An attack against your person can come from anywhere and at any time. A busy downtown sidewalk… coming out from a movie theater… at a gas station… and even in your home – all places where you are vulnerable and open to those who would do you harm. After you defend yourself how will the law and the courts judge your actions? On what basis will they say that you should be prosecuted and punished… or declared justified and innocent of doing another harm?
It may seem that these are question that only those who carry a lethal means of self-defense such as firearms and knives need to be concerned about. However, if you use your pepper spray, mace, or a stun gun to ward off a person that you perceive to be an attacker you may find yourself the one who is charged with assault and battery instead. Yes, lethal methods of protecting yourself can lead to extremely serious problems, but no one wants even a misdemeanor assault conviction on their record for the wrong use of pepper spray.
Remember to take any legal advice over the Internet carefully, and read this blog with the understanding that I am not a lawyer and I am not giving anything other than my understanding of how the law works and judges. It is a good understanding based on years of study, but always consult an attorney for the proper legal advice.
As covered in Ins and Outs of Self Defense — Part One and Ins and Outs of Self Defense — Part Two there are a number of legal concepts that are good to know before you engage in self-defense. Whether you carry pepper spray, stun gun, or a walking cane you should be acquainted with when the law says you can use them and be justified.
The critical point is that you have to be aware and fear that that there is an immediate danger to your physical well-being and health. Someone insulting your politics, your choice of a date, or your hairstyle preference does not give adequate justification for you spraying them with pepper spray or even worse. If the danger is sufficient that you actually believe and fear that you are in danger of physical injury your actions can probably be justified for you using non-deadly force against the other person.
The three-pronged test that is considered by most courts and legal systems is the “Ability – Opportunity – Jeopardy” triad. This is often abbreviated as AOJ. Any missing side of this triad usually invalidates a self-defense claim. Let’s take a look at them individually.
A person must have the Ability to put you in danger of harm. Is he much bigger and stronger than you? Is he carrying a knife, club, or crowbar that is known to you? A ten-year old generally does not have the Ability to put an adult in harm’s way. A ten-year old with a baseball bat with three of his friends backing him up does.
A person carrying a bat, a knife, or even a firearm may have the Ability to harm you, but if he is on the other side of a river with no bridge between he has no immediate Opportunity to do so. If he is 200 feet away with a knife he still has the Ability but again, immediate Opportunity may be lacking. He can walk, or even run, towards you but in many jurisdictions the courts may rule that you had ample opportunity yourself to escape from danger before he reaches you.
What if he is carrying a baseball bat and is walking towards you and only ten feet away. Certainly the Ability and the Opportunity is there. However, if he has not put you into specific, immediate Jeopardy by his actions that would reasonably lead you to believe that you were going to be harmed then you are not in Jeopardy. Many people carry baseball bats, knives, and even guns on a daily basis and there is never any Jeopardy towards others attached to their actions.
Has he yelled that he is going to harm you? Is he specifically threatening you? Has he threatened you in the past sufficiently enough that you justifiably fear that he is now going to carry it out? Is he waving the weapon around indiscriminately and you fear it may be used on you as you are near enough for that to happen?
If you (or better yet, your lawyer) can articulate to the legal system that you were aware of all three AOJ before you took actions to defend yourself with pepper spray or other means then you will probably have a solid case of self-defense. If any of the triad is weak you might have problems.
It’s important to know these concepts I’ve outlined but please don’t let them paralyze you into inaction in the time of need. Carrying a non-lethal means of self-defense doesn’t excuse you from acting improperly and illegally, but it is comforting to know that if you do make a mistake that a life will not be lost. Walk safely, walk confidently, and above all, walk with the sure knowledge that you have the understanding about when and where to defend yourself.