Claim Self-Defense While Committing A Crime? Sure

I often run across the misconception that in order to claim self-defense it's a necessary condition that the defender be "white as the driven snow," and certainly not be engaged in any unlawful activity of his own at the time.

While being utterly innocent of any misconduct of any kind is certainly helpful in a general way in any kind of criminal defense, it's explicitly not a required condition of a claim of self-defense.

Naturally, if the crime being committed violates one of the required conditions of self-defense, then you lose self-defense on that basis. So if the crime you are committing is one involving the threat of unlawful force against another person, as one example, you've lost the required element of innocence and you've lost self-defense on that basis.

There are, however, lots of crimes that can be committed that do not violate any of the required conditions for a claim of self-defense, and in those circumstances a viable self-defense claim is certainly as viable as if the defender had not been engaged in any ancillary unlawful conduct.

We have an example of such a situation reported by the Panama News Herald out of Panama FL, and other sources.

In this case the defendant was reportedly engaged in drug dealing out of his vehicle. As might be expected, drug dealers are attractive targets for robbery, given that they generally have on their person substantial quantities of illegal drugs (worth money) and money (invariably cash).

The defendant in this case found himself targeted for precisely such a robbery as he was apparently dealing meth from the passenger seat of a car. The victim leaned into the car window, pointed a handgun at the defendant, and initiated the robbery. In response the defendant used his own gun to shoot and killed the victim. The defendant was then charged with murder for the killing.

This week, however, defense lawyers for the defendant argued that his use of deadly defensive force fell well within the bounds of self-defense, and the mere fact that the defendant happened to be engaged in unlawful drug dealing when he found himself threatened with a deadly force attack did not strip him of the right to use deadly defensive force as permitted by law.

Not only did the defense lawyers make that argument in court, the prosecutors agreed with them. As a result, the trial judge dismissed the murder charge against the defendant.

Note that the dismissal of the murder charge only relieves the defendant of criminal liability for the criminal charge based on his purportedly defensive use of force. It does not clear him of criminal liability for any other criminal conduct not related to that purportedly defensive use of force, of which he might be guilty--for example, drug dealing. Indeed, this defendant had already pleaded to the meth dealing charges and been sentenced to 8 years in prison.

To put it another way, the legal analysis for the claim of self-defense and the legal analysis for unrelated criminal defenses are distinct from each other, and one may well succeed where the other fails or is untenable.


Attorney Andrew F. Branca

Law of Self Defense LLC

Andrew BrancaComment