When Does Self-Defense Begin?

Let’s discuss another indomitable truth in self defense:  Reaction is always slower than action.

In the case of the unexpected attack, it logically assumes that the defender is going to find him/herself on the reactionary side of the equation. It is, after all, a defining feature of a surprise attack – that you never see it coming in the first place – which is why situational awareness is paramount.

But what about the attacks that you DO see coming? That stranger who is following you down the dark sidewalk? How about that guy coming at you in the parking lot? This is where my advocacy for preemptive self defense comes into play.

Let me preface the rest of this blog with the following disclaimer: I am not a lawyer. Nothing in this post (or any other post on this blog) is intended as legal advice – advice that should logically be sought from a qualified and certified legal professional. If you take my advice as legal counsel, then you’ve made a mistake for which I and mine are in no way responsible.

OK. Now that we’ve got that out of the way…

Preemptive defense is just that – striking before being struck. It’s employed only when other attempts at deescalation have failed or are not viable options. Let’s discuss this idea anecdotally:

Jane is minding her own business as she walks from her office building to her car parked in the adjoining parking deck. As she’s approaching her car, she gets that tingle of perception up her spine. She turns to see a black-clad man staring at her and tailing her closely.

Jane stops in her tracks and turns to face the approaching man. She puts her hands up in a defensive ready position (hands at chest height, palms out) and takes a ready stance with her feet. She loudly demands, “Stay back!”  The man hesitates briefly, then resumes his approach, albeit more cautiously.

“I’m telling you to stay back! Don’t come any closer!”  No change in the aggressor’s gait or approach.

As he gets within Jane’s predetermined personal bubble, what is her responsibility as far as defending herself is concerned? Must she wait until this person actually shows an aggressive action (grabs, slaps, or punches her) before she initiates her defense? Does she need to see a weapon before acting?

In my estimation, no. It would be reasonable for Jane to believe that her safety is threatened. Her initial demands that the man stop approaching her have been disregarded multiple times. She has few remaining options under the circumstances (run, scream for help). Once it is clear that he has no intention of changing course and avoiding her, it’s time for Jane to employ some defensive response.

Hopefully Jane is carrying a force multiplier of some sort that will be in play, be it pepper spray, a stun gun, or some other tool that will make clear to this person that he’s picked the wrong woman to be his victim.

No matter the response, Jane is in no way obliged to wait until an aggressive action has been made against her before she employs her defense.

And that is the thrust of the anecdote. Sometimes striking first IS justified when there is an expectation that physical harm is imminent. That is when self defense begins – when there is a reasonable assumption (though the definition of reasonable is a floating target, I assure you) that physical harm will result if no action is taken.

There are a thousand variables that can be taken into account when discussing the concept of preemptive defense, but it all boils down to one simple concept: you believe – and you can explain why you believed – that your safety was in imminent danger when you acted defensively. That belief can derive from direct observation: you saw a weapon, for instance. The belief of imminence can also be assumed by inference: the threat is approaching directly, not responding to verbal prompts (“Can I help you,” “Stop,” or, “Stay back,” for example), and/or staring down his apparent victim.

The level of preemptive defense is a much trickier situation. One must be ready to employ a degree of defense that is justifiable when authorities start inquiring about the sequence of events that led up to the defensive encounter. It is difficult (but not impossible) to justify drawing down on a threat and punching 9mm holes in him without first seeing a weapon. This is when it is advisable to have a nice long conversation with an attorney about what constitutes justifiable defense under a variety of circumstances.

Something to consider in all of this is disparity of force and disparity of size. If one were to think about it linearly, the approach would be Force +1. It works something like this:  the threat is empty handed, so the defender uses a non-lethal defense (pepper spray, stun gun, etc.). The threat has a stick or a club, so the defender uses a more lethal response (a bladed weapon, for example). And so on.  When the threat’s force continuum is at its peak, it stands to reason that the best defensive response, absent any opportunity to get the hell out of Dodge, is to shoot him before he shoots you.

Disparity of size, which is the affirmative defense employed successfully by Officer Darren Wilson in the Michael Brown case in Ferguson, MO, is easier for women to employ than men. A 185-lb man confronting a 125-lb woman represents a considerable size disparity that would allow for a preemptive defensive response with justification. However, men can employ the disparity of size justification under similar circumstances, as was seen in the Ferguson case. Wilson’s reported weight at the time was 210 lbs to Brown’s 290. Both men were the same height (6’4″) but Brown had the weight advantage in addition to positional advantage (standing vs. the sitting Wilson, who was in his cruiser when the melee started). By his estimation, Wilson felt that disparity of size was justification for shooting Brown.

Self defense can be a very fluid and unpredictable event, exacerbated by the fact that stress-induced hormonal dump can muddy the decision making process. One should not, however, buy in to the belief that self defense is exclusively a responsive event. Upon the assessment that a threat is imminent and grievous bodily harm might result if no defense is employed, it is a perfectly reasonable act to defensively strike first.

And that is when self defense begins – at that final assessment that harm is imminent, not after the threat has initiated his attack.

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