The law in Alabama regarding self defense is made very clear in the Criminal Code, Title 13A-3-23. Although the code itself appears to be straightforward in communicating what the law permits regarding using deadly force during a self defense situation, you should be aware that there are a lot of exceptions and inclusions in the law which can cloud the issue when it comes to self defense. What I hope to do in this blog is to make a few very salient points to you in the hopes of those points sticking in your mind so you can better understand the law and the employment of deadly force as a means to defend oneself, defense of a third party (someone else), and the defense of property. It goes without saying that every situation is different and chocked-full of what the law calls "aggravating and mitigating" factors. Should you ever find yourself facing criminal charges where you have employed deadly force to defend yourself, remember what I have preached in other blogs, like my blog entitled, "Shut Up And Lawyer Up!" Do the smart thing and call me....
I believe in keeping things very simple and clear. There is no reason the "hide the ball" from anyone when it comes to the legal system. While I can't possibly address every perceived circumstance you may be able to come up with, I hope to be able to provide a "road map" to assist you in breaking down Alabama's law regarding using deadly force in a self defense scenario. So let's get into it, shall we?
ASSERTING A DEFENSE? WHO BEARS THE BURDEN OF PROOF NOW?
In the United States of America, the government (the state) has the burden to prove you (the defendant) guilty of a criminal offense beyond a reasonable doubt. That is what is known as the standard of evidence required to convict a defendant in a criminal court. As you are already well aware, the 5th Amendment of the U.S. Constitution specifically prohibits the government from compelling (forcing) you to testify against yourself. That means that if you are charged with a crime, you have the constitutional protection that prevents the government from forcing you to take the stand in a trial and testify AGAINST yourself. However, if the DEFENDANT elects to assert or set forward a certain legally prescribed defense, such as self defense, it is now the responsibility of the DEFENDANT to properly assert that defense and prove it in court to the "Finder of Fact" (a judge in a bench trial or a jury in a jury trial).
SELF DEFENSE AND THE DEFENSE OF OTHERS
Alabama law permits a person to use the appropriate and reasonable amount of force that a person believes is necessary and prudent to defend himself or a third party (someone else) in a given situation and circumstance. Sounds simple and clear enough, right? Maybe not. There is a lot to unpack in that statement, so lets take a deeper look at what all of that means in plain language and not lawyer-speak.
It means that IF a person is LEGALLY JUSTIFIED in using ANY degree of force (including deadly force) to defend himself or another person, the person is justified in using that force. Clear as mud? It sure leaves a lot of room for interpretation of the facts, doesn't it? That's the true essence and beauty of the law of self defense in Alabama. The Code makes very little attempt at legislating EXACTLY what all of that means. Rather, the Code leaves the interpretation of the law through the facts and circumstances of a situation and leaves the decision of what is reasonable and necessary force up to the Finder of Fact in a trial setting. Let's break that down like fractions....
If a person finds herself in a situation where SHE BELIEVES IT NECESSARY AND REASONABLE to use a gun to defend herself or a third party (Alabama lets you 'step into the shoes of a third party' as if that third party was actually you!) in a situation, she is justified in using deadly force. Right? Well.....it depends...
The law in Alabama will allow you to use a toaster to defend yourself (or a third party) IF YOU ARE JUSTIFIED in doing so! Ok, the law doesn't specifically say you can use a toaster, but I'm trying to make a point. The point is, if you are legally justified in using some item to defend yourself, regardless of WHAT you use to defend yourself (or a third party), IF YOU ARE LEGALLY JUSTIFIED in using that implement (a toaster, your fists, a hammer, a fireplace poker, a knife, a gun, etc.), then you are good to go! Here is another example: If I was shopping at a store and some punk were to come over to me and push me down to the ground for some unknown reason, could I defend my self with deadly force? Probably not. How could I justify using THAT much force to overcome this encounter?
Now, what about if that same punk were to shove a 97 year old woman using a walker down to the ground, could she use deadly force to defend herself? I would argue that she could use deadly force. You see, I'm a 52 year old tough guy (or so I think!) without any real debilitating medical conditions and if I get shoved to the ground, I will probably survive the fall without so much as a scratch. But to a 97 year old frail great-grandmother using a walker to get around, that shove is DEFINATELY a deadly force encounter for her. If she breaks a hip or her leg, she could bleed to death internally. I feel that those facts could support the deadly force self defense theory in Alabama. What do you think?
But YOU, the defendant, must CONVINCE the Finder of Fact of the need to use self defense, or a deadly weapon, and a few more very important issues in order to avoid going to prison for assault, manslaughter, or even murder. What are those important issues, you ask? Read on and I will tell you....
First of all, the defendant (you) must not have started the trouble that leads to the use of deadly force. In plain English, that means that the law won't let you claim "it was self defense!!" if you were the idiot that started the fight. You can use force to defend yourself, but you can't be the aggressor, start the mess, and then use deadly force on that person and then claim you were just defending yourself! I know you understand that, right? Secondly, you can't be doing something illegal or be somewhere you are not legally entitled to be at the time when the occasion to use deadly force as a means of self defense arises. For example, a burglar can't break into my house and start stealing my television off the wall, when I walk into the room with my Glock to see what's going on in my living room, and then he pulls out his gun and shoots me and then tell the cops, "he was about to kill me, so I had to kill him!" Sorry, man....that deadly force self defense theory won't work in Alabama. Thirdly, you (the defendant) must PROVE that you were in IMMINENT (immediate) fear for your life (or the life of a third party) and that you believed in your mind, heart and soul, that you must employ deadly force. That fear that you had must then be articulated to the Finder of Fact and be believed. That can be a high bar to prove. Remember...since YOU are asserting a defense, it is up to YOU (and of course ME as your lawyer) to prove that assertion. The burden of proof has shifted from the state to the defendant. Don't forget that...
Who determines if the amount of force that you (the defendant) used was reasonable and necessary? You got it....the Finder of Fact! For example, it would be unreasonable to use deadly force to "defend yourself" against a 60 pound unarmed innocent little Girl Scout selling cookies door to door and you claim that you were in immediate (imminent) danger and feared for your life as she was approaching your door. Sorry....you're screwed. I mean, I like to think of myself as a very good lawyer, but I can't do anything with that set of facts against you! Rest assured, I will give it my best effort!
DEFENSE OF PROPERTY...."STUFF DEFENSE"
When I lecture groups of people on Alabama Gun Laws at U.S. LawShield Seminars, this topic is ALWAYS a very hot topic. "Can I shoot someone if they are just breaking into my house to steal stuff?" That is really a loaded question. The reality is, sure... you CAN shoot someone for breaking into your house who is just trying to steal items inside, but you WILL probably go to prison for it. Oh....have I got your attention now?
Alabama law frowns VERY HEAVILY on the taking of human life over property, like stuff in a house (televisions, fine china, jewelry, or a Picasso painting). The law is very clear on this subject. Outside VERY FEW EXCEPTIONS (such as Arson 1st Degree or 2nd Degree), the use of deadly force in the defense of property is NOT ALLOWED. Now...if someone's LIFE is in danger, that is a different story. Think about it...Arson is indeed a property crime, but when a dwelling (1st Degree) or a building (2nd Degree) is OCCUPIED, it really becomes a LIFE issue and NOT a property issue. So here's a bit of free legal advice...NEVER NEVER NEVER USE DEADLY FORCE TO DEFEND PROPERTY....EVER...
So lets put a bow on all of these legal "what ifs" and review the critical points:
In Alabama, the law will allow you to use deadly force in a self defense scenario IF:
- You are NOT the instigator of the encounter leading to a deadly force issue
- You are in a place you ARE LEGALLY PERMITTED to be at the time of the deadly force encounter
- You are NOT committing an illegal act at the time you employ deadly force
- You are LEGALLY JUSTIFIED in using deadly force (reasonableness standard)
- You are NOT using deadly force to defend ONLY property
- The threat MUST BE IMMINENT (immediate)