Defending the Self-Defense Case Pt. 5

[The following article was written by attorney Lisa J. Steele for nacdl.org. It’s republished here with the author’s permission. Click here for part 1.]

Third-Party Defense

Things become more complex when a defender attacks an aggressor to protect a third-party. In some states, the defender stands in the shoes of the defendee. If the defendee is, for example, an initial aggressor or involved in mutual combat, then the defender acts at his or her peril. In at least one state, the defender may reasonably defend someone who he reasonably believes to be in danger regardless of the defendee’s rights. Counsel will need to look carefully at the relationships between the parties and state law. If the law is unclear, counsel may argue that a rule allowing a defender to act reasonably, rather than discouraging a defender by fear of criminal prosecution for his or her good deed, is the best policy for society . . .

Excessive force

Excessive force issues appear to allow the jury and court to distinguish between kinds of deadly weapons if the client had multiple options available. This is a place where the common law may differ from the Model Penal Code and from other states which do not distinguish between different kinds of deadly or dangerous weapons.

The attorney needs to clearly establish the speed with which the client made his or her decision about what kind of force to use, and the consequences if he or she used a lesser amount of force which did not stop the aggressor. If the client has met the AOJ criteria described in Pt 3, then the evidence should support the client’s decision.

Firearms and Unarmed Aggressors

As noted above, if the client used a deadly weapon, especially a firearm, to defend himself against an unarmed attack, the attorney will have a difficult time convincing the jury that the client acted in self-defense.

If the client is armed with a firearm, and the aggressor is aware of the firearm and tries to close in on the client, the client is justified in firing before the parties begin wrestling over the firearm. Many police officers are killed with their own firearms. Officers are trained in specific retention techniques to avoid having their service firearms taken away and used against them; a client will rarely have the benefit of this training. Police react to an effort to grab an officer’s handgun as an attempt to kill the officer with that handgun; the client should be able to do so too.

Police use-of-force doctrine also allows officers to shoot unarmed aggressors running towards them. As the U.S. Court of Appeals for the Third Circuit noted: “A reasonable officer would not be expected to take the risk of being assaulted by a fleeing man who was so close that he could grapple with him and seize the gun. Our recitation of these events is a discussion in slow motion of an incident that took place in a matter of seconds. [The officer] had no time for the calm, thoughtful deliberation typical of an academic setting.” Similar logic should apply to citizens as well.

‘Killer’ Bullets and Hair-Triggers

The attorney should research the weapon and ammunition the client used. Ask the client why he purchased and carried that specific weapon. Research its self-defense uses.

The client will be in the strongest position if he or she used a firearm and ammunition similar to that issued to local police departments. Many police departments issue semi-automatic pistols chambered for 9mm or larger caliber with jacketed hollow-point (JHP) ammunition. If the client has used hollow-point ammunition, the attorney should understand and be able to quickly explain to a judge or jury why JHP ammunition is widely recommended for self-defense use. The attorney should have a gunsmith or other expert check the amount of pressure required to pull the trigger on a recovered firearm for the first shot and any subsequent shots, and check its safety devices to make sure they were functioning.

Shooting to Wound

If the prosecutor is arguing that your client should have been shooting to wound the aggressor or aiming for a limb, he or she has seen too many Lone Ranger episodes. The client is reacting immediately to a life-threatening situation. He or she is not an actor on a set.

There are two problems with shooting to wound. The first is actually hitting the target. Under life-threatening stress, some trainers say that the client’s aim will be diminished by stress hormone affects on his or her fine muscle control and vision. Even if the client is an expert shot on the range, he or she may not be able to reliably duplicate that feat in a dim alleyway. As discussed above, there is a small reaction gap between deciding to fire and doing so. In that time, the torso can turn 180º; a hand, arm, or leg could move anywhere.

The second problem is over-penetration. The client is responsible for every shot fired. Bullets recommended for police work and self-defense are generally designed to reliably penetrate 12” of flesh covered with light clothing. Limbs and hands are much thinner. A bullet which strikes a limb or hand is likely to pass through with enough force to penetrate any standard building material behind the aggressor — which endangers the public at large. Police aim for the center of mass (the torso); the client should not be faulted for doing the same.

Why Was the Client Armed?

Although lawful possession of a weapon is not a formal requirement for self-defense, many court opinions mention the reason the defendant was armed. This is an important question to discuss with the client, especially if the client will testify at trial. If the client armed himself or herself in anticipation of the fight, this can be evidence of premeditated murder. A prosecutor might also argue that bringing a weapon to a confrontation is evidence of mutual combat or that the client was an initial aggressor.

Self-defense or necessity generally will not protect the client from being convicted for unlawful possession of a firearm or other weapon, but the possession charge is a small price to pay for avoiding death or serious bodily harm in a genuine self-defense situation.

Conclusion

Law enforcement officers cannot protect citizens at all times. The right of citizens to protect themselves is critically important to our society. It is a right, enshrined in many state constitutions, that needs to be zealously protected by the vigorous efforts of criminal defense attorneys. If the right becomes uncertain, murky, or counter-intuitive, citizens will be reluctant to take action to protect themselves and others for fear of criminal prosecution. That fear, and the consequent passivity, will “lead to the alienation of people from one another, an alienation symbolized for our time by the notorious Genovese incident. To the fear of ‘involvement’ and of injury to oneself if one answered a call for help would be added the fear of possible criminal prosecution.”

The right of self-defense is most endangered when it is inadequately defended in cases where the client is unsympathetic, has a long criminal record, or is a gang member or narcotics dealer who defended himself in a quarrel with a rival gang or dealer. Here, courts and police will be most willing to restrict the right of self-defense in an effort to curb urban violence. The decisions in these cases have a long reach and often unforeseen consequences. They affect the ability of law enforcement officers to use force in defense of the communities. They affect the ability of law-abiding citizens who lawfully own and carry defensive weapons to protect themselves, loved ones, and their community. Ultimately, the decisions in these cases affect every citizen in this country.

The right of self-defense deserves an attorney’s most vigorous efforts. Using this article, attorneys may find ways to represent their clients more effectively.