In July 2020 Michael Mitchell shot and killed 22-year-old college football player Jahneil Douglas. The evidence indicated that Douglas was the initial aggressor in the confrontation, with Mitchell shooting him only after Douglas had punched him at least once in the head and had continued throwing blows at Mitchell. After being shot the mortally wounded Douglas had fled from Mitchell.
Although Mitchell was criminally tried for this killing, the jury ultimately acquitted him on grounds of self-defense—in other words, Mitchell’s shooting Douglas dead was found by the Ohio jury to simply not be a crime and therefore carried zero criminal liability.
Despite the acquittal on the killing of Douglas, however, yesterday the 26-year-old Mitchell was sentenced to 9 to 12 years in prison. Why? Because Mitchell had fired an additional three “warning shots” at the fleeing Douglas. These three shots too many were found by the jury to constitute felony assault, with yesterday’s sentence being the consequence. (Source news story here.)
This event is a good opportunity to remind ourselves that fights are often highly dynamic in nature, including periods in which defensive force—even deadly force—may be perfectly lawful, only to be swiftly followed by periods in which the continued use of force constitutes felony conduct.
The law allows a defender to continue using defensive force as long as that force is necessary to neutralize the imminent unlawful threat against them—and that necessary defensive force may consist of one shot, or three, or five, or ten, or whatever.
Once the threat is no longer imminent, however, the privilege to use defensive force ends—and any continued use of force by the defender beyond that point is simply criminal conduct.
This requirement of Imminence is one of the five elements of any claim of self-defense. Collectively, these five elements are Innocence, Imminence, Proportionality, Avoidance & Reasonableness (You can get your own 100% free “Five Elements of Self-Defense” cheat sheet by clicking here.)
It can be useful to think of this element of Imminence as being a window, one that both opens and closes. Before the window of Imminence opens—before the threat has become an imminent danger—there is no privilege of self-defense. Once the window of Imminence opens, the use of defensive force is lawful (assuming, of course, the other elements of self-defense are also satisfied).
Just as the window of Imminence opens, however, it also invariably closes. That window of Imminence might close because the defensive force has neutralized the threat, or because the aggressor has decided they suddenly have other business to attend to, or for any reason whatever—the controlling fact is simply that the once-imminent threat is no longer an imminent threat.
Once that window of Imminence closes again, for whatever reason, the privilege of self-defense ends.
Further, any use of force not specifically directed at an actual imminent threat and that endangers either the no-longer threatening target or innocent bystanders—such as the purported “warning shots” fired here in pursuit of the fleeing Douglas—presents fertile ground for a prosecutor to charge, and a jury to convict on, some variation of reckless endangerment—and if that undirected force is deadly in nature, felony reckless endangerment, carrying a felony-length prison sentence.
The law of self-defense allows any of us to defend ourselves against unlawful attack, even to the point of making an instantaneous decision to inflict deadly force upon one’s aggressor. This incredibly powerful legal right, however, is highly constrained and conditioned by the law, as it ought to be when human life is at stake. Violate those legal boundaries, even if acting in mistaken good faith, and prepare to spend many years, perhaps decades, in a cage in the company of extremely unpleasant people.
As we always caution here at Law of Self Defense:
Carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Interested in learning how to be prepared to win the physical fight, and also be hard to convict?
Sign up for our 100% FREE “Hard to Convict” webinar, here: https://hardtoconvict.com
Attorney Andrew F. Branca
Law of Self Defense LLC