When someone is attacked and forced to defend themselves it isn’t always presumed that they are the innocent party. The trial argument of self-defense relies upon the accused being the innocent party.
 
What does it mean to be the innocent party?
 
It means that you did not start or escalate the attack. For example, if someone makes a verbal threat you are the innocent party. If you respond to that verbal threat by some form of physical contact such as striking or shoving the person, you have escalated the attack and lost your status of innocent party.
 
That seems simple enough. However, the prosecutor looks at more than the actual event. If there is a pattern of verbal confrontations between you and your attacker, no matter how far in the past, you may not be perceived as the innocent party. The prosecutor may get the jury to believe you were the instigator just looking for your opportunity to strike out.
 
If you are party to a conflict, you know, the let’s take this outside invitation, you are not an innocent party. Rather you are a mutual combatant. Your status changes if you clearly withdraw from the conflict and the other party continues the attack. At that point you become the innocent party. Once again, this puts you in a risky territory since your status is dependent upon what the jury believes.
 
In The Law of Self Devenses Principles, Andrew Branca offers a nuanced example where a person comes out of the darkness violently charging towards another person. The intended victim attempts a punch that misses but trips the attacker. The attacker jumps up and charges again. The intended victim connected with a glancing blow after the attacker threw a punch that missed. The intended victim delivers a knee to the groin, ending the attack.
 
Who is the innocent party in this exchange?
 
It may seem obvious on the surface. The man who charged out of the darkness was the aggressor, right? But, who was punched first?
 
The prosecutor could very well present the presumed attacker on the stand. He can claim he is the innocent victim that was merely defending himself against an attacker that punched him before kneeing him in the groin.
 
The jury will be told that the only person who made contact was the one accused unfairly. The future looks bleak for the guy who was just walking down the street.
 
A good defense attorney will present a different picture. Since the guy charging out of the darkness was the aggressor, he cannot claim self-defense.
There is another aspect to this type of scenario. In the above scenario the aggressor and defender are using the same amount of force. Remember you can lose the ability to claim self-defense if you are not the innocent party or escalate the conflict.
 
If, in the scenario above, the defender presented a weapon in response to the charging attacker that could risk his innocent party status. I say could because there are other factors. If there is a disparity of force a defender may use a greater degree of response than being presented by the attacker.
 
An example might be an elderly woman who uses a firearm to defend herself against multiple young attackers who have not presented a weapon. There is a disparity of force in the younger, multiple attackers. She does not lose her innocent party status.
 
Escalating responses can flip the innocent party status back and forth. Who the innocent part is at any given moment can be complicated. Some areas may consider your language to indicate aggressive behavior and negate the innocent party status.
 
My best advice is to be careful what you say to everyone, avoid conflict where ever possible and rely on sound legal counsel.

 
In my training I emphasize our desire to keep our students out of prison. This can be translated to mean, hard to convict. To be hard to convict we must operate within the law. To operate within the law, we must know the law. This is where the challenge comes it.
 
We shouldn’t have to be lawyers to protect ourselves, our families and others who are under the threat of death or great/grave bodily harm. However, I just threw in a legal concept we must understand; threat of death or great/grave bodily harm. This concept is one of five elements that must all be met for a use of deadly force to be considered justifiable.
 
Now that I have started talking about legal concepts, I need to make the following statement: I am not a lawyer and therefore cannot give legal advice. I am familiar with use of force law, but if you are facing prison you don’t want to get advice from someone who is familiar. You want a lawyer with a deep working knowledge of the law and courtroom procedures.
 
Over the next period of time, I am going to post articles addressing these five concepts:
 
            Innocence
            Imminence
            Proportionality
            Avoidance
            Reasonableness
 
Like most of you, I am, relying upon the wisdom and knowledge of others who can be considered experts on the subject. The text I use for my concealed carry training both in Illinois and Utah is the USCCA book Concealed Carry and Home Defense Fundamentals by Michael Martin. I have taken several online and DVD e-Learning courses. Another resource is The Law of Self Defense Principles by Andrew F. Branca. He is endorsed by Massad Ayoob in the forward of that book. Mr. Branca is a lawyer as well as a certified firearms instructor, Mr. Ayoob is one of the premier self-defense instructors in the nation and has an extensive background in law enforcement training and was a prosecutor for the police department.
 
By learning the materials these sources present we don’t have to be a lawyer to make ourselves hard to convict. If the situation arises where we have used deadly force we need to rely upon a very critical resource, a lawyer. We must not rely upon ourselves and the knowledge we have gained for our defense. The knowledge we have gained, especially that which comes from such noteworthy sources, should be used to ensure we are acting within the use of force guidelines. At that point we should rely upon our lawyer’s knowledge and experience.
 
I am going to address general principles of the use of force. While this is a good foundation it cannot be considered the whole picture. Each state, and sometimes municipalities, have unique laws governing the use of force withing their boundaries. For example, in most states it is not legal to use deadly force to defend property. In Texas it is wise to not mess with someone’s truck or dog. Deadly for is authorized to protect property in Texas. When we travel armed it is critical that we know the laws of the lands we travel through. If I were from Texas and traveling in Wyoming, I need to know that Wyoming prohibits the use of deadly force to protect property.
 
This example is another reason we need a lawyer for our defense. Your lawyer should be fully intimate with the laws of the land where you had to use deadly force. Your actions up to and during the incident should help the lawyer in your defense. Your complete compliance with his advice will solidify your defense.
 
In the next posting I will address what it means to be the innocent party. It is not as obvious as it seems.

Carrying a firearm concealed takes some accommodations. Often wardrobe changes are needed to fit an IWB holster or prevent printing. That is only one aspect of changes a new concealed carrier may experience.
 
Another aspect is that it takes getting used to. That is one reason for the title.
 
If you intend to carry concealed, do it! Do it every day in everywhere it is legal. By carrying all the time, you will get used to the extra bulk and weight. You will get over the need to pat your gun. A pickpocket watches their mark for the pat that tells them where the valuables are. The pat will only draw attention to where you have something valuable or remove any doubt that the bulk is a firearm.
 
Carrying every day will condition you to the point where it becomes natural. It will get to the point where when you don’t carry you will feel if something is missing. At that point it will have become comfortable. Well, mostly.
 
When you are carrying regularly you will experience what all of us do, what do I do when…
 
This list starts with the inevitable “I need to go to the bathroom.” We have seen multiple news reports of a gun found in a bathroom stall. We need to make that aspect of carrying in public something we don’t have to think about, we just do what we need to and maintain control of our firearm at all times. There are many others we will come across.
 
I always check event venues for any restrictions. One time I did my due diligence and was confident I could carry. Even though the venue did not have a restriction (by my states law they couldn’t) the event put up metal detectors. All we had to do was put all the metal we had in our hands as we went through. While I can legally carry into the venue this put me in a situation where I would be disclosing that I was carrying, or I would be brandishing.
 
You need to have a plan for how you will handle these situations. While a mental exercise can get you thinking about options, facing the situation will give you experience.
 
There is another, with more serious ramifications. We carry and get training, so we are hard to kill. We know the law, so we are hard to convict. If you only carry occasionally, when you feel you are going somewhere less safe, you are inadvertently giving ammunition to the prosecutor.
 
Imagine the scenario where the prosecutor says; “You went in there armed just looking for trouble, didn’t you?” By concealed carry being a regular part of your day-to-day life you totally negate that argument.

 
When you hear those words, you have entered an interaction with some level of law enforcement after what that officer perceives is a crime you have committed. Even being completely innocent you are in a significant amount of financial peril, not to mention facing imprisonment.
 
At this point there are two things that are critical to keeping yourself out of prison, not talking and a good lawyer.
 
The Miranda statement is very clear in that “Anything you say may be used against you in a court of law.” [Emphasis is mine] For some people this is not a prohibition about making statements that support their defense. Here is the issue. The prosecution cannot and will not entertain any evidence that supports your defense. Their focus is on prosecuting a crime and it could be considered malfeasance if they presented evidence in your defense. That is the job of your attorney.
 
We have all played the telephone game. You know, the one where a message is passed around the room and comes out unrecognizable at the end. While we call it a game, it is deadly serious when something said at the time of arrest or later to a family member or friend seals your fate in court. It is absolutely critical that you speak about what happened to no one except your lawyer. You don’t want the prosecutor to have the ammunition to say “were you lying then or are you lying now?” when a contradictory statement is presented.
 
When faced with the need to defend against a self-defense incident you are going to need a good attorney, and they cost lots of money. Ask Kyle Rittenhouse. His successful legal battle cost him more than $200,000! His battle is not over, he is now facing the civil suits. That adds more legal fees.
 
Defending yourself is not cheap. It takes a team of lawyers and investigators. It can take months and over those months the fees add up. As a hedge against these fees, it is prudent to have insurance. We insure our homes but do not plan on having a house fire. We insure our cars but do not plan on crashing into something. Yes, I realize that lenders and laws require insurance, but we all know someone who didn’t have it when an event happened.
 
If you carry a firearm, you should have some form of self-defense insurance. As a USCCA instructor and partner I fully endorse USCCA membership, which comes with a very good insurance program and dedicated emergency response team that includes lawyers. Membership also includes online training, lots of it!