Monday, January 17, 2011

Jeopardy, the Third Leg of the AOJ Triad

Experienced self-defense trainers refer to adversaries or attackers who have the ability and opportunity to cause harm, and reasonable people who, observing the aggressive conduct, believe they are in immediate jeopardy of death or serious injury. These three factors (called the AOJ triad) simply restate the common law of self-defense.

“Ability” means the aggressor had the means by which to kill or seriously injure the client. This can include “mechanical ability” where the attacker had a weapon of some sort, or, in the case of the unarmed attacker, there existed a disparity of force which might include factors such as relative age, strength, gender, training, level of aggressiveness, number of aggressors, and, possibly an attacker known to be skilled in deadly hand to hand arts.

**A man armed with a razor sharp knife has the means to kill or seriously injure another human being.

“Opportunity” means the attacker was in a position to use his ability. This is a function of distance, and obstacles between the aggressor and defender, as well as the existence of cover, and escape routes. An aggressor armed with a firearm has a greater opportunity to harm a defender at range than one armed with a baseball bat.

**A man with a razor sharp knife standing 21 feet away from another person has the ability and the opportunity to inflict death or serious bodily harm before the defender can act to stop him.

**A man with the same knife at the other end of the block, cannot present the type of imminent threat that justifies the use of deadly force. He is too distant, therefore he lacks opportunity.

“Jeopardy” means that the individual’s behavior was such that it would led the defender, and would also lead a reasonable observer, to conclude the defender is in imminent danger. This can include verbal threats, threatening gestures, and sudden movement towards the defender.

**If the client was injured or was unable to flee due to ill health or disability, he would be placed in jeopardy at a time earlier than a healthy or uninjured person.

Here is some interesting language from the Minnesota Appellate courts on the issue of jeopardy.

"The appellant was upset because his girlfriend took a knife and damaged one of his Playstation games - - because he punched her in the head for waking him up from a drunken snooze -- which she did because he was defecating on her couch in his sleep. So later, after discovering the damage to his beloved Playstation game, he was in the shower singing about how he was going to get out, dry off and then "kick the shit out of her, and throw her down the stairs. She dialed 911. He was later charged with and convicted of making a felony terroristic threat. On appeal, he argued that his threat, was at best to commit a misdemeanor assault, not a sufficient predicate crime to justify a conviction on the felony terroristic threat charge."

"The evidence was sufficient that a jury could find appellant guilty of making a threat to commit second-degree assault. Minnesota law provides that "[w]hoever assaults another with a dangerous weapon" is guilty of second-degree assault. Minn. Stat. § 609.222, subd. 1 (2006). A "dangerous weapon" is defined as an "instrumentality that, in the manner it is used or intended to be used is calculated or likely to produce death or great bodily harm." Minn. Stat. § 609.02, subd. 6 (2006). And "[g]reat bodily harm" means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm. Id., subd. 8. Depending on the circumstances of the assault, hands and feet may be dangerous weapons, even if the victim does not suffer great bodily harm. State v. Davis, 540 N.W.2d 88, 90-91 (Minn. App. 1995) (citations omitted), review denied (Minn. Jan. 31, 1996)."

"The evidence was sufficient for the jury to find that appellant threatened to use his feet and hands as a dangerous weapon. A threat to "kick the sh--" out of a person, throw someone down the stairs, and/or hit someone could be viewed as a threat to commit a crime of violence calculated or likely to produce death or great bodily harm. It is reasonable to conclude that a person could be at risk of a high probability of death, suffer serious permanent disfigurement, suffer a loss or impairment of a bodily function or other serious bodily harm from getting kicked or hit hard, pushed down stairs, or a combination of all three. Thus, we conclude there is sufficient evidence to find appellant‟s statements constitute threats to commit a second-degree assault."

State v. Jorgenson, 758 N.W.2d 316 (Minn.App. 2008)

This concept is not terribly new in the law.  In 1921, Justice Homes, delivering the opinion of the court in Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.E.2d 961 (1921) stated:

Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground and that if he kills him he has not exceed the bounds of lawful self-defense. Justice Holmes went on to say, “Detached reflection cannot be demanded in the presence of an uplifted knife.”


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