Self-defense is a Right

Why the act of Self-Defense is a "Big R" Right.

In the United States, we have a concept of self-defense that is elusive at best. The fact that the self-defense cases of Kyle Rittenhouse in Kenosha, and the case of Travis McMichael, Gregory McMichael and William Bryan came to opposite conclusions is a testament to our legal system. In this article, I will give some aspects to the justification of “self-defense” in a court of law.

Let’s broad brush these two cases so you understand the facts in each matter.

Kyle Rittenhouse did everything right in accordance with the law. His was a political trial, not a legal one. Kyle Rittenhouse defended himself with deadly force. Two men are dead and another severely and permanently crippled because of it. Kyle should have been investigated, but never charged as all of the evidence and witnesses used by the prosecution were exculpatory (proved innocence) for Kyle.

Kyle was legally armed, where he had a right to be. Kyle had been directly threatened with imminence prior to the killings. Kyle never escalated the situation, attempted to verbally deescalate the situation, and was in the process of retreating when he fell. He had already been shot at and only fired his weapon when a fatal threat was upon him and unavoidable.

The killers of Ahmund Arbery claimed self-defense. However, they created the situation that resulted in Mr. Arbery’s death. The two (the third one did not participate, but recorded video of the event. This could be construed to “encourage” the actual killers), escalated the situation multiple times, for no legal reason warranting the use of deadly force.

In many jurisdictions, the use of self-defense is known as an “affirmative defense.” In a normal criminal trial, the prosecution must prove beyond a reasonable doubt that the accused performed the actions they are accused of, i.e., the killing of another person. In an affirmative defense of a self-defense trial, the deaths of the people and the person responsible for the deaths are stipulated, or accepted as fact, and the defendant(s) essentially pleading guilty to the killing(s). It now falls to the defendant(s) and the legal team to prove beyond a reasonable doubt that his actions were appropriate, reasonable and within the law.

So here is a partial list of the concepts that are considered for self-defense. And with all things legal, the US is a patchwork of these concepts. Please consult with a licensed attorney in your state who is familiar with your state and local laws to determine what you can and cannot do if faced with such a situation.This lets you know your options if you are presented with a threat, fatal or not.

Stand your ground/castle doctrine/duty to retreat. A “duty to retreat” means that you, as the imminent victim, must retreat from any threat if possible. If you are unable to retreat (you or someone with you is crippled/child, etc.), MAY provide a mitigating factor, but don’t count on it.

“Stand your ground” means you don’t have to legally retreat from such a situation, you can remain and “stand your ground” if you have a legal right to be where you are. Be aware, an attempt to retreat is often viewed as favorable to your defense, as it shows you tried to deescalate the situation by trying to remove yourself from it.

“Castle Doctrine” means you have zero duty to retreat when presented with a threat in your home. Some states extend this to your vehicle as well. In jurisdictions that do not have a Castle Doctrine, if home invaders kick in a door, you are legally obligated to flee the house through any window or door available, even if that means you leave others behind.

Disparity of force: This is a really ambiguous thing that works for and against you. Monday Morning Quarterbacking at its finest. This is also a stupid standard, because you are held to a “fair fight” standard, where it’s a 50-50 chance of either side winning the fight.

If you are a young man in good physical condition, who suddenly found this guy in your face, a well-built man in his 50’s, you would think that if this came to blows, you had a fair-to-good chance of beating him. It would not be a “fair fight” if you were to pick up a pipe or other weapon at the start of the fight.

Now, if you knew this is Randy Couture, former MMA fighter, and a guy who can fit your left foot into your right ear without breaking a sweat, that pipe or 2x4 suddenly reduces the disparity of force, you’ll still end up a human pretzel, but you went from a zero to a slight non-zero chance of winning the fight.

The number of attackers, their known skill (you had seen them in a MMA/martial arts gym, etc), the weapons they have, the weapons you have, if you’re alone or protecting others, sex, age, physical ability all play into this “disparity of force.” And there’s no set formula or ratio that can be applied.

Attacker/defender/surrender: “Hitting him back first” will never fall under the umbrella of self-defense. If you start the physical part of the altercation in question, your claim of self-defense will not fly. Now, let’s say you picked that fight with Randy, and he gave you a good drubbing. At the point you surrender (stop throwing punches, hands open and spread, you say, “you win,” etc.) and things have ended. Randy could press assault charges against you and you’d deserve it. Randy would probably win a self-defense case if charges were made against him.

Now, if you surrendered and he continued beating you, then and only then could you be slightly justified to pull that pistol out and pop a cap in Randy to save your life. You would go to jail for assaulting Randy, then have to fight to not have more time on top of that for trying to murder Randy, which I will explain in the next point.

Escalation/de-escalation: Your response to any situation will, in legal terms, either feed into (escalate) or deflate (deescalate) the situation. If you escalate, you start to damage your self-defense case.

Example: You’re walking along a sidewalk, and a guy yells at you, “Hey Percy! Those pants you’re wearing make you look like a real pansy!” If you were to respond with something like, “Thanks for letting me know,” smile and keep walking, you have not legally escalated the situation. If you stop, face the other guy and respond with, “it looks like your blind crack-whore of a mother dressed you,” then you have escalated the situation.

Retreat: This is different from the “duty to retreat” above. If you get into an altercation with someone (ex: you caught them rummaging around in your car) and when you confront them and they run off, they are not an active threat and you cannot chase/shoot/beat them and claim self-defense. If they attack you, you defend yourself, then they run off, again they are no longer an active threat. If you have reasonable suspicion/prudence indicates that they are running for cover with the intention of shooting at you, then they can be considered still a threat. This is a significant grey area, dependent on your local laws and District Attorney. Consult with your attorney on this.

The bottom line here is this: If they retreat and you pursue, now you have become the aggressor and lose the protection of self-defense any more. This is what got Mr. Arbery’s killers convicted. The killers pursued when he retreated. Eventually Mr. Arbery felt he was cornered and had to attack to end the deadly threat against him.

Again, I am not a lawyer. I don’t play one on TV and I did not stay at a Holiday Inn Express last night. Do not take these generalized concepts and attempt to use them in any way, shape or form to craft a personal self-defense plan.

Spend the cash to retain and consult with an attorney licensed in your state and knowledgeable in deadly force self-defense issues to determine what your legal obligations are. When you are with your attorney, use this article to ask the right questions. All the answers in the world are useless unless you can match them to the proper questions.

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