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

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:

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.

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”).