Preemptive strike ruin self defense case?

Legal & Second Amendment
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So I went to a free Krav Maga class in the next city over (I plan on enrolling my 2 brothers and I once I can afford it) and the instructor was talking to me after class. He was talking about if someone started the fight he was going to end it. And then he said that if he felt someone was going to attack, he’d strike first. So what I was wondering is does anyone know how that would impact a self defense case? Could I even claim self defense, even if I were to feel in danger, despite striking first?

And yes, I’m aware that it’s possible to mistake someone and then deal with charges of assault. That did cross my mind in case anyone was thinking of bringing that up.

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I understand the tactical side of attacking first. But I would think you’d have a very hard time proving intent if you are seen as the aggressor.

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Striking first is not self-defense. People can talk a big talk without actually intending to follow through on it.

Also, remember your Krav Maga instructor is talking about hand-to-hand self-defense, not self-defense with a firearm.

Personally, I don’t like assuming that someone else is going to attack - you know what they say about when you assume… In Tae Kwon Do we were taught to defend ourselves, not attack.

Without hearing his exact comments in context, I won’t assume your instructor’s meaning. If he is saying he’ll attack first or that if someone starts something, he’s going to end it, he may have a hard time if he claims self-defense due to those comments. The amount of force he uses will be called into question as will his intentions during the incident.

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Sorry @Dawn but the Tae Kown Do reminded me of a song used to hear on Dr Demento.

Ed Gruberman: Yeah! Just show me all those nifty moves so I can start trashing bozos! That’s all I came here for! YO ASTA STA STA!!! Pretty good, eh?

Teacher: The only use of Ti Kwan Leep is self-defense. Do you know who said that? Ki Lo Ni, the great teacher

Ed Gruberman: Yeah? Well the best defense is a good offense, you know who said that? Mel, the cook on “Alice”

Teacher: No, um…Ti Kwan Leep is the wine of purity, not the vinegar of hostility. Meditate upon this truth with us. Aaaaoooommm…

image

and the song:

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It boils down to the “reasonable person test”. If you have a reasonable fear of imminent of bodily harm you have a lawful use of force in SD, providing you are not in a state with a duty to retreat.

Each state’s laws differ on exactly what level of force may be used to stop different types of attacks and the disparity of force comes into play as well so there is no simple broad answer. Each case has to be examined fact by fact and then weighed against both the statutes and prior court cases.

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To the bolded. Dawn this is not necessarily true. There is no legal requirement that you must first be struck, stabbed, clubbed, shot etc before you can act in lawful self defense.

You will always have a much easier time making your case if you have eye witnesses, video, etc that shows you were struck first but it is the totality of the circumstances and the reasonable person test that apply along with “imminence”.

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Very true! I was looking at this more as a hand-to-hand situation without a weapon involved. If someone’s yelling at me and taunting me, I’m going to turn around and walk away. However, if they’ve got a knife or gun aimed at me, it’s a different situation.

If it’s verbal taunts, it would be VERY hard to prove self-defense if you struck them first.

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The law actually works the same with or without weapons. Spend some time reviewing your own state’s SD and use of force statutes.

For example.

You see no weapons but are accosted on the street by a lunatic who backs you up while continuing to rant and rave, making threats and waiving your hands around. The street/sidewalk is clear behind you.

You do the calculus in your head and determine that if you keep backing up you’re likely to trip and fall and be at the attacker’s mercy and that should you attempt to turn and run you’re opening yourself up to an attack from the rear.

Now, if you then decide to use the level of force necessary to stop that attack do you feel like you could successfully make your case to the police, prosecutor, GJ, and Judge if necessary?

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If you strike first, and theres no witnesses for context, doesnt that justified the other person to use force for self defense? At what point is it mutual combat? Lacking evidence is bad for legit self defense cases. Who is escalating the confrontation?

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Is the other person lawfully present and acting in a lawful manner? If yes, you have no lawful use of force, if no, then you do.

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Every situation is going to be different and there are a number of factors to consider. Disparity of Force will definitely be considered.

My thinking is if I’m every approached by someone who’s threatening me in some manner and I can get away, I’m outta there! I’m going to do everything I can to avoid escalating the situation. Now, if I can’t get away, there’s a whole lot of other things to consider:

The aggressor’s:
Body Language
Physical size
Age
Known strength - if you know the person
Proximity
Apparent mental state

Then I have to consider all of those things for me as well and decide the best way to protect myself with appropriate force.

Remember when deadly force is used outside the home, you cannot be seen as the person who started or escalated the conflict.

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I wasn’t meaning taunts. I’m aware that taunting is very different from an actual attack. I can’t say for sure what my instructor meant as I just met him Saturday. I’m assuming it’s body language because he has stressed that he’s teaching us defense and taught us how to get out of bear hugs and everything. I was just curious to what you guys had to say.
But I did have the thought come to mind that it could be harder to claim self defense.

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To the bolded. This is only partially accurate.

Depending on your state’s laws even if you started the conflict and escalated it if you quit the conflict or attempt to do so and are prevented from being able to your self defense rights are restored.

Take a look at the situation I posed to you above, I think you missed it.

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My mental plan is to de escalate if possible and be quick to walk away, always, always keeping my emotions in check. Only then would I use deadly force. Of course, circumstances dont always allow a well thought out plan to succeed.

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I actually took that directly from Concealed Carry and Home Defense Fundamentals page 152, @WildRose :smiley:

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Which I pointed out as being incorrect during our instructor course in Lubbock.

Review your own state’s SD and use of force statutes.

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Here’s the applicable statute for Texas.

Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Most states have similar language in their self defense/use of force statutes.

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On the use of force continuum striking first is a use of force +1 - meaning you don’t have to wait for the attack to happen and you don’t have to meet the attack with equal force.

Take the recent Portland Antifa attacks, chains and tire irons were used to attack bystanders, if you were to see them coming your way whether or not you witnessed their prior actions you would be justified is your preemptive strike. This comes directly from our DA when asked, though he did add the caveat that it’ll be up to you to articulate the event.

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I also would like to remind that we all know to walk away if at all possible. I’m wanting to know about the part after you see you can’t just walk away.
And I’m going to take Wildrose’s recommendation and check my state’s self defense laws.

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You have a lawful use of force when you have met the “reasonable fear” and “imminence” criteria.

If someone locks eyes on you and comes charging your way with a weapon that criteria has been met. In some states you have duty to retreat if you safely can but in most that is not an issue.

In no state do you actually have a requirement to wait until they have already attacked/struck/shot you before you can react with lawful force. In many states you may use a demonstration or threat of the use of force in order to deter an attack or diffuse an an escalating situation before it gets to that point as well.

To the latter point in the above paragraph, that would equate to “Stop, I’m armed and I will shoot” or even reaching in to show/expose your firearm. In some states you can even draw and point it there way to accomplish same if necessary.

Know your state laws and the laws of the states you plan to visit if you plan to carry there.