Can You Use Your Gun in Self-Defense Against an Unarmed Attack?

Self-defense laws are complex, and one of the most debated questions within this legal framework is: Can you use a firearm in self-defense against an unarmed attacker? The idea of using lethal force against someone who doesn’t possess a traditional weapon—like a gun or a knife—may seem extreme to some, but the law acknowledges that under certain circumstances, an unarmed attack can still present a threat of death or serious bodily harm. This blog post dives deep into the legal nuances of this question, using a real-world example to explore when using a gun for self-defense might be justified, even if the attacker is “unarmed.”

Introduction

In an episode of the Law of Self-Defense show, attorney Andrew Branca explored the case of an Oakland, California liquor store employee who faced an unarmed mob. This employee brandished a gun in self-defense, which ultimately caused the crowd to disperse. Surprisingly, no shots were fired. Branca uses this case to explain a critical point: under certain conditions, it is indeed lawful to use deadly force against an unarmed attacker. But the key is understanding when and how the law allows for such action.

The Legal Threshold for Deadly Force

At the heart of any self-defense claim involving deadly force lies a fundamental legal question: Did the defender have a reasonable perception of an imminent, unlawful threat of death or serious bodily injury? This question is the linchpin of the entire case.

The law is not concerned with whether the attacker was armed with a weapon, but rather whether the defender reasonably believed that they were facing a threat severe enough to justify deadly force. Even when an attacker is unarmed in the traditional sense—without a gun, knife, or another weapon—the attack can still be deadly, depending on the circumstances.

Understanding “Reasonable Perception”

When discussing self-defense, the term “reasonable” is crucial. Courts assess whether a reasonable person in the same situation would have perceived an imminent threat of death or serious bodily injury. This means the defender’s subjective fear must align with an objectively reasonable fear given the facts at hand.

For example, fists and feet may not seem as dangerous as firearms, but they can indeed cause death or severe injury. According to Branca, more people are killed each year by “bare hands” than by rifles. A sustained beating, particularly when the victim is unable to defend themselves, can be fatal. Additionally, factors like size, strength, and fighting ability matter. If the attacker is significantly stronger or more skilled in combat, this could elevate the threat level.

Legal Standards in Practice: A Real-World Example

In the Oakland case, the employee’s use of a firearm in self-defense against an unarmed mob hinges on several factors. Let’s break down the incident:

1. The Ambush: The employee faced a sudden attack from a group of young men. Initially, the confrontation was verbal, but it quickly escalated into physical violence. One of the attackers ambushed the employee before retreating.
2. Disparity of Numbers: The critical factor in this case was the disparity of numbers. A dozen or so individuals surrounded the employee, delivering blows. Even though none of the attackers appeared to possess weapons, the overwhelming number of attackers created a deadly threat.
3. Response: The employee, realizing the danger, drew a gun. The mob immediately fled, and no shots were fired.

In this case, the critical question becomes: Did the employee reasonably perceive an imminent, unlawful threat of death or serious bodily injury? Given the sustained attack by multiple individuals, the answer is likely yes. The law recognizes that a group attack presents a high risk of fatal harm, even if each attacker is unarmed.

When Does the Use of Deadly Force Become Lawful?

The law concerning the use of deadly force in self-defense generally rests on three pillars:

1. Imminence: The threat must be immediate. A vague or future threat is not enough to justify the use of deadly force. In the Oakland case, the employee was under immediate attack, satisfying this condition.
2. Proportionality: The defender’s response must be proportional to the threat. A single punch or shove is unlikely to justify deadly force, but a sustained attack by a group of people could. The threat posed by the mob was sufficient to justify the employee’s use of a gun to defend himself.
3. Avoidance: In some jurisdictions, the defender must attempt to retreat before using deadly force, if it is safe to do so. However, many states in the U.S. have “Stand Your Ground” laws, which eliminate the duty to retreat. Whether or not this factor applies depends on local laws, but in the Oakland case, the employee was cornered and unable to retreat safely, further justifying his decision to pull out his firearm.

The Concept of “Disparity of Force”

“Disparity of force” is an important legal principle that applies in many self-defense cases involving unarmed attackers. It refers to situations where the physical force presented by the attacker is so overwhelming that it justifies the defender’s use of deadly force. This disparity can be due to several factors, including:

• Number of attackers: As seen in the Oakland case, when a single person is attacked by multiple individuals, the overwhelming number of attackers can justify the use of deadly force.
• Size and strength difference: A much larger or stronger attacker may pose a deadly threat even without a weapon.
• Skill difference: An attacker trained in combat or martial arts may also present a deadly threat, even if they are unarmed.
• Vulnerabilities of the defender: If the defender is elderly, frail, or has a condition that makes them more susceptible to serious injury (e.g., taking blood thinners), an unarmed attack may pose a significantly greater threat to their life or safety.

The Importance of Proportional Response

One of the key factors in determining whether deadly force was justified is the concept of proportionality. Even in a situation where a gun is legally drawn in self-defense, firing the gun is only justified if the threat persists.

In the Oakland case, the store employee pulled out his gun but did not fire. This was an important decision from both a legal and practical perspective. Once the gun was visible, the attackers fled, effectively neutralizing the threat. Had the employee fired his gun after the attackers began retreating, he could have faced legal challenges.

The law is clear: the right to use deadly force in self-defense ends as soon as the threat ends. Once the attackers are no longer an immediate threat, continuing to use force becomes unlawful.

Extra-Legal Risks: When Doing Everything Right Can Still Go Wrong

Even when a defender follows the law to the letter, there are extra-legal risks that can lead to conviction. Innocent people can—and do—get convicted. According to Branca, these risks often arise from factors outside the strict boundaries of the law.

Perception Matters

A key extra-legal risk comes from how the incident is perceived by law enforcement, prosecutors, judges, and juries. In the Oakland case, the entire incident was captured on video, providing clear evidence that the employee acted in self-defense. However, many cases do not have the benefit of video evidence. In such situations, testimony from witnesses—who may be biased or unreliable—becomes critical.

For instance, in the Oakland case, members of the mob could have claimed that the employee pulled out his gun for no reason. Without video evidence, such testimony could sway law enforcement or a jury. In fact, one of the attackers was caught on video fleeing the scene and claiming that the employee pulled out his gun “just because of kids on bikes.” If this was the only available testimony, the outcome of the case could have been very different.

Racial and Political Factors

Another extra-legal risk involves racial or political considerations. In this case, the lone defender was white, while the attacking mob was largely or entirely Black. While the law itself is colorblind, societal perceptions and media coverage can influence the legal process. In a racially charged atmosphere, a defender may be portrayed as a racist aggressor, regardless of the facts. Prosecutors may bring a case to trial for political reasons, knowing that even if they lose, they gain political capital by appearing to fight against “racism.”

The Cost of Going to Trial

Finally, even when a defender is ultimately acquitted, the process of going to trial can be financially and emotionally devastating. Legal fees, the stress of a trial, and the potential for a wrongful conviction all weigh heavily on individuals who use deadly force in self-defense.

How to Minimize Legal Risks

While self-defense situations are often unavoidable, there are steps individuals can take to minimize their legal risks.

1. Avoid Confrontations: The best way to avoid legal trouble is to avoid confrontations in the first place. In the Oakland case, could the employee have stayed inside the store rather than confronting the mob outside? While hindsight is always 20/20, avoiding unnecessary confrontations can help reduce the chances of needing to use deadly force.
2. Know the Law: Understanding the laws in your jurisdiction is crucial. Different states have different self-defense laws, including “Stand Your Ground” and “Castle Doctrine” provisions. Knowing when and where you are legally allowed to use force can help you make better decisions in the heat of the moment.
3. Training: Proper firearms training can help you react more effectively and decisively in a self-defense situation. It’s not enough to simply carry a gun; you must know when and how to use it lawfully.
4. Seek Legal Expertise: If you carry a gun for self-defense, it’s wise to have legal resources ready. Organizations like the Armed Citizens’ Legal Defense Network can provide legal support in the aftermath of a self-defense incident.

—————————————————–

Using a gun in self-defense against an unarmed attacker is a legally complex situation. While the attacker may not have a weapon, factors such as the number of attackers, the size and strength disparity, or the defender’s physical vulnerability can justify using deadly force. However, the key lies in understanding when such force is lawful and ensuring that your response is proportional to the threat.

Ultimately, even if the law supports using deadly force, extra-legal risks like public perception, witness testimony, and political factors can still lead to serious legal consequences. The best way to protect yourself is to avoid confrontations, know the law, and seek legal training. Always remember: self-defense law is about necessity, not vengeance, and the goal is to stop the threat, not to escalate the violence.