Self Defense: When It’s Legal And When It Isn’t, Part 2

 

Lawrence C. Noble, Esq- Citizens Journal Contributor

 

Opportunity will come into play when one has advance notice – by sight and by sound – enabling one to determine and locate a potential threat. This will require the cooperation of a predator who will not be using stealth and surprise to hide an impending attack. If one is unlucky enough to be struck by surprise, the need to explain the AOJ formula will diminish as one struggles to fight for one’s life. But if there is a warning, it is incumbent for the target to decide how close the assailant is, his/her rate of approach and velocity, and her vector towards the target. As the threat approaches one’s location, the Opportunity for deadly assault increases. Once the assailant reaches a point 15-20 feet from the target, the assailant can very quickly accelerate towards the target. Other factors such as the assailant making eye contact, yelling in one’s direction, having stressed facial or neck muscles or a generally threatening appearance all contribute to an affirmative decision that the assailant is demonstrating the proximity required to deliver an immediate and deadly assault.

Once it is established that the assailant has the Opportunity, the Ability part of the formula will need to be established. If one has been surprised and assaulted, Ability will be presumed. If not, then observation of the threat will be required to determine whether the assailant has the Ability to carry-out a deadly, imminent assault. The observation of a weapon, of any type, in the hand of the assailant will automatically establish Ability. But the presence of a weapon is not required to establish deadly ability. Apparent physical disparity in size, in conditioning or in fitness can also establish Ability. Being outnumbered by an unarmed mob may establish Ability. These are all decisions that will need to be made before one will be entitled to respond to the perceived threat with deadly force.

Next, the Danger Must Be Imminent, that is, it must be a danger that one must deal with immediately. In a California appellate case, a woman’s husband beat her frequently. Then, one night, he told her that he would kill her in the morning. After he fell asleep, she got a handgun and shot him in the back five times while he slept. The jury convicted her of 2nd degree murder, and she was sentenced to 15 years to life. The appellate court ruled that “[T]he danger that justifies homicide must be imminent and a mere fear the danger will become imminent is not enough”. The court did not feel that sleeping person constituted an imminent threat. At this time, the battered woman’s syndrome was not an element. While this case had extreme elements, it clearly makes the point that the threat must be urgent, and the self-defender must act immediately to stop it.

Also, under the right circumstances, prior threats may bolster the “reasonableness” of a deadly response; however, most of the readers of this article may not live in the social milieu of the subject case in which people threaten others with deadly force.

So, in a generalized way, self-defense is legal only when the AOJ test is met. Because there are an infinite number of possible scenarios, it is challenging to make a detailed list of all the things that may or may not happen. That is why thoughtful consideration, in advance, is necessary to make the life-saving decision when one is confronted by a deadly-force assault.

Home Protection Rule.

A deadly self-defense by a homeowner while inside her home is given more lenient treatment with lessened legal consequences. When one shoots an intruder in one’s own home, reasonable fear of imminent danger of death is presumed if the following three elements are present:

  1. An intruder forcefully and unlawfully enters the residence (a felonious entry).
  2. The intruder is not a member of the family or household, and.
  3. The homeowner knows that an unlawful entry has occurred,

The beneficial effect of this presumption is that the burden of proof shifts to the prosecution to prove that the self-defense shooter did not have a reasonable fear of imminent death or injury. This in the face of a homeowner facing a home-invading burglar in the middle of the night. In this type of case, both the investigating agency and prosecutor will need to agree that, under the circumstances, either inside or outside of the home, that the self-defense shooter was justified in firing the gun.

And two final points: one is not required to retreat as a condition of deadly self-defense and the right of self-defense ends when the attack ends. While one does not have the duty to retreat, avoidance of conflict is always preferred when one does not increase the danger by the avoidance. And, if one has successfully fought off the attack, pursuit a fleeing assailant is not permitted. Remember, that any mistaken shooting can expose the self-defense shooter to criminal prosecution.

This has been a brief introduction to a serious legal analysis that almost always is made under extremely stressful and time-sensitive conditions. It would be a huge mistake for any reader to think that reading this article alone, without any additional training or thought, is adequate preparation for a deadly force shooting, an event that can be life changing for all those involved. Please remember that it is all about mindset and preparation.

 

Lawrence C. Noble, Esq., provides business, entertainment and asset protection advice and litigation representation. Noble also provides firearms advice and self-defense representation. To that end, Noble is a member of the United States Concealed Carry Association’s Local Critical Response Team in which he represents USCCA members who are involved in justifiable self-defense cases. Noble gives an expanded lecture about these points called Legal Aspects of Defensive Shooing (LADS) in conjunction with the firearms training programs of Readiness Defensive Training, LLC.


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Kathleen

Very useful article, though if I were suffering from a home invasion or an attack, I think I would have a tough time calculating distances away from the perpetrator. The article is very helpful in clarifying some complex legalities facing a homeowner, or anyone for that matter attempting to defend themselves from harm, especially in the State of California, and other states could list.