Get out of Jail

Get out of jail

By Lawrence Kane

Physical self-defense (oftentimes called countervailing force) is violence applied against an aggressor to stop him or her from hurting you. In the process, you may intentionally or unintentionally injure, maim, cripple, or even kill another human being. Even where perfectly legitimate, lawful, and sensible based on the circumstances that you have encountered, that’s not exactly something that is encouraged by modern society. In fact, it’s downright frowned upon. It doesn’t always go down this way, but you should expect to be arrested when officers arrive on the scene of a physical altercation even if you are completely innocent. Because of this possibility, and other after-the-fact ramifications legal and otherwise, it is important to understand how your actions in a self-defense situation might be scrutinized under the law.

First a little stage-setting: Traumatic situations are frequently associated with a psychological phenomenon called critical-incident amnesia. In essense this phenomenon means that the greater the stress you encounter, and life-or-death struggles are very stressful, the greater your potential of experiencing temporary memory problems afterward. Although you may not remember much about a traumatic incident immediately after it occurs, the good news is that you should experience significant memory recovery after a good night’s sleep.

This recovery period is important when dealing with the poli ce or other first responders, because any inconsistencies in your story will make you appear guilty. So, don’t make stuff up; it will be used against you in court. And, don’t guess or try to fill in the blank spots in your memory. You have a right to remain silent under US law, and in most cases  it is best to use silence until you are represented by counsel. This not only protects you from inadvertently convicting yourself but also gives you time to recover your composure and memories.

Don’t forget that first responders are there to control the situation, keep it from spreading, and assure everyone’s safety to the extent possible. They can sort out exactly what happened and decide whether or not to
press charges later on. So, more often than not that means a night in jail, but it can get better or worse from there based on how you acted during the encounter, what you did (or didn’t do) immediately afterward, what you say, and to whom you say it.

A legitimate case of self-defense and a good lawyer can get you off the hook most, but not all, of the time. Consequently, it is really important to know when you’re on solid legal ground. I’m a martial arts instructor, not an attorney, so nothing in this article constitutes a legal opinion nor should any of its contents be treated as such. Know that the law is nuanced, so take what follows under advisement and talk to a qualified attorney in your jurisdiction to understand the specifics of laws in your area and how they apply.

Disclaimer aside, a good way to ascertain whether it makes sense to use physical force in a self-defense situation is the AOJP principle. AOJP stands for Ability, Opportunity, Jeopardy, and Preclusion. Here’s how it works:

  1. Ability: Ability means that an attacker has both the physical as well as practical ability to seriously injure, maim, or kill you. This may include the use of fists and feet as well as the application of conventional or improvised weapons such as knives, guns, bottles, clubs, rocks, or similar instruments. It also includes the physical ability to wield said weapon (or fists or feet, for that matter) in a manner that can actually injure you. A small child with a baseball bat does not have the same ability to cause you harm as a professional ball player swinging the same hunk of wood as a weapon.
  2. Opportunity: While your attacker may have the ability to harm you, his or her ability does not necessarily mean that he also has the immediate opportunity to do so. Your life and well-being must be in clear and present danger before you can legally respond with physical force. For example, a bad guy with a knife has the ability to kill you only so long as he is also within the striking range of the weapon or can quickly move into the appropriate distance from which to initiate his attack. A physical barrier such as a chain-link fence may protect you from a knife-wielder but not an assailant armed with a gun, so opportunity relates not only to the attacker and the weapon but also to the environment within which they are deployed.
  3. Jeopardy: Jeopardy, or “imminent jeopardy” as the law sometimes requires, relates to the specifics of the situation. Any reasonable person in a similar situation should feel in fear for his or her life. This is a legal attempt to distinguish between a truly hazardous situation and one that is only potentially dangerous. While you are not expected to be able to read an aggressor’s mind, you certainly should be able to ascertain his intent from his outward appearance, demeanor, and actions. Someone shouting, “I’m going to kill you,” while walking away is probably not an immediate threat even though he may very well come back with a weapon or a group of friends later on. Someone shouting, “I love you,” while lunging toward you with a knife, on the other hand, most likely is an imminent threat.
  4. Preclusion: Even when the ability, opportunity, and jeopardy criteria are satisfied, safe alternatives other than physical force must be precluded before you can legally engage in combat in most instances. If you can run or retreat from harm’s way without further endangering yourself, it isn’t necessary for you to use violence. In some jurisdictions, there is no requirement to retreat when attacked in your home or, in some cases, your place of business. Regardless, it is prudent to retreat whenever you have the ability to do so safely. After all, it is impossible for the other guy to hurt you if you’re not there.

If all four of these criteria are met, you have a pretty good legal case for taking action. If one or more of these conditions are absent you are on shaky legal ground. Nevertheless, the average person is woefully unprepared to defend him- or herself in court. And, public defenders are often overworked. If you find yourself in legal trouble you will want someone fully committed to win your case. That means hiring a good attorney, someone who is experienced is not only in criminal law but also in defending someone who is actually innocent. Believe it or not, according to expert witnesses I’ve interviewed many attorneys don’t actually know how to do that.

The legal fight you encounter can be just as dangerous if not more so than the physical fight you survive before going to court. You may be facing both criminal and civil litigation with your freedom, your job, your home, your relationships, and your life’s savings on the line. Find the best attorney you can afford and rely on his or her counsel. If you’re a trained martial artist or carry a weapon for self-defense, it’s a really good idea to have someone on retainer and carry their number with you in case you need to use it.

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