The 5 Elements of Self-Defense Law: Imminence
In my last article titled on Innocence I focused on the importance of not being the initial aggressor in a fight. You don’t want to be someone who:
- Starts a fight or is the first to threaten force
- Runs to the fight or accepts a challenge to fight (Mutual Combatant)
- Provokes or baits someone to use force so you can use defensive force and claim self-defense (Provoker with Intent)
- Attempts to “rekindle” a fight with someone who voluntarily withdrew (Pursuit/Sustaining)
All of these scenarios will cause you to lose the element of Innocence and any claim of lawful self-defense.
In this article, I would like to discuss the second element – Imminence.
Imminence – What is it?
The element of Imminence refers to an attack that is already in progress or is immediately about to happen. Think of Imminence like a window. It opens and closes. When the threat (non-deadly or deadly) is in progress or is immediately about to happen the window is open. When the threat has been neutralized or has stopped the window has closed.
Black’s Law Dictionary has the following legal definition of Imminence:
“Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law…such an appearance of threatened and impending injury as would put a reasonable and prudent man to his instant defense.”
If you respond with force that is too early (before the threat begins) or too late (after the threat has stopped) you can lose the element of Imminence. Your decision to use force cannot be speculative or futuristic. For example, “For all I know he could have had a gun” or “I thought he was going to go get a gun and come back to shoot me.” You must be able to articulate the threat based upon the evidence in real time. Using defensive force too soon or too late can get you into serious legal trouble.
The AOJ Triad
The AOJ Triad is a great tool to help evaluate Imminence in real time and articulate to a judge or jury why you found it necessary to respond with the deemed appropriate level of defensive force. It consists of three components: Ability, Opportunity, and Jeopardy.
Ability
Does my attacker have the ability to hurt me? How much harm can they cause me?
Opportunity
Does my attacker have the opportunity to bring that threat to bear? With regard to Opportunity, there are a couple of important considerations – Distance and Obstacles.
- Distance: Someone 25 yards away from you possessing an impact weapon, such as a knife, only has the ability to harm you if they are in close proximity and can stab you with the knife. At 25 yards away however, they are not yet an imminent deadly force threat. If you can do so with complete safety, it is always good to create distance between you and your attacker. On the other hand, someone with a projectile weapon such as a firearm at the same distance would be a deadly force threat. When it comes to distance, projectile weapons pose a higher risk of death or serious bodily injury because of the speed (velocity) in which they can travel over shorter distances.
- Obstacles: If there are no obstacles between you and an attacker, the attacker has the opportunity to bring that threat to bear. If you can do so with complete safety, it is good to place obstacles between you and your attacker to reduce your risk of physical harm. The most obvious obstacles would be some type of physical barrier between you and your attacker.
Jeopardy
Someone who has the ability and opportunity to hurt you who is displaying malicious intent clearly demonstrates jeopardy. Someone who openly displays a gun on their waist in public, for example, but is not demonstrating any threatening behavior is not placing you in any jeopardy at that moment. On the other hand, an active shooter walking around indiscriminately shooting people would be placing others in jeopardy.
Some other Important considerations in assessing jeopardy include the following:
- Body Language and Threat Recognition: The best fight, of course, is the one that you are never in. However, when the fight comes to you, you must be ready to respond both lawfully and tactically. There are certain danger signals or signs to look for. These include (but are not limited to) the following:
- Eye Contact: It’s often said that “the eyes are the window to the soul.” The way that an attacker looks at you, such as a hard, fixed stare, could be a pre-fight indicator.
- Hands: Police are trained to watch the hands anytime they engage with a person. That is why you hear them issue commands such as “Show me your hands” because it will allow them to readily determine if a person has any weapon(s) in their hands that could pose a threat to the officer. Also, a person standing in front of you with their hands closed in a fist is sending a non-verbal queue that he/she is about to physically strike you.
- Personal Space: Someone who is literally “up in your face” is clearly communicating that they are not afraid of you and trying to intimidate you. Generally speaking, there is safety in distance. Distance allows you some reactionary time which I will discuss below. Body language plays an essential part in establishing jeopardy and helping to define imminency in self-defense. Non-verbal queues such as body language are especially important when you are attempting to assess a potential threat. A potential attacker can say a lot without saying a word
All three components (Ability, Opportunity, and Jeopardy) must be present for a threat to be considered as an imminent threat. When you are facing an actual or potential threat, whether it is deadly or non-deadly in nature, you will want to assess the threat level in real time using the AOJ Triad. This will allow you to respond with the proportional level of defensive force. The element of Proportionality is the third element in the Law of Self Defense. I will discuss that in detail in the next article of this series.
The Importance of De-escalation In Self-Defense
The Department of Homeland Security defines de-escalation as follows:
“The use of communication or other techniques during an encounter to stabilize, slow, or reduce the intensity of a potentially violent situation without using physical force, or with a reduction in force.”
When attempting to resolve a conflict or intense situation, police will often use de-escalation strategies which can help “bring the temperature down.” This reduces the risk of violence, serious injury, or death.
Not all situations can be de-escalated, especially if you are faced with an imminent deadly force threat where you must respond immediately to avoid death or serious bodily injury to yourself.
Some key de-escalation techniques include:
Verbal communication:
- Active listening: Pay full attention, nod, and use verbal cues like “uh huh” to show you’re engaged.
- Empathy statements: “I can see you’re upset,” or “It sounds like you’re feeling frustrated.”
- Paraphrasing: Repeat back what you heard to confirm understanding.
- Open-ended questions: Ask questions that encourage the person to explain their feelings and perspective.
- “I” statements: Focus on how the situation is affecting you without blaming the other person.
Non-verbal communication:
- Calm body language: Maintain an open posture, avoid crossing your arms, and keep facial expressions neutral.
- Appropriate eye contact: Maintain steady eye contact without staring.
- Maintain personal space: Respect the other person’s boundaries and avoid getting too close.
- Voice tone: Speak in a calm and soothing voice, avoiding raised tones.
The Reactionary Gap and the Tueller Drill
The Reactionary Gap and the Tueller Drill are important considerations when evaluating the element of Imminence is self-defense. When someone is facing an actual or potential threat these concepts can help them make lawful, confident, and decisive decisions in the “moment of crisis”.
The Reactionary Gap
The Reactionary Gap refers to the distance you must maintain between yourself and a potential threat, allowing you sufficient time to react if the situation escalates. It is a foundational concept used in personal safety and law enforcement training.
The Reactionary Gap allows you to maintain a safe distance from potential threats, giving you time to assess the situation and decide on the best course of action. This could include attempting to escape from the situation, calling 911 for help, or defending yourself against an imminent threat.
The Tueller Drill A.K.A. The 21 Foot Rule:
An attacker with a contact weapon, such as a knife, can pose an imminent deadly force threat from as little as 21 feet. Think about that for a moment. That distance is just over 3 benches positioned and linked together. Someone charging at you with a knife could be upon you before you have time to realize what’s happening. You could be dead in an instant!
The Tueller Drill, named after Sergeant Dennis Tueller of the Salt Lake City Police Department in Utah, demonstrated that an assailant armed with a knife could begin running toward an individual armed with a handgun at 21 feet and that only those who are highly trained and proficient with a firearm could draw and engage their attacker before the knife-armed threat closed the distance to inflict death or serious bodily injury.
The Tueller Drill, often referred to as the 21 Foot Rule, illustrated that it would take a reactionary time of approximately 1.5 seconds for a police officer to draw his firearm from its holster and fire two shots center mass on an attacker.
This is an important consideration when facing an attacker with a contact weapon and considering defensive deadly force. If you shoot too soon you are at risk of being charged criminally and, thus, lose the element of Imminence In self-defense. If you wait too long, you risk being killed or sustaining serious bodily injury.
DEFENSIVE DISPLAY/BRANDISHING
The 5 elements of the Law of Self Defense apply to non-deadly as well as deadly force encounters. For those of you, like myself, who carry a firearm legally in public for self-defense, I want to say a word about the defensive display of your firearm. Some jurisdictions may refer to this as “brandishing” your firearm.
What is Brandishing?
The term “brandish” means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person. You are in essence attempting to change the other person’s behavior by displaying the firearm.
In the absence of a deadly force threat you could reasonably be charged with felony aggravated assault with a firearm. In many jurisdictions that is good for 10-20 years in prison if convicted.
Assault is the state of mind of the victim. It doesn’t matter that you didn’t point your firearm directly at the other person. Merely telling someone you have a firearm could get you charged with aggravated assault with a firearm. For example, “I’ve got a gun” or “I’ve got a gun and I’m not afraid to use it” could place a reasonable and prudent person in fear of death or serious bodily injury.
The moment you tell someone you have a firearm with the purpose of attempting to change their behavior, you have just checked all the boxes for aggravated assault. The other person only has to have a reasonable fear of imminent deadly force or serious bodily injury. Your display of a firearm or verbally telling the other person you have a firearm could place you in serious legal jeopardy.
Your gun should only come out of its holster or be displayed when there is evidence of an imminent deadly force threat and you are prepared to respond to that threat in a lawful manner (the use of deadly force). As previously mentioned, Imminence is defined as “in progress or immediately about to happen.” The threat cannot be speculative in nature such as “for all I know he was going to kill me” as the reason for drawing your firearm.
Brandishing your firearm in absence of a deadly force threat makes you vulnerable being criminally charged and to successful prosecution.
Owning a firearm for self-defense carries with it a tremendous amount of legal and financial responsibility. Where people get into serious legal trouble is when they are often times facing a non-deadly force threat and decide to display (“brandish”) their firearm as a “show of force” to another person in an attempt to stop the threat or change their behavior. They may “brandish” the firearm out of emotion (fear). This type of defensive use of force relates to the third element of the Law of Self Defense (Proportionality) which I will discuss in the next article.
Brandishing and Non-Lethal Devices
With respect to non-lethal devices, you can brandish a non-lethal weapon, but it may still be illegal because state laws vary significantly and can define brandishing as a crime even for non-lethal items if displayed in a threatening manner that causes fear or disorder.
However, the act is sometimes viewed more leniently by courts, especially if there’s a clear justification, such as self-defense against an imminent threat. The context and your intent are critical. If the non-lethal weapon is displayed in a threatening way to intimidate or cause fear, it can lead to legal charges.
If you are concerned about the legality of carrying or potentially brandishing a non-lethal weapon, it is best to consult with a legal professional who can explain the specific laws in your area.
Next Up: Proportionality
In the next article of this series, I will discuss the third element of the Law of Self Defense – Proportionality which covers the appropriate level of legal force in deadly force vs. non-deadly force situations.
I hope you will join me as we move through each of the 5 elements of the Law of Self Defense.
Source content for this article is derived largely in part Law of Self Defense Principles by Andrew F. Branca, Attorney at Law, internationally recognized self-defense and use of force expert.
