Beretta Blog

Are You Acting in Self-Defense Legally?

Posted by Tom McHale

on Sep 12, 2018 8:21:00 AM

Know the law

Did you know that there are over 20,000 gun-related laws on the books throughout the United States? Did you know that more are added daily? Did you also know that you are responsible for knowing and adhering to every single law that’s in force wherever you happen to be standing at any given moment?

Also See: Justifying Deadly Force: 7 Areas Courts May Examine

Not knowing a law or that it exists isn’t an excuse, even though it’s impossible to know them all. Welcome to the legal system. While you can’t know every law on the books (no one can) you do need to understand the consequential ones applicable to your area if you plan to own a gun for self or home-defense purposes. There are no bigger laws than those related to homicide, and after a self-defense encounter, they just might apply to you.

Disclaimer: I’m not a lawyer, nor would I ever want to play one on TV, mainly because I think too many actors are self-righteous stuffed shirts, but that’s getting into personal opinion. But seriously, we’re sharing some learnings here in the interest of helping you start to think about the legal aspects of carrying a firearm for self-defense. Don’t rely on this or any other article as your legal backstop. It’s up to you, and you only, to know and follow the laws of your country, state, and locale. Fair enough?

With that said, and even though nuances of self-defense law vary by state and perhaps county or city, there are some basic principles that come into play. Let’s explore.

You Might Be Guilty of Homicide

If you kill an attacker during a self-defense encounter, you’re guilty of homicide. Really. It’s a nuanced legal principle, but the fact remains that someone is dead and you caused it. However, even though you’re guilty of the crime of homicide, it might be excusable under certain circumstances. The concept of justifiable homicide is an important one as it’s the bedrock on which self-defense law rests.

Hindsight

It’s important to recognize that every action you take during a self-defense encounter will literally be scrutinized in detail by an army of Monday morning quarterbacks. Whether in a police station or courtroom, other people will look at the chain of events and make determinations on what you should have done during every split-second of a self-defense encounter. They’ll have the luxury of time, multiple opinions, witness testimony, and maybe even video on which to base their judgments.

You, on the other hand, get none of that and will have to make split-second life or death decisions and live with the consequences. Fair? Nope, not at all. That's why it’s so important for you to educate yourself, think in advance, learn, and train. You’ll literally be held to an unfair and arguably unreasonable standard after a self-defense encounter.

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Reasonable Person

After the fact, your actions will likely be judged based on the reasonable person doctrine. All of the Monday morning quarterbacks, whether law enforcement officers, judges, lawyers, or even jurors, will evaluate your decisions and actions against what a “reasonable person” would have done in the same set of circumstances. If your actions are found to vary from what a reasonable person would have done, you might find yourself in serious trouble.

Imminent Bodily Harm

During that split second when you must decide whether potentially deadly force is warranted, you'll need to prove that you (or perhaps others) were in danger of imminent bodily harm or death. Period. Saying “I was in fear for my life!” Isn’t going to cut it. You’ll have to prove that. Protecting property or preventing a crime that's not about to cause imminent bodily harm won’t cut it either. The only time you should ever consider using a firearm for self-defense is when there is literally no other option to avoid death or serious bodily harm.

So, how exactly is imminent bodily harm defined? There are three common criteria that must all be met in order for a “reasonable person” to act in response.

Ability

The attacker must have the ability to inflict harm or death. This has nothing to do with weapons. If a 6’6”, 300-pound Ultimate Fighting Champion starts to attack you, you’re experiencing imminent bodily harm and risk of death. After all, more people are killed with fists and feet every year than rifles of any kind. If an attacker is larger or more skilled at violence than you, they have the ability to inflict harm or death. If an attacker has a weapon of any type, that could meet the ability to inflict harm criteria. The ability criteria can be met regardless of who is armed and who isn’t.

Opportunity

Does the attacker have the opportunity to inflict serious harm or death? If our example Ultimate Fighter is 200 yards away and unarmed, they don’t have a realistic opportunity to hurt you. If they are five feet away and winding up to kick you in the head, they do.

Opportunity might also be partially defined by movement. If a threat is moving towards attacking you, that increases opportunity. If they are running in the opposite direction, it wouldn’t be realistic for you to claim that you were in imminent danger because they no longer have the opportunity to inflict harm.

Jeopardy

Jeopardy is the catch-all. If our mythical fighter was warmed up and flexing, or even holding a baseball bat (ability) and standing right next to you (opportunity) there is still no imminent danger because you're not in jeopardy. That person may be minding their own business or asking you for the time. However, if they are physically attacking you, then you’re in jeopardy. If that person is saying mean things, you probably aren’t in physical jeopardy at that moment.

The Bottom Line

These are just a few principles that might apply to an affirmative defense after a self-defense encounter - there is plenty more to know. A thorough and proper understanding of these and other concepts is vital for anyone who owns a firearm for self-defense. You might have just a split-second to figure all this out, so that’s why it’s so important to learn, understand, and ponder these principles well in advance of ever needing to rely on them. Remember, those who judge your actions after the fact will have the benefit of infinite hindsight, so you don’t get to make any mistakes.

People assume that a good defensive class is all about shooting skills. That’s not entirely true. While you’ll undoubtedly learn new shooting skills, the knowledge that just might save your life will be about how not to use a firearm until absolutely necessary.

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Topics: Concealed Carry, Self Defense

    

Written by Tom McHale

Tom McHale was born helpless, hungry and shooting-deprived. He's finally given up the corporate life to pursue his passion of creating slightly offbeat, but educational, content related to guns and shooting. So far, he's published six books and nearly 1,500 articles on various topics related to shooting and self-defense.

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