I know how… Do I know when?

Attention: This article is not intended, nor to be used or construed, as legal advice. It is purely for educational purposes only. No warranty or claim is made as to its legal or intended use. Consult a qualified attorney for specific questions as to your rights and obligations under Michigan law. This article is written from the non-legal opinion of an expert & consulting witness, not as an attorney or legal counsel.

The Self-Defense Act of Michigan[1] (the Act) seems to be one of the most misunderstood sets of laws in Michigan by those people who posses a Michigan Concealed Pistol License (CPL). I arrive at this conclusion due to the number of CPL holders attending my classes for advanced training, who are seemingly unfamiliar with the laws from their initial training.

In light of recent events in Michigan, and across the United States, much has been written on the use of deadly force. Many have been justified in their use of deadly force and a few have not. Allow me to list the general provisions of the Act and then I will write about several myths and misconceptions that students often bring to my courses.

In general, a person in Michigan may use deadly force with no duty to retreat (PA 309) if:

  1. They are not engaged in a crime;
  2. They are in a place they have a legal right to be;
  3. They honestly and reasonably believe deadly force is necessary;
  4. The deadly force is used to prevent imminent death, great bodily harm, or sexual assault of the person or another.

Before we discuss the aforementioned points, keep in mind Michigan is generally considered a no-retreat state. However, it should be stated that most firearm and personal defense instructors agree that if a means of escape is available, it should be taken. It must be emphasized that anything you can do to keep from using deadly force, do it! Additionally, keep in mind the following jury instructions:

M Crim JI 7.16 Duty to Retreat to Avoid Using Deadly Force[2]

(1) A person can use deadly force in self-defense only where it is necessary to do so. If the defendant could have safely retreated but did not do so, you may consider that fact in deciding whether the defendant honestly and reasonably believed [he / she] needed to use deadly force in self-defense.*

(2) However, a person is never required to retreat if attacked in [his / her] own home, nor if the person reasonably believes that an attacker is about to use a deadly weapon, nor if the person is subject to a sudden, fierce, and violent attack.

(3) Further, a person is not required to retreat if the person:

(a) has not or is not engaged in the commission of a crime at the time the deadly force is used, and

(b) has a legal right to be where the person is at that time, and

(c) has an honest and reasonable belief that the use of deadly force is necessary to prevent imminent [death / great bodily harm / sexual assault] of the person or another.

So remember, the law in Michigan states there is generally no duty to retreat, however, juries may use the fact that you chose not to retreat (when one was safely available) in their decision for or against you.

Let’s examine the previous numbered points:

  1. They are not engaged in a crime.

An assailant who is engaged in criminal activity cannot use deadly force to prevent the victim from using deadly force (or other force) and then complain to the police that they had to use deadly force in order to mitigate the situation; while they were robbing the victim.

  1. They are in a place they have a legal right to be.

Although Michigan is considered a “no retreat state,” the person using deadly force must be in a place they are legally able to be. This includes at the store, the ATM, your yard, place of business, shopping with friends, at dinner, etc.

  1. They honestly and reasonably believe deadly force is necessary.

This is where many people fall into trouble. Many experienced criminal defense attorneys will tell you that in order to defend a deadly force encounter, your honest and reasonable belief must be supported by the facts of the case. You may have been truly scared and had an honest belief the assailant was going to kill you, but if the evidence suggests otherwise, you might have a bit of trouble.

  1. The deadly force is used to prevent imminent death, great bodily harm, or sexual assault of the person or another.

These three reasons to use deadly force do not mean you can shoot someone who knocks on your door, makes a future threat, threatened you five minutes ago but hasn’t carried it out yet, threatens you in a road rage incident but does not have the means to carry it out.

As you can read, using deadly force is allowed in very narrow circumstances. Let’s examine more jury instructions:

M Crim JI 7.15 Use of Deadly Force in Self-Defense[3]

(1) The defendant claims that [he / she] acted in lawful self-defense. A person has the right to use force or even take a life to defend [himself / herself] under certain circumstances. If a person acts in lawful self-defense, that person’s actions are justified and [he / she] is not guilty of [state crime].

(2) You should consider all the evidence and use the following rules to decide whether the defendant acted in lawful self-defense. Remember to judge the defendant’s conduct according to how the circumstances appeared to [him / her] at the time [he / she] acted.

(3) First, at the time [he / she] acted, the defendant must have honestly and reasonably believed that [he / she] was in danger of being [killed / seriously injured / sexually assaulted]. If the defendant’s belief was honest and reasonable, [he / she] could act immediately to defend [himself / herself] even if it turned out later that [he / she] was wrong about how much danger [he / she] was in. In deciding if the defendant’s belief was honest and reasonable, you should consider all the circumstances as they appeared to the defendant at the time.

(4) Second, a person may not kill or seriously injure another person just to protect [himself / herself] against what seems like a threat of only minor injury. The defendant must have been afraid of [death / serious physical injury / sexual assault]. When you decide if the defendant was afraid of one or more of these, you should consider all the circumstances: [the condition of the people involved, including their relative strength / whether the other person was armed with a dangerous weapon or had some other means of injuring the defendant / the nature of the other person’s attack or threat / whether the defendant knew about any previous violent acts or threats made by the other person].

(5) Third, at the time [he / she] acted, the defendant must have honestly and reasonably believed that what [he / she] did was immediately necessary. Under the law, a person may only use as much force as [he / she] thinks is necessary at the time to protect [himself / herself]. When you decide whether the amount of force used seemed to be necessary, you may consider whether the defendant knew about any other ways of protecting [himself / herself], but you may also consider how the excitement of the moment affected the choice the defendant made.

We will pull a few sentences from the jury instructions and discuss their implications.

Remember to judge the defendant’s conduct according to how the circumstances appeared to [him / her] at the time [he / she] acted.

In deciding if the defendant’s belief was honest and reasonable, you should consider all the circumstances as they appeared to the defendant at the time.

This statement refers to the Reasonable Man Doctrine that asks, “Would a reasonable person under the same circumstances, knowing what you knew at the time, likely have used the same deadly force in self defense?”[4] This is the position that the jury must hold. If a juror can see the incident through your eyes, knowing what you knew, and agreeing therefore that deadly force was indeed necessary if they were in your shoes, you have a greater chance of walking free.

Elements of Ability, Opportunity, Jeopardy

These three elements must be present to show a justifiable use of deadly force.

The defendant must have been afraid of [death / serious physical injury / sexual assault]. When you decide if the defendant was afraid of one or more of these, you should consider all the circumstances: [the condition of the people involved, including their relative strength / whether the other person was armed with a dangerous weapon or had some other means of injuring the defendant / the nature of the other person’s attack or threat / whether the defendant knew about any previous violent acts or threats made by the other person].

Ability refers to the assailant having the capability to carry out an attack. In other words, if the attacker is twice the victim’s size, possesses a weapon (gun, knife, bat, hands), is holding a big rock, or some other means of inflicting imminent death or great bodily harm, they have the ability.

Opportunity to carry out a deadly force attack can be shown by the proximity of the attacker. An assailant who is making threats with a baseball bat from thirty feet away certainly has the ability, but if he never closes the distance between the two of you it would be difficult to prove the assailant had the opportunity. The same would hold true if you were behind a closed door, in a vehicle, or had some other barrier that would prevent the assailant from breaking.

Finally, jeopardy simply means that you can show a jury you had an honest and reasonable belief that your life was in peril from imminent death, great bodily harm, or sexual assault. What was the intent of the attacker(s)? Is it reasonable to believe they were intending to carry out an attack that would cause imminent death, great bodily harm, or sexual assault?

Under the law, a person may only use as much force as [he / she] thinks is necessary at the time to protect [himself / herself]. When you decide whether the amount of force used seemed to be necessary, you may consider whether the defendant knew about any other ways of protecting [himself / herself], but you may also consider how the excitement of the moment affected the choice the defendant made.

The amount of force you use must be reasonable and only be at a level that will counter-act the force being used against you. If you had any other means of defending yourself (pepper spray, taser, martial arts), this may be taken into consideration. However, it would be unreasonable to use pepper spray against an armed (gun) attacker unless pepper spray is all you had at your disposal at the time of the attack.

Myths

  1. “I can shoot a person who breaks into my house.”

Remember that you must have an honest and reasonable belief of imminent death, great bodily harm or sexual assault. Although one never has to retreat in their own home, this is not license to shoot on sight.

  1. “If I feel threatened by someone or I feel like someone is going to hurt me, I can use deadly force.”

Simply because a person threatens you, you cannot use deadly force. You cannot use deadly force against a threat that was made but not yet carried out. You cannot use deadly force against a threat that was made or carried out at some other date or time. Remember, the states that the threat must be imminent.

  1. “I don’t have to retreat in Michigan. I can stand my ground.”

Generally, yes you can. However, from an ethical standpoint, you should go out of your way to avoid using deadly force. From a jury standpoint, remember, a jury can use the fact that you had a reasonable means of escape to avoid deadly force in their decision. Just because you can, doesn’t mean you should!

Advice to take from this article:

  1. If you can escape safely, DO IT!
  2. Avoid using deadly force unless you are faced with imminent death, great bodily harm, or sexual assault.
  3. It is your legal, ethical, and moral responsibility to avoid placing yourself in any situation that could escalate to the use of deadly force.
  4. Train, read, consult, discuss, and practice so that if you are in need of making the decision of using deadly force, you will make right decision, legally, ethically, and morally to preserve your life and the lives of your loved ones.

The judicious use of force needs to be filtered through ethical responsibility and the attitude that you will do everything in your power to avoid its use. The financial, legal, and emotional aftermath can be devastating to you and your family if you make the decision to use deadly force, even if you’re actions are deemed justified by a jury. Your mindset, attitude, behavior, and thought processes should be that of the preservation of life.

Stay safe!

[1] Commonly referenced as The Self Defense Act of Michigan is found in the Michigan Compiled Laws, MCL 600.2922b, MCL 600.2922c, & MCL 777.21c. Public Acts 309-314 of 2006.

[2] Michigan Model Criminal Jury Instructions, p. 158.

[3] Michigan Model Criminal Jury Instructions, p. 157.

[4] Hayes, Marty. What Every Gun Owner Needs to Know About Self-Defense Law. Armed Citizen’s Educational Foundation. Onalaska, WA., 2014.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s