Why It’s Vital to Remain a “Faultless Victim”

Once you are involved in any altercation where your firearm is involved, you come under intense scrutiny by police, prosecutors, and, depending on the circumstances, perhaps even a jury. It’s just a harsh reality.

And one of the most important elements of any self-defense case is the ability of the defendant to convince the jury that he/she was a “faultless victim.” You were an “unwilling actor,” a “reluctant participant,” an innocent who didn’t create, or escalate, the circumstances that led to your having to defend yourself.

Note that this particular requirement is not always expressed in actual statutes, but is rather a long accepted principle of what is frequently referred to as “common law”—a term loosely defined as, “law based on custom and general principles and that, embodied in case law, serves as precedent or is applied to situations not covered by statute.”

For example, here in Minnesota, there is no actual statute defining what a “faultless victim” is, or even requiring a potential victim to retreat before using deadly force. But in the state-mandated instructions by the judge at the end of a trial, jurors will be told (in part):

“…the defendant’s election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril.” [Emphasis ours]

As in all law, what those words mean will depend on how they are interpreted by the jury empaneled on that day. But obviously, if you initiated the confrontation (i.e. road rage or some other provocation) which eventually escalated into a deadly force scenario, you will have a difficult time claiming self-defense.

Note that “the other guy started it” is no defense. Even if you didn’t initiate the incident, your obligation to “avoid the danger” doesn’t end there. The jury wants to see someone who attempted to disengage, throughout the event, and only resorted to deadly force when no other avenue was available.

A perfect example was a case in suburban Connecticut, where a 34-year-old professional pulled into his driveway after work, and noticed four “Latino-looking, gang-banger types” loitering in the street in front of his house, cursing loudly. He had two young children in the house, so he asked them to “please tone it down.” They replied with veiled threats and racial slurs (the homeowner was black).

He went inside, and after seeing several more young males arrive, he called police, voicing his concerns. Good move. But when he saw the group double in size, he panicked. Instead of waiting for police, he grabbed a rifle, walked out the front door and stood on the front steps, cradling the gun in his arms, telling the youths, “You’d better leave; the cops are on the way.”

Bad move. When police arrived, they drew their guns, screaming at the homeowner to “Get on the ground!” He was arrested, and later charged with 2nd Degree assault with a deadly weapon, a felony. Because the moment he walked out that door, he became the “armed aggressor.”

Now, having no criminal record, the homeowner could be offered a deal to plead guilty to simple misdemeanor assault. But that is hardly comforting. A firearms-related conviction, even a misdemeanor, could haunt him forever, perhaps even destroying his career.

So, even if you didn’t provoke the initial confrontation, do everything possible to continue being seen as the faultless victim.

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