The 5 Elements of Self-Defense Law: Innocence
In my previous article titled What’s Your Self-Defense IQ? I mentioned that there are 5 elements that compose a lawful self-defense claim. These are as follows:
Innocence
Imminence
Proportionality
Avoidance
Reasonableness
These elements are cumulative, meaning that you must satisfy all five elements in your favor (unless one or more of them are legally waived) in order to achieve a lawful self-defense claim. A defendant does not have to prove self-defense. A prosecutor must disprove any ONE of these 5 elements. If a prosecutor is able to disprove any one of these 5 elements (ie: Innocence) then your self-defense claim is defeated.
Self-defense is inherently an act of confession and avoidance. You are confessing to the underlying conduct (ie: “I shot him” “I stabbed him” or “I punched him” etc.). You are basically admitting “I did it” but offering a legal justification (self-defense) for your actions to avoid any legal consequences such as criminal charges and prosecution. If you lose your claim of self-defense, then all there is left is a confession. This is a walk away conviction for the prosecution. Depending upon the criminal charge(s) you could face possibly decades or life imprisonment if convicted.
In this article, I would like to discuss the first element – Innocence. This element is what I consider the foundation of your self-defense claim. That is why it is listed first. All of the other remaining elements will come behind this one as “building blocks” for your claim of lawful self-defense.
Innocence – What is it?
Innocence, with respect to self-defense, should not be confused with innocent until proven guilty as in a criminal trial. Nor should it be confused with being found “not guilty” in a criminal trial.
If you are charged with a criminal offense, the law states that you are presumed innocent until found guilty “beyond a reasonable doubt” by a judge or jury in a criminal trial.
The element of Innocence, as it relates to self-defense, states that you must not be the initial aggressor in a conflict. Generally speaking, you must not be the first person to use force or threaten to use force. You must not forcibly sustain or escalate an altercation. In most states, mere words alone are not enough to make someone the initial aggressor, however, when coupled with an overt act such as a weapon in hand together with threatening language they can make you look like the initial aggressor.
If you are the found to be the initial aggressor, you lose the element of Innocence in self-defense. Thus, you lose your self-defense claim in its entirety.
Can you regain Innocence once you’ve lost it?
There are a couple of exceptions where you can regain Innocence even if you were the initial aggressor in a non-deadly force confrontation:
Withdrawal and Communication
You must genuinely withdraw from the fight and must not re-engage. You must abandon the fight altogether – not retreat temporarily for a tactical advantage – and then decide to re-engage. You must effectively communicate your intention to withdraw from the fight. You can do this by your actions in running or walking away from the confrontation. The best way to communicate your withdrawal from a fight is verbally and do so loudly so that your communication is heard by nearby witnesses. Doing so verbally, while also attempting to walk or run away at the same time, is clear evidence to others of your intentions to withdraw from the fight.
Escalation of Force
If you start a non-deadly force fight and the other person responds with the same amount of force, then your use of force is considered lawful. On the other hand, if you use non-deadly force upon the other person and that person responds with deadly force, then they are the aggressor. Their use of force is considered disproportional, and you would be privileged to respond with your own use of deadly force.
EXAMPLE: Jim punches Joe with his fist (non-deadly force). Joe becomes upset and displays a knife threatening to kill Jim (deadly force). Jim, in response to Joe’s deadly force threat, shoots Joe. Jim was the initial aggressor in the first fight (fist punch), however, when Joe responded with deadly force instead of non-deadly force in response to Jim’s punch, that made Joe the initial aggressor in the second fight. Jim has regained the element of Innocence in self-defense under the law.
Whether you carry a firearm or some other type of non-lethal/less-lethal option, the 5 elements of the Law of Self Defense apply. You need to know what level of force you are legally permitted to use in response to that force. Generally speaking, you are allowed to use deadly force in response to a deadly force threat, and non-deadly force in response to a non-deadly force threat. I will cover more on that topic of use of force in self-defense under the element of Proportionality in a future article.
How do you make yourself “hard to convict?”
Whether you own/carry a firearm or some other type of non-lethal/less lethal weapon, I cannot stress enough how important it is to know and understand each of these 5 elements of the Law of Self Defense. Attorney Andrew Branca, author of the Law of Self Defense and internationally recognized use of force and self-defense expert, says you want to make yourself “hard to convict”.
It starts with personal commitment. You must take personal responsibility for the safety of you and your family. You must make a conscious decision that you are going to make a personal commitment to educate yourself on the 5 elements of the Law of Self Defense and become someone who is well-informed. You must set your mindset to refusing to become a “victim”.
You don’t have to be an attorney to understand general self-defense law – just a strong desire to know the legal boundaries so that if you are ever compelled to use defensive force in self-defense you don’t find yourself being criminally charged by a prosecutor and facing the possibility of decades or perhaps life imprisonment if convicted by a jury in criminal trial.
Those who are well-informed and educated on knowing the legal boundaries of self-defense respond lawfully, confidently, and decisively in the moment of crisis. Those who are not well-informed and educated on knowing the legal boundaries respond out of emotion (fear) and make poor choices in the moment of crisis. Therefore, they find themselves facing serious legal consequences.
How well do you think you would respond in the moment of crisis under stress? Will your decisions be based upon your education and training on self-defense or will your decisions be based on fear and emotion?
REMEMBER: As I mentioned earlier in this article, the 5 elements of the Law of Self Defense are cumulative. You must satisfy or have all 5 elements in your favor (unless one or more of these are legally waived) in order to achieve a claim of lawful self-defense. Even if you satisfy or have the remaining 4 elements all in your favor, if you lose the element of Innocence, you lose self-defense in its entirety. A prosecutor only has to disprove any ONE of these elements.
If you are charged criminally in a use of force event and claiming self-defense, you can be sure that a prosecutor is going to review the police investigative report, witness statements, and all other evidence to find the “weak spot” in your self-defense claim and attack it. A prosecutor is going to find where you are most vulnerable and will aggressively pursue a conviction on the criminal charge(s) against you.
In addition to being an “Initial aggressor” there are several other ways in which you can lose the element of Innocence in self-defense. Let’s look at each of these individually:
Mutual Combatant
You do not want to be someone who “runs to the fight”. Agreeing to accept an invitation to fight from another person will lose both of you the element of Innocence and neither person will be permitted to claim self-defense. As human beings, especially men, we don’t want to appear weak. We want to appear “macho” and maintain our sense of pride and dignity. If challenged to a fight, we let our emotions take over in the heat of the moment and willingly accept an invitation to fight another person or we challenge the other person to a fight (“let’s take this outside and settle this like men”). In either scenario, that is considered being a mutual combatant and both individuals lose the element of Innocence and any lawful claim of self-defense.
Provoker with Intent
Some states distinguish between an initial aggressor and a Provoker with Intent. A Provoker with Intent is someone who “baits” another person into throwing the first punch or using some other type of force so they will have an excuse to respond and claim they acted in self-defense (ie: ‘’Throw the first punch, I dare you!”). If you are found to be a Provoker with Intent you own that fight. You lose the element of Innocence and cannot claim lawful self-defense. There’s no coming back – you’ve crossed the “point of no return.”
While the first use of force came from Metcalf, Anthony’s statement of “touch me and see what happens” could be construed as “baiting.” If the Texas self-defense laws distinguish between an initial aggressor and a Provoker with Intent, Anthony could lose the element of Innocence.
Pursuit/Sustaining a Fight:
If another person is the initial aggressor and then voluntarily leaves the confrontation, it is important not to “rekindle” that fight. If you pursue the other person in an attempt to “rekindle” the fight, you will then be responsible for starting a second fight and will be considered the initial aggressor in the second fight. You lose the element of Innocence in the second fight and thus self-defense.
Key Take-aways
The element of Innocence is one of the building blocks of your self-defense claim. You want to appear as the “goodguy” in any use of force event. In summary, here are some take-aways to remember:
- Don’t be the initial aggressor in a conflict
- Don’t be the first person to use or threaten force
- Don’t forcibly sustain or escalate an altercation
- Don’t “run to the fight” or accept a challenge to fight (Mutual Combatant)
- Don’t provoke a fight as an excuse to use force against someone in self-defense (Provoker with Intent)
- Don’t pursue an attacker who leaves a fight or attempt to “rekindle” a fight once it has stopped (Pursuit/Sustaining a Fight).
Source content for this article is derived largely in part from the book Law of Self Defense Principles by Andrew F. Branca, Attorney at Law, internationally recognized self-defense and use of force expert.
In the next article of this series, I discuss the second element of the Law of Self Defense – Imminence. In this element, I will cover when you can legally use defensive force in self-defense.
I hope you will join me as we continue through each of the 5 elements of the Law of Self Defense.
