Why is the Charge “Murder” After Act of Self-Defense?

Posted 3 years ago — Ooley Law Blog

This question is premised on the hypothetical of a self-defense shooting (involved persons do not know each other) with the shooter firing in self defense and the legal argument of self defense being used in court.


It’s been common training doctrine for decades that shooting in self defense is not done with the intent to kill another, but instead done to prevent/stop a killing or severe injury.  But when an armed citizen is criminally charged after such a shooting, they are routinely charged with one or more levels of the crime of murder.  In most jurisdictions, “murder” is a crime requiring the element of “intent to kill.”  For example, Washington statutory law states:


RCW 9A.32.050

Murder in the second degree.

(1) A person is guilty of murder in the second degree when:

(a) With intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person;


So, with the above example and utilizing your own state’s case law, statutory law, jury instructions, etc. can you discuss —


If an armed citizen is arrested after a self defense shooting and prosecuted for the crime of murder, why is the charge murder, when there is no evidence that the armed citizen intended to kill his/her attacker?


In most states, including Indiana, self-defense is an affirmative defense to murder. This means that you essentially admit to the underlying act but assert that you were justified in doing so. Therefore, if you use deadly force in self-defense and kill the person who attacked you, you are admitting that you committed a homicide (the killing of another human being) but that you were justified in doing so such that you should not be found guilty of murder.


Bearing this in mind, prosecutors will sometimes refuse to prosecute acts that were clearly legitimate acts of self-defense. After all, prosecutors do not want to pursue cases that they do not believe they can win. However, as we know, the facts are sometimes muddy, and it is not always apparent that self-defense was justified. Furthermore, even though your training is to stop the threat rather than to kill the threat, the prosecutor does not know your state of mind and may not be able to ascertain your state of mind from the facts available to them at the time the charging documents are filed.


In Indiana, murder is defined by statute as, “A person who knowingly or intentionally kills another human being.” Ind. Code § 35-42-1-1. As you can see, the “knowingly or intentionally” element of the statute is meant to address your state of mind, and if you can establish that you did not “knowingly or intentionally” kill another human being, your self-defense claim should be successful.


This is why use of force instructors like Massad Ayoob encourages you to document your training. If your case goes to a jury, you will be judged based upon what you knew at the time the acts were committed, and if you can document what you knew, i.e., that you shoot to stop the threat rather than kill the threat, this goes a long way to establishing your state of mind and defeating a key component of the murder charge.


These topics are covered at length in Armed Citizen Legal Defense Network educational materials as well as Massad Ayoob’s MAG20 and MAG40 classes. We certainly encourage you to utilize these resources and take these classes, if possible