Concealed Carry & Home Defense

Emerson Combat Series: Legal Implications For Self Defense

By Ernest Emerson, Emerson Knives

Please bear in mind that the following information is not from a lawyer.  Always check your local state and municipal laws for exact details pertaining to your specific needs and requirements.  Most importantly always secure the services of a good attorney if you are ever involved in a self-defense situation.

Self-Defense

  1. Know Your Laws
  2. Get a copy of your state laws.

Whenever you are involved in a “Self Defense” situation there are terms, other definitions and a formula that you must be aware of because they will be applied to your “case” if it is one that goes before a DA, a judge and a jury. You may have been raised in a state with contrary rules to those listed below. So find out now. Here are those terms and the formula you need to know.

Affirmative defense – by claiming self-defense you are admitting to your involvement no matter to what degree. It is not, “I didn’t do it” It is, “I did it because…”

As A Result

The burden of proof is on the defense – that is you.  You are not innocent nor will the Judge and Jury look upon you as such – you are either guilty or not guilty.  You must prove the justifications beyond doubt or you will be found guilty.

Force Justification – Why you did what you did.  You must be able to explain in a couple of seconds clearly, articulately and convincingly what happened.

This is the science of explaining what you did.  And there is a formula you are held to.

 

“You may use the minimum level of force that you reasonably believe is necessary to safely resolve the situation.”

 

Now let’s pick it apart so its meaning and implication becomes crystal clear. First you must understand that you are not required to use force. Officers can’t walk away, but you can walk away… and should whenever possible.

“You may use the minimum level of force that you reasonably believe is necessary to safely resolve the situation.”

You will be required, if your actions go to court, to explain not only why you chose your course of action, but why a lesser level of force would not have worked.

Would anyone else have made the same choices – a reasonable man, theoretically?

To claim self-defense you must not only be threatened, but also able to explain to a jury why any other reasonable person would have believed he or she was in danger.

You must prove that the level of force you chose was the only option.  If you stay when you could leave it becomes mutual combat.  “Don’t rely on “stand your ground.” This is not about ego; this is about survival and the least amount of resulting consequences to you during and after.

This is hardest concept to understand:  You are not out to win, expected to win or even allowed to win.  You can use the minimum level of force that you will believe will get you out of the situation.

Some states have “Castle Laws” – you can defend yourself or use force if you are attacked in your home or someone breaks into your house.

Some states have “Stand Your Ground Laws” – you do not need to retreat but still it is the prudent decision to do so if the opportunity exists.

But some states have The Duty to Retreat” laws and they require you to exhaust all means of escape before you can attempt to defend yourself with force.

Getting away resolves the situation just as well as leaving an unconscious bad guy.  Think less about destroying the bad guy and more about getting to safety.  Your safety is the ultimate and optimal goal.

There are a million and one possible scenarios here.  Remember though, voluntarily placing yourself in the situation will usually exclude the affirmative defense of self-defense – stepping in to help a buddy, etc.

The Threat

You must be able to articulate why the person was a threat to you.  “I had a feeling,” won’t cut it in court.

There are three required elements by the definition of the law and a fourth that is also necessary for the judge and jury.  Intent, Means, Opportunity and Preclusion.

Intent: The threat must indicate to you by some means that he, intends to harm you.

Means: He must have the means to carry out his intent.  Size, fist or boots, gun, weapons, knife etc.

Opportunity: The threat must have the ability to reach you with the means.

Once those three have been fulfilled Intent, Means and Opportunity, one more element should be satisfied for you to convince the jury that your actions were justified.

Preclusion:  You must be able to convince the jury that you did not have any other viable option.

You could not leave: The threat was blocking your exit. You could not leave your family behind. You tried to leave and he stopped you. You tried to talk your way out and it didn’t work.  You couldn’t call for help because help would not arrive in time.  You must be able to articulate why force was the only option that would safely work.

At any point during the perpetration of the attack, the situation can change and you may be seen as the aggressor, if the threat is injured, falls down, swings and then backs away, or if you have any moment or opportunity presented during which you could leave or retreat.

You must also be capable of de-escalating your level of force as the threat is diminished.  If a push would do the job, then a punch is not necessary.

There are some twists and curves that come up.  For example if someone tells you, “Shut the fuck up or I’m going to beat your ass!” and it escalates into a fight because you simply did not “shut the fuck up” You will have engaged in mutual combat.  It’s not about defending pride, only about defending and protecting your body.

Taking damage or “losing.”  If you are struck without warning, that justifies an increase in the level of force. If you are taking damage while attempting to protect yourself, you may escalate the force needed.

If you are trapped, taken hostage, thrown into a vehicle, or invaders are in your home, a higher level of force may be justified.

Then Comes

Civil Court

Culpability in this arena is not based on “proof beyond a reasonable doubt,” but upon “the preponderance of evidence.”

It does not matter  how justified you may believe yourself to be in making a decision to engage in combat even if it were force upon you and you did not even have a choice, for example, if you are attacked. In any case, you will have to face the after effects of your actions. At that point it does not matter if you were right in doing so. What will matter is, first, whether law enforcement thinks you were right and whether they decide to charge you or not. And if charged and the district attorney doesn’t believe you were right, then it will come down to whether you can convince a jury of your peers, 12 complete strangers, that you were indeed right. What follows are some words of advice that may help you prevail in the, fight after the fight.

To prevail in a civil suit you must convince the jury that the threat left you no choice – that any harm he received was the result of his actions.  To be absolved of responsibility, you must show absolutely that the threat was entirely responsible for the consequences of his actions and it was only self-defense on your part.

Get a good attorney in advance and on retainer.

Check your insurance for self-defense coverage.

The ability to express yourself in understandable and justifiable language with the right amount of properly placed emotion is an art that most of us do not have mastery of. Do not delude yourself about the importance of what I have just stated. Your freedom and your entire feature may depend on your “presence” and your ability to convince a jury to see it 100% your way. Get a good attorney, pay the money. He will be your coach.

Any incident that involves you having to act in self-defense of either yourself or your loved ones is guaranteed by its nature to be a dangerous and traumatic event.  The effects of which may last for years.  In such a stressful moment it is easy to say or do things that if twisted around, can easily make it appear to others that you were the bad guy. Having a plan before something bad actually happens is a wise way to prevent the bad “after effects” that can affect your future for decades.  Having knowledge of what to be prepared for is a big part of having that plan in place.  If you are training in the art of “self-defense” but only learning to shoot, kick, or punch then you’re only doing half the training that you’ll really need to defend yourself.  Don’t get caught with your guard down after you’ve put down the threat.  The next attacker (our legal system) can be just as dangerous.

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Ernest R. Emerson is a knife-maker and personal combat instructor. Visit his site – click here to visit EmersonKnives.com

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