SELF DEFENSE: A LIFESAVER

Self defense can be a lifesaver, literally and figuratively. It's one of my favorite defenses in criminal law, and I've successfully used it in dozens of cases. But self defense does have its limits, at least in Minnesota.

For now, I'll group self defense into three subgroups: 1) death not the result; 2) death as the result; and 3) defense of a dwelling (your home). I'm only going to address the first topic for this article, because it's the most common form of self defense.

The most recent trial I had is a good example. My client and his friends were at a bar. Some of his friends started shouting across the bar, calling a woman names. The name calling continued outside. When her boyfriend realized what was going on, he decided to march all the way across the parking lot to confront my client and his friends. My client didn't run away, he stayed there to watch the angry boyfriend confront his friend first. After the angry boyfriend didn't get the fight he was looking for, he moved on to my client.

The angry boyfriend got right in my client's face. At trial, there was a dispute about what happened next. The angry boyfriend's witnesses claimed that the angry boyfriend just wanted an apology, and that my client aggressively pushed the angry boyfriend several times, and that during the last push the angry boyfriend grabbed onto my client's collar to stabilize himself when he was falling backwards. That's when my client landed a right cross, shattering several bones in the angry boyfriend's face and severing a nerve, leaving him with three titanium plates and permanent nerve damage.

My client's witnesses testified that the angry boyfriend was just that: angry. He wasn't looking for an apology, he was looking for a fight. They testified that the angry boyfriend got in my client's face, and that my client pushed him away with one arm, but that the angry boyfriend kept coming back, preventing my client from clearing space. They described these pushes as defensive, almost like he was keeping the angry boyfriend at bay. The angry boyfriend came back one more time, this time aggressively grabbing my client's collar, and knocking him off balance. This is when my client struck the angry boyfriend with a devastating blow.

I had to have my client take the stand. I can't imagine succeeding with a self defense claim without the defendant testifying. My client testified consistent with self defense: that the angry boyfriend kept coming back at him, that the pushes were "defensive" in nature, and that he only punched the angry boyfriend after the angry boyfriend grabbed him by the collar and he feared for his safety.

In Minnesota, it is the defendant's burden to show that he qualifies for a self defense instruction to be read to the jury. Once the defendant has met that initial burden, then the burden shifts to the state to prove, beyond a reasonable doubt, that the defendant was not acting in self defense.

Here's a breakdown of how the elements of self defense played out at the trial. There are four elements for self defense in Minnesota.

Element One: Defendant Was Not The Aggressor. The government argued that my client was the aggressor for two reasons: 1) that he and his friends provoked the whole thing by calling the woman names; and 2) that my client aggressively pushed the angry boyfriend, and then hit him with the devastating punch. We countered that the angry boyfriend was just that: angry. He was looking for a fight, and he didn't back down even when my client tried to keep him at bay.

Element Two: Defendant Reasonably Believed He Was In Imminent Danger of Death or Serious Bodily Harm. The government argued that my client did not reasonably believe he was in any kind of danger just for being grabbed by the collar. My client testified that he didn't know what was going to happen after the angry boyfriend grabbed him, that it knocked him off balance, and that he felt at that moment like it was either "hit or be hit."

Element Three: That There Was No Reasonable Possibility of Retreat to Avoid Danger. This was the biggest challenge for the jury during their deliberations. The question became "when" did my client have to retreat? Did he have to retreat when the angry boyfriend was confronting him? Did he have to retreat when the angry boyfriend didn't stop after one push? Or could he wait to retreat until he was grabbed by the collar? In the end, the jury decided (correctly in my opinion) that my client did not have the duty to retreat until just before he allegedly assaulted (by punching) the angry boyfriend. By the time he was grabbed by the collar, he could not retreat. It was very important that the punch did not come until the angry boyfriend grabbed onto my client.

Element Four: The Degree of Force Used Did Not Exceed The Force Necessary Under The Circumstances. Had my client pulled out a gun and shot the angry boyfriend, that may have been excessive force. Had he punched him, knocked him over, and then continued punching or kicking him, that also may have been excessive force. The government argued that the punch was excessive because my client did not try knocking the angry boyfriend's arms off of him when he grabbed his collar. I argued that the angry boyfriend kept coming back, that efforts to hold him at bay were not working, that the situation escalated quickly, and that my client only threw one punch (albeit one hell of a punch).

In the end, the judge granted our motion for the self defense instruction, and the jury unanimously found my client NOT GUILTY due to self defense. On that day, acting in self defense did indeed save my client's life, figuratively if not literally.