andrewbranca

Good God, no, it's almost all wrong, at least when it comes to self-defense law. I meant just my name. --Andrew

There are varied ways that failing to take advantage of safe avenue of retreat can undermine your legal defense of self-defense. Of course, in one of the 16 duty to retreat states you would lose self-defense as a matter of law. Poof, it's gone. Even in most stand-your-ground states, where you do not have a legal duty to retreat, the prosecution can still argue to the jury that your failure to do so was not the conduct of a reasonable and prudent person, and so you lose self-defense because you lose on the required element of reasonableness. There are a handful of "hard" stand-your-ground states that prohibit the jury from even considering whether the defender could have retreated, which sounds good, but even here you can get tangled up by failing to take advantage of a safe avenue of retreat. This can happen if the prosecution can convince the jury that you were the initial aggressor (doesn't need to be TRUE, just needs to be CONVINCING). If he does that successfully you lose self-defense on the required element of innocence. UNLESS it turns out that YOU can show that even if you WERE the initial aggressor, you legally recovered your innocence by withdrawing from the fight in good faith. Of course, if you can be made to look like the aggressor and CANNOT show you withdrew in good faith then you will NOT have recovered your innocence, you lose self-defense, and off to the party you go. In terms of "automatic defensive reactions," I understand the rationale from a tactical perspective, especially when we're most likely to be subject to an ambush attack, but that kind of terminology is very dangerous for a legal claim of self-defense. Self-defense, from a legal perspective, must be a deliberate, reasoned act--NOT an automatic reflex. If your automatic reflex turns out to put you outside the bounds of self-defense law (e.g., your "automatic" use of force was disproportional to the attack) the fact that it was an "automatic" response not only won't save your self-defense claim, characterizing it as "automatic" will only further undermine that claim. An "automatic" defensive response that's unlikely to cause much damage--e.g., a block or a shove to create distance--also is unlikely to cause too much legal liability. On the other hand, an "automatic" defense response that maims your "attacker"--especially if it turns out you were wrong about the nature or intensity of the "attack" is going to be a huge problem, legally speaking. That's all I have time for right now, sorry about that, but clients need their cases handled. But I write about this stuff all the time in my professional capacity as an attorney specializing in use-of-force law. Google is your friend.

Thank you. I should have made clear, that although only a minority of states impose a legal duty to retreat, we certainly advise all our clients that if they have a safe avenue of retreat they'd be a fool to not take advantage of that opportunity, even if they do happen to be in a "Stand-Your-Ground" state. Unless, of course, you have a very good reason indeed why retreat is not feasible: no safe avenue of retreat exists, retreat would require leaving behind someone you have a duty to protect, you're mobility is limited relative to the aggressor, etc. The best way for good guys to win fights is mostly to not have to fight in the first place. Be somewhere else. For the most part, fighting is what happens when you've already screwed up all the superior options, like avoidance, retreat, de-escalation--most often because of lack of situational acuity resulting in ambush. Stay safe. Be prepared. Know the law. --Andrew

I actually AM a lawyer, with a legal practice that specializes in use-of-force law (USA only, I'm afraid), so perhaps I can shed some light on this issue. I'll generalize a bit, but everything below would apply in all 50 states, unless I indicate otherwise. There are five elements to any claim of self-defense, and they are cumulative--that is, all five must elements MUST be present (unless legally excused for some reason), or the entire self-defense claim collapses. To put it another, for a prosecutor to destroy your claim of self-defense he needs to destroy any ONE of the required elements of the legal claim of self-defense. One of the elements that is always required is the element of reasonableness--were your perceptions, decisions, actions those of a reasonable person. Reasonableness is evaluated using a two-part test--first, whether your conduct was subjectively reasonable; second, whether your conduct was objectively reasonable. Your conduct must have been BOTH subjectively AND objectively reasonable, or your fail the element of reasonableness and you fail on self-defense. In the context of objective reasonableness, the jury is asked to decide whether a hypothetical "reasonable and prudent person" would have conducted themselves in the same way. If not, your conduct was not objectively reasonable, you fail on the element of reasonableness, and you fail on self-defense. Still with me? Here's where a defender's martial arts training/expertise comes into play. That hypothetical "reasonable and prudent person" (RAPP, we lawyers love our acronyms) is customized to fit the particular facts of that particular case. One of the ways the RAPP can be customized is for any exceptional or specialized capabilities or knowledge possessed by the defendant that is not normally possessed by the general public. The RAPP is presumed to possess generalized knowledge--fire is hot, knives are sharp, etc.--but NOT specialized knowledge. The same for specialized capabilities. If a defendant DOES possess specialized knowledge/capabilities, and this knowledge/capabilities contributed to their perceptions, decisions, and actions in self-defense, than that specialized knowledge/capabilities is relevant to their claim of self-defense. In effect, then, the jury is being asked to decide if a reasonable and prudent person POSSESSING THE DEFENDANT'S SPECIALIZED KNOWLEDGE/CAPABILITIES would have acted in the same way as did the defendant. If the answer is "yes," then the defendant's conduct was objectively reasonable. If "no," then the conduct was NOT objectively reasonable, the defendant fails the element of reasonableness, and the defendant fails on self-defense. Typically, relevant specialized knowledge is introduced into evidence through the testimony of an expert witness in that field. It's important to understand that such specialized knowledge/capabilities can be used EITHER to the defendant's detriment OR benefit, depending on the circumstances. An example of how specialized knowledge might be used to a defendant's BENEFIT is if he is faced with multiple "unarmed" opponents, and his dojo training and experience has taught him that such a disparity of numbers represents a threat of grave bodily harm. This could justify him in using a weapon even though his attackers are "unarmed." When the prosecutor argues that a weapon should not have been used against an "unarmed" opponent, the expert witness is brought in by the defense to educate the jury with the relevant specialized knowledge. An example of how specialized knowledge might be used to a defendant's DETRIMENT is if he is faced with an attacker apparently possessing no particular fighting expertise, e,g, throwing round house punches at the defender, and the defender possesses a suitable expertise in, say, judo, that he could reasonably throw the attacker to the ground rather than perform elbow mediated dental extraction on the poor fellow. (Another one of the elements of a self-defense claim, proportionality, requires that you use no more force than necessary to neutralize the threat.) That latter example is what most people are thinking of when they wonder "Can my black belt be used against me in court?" The answer is that if you possess a particular level of expertise, you will be held to the standard of someone possessing that level of expertise. It's hard to argue that this shouldn't be the case, really. Sorry, we lawyers tend to run on-and-on. I hope that's helpful information.

Well, in the US almost all cases of self-defense are handled at the state, not the Federal, level. We've got 50 different states and thus 50 different sets of laws (plus Washington DC, Guam, US Virgin Islands, etc.). As a result almost any statement about self-defense law generalized to the entire USA is going to be incorrect. In fact, only 16 states impose a legal duty to retreat before you can use force in self-defense. The remaining 34 states do NOT. So, a duty to retreat only exists in a minority of states. Even in the states that DO impose a legal duty to retreat, most of them impose this duty only before you can use deadly force in self-defense, and do not impose the duty to retreat if you limit yourself to non-deadly force. Unfortunately, we've had more than a few martial artist clients who mistakenly believed that "deadly force" means only force that can actually kill someone, and that any lesser degree of force must therefore be mere non-deadly force. Sadly for their cases, the legal definition of deadly force is considerably broader than that. If you've learned a martial art in part to make yourself hard to kill or maim or rape, it pays to know the use-of-force laws in your jurisdiction in order to make yourself hard to convict.