Over at Ammoland.com, Bay State brief Andrew F. Branca tackles a question put to him by a reader: “Will prior training in martial arts or firearms be held against you after a SD event?” (a.k.a., a Defensive Gun Use of DGU). 

This question actually comes in a million flavors. Among the most common I hear is “will taking a tactical shooting class be held against me in court?” and of course “will learning the law of self-defense, either through your book or seminar, be held against me in court?” We should state at the outset that an aggressive prosecutor will make almost any argument that will help him advance his compelling narrative of guilt and lead to you receiving the most serious conviction and the longest sentence. Sadly, sometimes—as in the Zimmerman prosecution—they go well beyond aggressive prosecution to conduct that would seem to warrant sanction or worse . . .

But The Goal Line is Still the Goal Line

Nevertheless, at the end of the trial the jury is going to be instructed on the two fundamental contexts in which they must decide the facts and apply the law:

(1) The elements of the crime charged.

(2) The elements of self-defense.

Nothing not included among those elements is to play a role in the jury’s deliberations, and they’ll be so instructed by the judge.

Elements of the Crime Charged

In terms of the elements of the crime charged, the prosecution must prove each and every one to be true beyond a reasonable doubt.  If he fails to do so on even one element, the jury must find you not guilty of the crime.

For the purposes of this discussion, let us assume the prosecution will be able to do so, and that the only thing that can save you from a conviction on a charge of, say, murder, is that your conduct was justified as lawful self-defense.

Elements of Self-Defense

In terms of the elements of self-defense, the prosecution must prove AT LEAST one of them to be UNTRUE beyond a reasonable doubt.  These elements, you will recall are:  Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.  (I don’t wish to go beyond the scope of this post, but of course avoidance may be invulnerable to the prosecution because of Stand-Your-Ground, and in Ohio the burden of persuasion on self-defense rests on the defendant, by a preponderance of the evidence, not on the prosecution beyond a reasonable doubt.)

To put it another way, if the jury can believe more likely than not that you failed on one of those five elements—and the prosecution will have failed to overcome your claim of self-defense.  They can believe it is 75% likely that you failed on one of those five elements, and your self-defense claim still stands.  In order to conclude your conduct was NOT self-defense, they have to believe the prosecution has proven at least one of those elements untrue, beyond any reasonable doubt.

Training Has No Real Impact On Most Elements of Self-Defense Law

Notice that for at least four of those elements—innocence, imminence, proportionality, and avoidance—your martial arts, firearms, or legal instruction can not really play any substantive role.   Either you were the aggressor, or not. Either the threat defended against was imminent, or not. Either the defensive force you used was proportional, or it was excessive. Either you had a safe avenue of retreat you refused to take, or you didn’t (or live in a SYG state).  Having martial arts training doesn’t change any of those, nor does firearms or legal training.

Training/Knowledge CAN Play Role in Determining Reasonableness

Where your knowledge and experience DO come into play is in that fifth element, reasonableness.

In judging whether your perceptions and conduct in self-defense were reasonable the law applies a hybrid standard:  you must have been BOTH objectively reasonable and subjectively reasonable.

Subjective reasonableness really merely requires that you actually and in good faith believed you were in imminent fear of death or grave bodily harm.

Objective reasonableness requires that a reasonable and prudent person, in the same or similar circumstances, and possessing your knowledge and capabilities, would have been in imminent fear of death or grave bodily harm.

And that’s where your martial arts, firearms, or legal knowledge comes into play—because they are all knowledge and/or capabilities you possessed at the time

Reasonably Applied Specialized Knowledge/Capabilities Will Help You

The question posed is whether this knowledge or capabilities can be “held against” you.  Well, if you acted unreasonably for a person possessing such knowledge and capabilities, the answer is yes, sure.  So don’t do that.

What’s too often missed, however, is that knowledge or capabilities can also enormously reduce your legal vulnerability to prosecution, if you acted as would a reasonable and prudent person possessing that knowledge.

Example: Firearms Training/Tueller Drill

Let’s take firearms training as an example.  You take a tactical firearms course, one part of which is executing the Tueller drill. It’s beyond the scope of this post to describe the Tueller drill in detail but essentially it says that an attacker armed with an impact weapon can close with and mortally wound a defender with a holstered pistol if the attacker is within 21 feet of the defender.  That is, the attacker can close that distance and strike in less time than the defender can draw and engage with center-mass hits.

Imagine a defendant in a self-defense case who did NOT take that class, and did not possess knowledge of the Tueller drill.  He is on trial for second-degree murder for having shot and killed an attacker armed with a bat who was standing 15 feet away.  The prosecution stands 15 feet from the jury holding the bat in evidence, swings it around, and notes that none of the jurors were injured by his conduct.  Therefore, he argues, it was unreasonable for the defendant to believe he was in imminent fear of death or grave bodily harm.  Verdict: guilty.

Now imagine that same defendant HAD taken the class that taught the Tueller drill.  Because he possessed that knowledge at the time he acted in self-defense, and because it informed his decision to use defensive force at that instant and therefor forms the basis for the reasonableness of his conduct, he can have that knowledge introduced to the jury.  He likely won’t take the stand, but his defense counsel will bring in a defensive force expert—say, Mas Ayoob—to testify about the Tueller drill and its implications for self-defense.

Now, conduct that would have seemed unreasonable to the jury ignorant of the Tueller drill seems very reasonable indeed to a jury knowledgeable about the Tueller drill.  Verdict: not guilty.

Example: Martial Arts Training/Disparity of Force

Much the same scenario applies to martial arts training.  Say, for example, part of your martial arts training involves sparring.  In your dojo, not much effort is made to match up sparring partners by weight class, and it is common for students to spar with partners much heavier and stronger than them.

Through that experience they learn that they can reasonably stand their ground against an opponent who outweighs them by 10 pounds, 20 pounds, even 30 pounds.  Much beyond that, they’ve learned, and it becomes impossible to defend themselves using just their bare hands against what would (in the real world outside the dojo) be an attack capable of causing grave bodily harm.  In essence, what you’ve learned the threshold of disparity of force at which you can no longer reasonably be able to defend yourself without ratcheting up defense up the use of force continuum.

Now imagine that they are the defendant in an aggravated assault case where they used an impact weapon against their attacker—say, a baton—and the attacker suffered a serious injury as a result.  The attacker, let us assume, is someone who trains at your same dojo, and so you know the their fighting skills are essentially on par with your own.  The prosecutor allows the jurors to feel the baton, it’s length, it’s rigidity, the steel ball at its tip, and then points out that the person against whom it was used “was completely unarmed.”

If that attacker was substantially larger than you, however, and possessing the knowledge you had learned in your martial arts training, it could have been perfectly reasonable for you to determine that the baton was utterly necessary and reasonable for you to be able to defend yourself against that attack.

Because you possessed that dojo-gained knowledge at the time of the attack, and used it in your judgment of what was reasonable defensive conduct, the jury can also be informed of that knowledge—perhaps by your dojo-cho, recognized by the court as an expert witness for purposes of the trial.

Example:  Legal Knowledge

In the context of legal knowledge, the matter is even simpler.  You’ve all heard the phrase, “Ignorance of the law is no excuse.”  What this really means is that you are absolutely assumed to ALREADY KNOW ALL THE LAW.  And this includes the law of self-defense.

If you don’t educate yourself on the law of self-defense, are you more or less likely to make a lawfully consequential error in defending yourself?  I would suggest more likely.  And if you make that error, will you be cut by the prosecutor because of your ignorance of the law? Hell, no.

If you do educate yourself on the law of self-defense, are you more or less likely to make a lawfully consequential error in defending yourself? I would suggest less likely.  And the only potential downside is that the prosecution will argue to the jury, “He knew what to say and do when the police showed up, when he was interviewed, etc., because he’d LEARNED THE LAW.”

Which is just another way of the prosecution saying that YOU DIDN’T VIOLATE THE  LAW.  I call that a win for the defense.

Bottom Line: Conduct Yourself Reasonably in Context of Training/Capabilities

The bottom line is this: be reasonable in your use of defensive force.  Will your knowledge and capabilities be used by the court in determining just what “reasonable” means in your particular context? Sure it will, as it should be.

But if you’ve conducted yourself reasonably within that context, its application is far more likely to strengthen your claim of self-defense than it is to hurt it.

Wrap-up

Ok, that’s probably enough for this week’s question of the week. This week’s winner, “NHA (@aquinon),” has won his choice of a custom autographed copy of “The Law of Self Defense, 2nd Edition,” or the alternative of a snazzy LOSD baseball cap.

If you’d like to submit your own Question of the Week, and become eligible to win a free book or hat, simply submit your question at Ask Andrew at the Law of Self Defense web site, to my Twitter account at @LawSelfDefense (no “of”).

Stay safe!
 
-Andrew, @LawSelfDefense
 

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition” and conducts Law of Self Defense Seminars all around the country. Andrew is also a contributing author on self defense law topics to Combat Handguns, Ammoland.com, Legal Insurrection, and others. You can follow Andrew on Twitter at @LawSelfDefense, on Facebook, and at his blog, The Law of Self Defense.

40 Responses to Andrew F. Branca: It’s OK to Train for a DGU, Legally Speaking

    • I’m down with that also. Just remember though, Those are 12 people who were not smart enough to get out of jury duty, they don’t like you, and they don’t want to be there.

  1. And, I would argue (not as a lawyer but as one who has testified as an expert witness in criminal court a lot), all of these same points apply to the use of handloads as defensive loads.

    I know some highly prominent people (or at least one) advocate against that practice. But, the argument does not make sense to me.

    I’m not telling people to carry handloads; like everything else in the SD and right-to-carry decisions, that is a very personal choice. I am saying that the arguments against doing it make absolutely no sense to me.

    And yes, I’ll back that up with testimony if/when the time comes. My credentials on this topic will speak volumes over the “should never do it” utterances of folks that plan to put live and death decisions into the hands of “what MIGHT happen” at trial time.

    All that said, right now my mags are full of Speer Gold Dot Sd ammo, but I have carried handloads habitually in the past.

      • Can’t tell if your question is honest or snarky, but here’s the most honest, relevant answer I give:

        I’m just a nobody on the Interwebs giving my two cents: I think that the advice against carrying handloads for self defense is on par with the advice against taking SD training…that’s it is illogical advice without merit.

        Take or leave my opinion on the topic as you will…best bet, give it (and other SD matters) serious thought and arrive at the conclusions/decisions that are best for you and your situation.

    • In My Opinion – the argument against hand-loads is just silly. To carry hand-loaded ammunition that in your opinion makes your weapon more effective is no different than carrying a .45 instead of a .32.

      The whole point of a defensive weapon is to maximize the possibility that it will be an effective tool when and if you need it. If you hand-load Zombie killer ammo or carry the R.I.P. “buzz saws”, the object is still the same and the purpose of the ammunition is to stop the attack in the most efficient and reliable manner.

      Any argument that you were intentionally creating or carrying ammunition that is intentionally more damaging or lethal is ridiculous, OF COURSE you would want that.

  2. I find it hilarious that the gun control lobby foams at the mouth about training requirements. But if a guy has training, the prosecutor and the liberal media will paint the shooter as a wanna-be SWAT member or a racist fear-monger just itching to shoot someone.

    It is sad that this is a question that must be asked…or maybe someone just finished watching Con Air and started to worry too much.

    • if a guy has training, the prosecutor and the liberal media will paint the shooter as a wanna-be SWAT member

      They painted George Zimmerman as a wannabe cop, and he was a Pillsbury Doughboy with NO training.

      • Because he was a wannabe cop, and took it upon himself to follow Trayvon Martin and get out of his truck to pursue him further, even when told not to by the police.

        • God no, not this argument re hashed again. Lets hash over the grumpy retired cop in FL who shot the movie texting jerk, that one is more recent and hasnt been decided by a jury yet.

        • Do people seriously still think this? If you actually listened to the recording of the 911 call you would know that the operator (not an officer, as stated above) said “we don’t need you to do that”. That is NOT equivalent to telling him not to, and even if it was he would still not be legally bound to obey, any more than he would be if you or I said it. “We don’t need you to do that” is standard boilerplate for 911 call centers. They will not advise you to take action, as in doing so they take on responsibility for your actions.

  3. Good writeup. I am always flummoxed by the notion that the intended victim must respond in a “reasonable” manner. Was the attacker reasonablein deciding to attack? To limit the victim to only reasonable measures we give tactical advantage to the criminal. We don’t tell the cape buffalo that it isn’t very likely that a lion will attack him specifically but just in case one does we’re going to cut off your horns so that your response will not be unreasonable. This kind of thinking reminds me of the near-legitimization of robbery/assault as a profession in England, where the victim defending himself is just as likely to face prosecution as the criminal.

    • The reasonableness requirement applies to the existence of the threat. You’re thinking of proportionality. You can be wrong about the guy being a threat to your life, but your believe that he was must be reasonable.

      That’s very fair.

    • When I think of “reasonable manner” being a qualification, I think its purpose is more so that one doesn’t think that they are justified in pulling out a rifle and shooting someone who is 50 yards away but happens to be trespassing (perhaps unintentionally) on someone’s property.

      But I’ll admit I’m not sure how prosecutors manipulate the expression.

      • It’s my understanding that the test they are SUPPOSED to use is actually outlined in the article above as “objective reasonableness.”

        The question to be answered is “what would another person think with the same set of facts as you had at the time?”

  4. I’m on board with all of this, particularly that it all boils down to you following the law and operating within each of its parameters. Ultimately, it’s not about “getting off”, but rather not getting into this kind of trouble in the first place.

    That said, let me just add one bit about legal knowledge. While it *can* be countered that learning the law means you followed the law, it can also backfire. Maybe not on its own, but if the other elements of the crime are in place and there are holes in your self-defense claim, then flaunting knowledge of the law might be viewed negatively. Quick example:

    Fireman in Baytown, TX near Houston had an ongoing feud with his frequently partying neighbors. One such party night, he takes his video camera, sidearm and concealed carry license next door to their house. He stands on the sidewalk filming for maybe 10 minutes before anyone notices. When they noticed, taunts went back and forth across the front yard. Eventually a partygoer(s) appoaches the fireman, who then starts reciting CHL class buzz words and phrases for the recording. Things like “I feel I’m in lethal danger!” “I’m standing my ground!” “I’ll have to stop the threat!” or similar. Eventually he shot and killed one of the people who approached him.

    The DA argued he was spoiling for a fight, for a shooting, and was just setting up his defense in advancewith his knowledge of the law. He was convicted of murder last year. It’s probably the main elements that got him convicted, but who knows if his seemingly self-serving use of the law might have pushed a juror or two into the guilty column?

    • In your story I see the fireman not knowing the law. He approached the bad situation rather than calling the police and letting them handle the situation or filming it form his property. He them got into a verbal altercation with them instead of just keeping quiet and withdrawing. he then let the situation get worse to the point that he drew and fired. To me stand your ground is not meant to be used for situations you put yourself into and refused to leave. I likely would have voted guilty also knowing just what was in your story.

      • I would have voted guilty, too. To me, SYG is about denying the prosecutor and the jury yet another means of second guessing you and imposing unrealistic standards on you, when they weren’t there and have no idea how much danger someone posed to you. SYG isn’t meant to be shield giving you license to be a jackwagon yourself, then cry “King’s X!” when someone calls you on it.

        In this case, the video taping and taunts, even from a public sidewalk, were provocative and consenting to some kind of encounter. Not so much as to justify the partiers shooting him from the porch, hypothetically, but enough to prompt some kind of face fo face encounter. Really, had he been filming, say, his ex, from the sidewalk before her home, they’d get him for stalking. So he’s definitely culpable here. Moreover, in Texas, if you provoke a fight or consent to it, you just negated any future claim of self-defense.

        I think you’re right, Mike, he knew some of the law, but not all of the law, or at least not enough of it. A little bit of knowledge can be a dangerous thing.

        • He didn’t know the law. He mouthed some expressions that he picked up on the Internet, and the jury saw right through it.

  5. This is a great post and posts like this is why I love this blog. The more recent and rising in frequency, police/law enforcement bashing is getting too much. Criticism of the 5-O is fine when warranted but it has been growing here.

    One other thought on this post, as people like Michael Bane and others have said, avoid stupid places where stupid people do stupid things at stupid times of the day.

  6. If you are ever in a DGU. Repeat after me…….I want that guy/girl arrested I’m in fear of my life! Then don’t say a WORD until you consult with an attorney! They may ask if you want something to eat or drink when you are in the interrogation room. “Don’t say a word” Prosecutor: Mr. John Doe wasn’t afraid for his life, he ate a hamburger and fries 2 hours after scumbag was killed.

    Also never give out information that you know how to defend yourself. Went to training schools or read training books……..Prosecutor: Did you read “the art of war?”….Not to my recollection or i’m not sure! Use the same tactics criminals use to get a not guilty verdict.

  7. I’ll stress that the individual should reach out for their LOCAL legal resources wherever possible.I state that because even in one state, the legal attitude on self defense can vary between extremes.A resident of Cairo IL shares the same state as an Evanston resident, but the legal reactions and tactics after a self defense incident will be entirely different for each community .

    In some parts of America, you go before a grand jury and that’s the end of it. In others, if you so much as hurt the bad guys feelings you’re in for a long legal battle.A county line shouldnt make a clean shoot suddenly evil, but a lot of attorneys hate the concept of armed citizens and will prosecute a meritless case based on ideology . See Angela Brown of Florida via a vis Zimmermann.

  8. A good summary. I would add that D.A.s have wide discretion on whether to charge you or not at the start of the process and trial court judges have wide discretion in re the conduct of a trial. The same fact scenario that might result in you getting a medal from the Chief of Police in one jurisdiction might result in you being hauled into court in chains in another. That’s what makes it so important for pro-Constitution voters to turn out for district attorney and judicial elections.

  9. and in Ohio the burden of persuasion on self-defense rests on the defendant

    Everyday this site makes me question my relocation….

  10. As George Zimmerman might have said after he gained 40 pounds before trial, “I’d rather be tried by six than carried by twelve.”

  11. Does your state have the castle doctrine? Yes? Then if someone is in your home or breaks in and you feel threatened as they come TOWARDS you, SHOOT the bastard. Period. Even if your state doesn’t have a castle doctrine you’d be an idiot NOT to do something to stop the threat IMHO.

    People always say “Call the cops”. Sure IF you can get to a phone/cellphone or have TIME to get to one. Then you can play 50 questions with the damn 911 operator as the scumbag makes his way to you! Then, you can wait many minutes for the cops to GET there!

    Good luck with that.

  12. I’ve heard that if you get training it’s going to be used in court against you stance, and frankly, ifs bogus.

    Everything will be use against you if it suites the prosecutor, your gun, how you carried it, what you were wearing, backup gun, ammo, hell what you had for supper could even be used.

    Look, he’s a mad man, he had brisket for dinner, only a crazy, wannabe cowboy who is trying to turn our fair town into the Wild West would eat brisket!

  13. Interesting article. On the street one just has to do the best they can with what they have. I have written here and will say it again, if you prevail in a fight on the street do NOT hang around and talk to the police or anyone else. Exit the area, pronto. The police are not your friend in these cases and, as we saw in the Zimmerman case, neither is the prosecutor.

    • Don’t hang around to talk to police?

      I cannot say I agree with this. At all. If you shoot someone, your actions WILL be investigated, and your post-incident behavior WILL be part of that investigation.

      I kind of agree with Ayoob on this one…be the one to call the cops. Leave to extricate yourself from the threat if you need to and do call your lawyer. But don’t look like you are hiding something about the circumstances.

      I once testified in a murder trial that involved a fist fight that turned into a (deadly) knife fight. There was a very large disparity of force between the two men fighting, and the little guy pulled the knife and fatally stabbed the big guy. The facts were unclear as to who started the fight initially.

      How the little guy acted after the stabbing was a BIG part of the trial (as in…it went to his mindset of being afraid vs not) and for what it is worth, he got convicted.

      At the end of the day, the jury did not buy self defense. I don’t fully know why they didn’t, but as I said, a big part of the argument made was his post-incident behavior (that involved running away and not just running to get away from the threat, but running and hiding from the police).

  14. Will they hold it against you, if you have EVER served in the Armed Forces?

    YES!!!

    The Criminal Justice “System” is not capable of discerning Truth, and the innocent victim(s) usually suffer.
    But, there is a more involved answer… For the POLICE, and the PROSECUTOR, it is all political.

    It is all about their efforts to be seen by the pansy public And Lying, manipulative, Liberal Media as “Law protectors”!!!

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