Self Defense and the Law
What most people know about the law and self defense is based on urban legend, the movies and the media. Even the notion that you can only use deadly force (a firearm) when your attacker is armed is 100% FALSE.
Most people don’t have a CLUE what they’re talking about regarding the laws of self defense. To discover the truth about the law don’t ask a cop, don’t ask your neighbor, you ask a lawyer. Especially one who is specializes in use of force laws.
So that’s what we did.
My long time friend, attorney turned Judge and former owner of Sheep Dog Academy is one of the most sought after EXPERTS in this field. He has spent a large part of his professional career defending cops and citizens who have used deadly force to protect themselves and others.
After decades of living in the self defense world, not a day goes by without hearing a news report, reading a post or listening to someone quote these self defense myths as gospel.
Myth 1: You have to wait for some one to throw the first punch.
FALSE. If someone looks like they are capable, have means and have demonstrated an intent to do you bodily harm, you can defend yourself, others and your property. They don’t have to say “I’m going to kill you!!” Any act of aggression can justify your use of force.
Myth 2: If your attacker is unarmed, you must fight him unarmed.
FALSE. You can defend yourself by any means necessary. You can use mechanical force: clubs, batons and even deadly force: firearms. Edged weapons would fall in between mechanical and deadly force. The more meaningful the threat, the more force you can use. If you’re faced with a strong, determined and capable attacker. You can use deadly force to protect yourself.
Myth 3: You can’t defend other people.
FALSE. You have a right and a moral obligation to help others who are in harms way. The law supports this decision. However, it does not compel you to act. You will not be held accountable for standing by and doing nothing.
Myth 4: You need to wait for an attack to defend yourself.
FALSE. Similar to Myth 1, Myth 4 is more along the lines of if there have been repeated incidences or a history of threats you do not have to wait to be attacked. For example, if you got into a FACE BOOK argument with someone who threatened you repeatedly and then you saw them in the street, you would be able to protect yourself because that person has indicated that they want to cause you harm.
Better example, a 44 year old man goes into a showing of “Dark Man Rises” in Miami Beach shortly after the Colorado shooting and says to a person in the front row of the theater ” This is it! Right now! Right Fucking Now!”
A police officer is quoted saying that if someone in the theater killed him, it could have been ruled justifiable in light of what happened in Colorado, even though the 44 year old man was unarmed.
Myth 5: I will get arrested if I carry a concealed weapon like a knife.
Unless a weapon is strictly prohibited in your state (like pepper spray) you can lawfully carry weapons to defend yourself. Club, sticks, edged weapons and other similar items as covered in Self Defense Training System Modules 8, 9 and 11 can be legally carried and used in self defense in most states.
Even the length of the knife blade or the type of knife is usually NOT restricted by law. For years we thought the legal length was 4″. But then I asked the right lawyer and there is no length restriction in NJ. In fact the laws in NJ are so vague it’s ridiculous. According to my source, “you can defend yourself with a knife, but you can’t carry a knife for self defense.” I think it’s time to move…
“When can Cops Use Force?”
Use of force by law enforcement is on everyone’s minds and you should know when and why cops are justified to use force.
Use of force depends on one of four types of threats.
1. Passive Compliant.
This is the person who will follow instruction and do what you ask. NO THREAT
2. Passive Resistor.
This person will comply with instructions but under verbal protest. NO THREAT
4. Active Resistor.
This person will not comply or be aggressive. MODERATE THREAT – Use of force justified
A great example of this is someone who chains them self to a tree to avoid it being cut down. While they are not posing any immediate threat, they are actively resisting the order to let go of the tree.
You can use force to remove the subject. The type of force depends on their resistance. If it is not combative, it would require physically moving the subject.
5. Active aggressor. DANGEROUS THREAT
This is the person who is capable and has expressed his intention by words or actions, to cause harm to others and property.
Note: they do not have to be actively attacking.
– They could simply make a statement
– They could make an agressive move towards you.
– They could be holding a weapon
-They could have a history of violence or criminal record.
If you have a war of words with somebody who has threatened to cause you or your family or even your property harm and then you see him coming down your driveway, you would be justified in using force to protect yourself.
“When can citizens use force?”
The Deadly Force Diamond
The Deadly Force Diamond consists of four elements.
- Weapon
- Opportunity
- Subject’s actions
- Duty to retreat.
This is similar to the police requirements except police do not have a duty to retreat. The ONLY place you do not have a duty to retreat is in the living area of your own home or states that have “stand your ground” laws.
Duty to Retreat
You have to retreat when you are able. This does not mean turn your back on someone who is visibly angry and in close proximity. If you’re in close proximity to someone who is able to use physical force on you, you are allowed to defend yourself.
You do not need to wait for the proverbial “first punch”.
If they are a credible threat capable, displaying aggression or you have reason to believe that this person is there to cause you harm, you can take steps to protect yourself.
Credible Threat
Getting yelled at by wheelchair bound Steven Hawkins is a far cry different than getting into an argument with Dwayne Johnson. Steven may say he wants to kill you, but he might not be capable. On the other hand the Rock looks completely capable and I would even go as far to say that you might be justified in using deadly force even if he was standing in front of you wearing a bath towel.
Your duty to retreat doesn’t apply to protecting others in danger.
If you see someone in danger you are legally justified to use force to protect them. I know this is viewed as “taking the law into your own hands” but that notion is complete and utter bullshit.
You are empowered to help others, period.
For example, look at Jarod Loughner the 2011 Tuscon, Arizona mass shooting, or Vic Stacy who helped a cop by shooting and killing the assailants are citizens who stepped up to help protect others were fully supported by the law.
In your home all bets are off for the bad guys.
When we say the “home” we mean the living area. Coming home to find an intruder in your home, you are still required to retreat since you have not entered the “living space” of your home.
Otherwise, when you’re in your home your rights to protect yourself are increased. Now you have the right to use any amount of force (including deadly) at an active aggressor.
How much force can you use depends on the threat and the capabilities of the person using it.
If someone has demonstrated a past history of violence and has made threats to you use of force is justified. If someone looks like they can cause you harm and is threatening you by words or actions you may use force. If you’re approached and you try to establish distance and you can’t escape it’s time to act.
On the other hand, if you’re a 50 year old abled body man you may have a little harder time defending your use of a firearm than if you were a 90 year old woman. Remember, the court will try to determine if that person was capable of causing you harm. The more deadly your response, the more evidence the court will need to demonstrate intent and ability.
When should you STOP defending yourself?
You stop whenever the threat is gone or stopped. Knocking someone out is OK, but “Curb Mouthing” their unconscious body might be considered excessive. Shooting someone until they fall down is OK, putting two more in them “Gangsta” style is not.
There are 6 primary levels of use of force.
1. Constructive Force
This is when you give a command like “Get off my lawn”. You can use constructive force with or without a weapon (even pointing a firearm at someone). “Get off my lawn or I’ll shoot” or “Leave her alone or I’ll shoot” are still constructive force. An instruction with clear cause and effect.
2. Physical Contact
Sternly, but gently taking someone by the arm to move them. Guiding their head into the police cruiser. Things that reinforce your commands without causing physical injury or shock to the body.
3. Control Techniques
Methods of controlling or restraining the subject by holding or pinning them down.
4. Physical force or “Active Resistance Tactics” like striking.
5. Mechanical Force
Clubs, ASP, Pepper Spray, Tasers and other items that increase your effectiveness yet enable you to maintain control over the lethality.
6. Deadly Force
Firearms and Edged Weapons whose effectiveness can not be controlled.
At the end of the day – Common sense prevails and LAWYERS get paid.
It’s simple, if someone looks like they’re going to hurt you, your property or others you can use force to stop the situation. You can use the amount of force needed to stop the threat. Once the threat has stopped, you stop.
This does not mean you get a free pass to use force. You will STILL have to defend your actions in court where words like “reasonable” and “credible threat” are determined by people getting paid a large hourly rate. Whether you insist on sticking to Hollywood bullshit dogma of waiting for him to shoot first, you still have to get the same lawyer and go in front of the same judge.
Remember your percentages of surviving by waiting for the other guy to throw the first punch, or take the first shot are infinitely lower than your percentages of an acquittal if you take the first shot.
The choice is really yours “Judge by 12 or Carried by 6”.
Train Honestly,
Damian
Founder, The Self Defense Company
WELL STATED
Great and NECESSARY info! Any comment on “whether good or bad idea”, to inform police after I have defended and escaped the attacker? I think about the attacker and/or his sleezy pals alleging to the police that I was the aggressor, so is it better to tell my side to the cops first?
StandStrong Actually yes! I talk about this in the modules (some place, I can’t remember). Call the emergency line, say you have been attacked and complain of CHEST PAINS, shortness of breath, pain in your left arm…you know the drill.
There’s no doubt you will be under stress and in a fight for your life, but in court it’s not what happened, it’s what you can prove.
Months later if it goes to trial all they have are the reports and first person accounts.
“Mr. Strong, you claim you were in fear for your life, how do we know that?”
Mr. Strong’s attorney,”Well your honor, my client was suffering from chest pains and shock – that are associated with extreme stress.”
DON’T go into “what happened” with the police – when the arrive you are a person who needs medical attention. Just say “I was attacked” and “It’s hard to remember, I’m in a lot of pain.” Then later – don’t make a statement WITHOUT YOUR LAWYER.
It’s simple advice but VERY hard to do under stress and especially when you’re in the right. The reason is because your statement will be in written form and open to interpretation. Criminal lawyers (good or bad) know exactly what to say and how to say it so your statements can’t get twisted.
From an old Law Enforcement Officer and SDC L-5
Two things you DO NOT DO when reporting a self-defense incident to the LEOs. 1. Do not be tough and don’t quote the law. and; 2. Do not talk, chat, answer ANY questions, OR GIVE UP YOUR CONSTITUTIONAL RIGHTS (Period)! The Fifth Amendment states, “…nor shall (any person) be compelled in any criminal case to be a witness against himself.” When the officers discover you are a party to the incident, they should read you your Miranda Rights. We know what they are because we watch police and attorney shows on TV; right to remain silent, right to an attorney, etc. and they end up with “Do you want to give up your right to remain silent and speak to us now?” DO NOT SIGN A PAPER. Don’t be harsh or demanding. Simply say something similar to, “I am not trying to put you off, but I am pretty shaken up and need to go to the hospital. I will talk to my attorney as soon as possible and they will contact you.” Then shut up. You are scared. Something horrible has happened that has never even crossed your mind. Anything you say now will be used against you. Shut the ******** up!!! While waiting at the hospital phone the attorney you have picked because of his SELF-DEFENSE EXPERTIZE or call the self-defense insurance 800 number you have subscribed to and tell them everything. Hopefully, you tell them you have done everything listed above and in the previous blog. Then do NOT do, or say anything without running it by your attorney first. Only do, and never do not do, anything your attorney tells you. L-5
Excellent post as always Damian. This very post just saved my son from being suspended from school yesterday. He got into a small altercation where another student had him shoved into a corner and yelling and pushing him. My son told the kid to back off quite a few times and then just chin jabbed him. The kid went back and fell over some desk then claimed that my son hit him first. But of course dad has been a good self defense teacher the past two years and taught him to never wait for that “first punch” well because he hit first the principal wanted to suspend him and called me to the school to tell me what happened. Then I started to question the principal, did you see the whole altercation? What were you told? Etc. he proceeds to tell me that there was a fight my son hit first and that’s all that mattered. Ummmm no. I told him that first off that’s just stupid, what if the kid had a knife or something else and if it was his kid would he want him to wait for that first punch? Of course he said no. Then I told him that I train in true self defense and you do not wait. When you teach that to a child it will carry over to adulthood and when a real shtf situation comes up your gonna wait then your gonna be dead. To prove that point I took a self defense pen out of my pocket just to show him how quickly a punch can turn into a stab or shooting. Then I finally directed him to this article and asked him, if it’s legal by the state to do a preemptive strike why is it not in school? after that I just told him to do whatever he wanted to do but to use common sense in this. After leaving I got a call about an hour later with the principal saying that my son could return to school today. Just goes to show common sense isn’t very common these days.
Archie
DJGroove WOW – a school administrator with some common sense and not give the “suspend them all” knee jerk reaction.
Glad I posted it.
They wanted to suspend everyone involved however I spoke my mind because of numerous issues with bullies I the past where nothing was done and even an instance where a kid pulled a little pocket knife out on him and nothing was done but a quick search and nothing was found so nothing was done. Bah.
DJGroove because of having kids and coaching, I’m experiencing the anti-bullying rhetoric. It’s easy and less work to suspend everyone. Unfortunately that makes good kids reluctant to fight back.
Exactly. I was one of those kids. Grew up in a catholic school. There was zero tolerance for everything.
I have spent 30+ years as an LEO and eight years as a Judge. Part of the LE side was a felony investigator for a State District Court in Lubbock, TX. During this time I learned how to investigate and do backgrounds on people charged with crimes, For instance:
1) The first thing we did is criminal background. Say you already were charged in a self-defense situation. We will have all of the statements from all sides, all of your statements (more on that later) and the court records, if any.
2) The next thing we did was military background checks. I had one defendant that had served in two different services. If you were in the service, your records are available to Grand Juries via subpoena. If you were a milque-toast clerk, they will know. If you had the most kills in Vietnam or Bosnia or wherever, they will know that, too. If you tried to kill your CO, they will know that, too. This isn’t hearsay. I have seen all of these and more.
3) Next, we go to every type of social media, old, new ALL. Thinking along these lines, let’s look at a few things.
Let’s say you are a member of a Concealed Carry organization that tells you exactly what to say, whether in written or in social media form. And, let’s say do say things suggested. The prosecutor WILL quote your statement, ask you if you are a member of XYZ group, ask you if they ever told you (and then read you the suggestions word for word.) If they are lucky, they will even quote your Comment praising the suggestions.
Prosecutor one / victim Zero.
Let’s say, like me, you own your own shooters / Concealed Carry business. Now you will get to face your students one at a time under oath telling the jury what you taught them for money. Prosecutor Two / victim zero.
Say neither of these exactly fit. However, you told your friends on FaceBook, “I went to my favorite range for my weekly trip and shot another 100% x-ring.” The next question WILL be “If you shoot so well, why didn’t you shoot to wound this (poor robber) and not shoot to kill?” Prosecutor Three / victim zero
NOW . . . We have been discussing Firearms and Deadly Force. HOWEVER, exactly the same background checks will be done for empty hand “semi-deadly” assaults and defensive fighting. People can be tried for criminal assault AND civil assault. “He didn’t have to hit me that hard. Now I’m afraid of everybody and can’t leave my house.”
Just think about this a while.
If you want an expert opinion, read, “Deadly Force -Understanding Your Right to Self Defense.” by Massad Ayoob
You can get it through Amazon and eBay
God bless
OK “Shine” Neal
One other thought. I was just talking to a friend of mine from NRA (of which I am a Life Member.) We were talking about the other side’s way to get at us. I will not have NRA, USCCA, Glock, SDC, etc, sticker on my vehicle. There are several instances of attacks in North Texas and the linking facts are gun, combat, and prepper stickers.
The instances go from breaking into a vehicle to steal a weapon, breaking windows with stickers on them and calling the police to tell them, “A guy in a green Ford PU bearing TX Lic *** *** was tailgating me and honking and making obscene gestures. Then he showed me his pistol and even pointed it at me.” They stop you, shake you down and arrest you for assault with a deadly weapon. You are very close to guilty until proven innocent.
Happens a lot. Think about it.
Just a couple of thinking points
OKN
Like!! Thank you for publishing this awesome article.
Great! Thank you very for Sharing This!
You’re welcome – thanks for finding us.
Waiting until you are attacked first is the kind of self defense martial art schools teach. Bad way to learn self defense.
Very intelligent article, well written and well received. Thanks!