Bullet Points
PRINCIPLES OF A SELF DEFENSE CLAIM – INNOCENCE
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ello fellow bikers. Last month’s Bullet Points column dealt with the potential legal jeopardy you may face when the “unimaginable happens.” - You have found yourself in a rapidly escalating altercation and have taken responsibility for your safety – and perhaps your life. In the rapid chaos of the altercation you have used lethal force to protect yourself – or perhaps a friend or family member. Your freedom will inevitably require you to have a legitimate self-defense claim. As I stated in last month’s column, there are five essential questions which need to be answered in the affirmative for your self-defense claim: 1. Innocence 2. Imminence 3. Proportionality 4. Avoidance 5. Reasonableness All five of these components must be in your favor for you to have a legitimate selfdefense claim. If they are, you will prevail. If they are not all answered affirmatively, you may spend a very long time in prison. This month we will focus on Innocence. Innocence After the dust settles, you must be viewed as the innocent party. While this may seem easy enough to prove, there are many things which can happen which makes you the aggressor. In an altercation, the aggressor is generally going to be viewed as the person who threw the first punch, brandished a knife or pulled a gun. In some states, words alone can cause you to be the aggressor. Tennessee’s law is a bit vague with regards to who the aggressor is: Tennessee 39-11-611 (e) The threat of force against another is not justified: (1) If the person using force consented to the exact force used or attempted by the other individual; (2) If the person using force provoked the other individual’s use or attempted use of unlawful force Provocation is the key to Tennessee’s self-defense claim and the fact that Tennessee has not clearly defined provocation, you must CLEARLY be the innocent party – not the provocateur. Additionally, you can easily find yourself in a position where competing narratives of the event may portray you as the aggressor – especially if the witnesses are friends of the thug you were protecting yourself from. If this proves to be the case, an overzealous prosecutor may well pursue charges against you. Proportionality, or the lack thereof, can also cause you to be viewed as the aggressor, not the innocent party. If the thug you are protecting yourself from throws the first punch, but you immediately escalate the encounter by pulling a concealed firearm, you will be in serious jeopardy of losing your innocence – and your claim of selfdefense. There are a few other actions which may cause you to lose your claim of innocence: Pursuit/Sustainment – If you pursue or sustain the altercation you will no longer be considered the innocent party. In other words, if the thug decides fighting you is
not in his best interest, and verbally communicates he is disengaging, and you try to sustain or further pursue him, you will become the aggressor. Mutual Combat – If after a brush up with the aforementioned thug, you agree to take the fight outside, you will have lost your innocence – and perhaps sunk your entire self-defense claim. Escalation – This was mentioned earlier, and should be reinforced. If you find yourself in a fist fight, or a war of words, do not escalate the encounter beyond what it is – a nonlethal fight. If you pull your pistol at this point, you will be considered the aggressor or provocateur – meaning you are in serious legal trouble. If you find yourself in a position where you may have lost your innocence in the altercation, you may still be able to regain your innocence. Tennessee 39-11-611(e)(2) unless… (A) The person using force abandons the encounter or clearly communicates to the other the intent to do so; and (B) The other person nonetheless continues or attempts to use unlawful force against the person The Tennessee statue is clear here. You must attempt to disengage from the altercation and most importantly, you should verbally communicate (preferably loud enough to be heard by everyone nearby) your desire to end the affray. At this point, if the thug pursues the fight – or escalates it – you may well regain your innocence. One other consideration you must keep in mind. Being under the influence of alcohol or drugs will sink a self-defense claim. If you are planning on enjoying some adult beverages, leave your gun at home – or locked up where you cannot gain access to it. If you are under the influence and find yourself in a life-or-death situation, your best defense is not going on the offense. If you pull your sidearm under these conditions – even if you are innocent – you are in serious legal jeopardy. If you have your weapon you must make the choice between potential death and a very long incarceration. But you risk much if you put yourself in this situation. As you can well see, innocence is something which can be lost very easily in a selfdefense claim. Tennessee statues are somewhat vague with regards to which party is the aggressor. You must be viewed as the innocent party or you risk a very long and expensive legal fight – a fight which may be for your freedom. And, if by unfortunate circumstances you have lost your claim of innocence, you must actively communicate and disengage from the fight to potentially regain your claim of innocence. Next month, we will focus on the second component of a self-defense claim: Imminence. Stay tuned, and until then, keep the shiny side up. Molon Labe, Mike Noirot Note: I am not a lawyer and nothing in this column represents legal advice. My article is based on common sense and many years of studying self-defense.
The views and opinions expressed are those of the authors and do not necessarily reflect the official policy or position of Thunder Roads® Magazine Owners/Publishers. Any content provided by our authors are of their opinion, and are not intended to malign any religion, ethic group, club, organization, company, individual or anyone or anything.
AUGUST 2020
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