Robert Smith: Misconceptions surround self-defense cases

Spokesman-Review columnist Shawn Vestal recently penned a piece regarding juries and self-defense after the acquittal of Edward Bushnell in the shooting death of William Poindexter. It reminded me that there are still many misconceptions about defensive use of force.

As is clearly evidenced in recent years in cases around the country, involving both officer-involved shooting and civilian self-defense shootings, we have seen terrible consequences such as rioting in the aftermath. We have seen a deterioration of trust in our criminal justice system. Some is out of ignorance and some is agenda driven. The problem with ignorance is that we don’t know what we don’t know.

Perhaps I may shed some light on this subject, having taught it for 30 years. Use-of-force levels vary, but, due to space, we will discuss deadly force. Note that the defensive response is driven by the actions of the aggressor. The information that follows is based upon English common law. All 50 states utilize these criteria for their justifiable and excusable homicide statutes. Each jurisdiction will apply their own relevant law in those cases.

What do we need to know?

First, there are two levels of survival: street and court. One must know what constitutes a threat to survive an attack and be able to articulate why one’s actions were reasonable. The court will look at innocence, imminence, proportionality, avoidance and reasonableness in the actions of the defending party in the totality of circumstances.

The following is often called the “yardstick” as to what must be present to use deadly force: “The immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent.”

It must be now, immediate, not some potential future threat. It must be otherwise unavoidable, which can change back and forth in an instant. For instance, one displays a firearm accompanied by verbal commands to stop. The weapon was drawn because one believes there is unavoidable danger and is prepared to shoot. The aggressor seems to comply, so circumstances now appear to be otherwise avoidable. In an instant, the aggressor re-engages the attack, which changes our response back to “otherwise unavoidable,” and one shoots to stop the threat. Hence, why we have “shoot/no shoot” scenario-based training.

The danger is of “grave bodily harm,” often defined as crippling injury. And it must be to the “innocent.” In other words, against you or someone under your protection who has not initiated the actions.

How can we determine if we are within these parameters? There are three other aspects that must be present in the perpetrator. They are:

Ability: The power to kill or cause grave bodily harm.

Opportunity: The perpetrator is capable of employing that power.

Jeopardy: The perpetrator acts in such a manner that a reasonable and prudent person believes they intend to kill or cause grave bodily harm.

All three must be present. Note that “ability” does not say gun, knife, etc. An unarmed person may have sufficient body strength alone to kill or cripple. They may disarm a defender. Other disparity of force examples include young vs. old, male versus female, multiple attackers versus one and trained versus untrained. Furtive movement case law is used to illustrate why one may have fired on an unarmed person. Whether a gun is loaded or not, or is a toy, is irrelevant if the defender’s perception at that time was that it was real. The victim believes they had a gun, which is what the perpetrator often intended.

“Opportunity” differs. A person with a knife or club across the street is too far away initially to use edged or impact weapons. A person with a scoped rifle can employ that force from a greater distance.

Exhibiting “jeopardy” is perhaps the key component. All three things must be present to then see if we are within the “yardstick.” Defensive situations are very dynamic and usually occur in a few seconds or less. One must be psychologically and physically prepared before an occurrence.

Even if we don’t carry a gun, at the least we may want to understand why cases sometimes end up with a verdict that may not make sense to us. Understand that everything is not always as it appears. The police and legal teams should have access to all the facts in a case. Unless we are directly involved in a case, we will not. A jury’s verdict is predicated upon jury instructions given by the judge, as well as its weighing of the facts as presented by the prosecution and defense. Juries do not “define” self-defense, state law does. Even in this synopsis on force, there is room for misinterpretation as this article cannot clarify questions that arise in a classroom setting.

For those who do carry a gun regularly, it is part of our duties and responsibilities as free men and women to be well-informed in this regard. Rights have commensurate responsibilities. It is your right to own a firearm; it is your responsibility to use it wisely and safely.