jeopardy, and preclusion (AOJP)—are all met, you have a pretty good legal case for taking action. If one or more of these conditions are absent, however, you are on shaky legal ground should you decide to fight with the other guy.
In our driving example, crossing the centerline was definitely less harmful than crashing into the potentially deadly obstacle so you’re good on the first criterion. You had no reasonable alternative (criterion number 2) and immediately moved back into your lane once you passed the danger (criterion number 3). You most certainly did not cause the danger (criterion number 4), so it’s all good. Were you pulled over by a police officer for a moving violation after crossing the centerline you’d have a near bulletproof defense in court (in the unlikely event that it ever got that far).
This same reasoning works in self-defense cases too, assuming that all four of these elements are in place. While taking a life is clearly illegal, the competing harm (or urgent necessity) of saving your own life outweighs the harm you did to your attacker since he initiated the confrontation. In other words, it can be your “stay out of jail free” card if you play it right.
While the doctrine of competing harms is the legal basis upon which you can make a case for killing someone in self-defense, in practical reality it’s not necessarily a clear enough guideline to use on the street. The challenge is that it can be tough to keep all these obscure points of law in your head when things get ugly. That’s why many defense combatives instructors teach the AOJP principle to their students instead of, or in addition to, the doctrine of competing harms. It’s relatively easy to remember, and an extraordinarily useful guideline to keep you out of trouble. Here’s how it works.
The AOJP Principle
The AOJP principle is a good way to ascertain whether it makes sense to use physical force in self-defense situation. AOJP stands for Ability, Opportunity, Jeopardy, and Preclusion. If all four of these criteria are all met, you have a pretty good legal case for taking action. If one or more of these conditions are absent, however, you are on shaky legal ground. Clearly, you will want to speak with an attorney to understand the laws in your locale, but this principle is a useful, relatively easy to remember guideline.
Ability. Ability means that an attacker has both the physical as well as practical ability to seriously injure, maim, or kill you. This may include the use of fists and feet as well as the application of conventional or improvised weapons such as knives, guns, bottles, baseball bats, or similar instruments. It also includes the physical ability to wield said weapon (or fists or feet for that matter) in a manner that can actually injure you. A small child with a baseball bat does not have the same ability to cause you harm as a professional ball player swinging the same hunk of wood as a weapon. Similarly, unless there is a massive skill differential, a petite woman has less ability to hurt you with a punch or kick than a muscular man.
Opportunity. While your attacker may have the ability to harm you, his ability does not necessarily mean that he also has the immediate opportunity to do so. Your life and well-being must be in clear and present danger before you can legally respond with physical force. For example, a bad guy with a knife has the ability to kill you only so long as he is also within striking range of the weapon or can quickly move into the appropriate distance from which to initiate his attack. A physical barrier such as a chain link fence may protect you from a knife-wielder but not an assailant armed with a gun, so opportunity relates not only to the attacker and the weapon, but also to the environment within which they are deployed as well.
Jeopardy. Jeopardy or “imminent jeopardy” as the law sometimes requires, relates to the specifics of the situation. Any reasonable person in a similar situation should feel in fear for his life. This is a legal attempt to distinguish between a truly hazardous situation and one that is only potentially dangerous. While you are not expected to be able to read an aggressor’s mind, you certainly should be able to ascertain his intent from his outward appearance, demeanor, and actions. Someone shouting, “I’m going to kill you,” while walking away is probably not an immediate threat even though he may very well come back with a weapon or a group of friends later and become one should you stick around long enough. Someone shouting, “I love you,” while lunging toward you with a knife, on the other hand, most likely is an imminent threat.
Preclusion. Even when the ability, opportunity, and jeopardy criteria are satisfied, you must still have no other safe alternatives other than physical force before engaging an opponent in combat. If you can run or retreat from harm’s way without further endangering yourself these criteria have not been met. In some jurisdictions, there is no requirement to retreat when attacked in your home or, in some cases, your place of business. Regardless, it is prudent to retreat whenever you have the ability to do so safely. After all, it is impossible for the other guy to hurt you if you’re not there.
Use Only as Much Force as the Situation Warrants
If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant.
Miyamoto Musashi made no comments regarding using only as much force as the situation required. He lived in a time when such things were, for the most part, unnecessary. In his day, nearly all fights were to the death yet there was little fear of legal repercussions.
During the escalation process, there are several force options available to help stave off violence: (1) presence, (2) voice, (3) empty-hand restraint, (4) non-lethal force, and, ultimately, (5) lethal force. This continuum is similar to the approach codified by many police departments. The first two levels can potentially prevent violence before it begins, the third may be used proactively as an opponent prepares to strike, and the last two take place after you have already been attacked.
This continuum of force should be applied sensibly to preserve your safety as the situation warrants. There are no absolutes in self-defense, but your ultimate goal should be to apply sufficient force to effectively control the situation and keep yourself from harm without overdoing it. In general, you may legally use reasonable force in defending yourself. “Reasonable force” is considered only that force reasonably necessary to repel the attacker’s force.
Exceeding a reasonable level of force may well turn a victim into a perpetrator in the eyes of the courts. Justifiable self-defense is a victim’s defense to a criminal and/or civil charge. The legal reasoning goes like this: If your intent was to defend yourself, than a reasonable person would only do so using reasonable force. Sounds a bit circular but it is very important. Using a higher level of force infers that you had intent to needlessly harm the other guy. This allows the perpetrator turned “victim” to use your defensive actions against you, the victim turned perpetrator. Even if a criminal prosecutor dismisses your actions, a civil court may not do so.
In other words, that means that if you overdo things, you’re in trouble. Bad guys sue their victims all the time. They even win too. It just isn’t right, yet it certainly happens in this litigious society. Clearly, if you under-do things you’ll lose the fight, which is trouble of a whole different kind. Your response needs to be “just right.”
1. Presence
If you are a trained martial artist or just a well-conditioned athlete, your presence alone can frequently de- escalate a dangerous situation. Carry yourself with confidence and be prepared to act. Predators who are good at sensing body language may back off simply because they can tell that you are prepared to act. In other words, presence can help you fail the victim interview. Bad guys don’t want to tangle with you if they think they are going to get hurt in the process.
2. Voice
