This is the third in a series on the legal aspects of self-defense, tailored for the martial artist who is unarmed except for their hands, feet, and other natural weapons they possess. There will probably be seven posts in the series altogether.
I am drawing primarily on the 3rd edition (2017) of Andrew Branca’s book titled The Law of Self Defense. The subtitle of that book is “The Indispensable Guide for the Armed Citizen” and while all good people should consider carrying force-multiplying implements, i.e., weapons, when out in public, abiding by the local law, of course, here we are dealing strictly with self-defense by the unarmed citizen.
(Note to self: In the future, we’ll have a post or two on the use of improvised weapons.)
Today we’ll look at Imminence, the second of the five elements that are necessary for demonstrating that a use of deadly force is legally justified. (The first element we looked at was Innocence, that is, that you did not start, escalate, or re-start the conflict.) The threat you are facing must be “right now” and not, for example, at some future time and place. Branca quotes Black’s Law Dictionary’s definition of “imminent danger” as “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…”
Making sure that your use of force is covered by all five of these elements – Innocence, Imminence, Proportionality, Avoidance, and Reasonableness — ensures that a judge, jury, magistrate, or police officer will not see your use of force as either aggressive or a case of mutual combat.
The “imminence” of a threat comprises what’s called the “AOJ triad.” This stands for Ability, Opportunity, and Jeopardy. All three conditions must be satisfied for a threat to be imminent. (Note that this is not a legal term per se, but it’s nevertheless useful for framing the concept of Imminence.)
Ability means that the person is capable of causing you death or serious bodily injury. (Pennsylvania adds kidnapping and forcible sexual intercourse as actions that justify lethal force in self-defense.) By the way, it’s probably a good place to mention that Pennsylvania defines “serious bodily injury” as “Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
An obvious way that “ability” applies is that the assailant is armed – with a firearm, an edged weapon or implement, or something that could function as a club or other blunt-force instrument.
What if the assailant(s) is (are) unarmed? “Disparity of force” is a legal concept that comes into play here. This occurs, according to Massad Ayoob, when the assailant “within the totality of the circumstances has a physical/tactical advantage over the victim that is so great that if the assault continues, death or great bodily harm is likely to be suffered by said victim.” (Ayoob, Deadly Force: Understanding Your Right to Self Defense, 2014).
This could obviously be force of numbers, i.e., multiple assailants , or an attacker who is larger or stronger than their victim or specially trained in hand-to-hand combat. It could also be someone attacking from a position of tactical advantage relative to their victim. (For instance, a standing assailant attacking someone who is seated and unable to easily get up to escape or ward off the blows.)
Opportunity means that the person is capable right now of using their ability to harm you. This means that they are close enough, and that there are no barriers or obstacles preventing them from access to you.
This is relevant mostly for a defender considering the use of a firearm. Obviously, for the unarmed defender who might inflict lethal force on an assailant, the same distance and obstacle factors apply to both parties. In other words, if they are too far away to immediately harm you, then you also can’t harm them in self-defense. (I suppose you would not be legally permitted to sail through the air with a flying side kick in self-defense against a large but unarmed person threatening you from a distance.)
If they have the ability and intention to harm you, but not the immediate opportunity, the best course of action is probably to escape the situation and/or call the police.
The third element of the triad is Jeopardy. Not only do they have the capability and the chance right now, but they actually intend to harm you. The classic way of explaining this is to imagine yourself in a bank. Right next to you is a man with a firearm on his hip. If he is identifiable as a security guard, you can go about your business; there is no jeopardy, although ability and opportunity exist. If he is not a security guard, however, you may very well be in trouble!
This is probably the most subjective of the three elements. You might not be able to confidently judge the motives of someone who appears threatening. This is why, in our club, we emphasize the use of “The Fence” and other body language, and our voices, as the first line of defense in a potentially dangerous situation. (Assuming avoidance and escape are not possible.) Through body language and speaking, we convey our awareness of a possible threat, the desire to avoid conflict, and the willingness and ability to defend ourselves if necessary.
If the person you feel threatened by did not actually intend to harm you, the worst you will have suffered is embarrassment. If they truly were evaluating you as possible prey, your actions might convince them to break off the attack, because you will not be an easy victim. If they follow through with attacking, you will have acted according to your training to try and avoid a fight, and then advanced to forceful self-defense that is legally justifiable.
Having looked at Innocence and Imminence, the element we will consider in the next installment in the series is “Proportionality.” The degree of force you use in protecting yourself must correspond to the degree of the actual threat of physical harm to you.
Next in the series (5 of 8): What does Pennsylvania law say?