How to be on the right side of the law in Self-Defense
Beau Doboszenski, Owner/Lead Instructor
Originally published May 25th, 2018
In this newsletter we usually talk about the tools, tactics, and techniques of defense. But just as critical is proving that you are, in fact, acting in self-defense.
Most concealed carry classes that I’ve observed focus on the legal statutes of self-defense. That’s important, however, the legal system is much less cut and dry. As an example, in Defensive Mindset Training’s home state of Minnesota, the legal statute for self-defense is:
609.065 Justifiable taking of life. The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode. HIST: 1963 c 753 art 1 s 609.065; 1978 c 736 s 1; 1986 c 444
Consider the following scenario in light of the statute above.
It’s midnight. You’re asleep. All of a sudden, there’s a crash. You bolt out of bed and grab your firearm. You decide to search out the source of the crash. As you quietly move through the house, you spot an intruder unbolting your flat screen television off of the wall.
Considering the statute, you are completely justified in shooting this intruder, right now, in the back as the intruder is committing at least three felonies in your place of abode: Home Invasion, Theft, and Destruction of Private Property. So you do. And guess what? in Minnesota, odds are good that you’ll be convicted of murder and find yourself in prison for a long time.
Why’s that, when you obeyed the statute?
In the words of self-defense legal expert and my good friend, John Caile, “juries don’t like it when people are killed over stuff.” The Statute Law is like the tip of the iceberg. Case Law - or how prosecutors, juries, and judges have interpreted the law - is all of the iceberg under the waterline and it changes everything.
At DMT, we operate not based on statute law but under what we call the Foundational Legal Perspective. In order to avoid prosecution or conviction, a prosecutor or a jury must interpret your actions in this way:
You were an “unwilling actor” absent of any aggression or provocation.
The force you used was necessary and “no lesser force” would do.
You had no way to retreat safely.
You were in immediate fear of “great bodily harm or death” or the “great bodily harm or death” of another.
You were “reasonable” in the grounds for your fear.
Let’s cover each one of these points.
1. You were an “unwilling actor” absent of any aggression or provocation.
Your self-defense must occur “in context.” If you get into a shouting match with someone, call them names, or provoke them by flipping them the bird, fighting back when that person becomes enraged doesn’t count as self-defense. You must strive to be non-aggressive and not provocative. If you like to tell those “idiot” drivers around you how bad they are at driving by flipping them off or honking aggressively, you are being “provocative,” and you need to stop.
2. The force you used was necessary and “no lesser force” would do.
This is a sliding scale. Generally speaking it means that when you decided to use deadly force it was actually necessary. If you have a 300-pound man squaring off against a 70-pound 12-year-old, the bigger guy probably doesn’t need to resort to deadly force to protect himself. But say you have a 120-pound woman having to defend herself against a 200-pound potential male rapist (or a couple of them), it’s easy to assume that anything less than lethal force, or the threat of it, won’t stop the bad guys.
This lays out the benefit of women or older people carrying firearms, since most force against them is potentially deadly. The negative is that if you’re a large, fit, well-trained defender, you’ve got a higher bar to climb to convince the jury that the lethal force you used was necessary.
3. You had no way to retreat safely.
This guidance doesn’t mean that if a lethal threat appears, you must run away… though if that’s a viable option, you should take it. It means that if you had the opportunity to extract yourself from a dangerous situation before it became violent, you are obligated to do so.
Imagine you’re at a party and you get into a conversation with another attender who happens to be of the opposite political perspective of yours. The conversation might start cordially enough, but as this person continues to drink, the conversation becomes an argument and eventually, the drunk attender begins to make a scene because of how much he vehemently disagrees with you. The host intervenes, telling his drunk friend that he needs to go home, or the cops will be called. The drunk starts to leave, but not before he looks at you and says: “I’m coming back and I’m gonna beat you!” You and the host exchange an uncomfortable moment, but you decide to stay and enjoy the party because after all, you have every right to enjoy yourself. Well, ten minutes later, the drunk is back with a metal baseball bat and he comes after you. You pull your handgun and defend yourself.
In this scenario, you could have a big problem. Just imagine the prosecutor looking at the jury and saying: “And none of this would have happened if the defendant would have just left when the drunk threatened him.”
4. You were in immediate fear of “great bodily harm or death” or the “great bodily harm or death” of another.
This is probably the most clear of the guidance, but again, it’s a sliding scale. You’re going to have to prove that you or another were in fact under lethal threat. It sounds clear, but I actually had a student in a permit to carry class ask me something close to the following, based on an experience he’d had in real life:
Student: So let’s say there are these guys over there, and they’re a threat to me. Legally, can I shoot them?
Me: What are they doing?
Student: They’re saying threatening things.
Me: Are they coming toward you to attack?
Student: Well no, but they obviously don’t like me and they’re a threat to me.
Me: How?
Student: Well, I’m marching in this protest, and they’re counter protesters who disagree with what I stand for.
No, legally he couldn’t shoot the “threats,” regardless of how he was feeling. First off, there was no immediate fear of great bodily harm, simply a feeling of great discomfort in what they were saying. Next, there was an easy method of escape, by simply leaving the area. And most importantly, back to Foundational Legal Perspective Number 1, it may be hard to claim you were an "unwilling participant" when you were choosing to be in a protest you knew would be provocative.
5. You were “reasonable” in the grounds for your fear.
Reasonable here means that someone looking at your situation from an outside perspective would say to themselves: “Yes. If I was in that situation, I would likely do what the defendant did.”
That “reasonableness” encompasses a lot of potential variables and can give the defendant an advantage if the situation was particularly egregious, like an active shooter situation. However, if your defense situation is at all muddy, the “reasonable” question can work against you with the prosecution.
If you take anything away from this newsletter, take away that the legal system is way more nuanced than any given statute. You need to think about your defense in a much more holistic manner. Having well developed Situational Awareness skills, a Deterrence Process, and even a Post-Fight plan for engaging with law enforcement and contacting an attorney are all as crucial as ultimately getting those shots on target.