In the Name of Self-Defense
Marc MacYoung
(Violence, crime & aftermath)
Read AFTER "What You Don'tKnow..."

Writing Violence Vol:II
Getting Stabbed
Marc MacYoung
e-book
(Effects of getting stabbed)

I know how to translate physical
danger into legal concepts. Better still,
I can explain it to you and the jury

What Lawyers Don't Know About Danger

Immediate threat / Threat display / Attack range
 

On this page I'm going to explain just three of the elements for reasonable belief of danger. Look for them in your client's case. While laypeople typically recognize these as dangerous, clients often can't articulate how they knew they were legitimate  danger.

   Immediate threat is a football that lawyers try to push up and down the field. A ball that depending on how well you argue its location will either convict or acquit.

  Let me show you in easy to understand terms. When is it immediate threat'? When you've just been thrown out of an  airplane at 10,000 feet or when you're twenty feet from impact? Or is immediate threat back when someone was trying to throw you out of the plane?

  So where does the threat become immediate? Some prosecutors will argue your client couldn't have been certain he was in immediate threat until the last ten feet of the fall. You need to be arguing the threat was before going out the plane's door. This is the crux of the argument of immediate threat. What were 'the circumstances at the exact moment' versus what would they'd inevitably be in a few seconds?

  This comparison may seem a little hyperbolic, but with violence there are certain conditions that are like going out the plane's door. Once they happen, there is no recovery. It's just a matter of degrees. (Is it a punch or a bullet coming at you?)  That also includes a point past which your client would be incapable of defending himself

  A more relevant example of this idea based on a would-be armed robbery case.

  The charge was manslaughter. A store clerk recognized the developing elements of a robbery and had accessed a gun under the counter. The robber began to draw his  gun and the clerk shot him before he could finish. It was revealed the clerk didn't remember seeing the gun at the exact moment he'd fired. The prosecutor maintained the defendant had fired with insufficient cause. The prosecutor basically tried to argue that until you are looking down the barrel of a gun...
1- Immediate threat doesn't exist
2- You're not allowed to act (because you can't be certain).

 The gun the robber fired and dropped didn't matter, because the clerk hadn't 'seen it' yet when he decided to act.*

  You should know that a trigger can be pulled in .5 of a second. In essence, the  prosecutor was demanding the clerk wait until –literally– the last second before he took defensive action against an 'immediate threat.' If the clerk had waited that long, the robber would have started putting bullets in him by the time he brought his gun up and fired. That's if he'd been able to even get a shot off and into the robber. (The robber's bullet went into the floor.)

   In a similar vein when it comes to draws from concealment, 1.5 seconds from concealment to firing is considered a good time in the shooting world. With no extra complications, a time of two seconds is far more common. That's how fast a lethal threat can develop during a robbery.

  That's just one example of immediate threat when it comes to self-defense. There are many others.  The question you must present to the jury is if the prosecutor's standards of immediate threat are reasonable?  Is it reasonable for your client to be expected to wait until it's too late to successfully defend himself before he acts?

Threat display is not a legal term, but it is a known term in other fields (as is "display aggression"**). In a legal context, a threat display is the deliberate attempt to create the reasonable belief you're about to be attacked.

  Conversely, if your client is claiming self-defense, odds are, it will be through threat displays the prosecutor will attempt to undermine that claim.

 When it comes to self-defense cases there is no issue more complicated than threat display. Not that display aggression is complicated. They're not only easy to understand, but immediately recognizable. That's because we all do this behavior. It's just a matter of style.

Display aggression is a type of communication as natural and unconscious as breathing. Basically, we're 'wired' to do this behavior. This isn't just a human behavior either. All sentient beings do them. (Dogs growl, cats hiss, crabs wave their claws...).  Taking it back to the human level, while we're aware of it, we're not conscious of the details.

  Where things get tricky is threat displays are a subject where the law and our human 'wiring' are in direct conflict. That's a problem. Our default behavior to avoid physical violence is – literally – illegal.

  To understand this requires a fast bit of explaining. You may not believe this, but humans are amazingly non-violent animals.*** Why? Because we are first and foremost communicators. The final point is human violence can be understood as a way to achieve an end. Those three points come together in a weird paradox. While we're overwhelmingly non-violent, to achieve our ends we use the threat of violence all the time.  That's to say, instead of physically attacking we try to get what we want by sending the message, "I'm not attacking right now, but I MIGHT (especially if you don't change your behavior).

That brings us back to threat displays. In order to convincingly sell this message of danger, our body language and behavior must portray danger. Without it, it's a no sell.  I want you to consider whether– according to your state laws– these threat displays, these 'near instinctive' behaviors have crossed the line into assault/ battery? (Whatever they call putting someone into fear of being physically attacked.) Because you can be certain the opposing counsel will try to sell it as a 'fight' (hence illegal).

At the same time, overwhelmingly violence comes with instructions how to avoid it. (Think in terms of conditional threats.)  Will violence happen if you don't take the offer?  Is it a bluff? Is it a build up to attack? Or perhaps  dual  posturing and verbal aggression as the build up to mutual combat (a fight)  All of these are possible.

 Or is it an attempt to deter an attack?

 That last point is very important.  Not all threat displays are equal. In any situation there is always someone who is more aggressive and willing to engage in physical violence than the other. This person's aggressive threat display will usually trigger a counter display. A display oriented on deterring violence.

  While both are seeking a change in the other's behavior, the difference is offense or defense. In layman's terms, "using the threat of violence to force 0ne's will on another" vs. "back off." While they may look similar, there is very much a difference in intent. That's something you'll need to argue.

  Something else you'll need to bring up is how your client knew he was being threatened. Think of elements of a threat display as bricks in the wall. One brick alone could mean anything, but when they are combined they make over all and easily identifiable
 

Attack range
When threat displays are done outside attack range, it's a threat (in the layman's sense of the word). There is no cause to react physically and if your client did, he'll be viewed as the aggressor.

If committed inside attack range, then every move is a coin toss. Without a great deal of training, it's impossible to tell if it's a threat or the beginning of a physical attack until it's too late. Again, without massive training, attacks from inside this distance are fast and difficult to block until it's too late.

If those actions are done charging into attack range, it's probable an attack has been initiated.  Even if the individual claims he wasn't going to make physical contact, that individual did everything in his power to convince your client he was being attacked – but it hadn't gotten there yet.

That's why attack range is important and you need to know how to get it introduced as evidence. It's actually common sense and unarticulated knowledge. (Your client knows it, just not how to explain it.)

At it's most basic, attack range is the distance someone can effectively attack you from without taking a step. The step is important as without it all it takes is one fast move move and it's an attack.  It varies if he has a rifle, a pistol, a knife, a club, or is empty handed. For brevity, we'll just stick with empty handed.

Measure from the attacker's eyebrow to the floor and lay that distance in between your client and attacker. That is the aggressor's attack range. From the far reaches he can deliver a powerful kick without taking an extra step. At this range, it will be a kick. He cannot effectively strike (punch) from out there. He'll have to step to cut that distance in half. Another step will bring him into elbow, headbutts, knees and knife range.

As the most reliable and easiest way to tell if you're in immediate danger is someone developing their attack. It's as simple and recognizable as he's moved in close enough to attack you.  Followed by him moving into attack range at high speed (although a bigger indicator is to move slowly into it to hide his intent.

This is a very common mugging strategy.

 

 Contact

*The prosecutor had decided this constituted pre-meditation. (It was in California, a very self-defense unfriendly state.)

** Threat displays/display aggression, same behavior, different labels in different fields.

***We don't even make the top 50 of animals who individually murder their own. (Meerkats top the list). There is however, a mental switch regarding group violence. When that switch is flipped not only brings us multiple attackers and gang violence, but war and genocide.