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Wednesday, 02 March 2016 00:00

Self-Defense Law: The 5 Elements for Justified Use of Force

drawing gunby George L. Lyon, Jr, Esq. of Arsenal Attorneys

A recent case from Montgomery County, MD illustrates vividly many of the concepts typically taught concerning armed self-defense and the use of deadly force. The facts below come from media reports and are thus not independently verified.

On December 20, 2015, Mario Perez, his son and girl-friend came to a holiday get together at the home of Frank Trujillo in Montgomery County, Maryland. At home with Mr. Trujillo was his wife and two children, ages 8 and 4. Trujillo was the Vice President of a local construction company. Perez had worked at the company where the two became friends. Trujillo had invited his friend over for the evening for dinner and drinks and to stay over until the morning.

Perez was a big guy. A football player in high school, he enlisted in the Marine Corps after graduation. He outweighed Trujillo by some 50 pounds and was into MMA fighting according to Mr. Trujillo. In the course of the evening, Perez consumed a substantial amount of alcohol. The toxicology report would peg his blood alcohol content at between 0.22 and 0.28 percent. This amount of alcohol is roughly equivalent to a 200 pound man drinking in excess of two six packs of regular beer over a short period of time. At this level of intoxication Perez’s judgement and reasoning would have been radically diminished. Indeed, at slightly higher blood alcohol levels, such as 0.30 percent, unconsciousness is likely.

Perez may indeed have had an alcohol problem, having been previously convicted of driving under the influence at least twice before. In fact, Trujillo had been a character witness for him at one of his trials. According to Trujillo, a discussion concerning a work matter turned into an argument during their holiday get together. Perez became agitated. The situation escalated to the point where Perez threatened to kill Trujillo and his family. Trujillo’s attempts to deescalate the situation failed. He left Perez, retrieved a handgun, and stood outside his children’s bedroom door while his wife tried to call 911. According to Trujillo, Perez charged him and Trujillo shot him once fatally in the chest.

Police arrested Trujillo on first degree murder charges. He was initially held without bail for more than a week. He was released on bond December 29, 2015. Prosecutors then sought a first degree murder indictment from the grand jury arguing that Trujillo escalated the situation by retrieving his gun, that he should have simply called the police and that he should have retreated from the confrontation. After hearing Trujillo’s testimony, however, the grand jury refused to indict, essentially finding that he acted in self-defense.

This case illustrates numerous concepts involved in the use of deadly force in self-defense. There are five inter-related elements necessary to justify use of deadly force in self-defense: Innocence, imminence, proportionality, avoidance and reasonableness. They are well illustrated here. Of these five elements, the overriding one here and in most cases is reasonableness. Thus, you may use deadly force to stop what you reasonably believe to be an imminent threat of death or serious bodily harm to an innocent person. Let's analyze this case under the five elements set forth above.

Innocence. Perez was the aggressor, he threatened Trujillo’s life and the lives of his family. Trujillo and his family were innocent.

Imminence. Trujillo could reasonably believe the attach was imminent. He testified that Perez was charging him after threatening to kill him and his family. In fact, Perez charged a man holding a firearm.

Reasonableness. Trujillo could reasonably conclude that Perez was capable of causing death or serious bodily harm. Perez outweighed him by 50 pounds, had been a Marine and studied MMA. Significantly, Trujillo knew Perez was a trained fighter. Reasonableness includes what you know about an assailant, including their training and their violent nature. Generally, you are not privileged to use deadly force against an unarmed attacker. The exception is where there is a disparity of force. Typical examples of disparity of force include a big guy attacking a smaller guy, a man attacking a woman, a healthy person attacking an infirm person, or a trained fighter attacking an untrained person. Here there was a disparity of force both in terms of size and training and Trujillo was aware of these facts. These facts justified Trujillo’s use of a deadly weapon.

Avoidance. Maryland is a duty to retreat jurisdiction, which means that before using deadly force a victim must retreat from the threat if he can do so safely. Despite the prosecutor’s statement to the contrary, retreat was not an option here. First, Trujillo was in his own home where there is seldom a duty to retreat. Second, he had protectees in the house he could not leave alone with Perez nor marshall them to safety while under attack. Third, there is never a duty to retreat if it cannot be done safely. The situation as described by Trujillo appeared to escalate very rapidly. Retreat was not an option. Likewise, faulting Trujillo for not calling the police at an earlier stage of the confrontation, is simply Monday morning quarterbacking by the prosecutor. It is likely that it was not until he realized how dangerous the situation was that Trujillo understood he had to take action. Had he tried to call the police without having armed himself, he likely would have been beaten to a pulp before he could have told the 911 operator what was happening. Under the circumstances, Trujillo did what he could to avoid the situation by leaving Perez, getting his firearm, and standing watch outside his children’s door.

Proportionality. Trujillo shot Perez once, which stopped him. You are only allowed to use enough force to stop the attack. Anything in excess, is not self-defense, but a crime. With the threat stopped, Trujillo ceased using force.

Under the circumstances of this case, the grand jury concluded that Trujillo acted in self-defense. A win for Trujillo? Not really. Trujillo lives in anti-gun Maryland and in anti-gun Montgomery County. Trujillo spent a week in jail for defending his family. He was charged with first degree murder. The prosecutor alleged he premeditated the crime of murder by retrieving the tool that saved his life and the lives of his family members. He had to hire a lawyer for presumably thousands of dollars, and he may very likely face a civil action by Perez’s survivors for wrongful death. And now he has to live with the psychological scars of having had to kill someone he trusted enough to invite into his home, not to mention the social stigma of having killed someone. This case illustrates vividly not only the various legal concepts involved in using deadly force in defense of self and family, but the toll that choice may take on your life.

How would you handle a similar situation?

This case challenges us to consider how we might prepare ourselves to exercise our right to self-defense. Obviously the need for tactical tools and skills, such as a gun and good marksmanship, cannot be separated from the need to know the law. Arsenal Attorneys works with firearms instructors to develop self-defense seminars combining the law, practical skills and decisionmaking in emergencies. Watch for our upcoming seminars. 

Read 146388 times Last modified on Wednesday, 07 February 2018 21:04
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