn you from law abiding citizen to felon in seconds if you accidentally cross over in to Washington D.C. or Maryland.

The relationships between these jurisdictions can also become quite complicated, such as with gun sanctuaries where a higher jurisdiction will ban guns, but a lower jurisdiction will vow not to enforce those laws. So your actions in a self-defense situation might be technically illegal, but not prosecuted. (They might also be legal, but are prosecuted. More on that later.)

Threat Factors

The legality of self-defense is largely dependent on the amount of force you use, and the legality of a given use of force is usually determined by a variety of threat factors, many of which are relative between the attacker and the defender. Some of these factors include:

  • Size/Strength/Weight: A larger defender will be expected to use less force against a smaller attacker. A larger amount of force will be warranted by a smaller defender against a larger attacker.
  • Age: In general it’s expected that less force be used on children and the elderly, but this factor is very complicated, especially around the subject of adults and minors. It’s conceivable that your attacker might be a minor when they throw the first punch, and an adult by the time the police arrive.
  • Skill: While no jurisdiction actually requires a black belt to “register their hands as deadly weapons”, courts may expect more of someone with extensive training, especially against someone without such training. It’s a bad look if someone tries to punch you and you knock them out with a jumping, spinning side kick. But a higher use of force may be justified against a much more skilled attacker.
  • Numbers: The relative numbers of attackers vs. defenders will influence use of force. More force is generally permissible by defenders when outnumbered by attackers, and less force if defenders outnumber attackers.
  • Weapons: The presence of any weapon by the attacker will immediately escalate permissible use of force. The presence of a weapon by the defender might as well, such as if a defender risks losing control of their firearm.
  • Gender: Gender doesn’t usually play a legal role in use of force1. At least in the United States, you aren’t likely to find laws or police use of force policies that address it. But there are still societal pressures at play that could sway juries, for example. Men will generally be expected to use less force against women, and women will be seen as justified in using more force against men. This may be true even absent other factors like size and strength disparities.
  • Mental State: Less force is ideally used against someone in an altered mental state who may not know what they are doing, or is not in control of their actions. At the same time, an attacker who won’t listen to reason or respond to pain compliance might necessitate an elevated use of force.
  • Injury/Exhaustion: An injured or exhausted defender may be forgiven for elevating their use of force, attempting to end the threat while they still can. At the same time, if the attacker is no longer able to fight, the defender must usually end any substantial use of force as well.
  • Disability: A disabled defender is generally warranted in using more lethal means of self-defense as lesser means might not be available to them.

(See Rory Miller’s book Force Decisions for an excellent look at this topic. It specifically addresses use of force by law enforcement, but the vast majority of it will apply to civilians as well.)

My purpose with this list isn’t to write a detailed guide to use of force, but to show how complicated it is. So if you ask, “Is it OK for a guy to hit a girl if she is hitting him”, you can see how that question is lacking a lot of information.

What Was Said

What the attacker and defender said before, during, and after the incident can greatly determine outcomes.

Did the defender clarify their intentions before the attack with words such as “I’m gonna kill you”? Did the defender provoke the action (fighting words)? Did the defender clarify their disinterest in fighting with words like “stay back”. Did they try to deescalate the situation? These things matter.

Words spoken during a fight matter too. I’ve seen countless self-defense videos where the defender will say something like “Don’t make me kill you”. BIG MISTAKE! On the other hand, words spoken by the defender during an incident can and should be continued efforts to deescalate the situation, or to tell the attacker what you need them to do to avoid escalation (“keep your hands where I can see them”, etc).

Words after the fight will mostly matter when talking to the police. Both the attacker and defender may admit to crimes at this stage, or give evidence to their intentions or mental state (“I was so scared” vs. “I was so pissed off”). You may have done everything right up until this point, but one wrong word now could land you in prison.

The Presence of Evidence

The evidence of the incident will be one of the most important aspects influencing outcomes, for better or worse. Strong evidence that you acted correctly is of course good, and strong evidence that you acted poorly is of course bad. A lack of evidence can go either way.

Police arriving on the scene will secure the crime scene and document evidence. Everything you did may have been legal, but if when the police arrive, your attacker is a bloody mess and you look unscathed, prepare to at least be arrested.

Eyewitnesses will unfortunately be one of the most common types of evidence, and one that carries an enormous amount of weight. “Aside from a smoking pistol, nothing carries as much weight with a jury as the testimony of an actual witness2.” Such testimony is a common source of wrongful convictions. Eyewitnesses are extremely suggestable. Studies have shown that merely noting the presence of a weapon can lead witnesses to recall seeing one where none existed3.

Video evidence is some of the most reliable. It can help you if you did everything wrong, but damn you if you did not. However, keep in mind the internet is awash with video of fights that start half way through and make the victim look like the attacker.

Criminal Records

The criminal records of both the attacker and defender can be admissible evidence in some cases. A history of violent action will count against either an attacker or defender. If you’ve started many fights in the past, don’t be surprised if no one believes that this time you were the defender.

Government Officials and Juries

One of the most shocking things to me was learning about how subjective the legal system is. Yes, the laws themselves matter, but the people who enforce the laws matter as much or more. Did the arresting officer have a fight with their spouse before work? Is the district attorney running for office this year and wants to make an example of you? Has the judge had lunch yet? Do you remind someone on the jury of someone they hate? All of these factors, which are unknowable and outside of your control, can decide your fate.


There is a lot to learn from all this, but what I want to focus on now is that your legal situation in a self-defense situation is complex and extremely dangerous. It’s impossible to give any definitive legal advice on a reddit post. I’d have to first ask you one hundred questions, review evidence and police reports, and interview witnesses. And even then I couldn’t be sure of a particular legal outcome. Neither could a skilled self-defense attorney.

That’s why I’m saddened when I see advice like “Florida has a stand your ground law, so you don’t have to flee before using deadly force.” The situation is so much more complicated than that.

First, it’s worth noting that just because you didn’t do anything illegal doesn’t mean you won’t end up in prison. It happens all the time. Second, just because you didn’t commit a crime doesn’t mean you won’t lose a civil suit, which has different rules and standards. And lastly, even if you win your criminal and civil cases, it’s likely the process will bankrupt you. My instructor used to say it could cost you $50,000 just to prove you were in the right.

The end result of my thinking on this issue is that:

1) Our community should never attempt to guess the legality of an actual or proposed situation, no matter how much information we are given. There’s just no way to be definitively correct.

2) We can’t avoid legal discussion entirely. It’s important to discuss what our legal obligations are for self-defense, and what action are likely to lead to certain outcomes. Thinking you know the law can get you in trouble, but obviously so too can complete ignorance of it.

3) Legal advice should not only be to stay within the law, but to act within a much higher standard. Violence should be avoided if possible. You may be within your legal rights to use extreme force, but it’s in your best interest not to if you can help it. The legal system is best avoided entirely if possible. If you find yourself having to give a statement to the police for actions you took, you’re in a horrible situation. So the responses to questions like “can I strike first if…” and “can I shoot someone if…” should generally be “I don’t know, but you shouldn’t if you can help it.”

Sources

1) Miller, R. (2012). Force decisions: A citizen’s guide to understanding how police determine appropriate use of force. YMAA Publication Center. pg. 45.

2) Kane, L. A., & Wilder, K. (2006). Surviving armed assaults: A martial artist’s guide to weapons, street violence and countervailing force. YMAA Publication Center. pg. 213.

3) Kane, L. A., & Wilder, K. (2015). The big bloody book of violence: The smart persons? Guide for surviving dangerous times: What everyone must know about self-defense. Stickman Publications. pg. 148

Edit: Formatting



Submitted September 10, 2022 at 11:20AM by xAptive https://ift.tt/xOGXNyW

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