STAND YOUR GROUND ~ THE LEGAL ASPECTS OF SELF DEFENSE
Since The Alliance was formed, in part, as a defense against the threat of aggression from OMG’s, it is prudent to open the discussion about self defense and what it means to the law abiding biker in the MC world.
Aggression by OMG’s against ANY motorcycle club is most likely to take the form of physical assault and/or the taking of a cut off the back of a person using force or the threat of force. In any state this act constitutes a felony criminal offense.
The right to use force in defense against such an act of aggression is NOT absolute and you should know the basics of self defense law and the law as it applies to you in your home state. It is important to understand the basic legal concepts of Self Defense.
Stand Your Ground vs. Duty to Retreat
Many States (24 states) have passed “Stand Your Ground” laws since 2005. This means that any person has the right to stand his/her ground when faced with aggression which might result in the use of force in self defense. The law generally requires that the person who is defending his/herself be in a place where he/she can lawfully be at the time. It should be noted that most states also have laws that require that the force used in self defense cannot be disproportionate to the aggression. In other words, it is not appropriate to shoot someone who gives you the finger or calls you some names.
In some states there is a legal requirement that you “Retreat To The Wall” ( ex: California) before any force can be used in self defense. That is to say that all means of escape or avoidance have been exhausted before the right to use force in self defense exists. This is the basis of the “Duty to Retreat” doctrine.
It is good advice for each and every Motorcycle Club to research the Self Defense Law(s) in your home state and publish the facts on your club’s website for all members to see. Each state’s laws are unique and the details are found in the language of the statute.
The Legal Concept of “Affirmative” Defense in Self Defense.
An “Affirmative” defense is a legal defense where the accused has a duty to prove that the defense in question is valid. Some examples of affirmative defenses are: Insanity, Diminished Capacity, Necessity, Duress, and Self Defense. In all of these cases it is necessary for a person accused of a crime to offer proof that their actions were justified or excusable under the circumstances. It is not enough to say that you acted in Self Defense, you must prove it to a judge or jury. Juries typically don’t like affirmative defenses, but they have kept many people out of prison.
The “Use of Force” Concept.
Many states address the Use of Force issue by private citizens differently than on duty law enforcement. The use of force is legally contingent on the particular state’s Stand Your Ground verses The Duty to Retreat status. In any case a citizen may not use more force than is necessary to defend themselves against illegal aggression. The citizen who uses force in self defense must be able to articulate the “Imminent Nature” of the threat that necessitated the use of force.
Better to Be Tried by Twelve Than Carried by Six.
This was drilled into my head from the my first day at the police academy. I can tell you from personal experience that I still believe this. If your actions are objectively justified, a reasonable jury will see it your way. I sincerely hope you NEVER have to face this. I believe if you know the law, as it applies to you, in this situation, and use GOOD JUDGEMENT, this will never be an issue for you.
Best Practices Recommendations
I recommend that each chapter or club assign a Sgt. at Arms to research the law as it relates to Self Defense ad Use of Force in their home state.
The results of the above research be published where the club’s members can see it.
This should be a topic of discussion at one or more club meetings.
The club’s policies should reflect some knowledge of these topics in their code of conduct.
Club membership should be kept abreast of any potential threat (s) coming from credible Intel Sources.
Club members should be advised to refrain from initiating contact with hostile and/or 1%’er clubs and establishments known to be frequented by them.
Every Club should have a firearms/ less than lethal weapons policy which reflects the law in their home states and every club should be aware of the applicable firearms/weapons laws in states where they may travel.