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or the rest of our Realities of Concealed Carry series, go here. If you’re going to carry concealed, you need to approach your decisions and strategy as if your life depends on it. Actually, it does. But here’s something that may not be as obvious. If someone attacks you and you kill them in the process of defending your life, you’ve technically committed a homicide, until a court decides otherwise—and it's a distinct possibility that you could spend the rest of your life in prison as a result. You? A murderer? Yes. The law is straightforward on this. The reason that those who kill during the act of self-defense don’t always go to jail is that, under stringent circumstances, the act of murder can be deemed justified and excusable, just as there are degrees of murder charges and distinctions made between homicide and manslaughter. If you're being super technical about it, this is also the case when a police officer kills someone in the line of duty—it's considered a homicide and the officer involved is almost always put on paid leave until a hearing can be held to decide if the shooting was justifiable and in line with department policy. DISCLAIMER: This is not a standard meaningless disclaimer - it's serious. I am not an attorney and cannot provide legal advice. Like you, I am a responsibly armed citizen striving to follow the law and understand it to the best of my ability. Under no circumstances should you use anything in this article as legal guidance. Only your attorney can provide that service. We are simply presenting concepts here for you to consider, think about, and research on your own or better yet, in conjunction with your lawyer. Everything here is discussed for the sole purpose of helping to illustrate the seriousness of deciding to protect yourself and your family with a firearm. It’s up to you to understand and apply the laws of your locality, state, and country. Fair enough? With that said, let’s dive in and discuss some legal concepts that might just save your life.

What justifies murder in a self-defense situation?

Regardless of what hysterical media might claim, shouting “I was in fear for my life!” isn’t a justification for deadly force self-defense actions—neither is claiming “Castle Doctrine.” There is no blanket permission slip or loophole that allows a law-abiding concealed carrier to harm another. Rather, there are very specific legal requirements that must be satisfied.

Before we get into a definition of the conditions that justify deadly force, it’s important to come back to the “you’re a murderer” topic. An underlying legal principle of self-defense cases is one called affirmative defense.

If you are put in the unfortunate circumstance of having to kill another human being in the act of self-defense, you aren't going to go to court with a high-paid criminal defense attorney who will concoct all sorts of stories and conjectures to create reasonable doubt within the jury like an episode of Law & Order. Your strategy will not be to claim that you didn't do it.

You won’t be trying to obscure facts and details to cast a shadow of reasonable doubt. Rather, you’ll be saying to the judge and jury, “Yes, I killed Mr. X, and while my intention wasn’t to kill him, under the same circumstances and knowing what I knew at the time, I would take the same actions again, and here’s why.”

See the difference? In affirmative defense scenarios, you are freely admitting to your “guilt," but you are offering a justification as to why you did it.

The whole idea of justification is that if you hadn’t taken the actions you did, a greater harm to would have occurred. The victim of those consequences might be you, your family, or other innocents.

You can think of a simple example using your favorite superhero. Most of them break all sorts of laws in the process of saving the world, but they never get in real trouble.

If Captain America trashes the Smithsonian Museum of Natural History dinosaur display in the process of protecting the country from irritable alien beings from another dimension, he’s not going to jail for vandalism and destruction of property.

While less dramatic, the general idea is the same for armed citizens, although we’re usually just defending ourselves and not the entire human race.

Three Conditions

So, keeping the concept of justifiable actions in mind, let's talk about the three conditions that the legal system requires for lethal force self-defense. All of these conditions are judged under what's called the "reasonable person doctrine," and all three must be present beyond doubt.

Simply put, for you to be justified in using deadly force in self-defense, a jury must find that a “reasonable person” would have taken the same or similar actions knowing what you knew at that time.

Keep in mind that you’re already behind the eight ball in this review process. You had to deal with a deadly threat in fractions of second, while a judge or jury has all the time in the world to contemplate what a reasonable person should have done under the same circumstances.

Here's an important takeaway. Since you might already be guilty of homicide, the burden of proof is on you to demonstrate that your actions were justified. In other words, in this circumstance you're guilty until proven innocent. That's an important distinction when it comes time to hire the right lawyer. We'll discuss that in a bit.

The burden of proof is on you to demonstrate that your actions were justified
The burden of proof is on you to demonstrate that your actions were justified. In other words, in this circumstance you're guilty until proven innocent.author photo

Ability

Whether an attacker is armed or not isn’t necessarily relevant to justifiable self-defense. The “armed” status and what specific object they are or are not armed with is secondary to the concept of ability.

Did that person have the ability to inflict death or grave bodily harm on you or other innocents? If your attacker is unarmed, but larger, stronger, or more skilled than you, you may have an immediate risk of death or grave bodily harm whether they have a weapon or not.

Remember, you’ll have to convince a jury that your attacker had the ability to inflict death or serious harm. If you’re 5’1” and 98 pounds soaking wet, and your attacker weighs 250 pounds or is an experienced street fighter, that’s fairly clear, even if there was no weapon present. Of course, if they had a weapon, that removes even more doubt over ability.

Remember, far more people are killed in the U.S. every year with hands and feet (no weapons) than with rifles of any kind, so the fact that your attacker was “unarmed” doesn’t mean anything on its own.

Opportunity

Just because someone can inflict harm doesn’t mean they have the opportunity to do so. I certainly have the ability to put baby kangaroos to work in a drive-through zoo in front of my house, but I don’t have the opportunity—mainly because they live about 10,260 miles away.

For justifiable self-defense, a "threat" must have the opportunity to inflict harm. An unarmed bad guy who has spent 40 years in San Quentin and is standing 100 yards away has little opportunity to harm you. Now if that same guy is aiming a rifle at you from 100 yards away, it's a different story.

While opportunity isn’t always defined by proximity, it makes for a great example. Depending on weapons or lack thereof, distance might allow you the opportunity to avoid trouble altogether, which is always the best option.

Jeopardy

The concept of jeopardy is where screaming, “I was in fear for my life” isn’t going to cut it. Other reasonable people must believe that you were, in fact, in fear for your life while also considering the information you had at the time. If you “felt” like someone was going to harm you, that doesn’t count as evidence.

Think in terms of observable behavior or actions when it comes to proving that you were in jeopardy.

If someone starts shooting others nearby, that’s pretty straightforward. If a rough-looking guy makes a mean face, not so much. If someone is charging you with a knife shouting, “I’m going to kill you!” or they kick in your front door in the middle of the night, that’s pretty compelling evidence of legitimate jeopardy.

Clearly, in a self-defense situation, you’re not going to have time to whip out your legal pad and start making notes in the ability, opportunity, and jeopardy sections. That’s why it’s so important to understand them now, in advance.

While most people will never have to put that decision tree to use, it’s better to be prepared because you’ll have to explain those elements in excruciating detail later.

Avoidance

It’s also a good reminder that armed citizens should be world-class performers when it comes to swallowing pride and backing out of situations that might escalate.

If you’re armed, that’s all the more reason NOT to participate in arguments or shouting matches. It’s far better to swallow your pride, apologize, and be on your way. Remember, pride isn’t a good enough reason to risk taking a life or going on trial for your own.

Action Steps

Beyond understanding what self-defense really is, there are a couple of other things to think about.

First, considering the very different circumstance of affirmative defense, find an attorney that is experienced in this arena. Defense attorney’s are often trained and experienced at casting doubt and preventing a presumption of guilt. Remember, their clients, whether actually guilty or not, are presumed innocent until proven guilty.

In a justifiable self-defense case, you’re already guilty. It’s your attorney's job to embrace that, but explain exactly why your actions were justifiable under the circumstances. It’s a very different strategy.

Always think in terms of avoidance. If you become involved in a justifiable self-defense case, you’re in a world of hurt. You’ll have to live with the fact that you have taken a human life (depending on the exact circumstances). You might spend time in jail. You might exhaust any savings you have for your legal defense. You might lose your job and your home. Even if you’re in the right, all sorts of bad things can and do happen.

When it comes to armed self-defense, being right is no guarantee that you won't experience serious ramifications. Remember, you win 100 percent of the encounters you avoid.