This is the fifth and final article in a multi-part series on Firearms and Self-defense Law.  In this article, we will discuss the five requirements that must be met to be successful in claiming self-defense.

To reiterate, I am not an attorney and anything written in these articles should not be construed as legal advice.  While I have taken a number of law classes, done extensive research, and have vetted this information through an attorney, I am not an expert and in no way should be considered one.  If you have any questions regarding what I have written or desire legal advice, I recommend you seek a competent firearms and self-defense attorney.  Furthermore, if any attorney reads these articles and would like to add their input, please feel free and I will pass on the information in subsequent articles.  I only ask that you include legal references with your comments so we may all learn.  These articles are intended to help educate current and future gun owners so they can make better and more informed decisions regarding gun ownership and the application of force in self-defense.

To begin with, let’s frame out two important criteria.  First, in this article, we are discussing what is called perfect self-defense.  This is a claim that you performed an unlawful act but it was justified based on the circumstances of the situation.  In order to succeed in claiming perfect self-defense, you and your attorney just show that the five elements of self-defense were satisfied.  There is another type of self-defense called imperfect self-defense in which not all five elements are satisfied.  This defense is rarely used and is beyond the scope of this article.

Second, the role of the Prosecutor in the case is not to find the truth but only to disprove one of the five elements of self-defense.  If successful, the Defendant’s claim of self-defense is nullified.

Remember, when you claim self-defense, you are admitting to a criminal act but claiming it was legally justified.  “I shot him because he was trying to kill me.”  In this situation, you are admitting to committing felonious assault but are claiming it was justified because of an imminent threat of death.  If the Prosecutor successfully shows that the other individual was not trying to kill you, then you are left with admitting that “I shot him”.

So, what are the five elements of self-defense that that you and your attorney must demonstrate?

1. Innocence – The law does not attempt to define what qualifies as “innocence”, but rather attempts to define what qualifies as “not innocence” and then to exclude such conduct from the justification of self-defense.  For example, North Carolina General Statute 14-51.2 and 14-51.3 states that defensive force is not available to a person who:
   1. Was attempting to commit, committing, or escaping after the commission of a felony.
   1. Initially provokes the use of force against himself or herself…

• Imminence – Black’s Law Dictionary describes Imminence this way.  In relation to homicide in self-defense, this term means immediate danger, such as must be instantly met, such as cannot be guarded against, calling for the assistance of others, or the protection of the law.  Or, as otherwise defined, such an appearance of threatened and impending injury as would put a reasonable and prudent man to his instant defense.

In determining Imminence, there are three qualifications that must be met and all three must be met at the same time.

1. Ability – the physical ability to do harm.
   1. Opportunity – the opportunity to bring that harm to bear.
   1. Jeopardy (Intent) – the intent of the person to cause harm.

If any one of these qualifiers is not present at the same time, Imminence fails.

• Proportionality – There are always two forces in an encounter; the attacker’s force and the defender’s force.  The attacker’s force determines how much force the defender may use.  If the defensive force is disproportionately greater than the attacking force, the defensive actions are unlawful.

Proportionality does not necessarily mean equal as shown in the following court opinion.  “Considering the great disparity between defendant’s size of six feet and five inches and the victim’s size, four feet and eleven inches, the…defendant’s hands were deadly weapons.”  State v Brunson (NC Ct. App. 2006)

• Avoidance – Avoidance is defined as the attempt to avoid and / or extricate from the fight.  States with an Avoidance requirement are called “Duty to Retreat” states.  In these states, you are required to attempt to retreat if safe to do so.  Failing to attempt to retreat strips your right to claim self-defense.

North Carolina conditions its Duty to Retreat on two factors:

• Intensity of the Attack – Deadly vs Non-Deadly
  • Location of the Attack – Special Location vs Non-Special Location (Special Locations are defined as Home, Auto, Workplace, or any other personal habitat.)

Thus, a citizen’s duty to retreat is as follows:

• Duty to Retreat
  • Non-Special Location and Non-Deadly Attack
• No Duty to Retreat
  • Special Location, Non-Deadly Attack
  • Special Location, Deadly Attack
  • Non-Special Location, Deadly Attack

This is supported by the following opinion from the North Carolina Court of Appeals.  “When confronted with an assault that does not threaten the person assaulted with death or great bodily harm, a party claiming self-defense is required to retreat if there is any way of escape open to him, although he is permitted to repel force by force and blow for blow.  There is no duty to retreat when the person assaulted is confronted with an assault that threatens death or great bodily harm.”  State v Squires (NC Ct. App. 2008)

• Reasonableness – Reasonableness is defined as “being in accordance with reason, not extreme or excessive, and possessing sound judgement.”  In justification for self-defense, there are two qualifiers for reasonableness.
  • Subjective – Do YOU BELIEVE your actions to be reasonable?
  • Objective – Would a REASONABLE AND PRUDENT PERSON respond as you did?

In the judgement of reasonableness, it is the jury that has the final say in determining if you acted in a reasonable manner as shown in the following jury instructions.  “The jury determines the reasonableness of the defendant’s belief from the circumstances appearing to the defendant at the time.  In so determining, you should consider the circumstances you find to have existed from the evidence.”  NCPI-C 308.40 Self Defense Not Involving Deadly Force

In conclusion, please remember that all five of these elements MUST be proven in order for you to successfully claim self-defense.  If any one of these elements is disproven, you lose your right to claim self-defense.

As you think through your use of the firearm as a defensive tool and the actions you are prepared to take, please keep in mind the legal requirements that you must operate within.  Go back and read through these articles.  Take additional legal training.  (We have just scratched the surface.)  At the end of the day, if you end up in the legal system, you and only you are responsible for your actions and ignorance is not a legal defense.

Train Hard!  Stay Frosty!  Never Give Up!

John Neblett

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