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Greetings, fellow bikers. This article deals with the second critical component of a self-defense claim: Imminence. The first column in this series dealt with Innocence and can be found HERE.
As stated in article one, the use of lethal force is justified if you are acting in self-defense, protecting yourself, your family, friends or another person. But in order for a self-defense claim to be successful, all of these components must be successfully proven:
In the event that you have responded to a situation with lethal force, you first need to be the innocent party – meaning you were not the aggressor or provocateur. Without innocence, your claim of self-defense will quickly fall apart. Next, there has to be imminence. A quick Google search of legal websites will lead you to Black’s Law Dictionary. Imminence relates to their discussion of homicide in self-defense and is defined as:
“….immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or protection of the law…. such an appearance of threatened and impending injury as would put a reasonable and prudent man to his instant defense.” – Black’s Law Dictionary
In other words, you have to respond immediately to the threat or risk being seriously maimed, injured, disfigured or killed. Lethal force, or for that matter non-lethal force, used too early, or too late (after the threat is gone), will fail the imminence test.
Massad Ayoob has been training in self-defense principles for years and I have read several of his books, most recently, “Deadly Force: Understanding Your Right to Self Defense.” Mas has written much on building a self-defense case and it might be helpful in our discussion on imminence to bring into play his concept of imminence, which is often referred to as the AOJ Triad: Ability, Opportunity, Jeopardy.
- Ability: Is your attacker able to hurt you?
- Opportunity: Can the attacker get to you?
- Jeopardy: Does the attacker, who has ability and opportunity, intend to use illegal force against you?
Let’s consider another scenario. You are walking to your car in a dark parking lot. You are being approached by a person that appears intent on doing you harm. Can you put an obstacle between you and the thug? Perhaps you can get behind a car in the parking lot and use it as a shield against a potential attack? In this scenario, immediately resorting to lethal force on the individual would be a bad idea.
Distance is also a consideration when speaking of opportunity. If the same thug is coming at you with a gun, distance becomes a non-issue since he can reach out to you with hot lead. But if he is brandishing a machete, distance is certainly an opportunity limitation. Granted, he might throw the machete at you, but he is unlikely to hurt you from more than a few yards away. The same holds true with other impact weapons like a hammer of a knife. But at what distance does the hammer or knife wielding thug become a substantial threat?
This is dependent on how quickly you can bring proportional force into play. A good rule of thumb is the Tueller Drill. Sergeant Dennis Tueller, of the Salt Lake City police department, came up with this drill by measuring how much ground a knife wielding attacker could cover in 1.5 seconds – the time it took an average police officer to un-holster his service pistol and accurately fire two rounds, center mass. Using many volunteers, Tueller came up with a distance of 21 feet. Your Tueller Drill distance will likely be greater than 21 feet since your ability to draw your pistol and fire two rounds accurately may well take longer than 1.5 seconds.
The last leg of the AOJ Triad is the most important – Jeopardy. Does the person intend to use illegal force against you? An armed police officer standing next to you has the ability and opportunity to hurt you. But the AOJ triad would fail because he does not intend to hurt you. However, a thug standing less than 21 feet away from you, brandishing a knife, does possess all of the elements of the AOJ Triad.
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In review, if you are the innocent person, and there is an imminent threat of severe injury, or death, you have two of the five components of a self-defense claim.
Watch for the next blog post on Proportionality.
I will take a deeper dive into Ability in this series’ next article on proportionality, but it is worth mentioning now that anyone has the ability to hurt you. Be it with their fists, an impact weapon – like a knife or hammer – or with a gun. It is, however, germane to the next leg of the AOJ Triad, opportunity.
Opportunity relates specifically to whether or not the thug can get at you. If you are in your locked car, at a stoplight, and the thug approaches you with nothing more than his fists, yelling he is going to kill you, he does not have the opportunity to get at you. Using lethal force in this scenario will likely fail in a self-defense litmus test. However, if the same thug is coming at you with a large brick in his hand, he may well be able to get to you. The car, in the first scenario, can be an obstacle and obstacles are something you need to use to your advantage.
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