In order to be found not guilty of assault or murder after self-defense, you must persuade judge and jury that: (1) The person you shot had the power to kill you (ability). (2) The person was close enough to kill you (opportunity). And (3) The person wanted to kill, rape, or rob you (intent). In a prior essay we described fifteen negative factors that might convict you despite evidence of self-defense. Today we look at the reverse, the three elements of a successful self-defense argument.
The fifteen negative factors that might convict you despite evidence of self-defense are:
- you were drug- or alcohol-impaired
- you used unnecessary force
- you were doing something illegal
- you did not call 911
- you used spring gun
- you had hidden motive
- you are accused of racism
- you stood your ground
- you tampered with evidence or lied to police
- you have a criminal record
- attacker was unarmed
- attacker was provoked
- attacker was back-shot or head-shot
- attacker was a non-violent thief
- attacker was underage
The three elements of a successful self-defense argument are: ability, opportunity, and intent.
[Two minor terminology clarifications are worthwhile. First, many instructors, especially those affiliated with The Armed Citizens Legal Defense Network, label the three elements: ability, opportunity, and jeopardy (instead of intent). This essay labels the third element intent merely to focus on the attacker’s goal, in persuading a court that you were in danger. Second, detectives and prosecutors traditionally label those same three elements as: means, opportunity, and motive. These are just jargon differences among different professions; the content of each of element is the same.]
A difference between the fifteen negative factors listed above and the three positive elements (ability, opportunity, intent) is that the former are connected by “or” while the latter are connected by “and”. Any one of the fifteen negative factors (you are seen as a racist OR your attacker was provoked OR …) might torpedo your defense and send you to prison. On the other hand, all three of the positive elements must exist for you to claim self-defense (the person you shot must have had the ability AND the opportunity AND the intent to kill you). If any one of the three elements is missing, you will likely be convicted.
Ability (or Means)
Physically weak attacker — The attacker’s ability to kill you might be challenged if the gun-toting attacker was a child or elderly person. Juries sometimes think that a gun in the hands of a 12-year-old boy or an 85-year-old woman is somehow less lethal than in the hands of an adult male.
Fake or unloaded gun — Means or ability can also be challenged if the attacker was not carrying a loaded gun. For example, in DC you cannot claim that you were in danger if it turns out that the attacker’s gun was unloaded or was just a realistic toy. (To be sure, most other jurisdictions accept that a reasonable person would have thought they were in mortal danger.) But fake guns are rare. In practice, the attacker’s ability or means is most likely to be challenged if the attacker had no gun at all. This includes cases where you were attacked by a mob, by someone with a knife, or simply by someone much bigger and stronger.
Mob — Over the past four years, the United States has suffered an accelerating wave of Black-on-White mob attacks by teens and young adults. Hundreds of such attacks in cities across the nation have killed or hospitalized dozens of victims. Mainstream newsmedia (TV, radio, and newspapers) suppress news of the attacks even when their own employees are victimized. The cover-ups obey orders from law-enforcement authorities who claim to fear that publicizing the attacks will exacerbate the violence. A few courageous individuals have tabulated the rising wave of Black-on-White mob attacks. See for example, Colin Flaherty, White Girl Bleed a Lot 5th Ed. (CreateSpace, 2012). The Kindle edition contains live web links to hundreds of amateur videos of the attacks. The self-defense challenge is that the mobs are underaged and armed only with rocks and shod feet. (The mobs are also Black, which is one of the 15 negative factors although irrelevant to today’s topic.)
Knife — Many armed robbers prefer knives because they are silent. But if you shoot such a robber an aggressive prosecutor will argue that you used excessive force.
Physically strong attacker — Imagine an elderly person, a child, or a woman attacked with fists and feet by a strong adult male who says, “I will beat you to a pulp unless you let me rape you.” If the victim shoots, they will have to justify to a jury why they shot an unarmed man.
[A famous true exchange between prosecutor and defendant at trial went like this:
Prosecutor: Why did you shoot him?
Defendant: Because he said he was going to kill me.
Prosecutor: And did he kill you?]
The most common prosecution challenges to ability occur when:
- Many attack one
- Man attacks woman
- Adult attacks child
- Adult attacks elderly
- Strong attacks weak
- Knife or club attacks gun
The attacker’s opportunity to harm you can be challenged on either of two grounds: distance or physical restraint.
Distance — An attack from beyond the range of the attacker’s weapon lacks opportunity. A gun-armed person threatening to shoot you over the phone has ability but lacks opportunity. If you shoot a knife-wielding attacker from a football field away, your self-defense claim would be challenged because your target lacked opportunity. (Although you would deserve a medal for marksmanship.)
Physical restraint — An attacker who is physically restrained would lack opportunity. You would have a hard time convincing a court that you shot a powerful menacing attacker in self-defense if he was behind bars at the time. The challenge sometimes arises when LEOs are accused of excessive force for shooting someone in handcuffs. That LEOs have been murdered by cuffed (but inadequately searched) prisoners is a topic for the expert witness.
Intent (or Jeopardy, or Motive)
In order to persuade a court of an attacker’s intent, you must show that his behavior indicated a desire to kill, rape, rob, or seriously harm you. As explained above, you must prove the attacker’s intent in addition to proving his ability and opportunity. The four most common attacker behaviors that show intent are: physical attack, brandishing, verbal threat, and interview with positioning.
Physical attack — It is normally considered evidence of intent to harm if the attacker had already shot or stabbed you before you began to defend yourself. Physical attack is usually accepted as evidence of intent. This is because the act itself already shows ability and opportunity. Nevertheless legal challenge is possible. In Florida’s infamous Zimmerman/Martin case, eyewitness testimony as well as forensic evidence showed that the attacker was pounding the supine defender’s head against the concrete sidewalk before the bleeding defender shot him. Nevertheless, the prosecutor disputed attacker intent on grounds that the dead attacker had been “provoked” by the defendant’s (a neighborhood watch captain) observing him.
Brandishing — This is the second most-often accepted evidence of intent. A prosecutor is unlikely to challenge as evidence of intent an attacker’s display of a lethal weapon in a menacing way. This is because the weapon’s very presence proves ability. Again though, exceptions are possible. Brandishing can be challenged as not showing intent when mutual macho posturing preceded the incident.
Verbal threat — Whether a verbal threat is accepted as evidence of intent depends on its clarity. “Give me your money or I will blow your brains out,” is likely to be accepted as evidence of intent. (Although a lawyer in a famous New York City subway case argued that those very words merely exercised the First Amendment right of freedom of speech.) “Give it up,” on the other hand, is likely to be challenged unless there was some additional threat indication, such as brandishing.
Interview with positioning — Finally, an unspoken threat without brandishing is very likely to be challenged in court. Imagine that you are walking toward your car in the parking lot and see three young men leaning against a car chatting. They split up when they spot you. One approaches you directly and asks for the correct time (or a match, or directions, etc.). The other two circle around and approach you from behind, one on each side. This is the simplest and most common form of the interview with positioning that precedes a mugging (a strong-arm robbery or armed robbery). You must react. If they made their move prematurely, you should retreat to the store. But if they timed it right, you must disengage. [For how-to details, see “Layer 4: Disengage” in The First Rule of a Gunfight.] If they continue to approach after you yell “Stop or I’ll shoot!”, you must draw your sidearm. If they then continue to approach, your choice will be either to shoot or be mugged. If you shoot you will be prosecuted and it will be exceedingly difficult to convince a judge and jury of attacker intent, since the attackers neither spoke a threat nor brandished a weapon.
Conclusion — Expert Testimony
When prosecuted after self-defense, you must persuade judge and jury that all three elements were present on the part of person you shot: ability, opportunity, and intent. Each element can be challenged and refuted by a prosecutor. If you were attacked by a murderous mob of teenagers, the prosecutor will argue that you shot an unarmed child (no ability). If the attacker had a knife, the prosecutor will argue that you should have waited until he was within arm’s length (no opportunity). If subjected to mugger interview with positioning, the prosecutor will argue that there was no evidence of intent.
Only expert testimony can overcome each of the challenges. An expert witness can persuasively testify that mobs of young adults often stomp victims to death. An expert witness can explain the Tueller principle, that a average person with a knife is a lethal threat within 21 feet. An expert witness can teach a jury that interview with positioning predicts incipient strong-arm robbery.
How you present expert testimony depends on the judge. Some judges will allow experts to testify on your behalf. You should plan for such cases by budgeting the expense of hiring the best experts in the country. (Alternatively, by buying insurance or membership in an organization that will provide expert witnesses should the need arise.)
On the other hand, some judges do not allow expert testimony because they see the issue not as whether experts would have known that attacker ability, opportunity, and intent existed, but whether you knew it at the time of the incident. In such cases you must be your own expert witness and qualify yourself as such by presenting evidence of your prior training in each of the elements: ability, opportunity, intent.
Next Time: Video Recording Confrontations
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Frank W. Sweet is an NRA-certified firearms instructor who teaches the safe and effective use of handguns for self-defense. He was awarded an M.A. in Civil War Studies in military history from American Military University in 2001. He is the author of Legal History of the Color Line (ISBN 9780939479238), Six Gems of Forgotten Civil War History (ISBN 9780939479023), and of numerous published historical essays. To receive a schedule of his firearms training courses, email to email@example.com. The information above should not be construed as legal advice.
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