The lawfully justified use of force usually requires reasonableness, necessity, and imminence. While those words may be understood as they are commonly used, they also have a “legalistic” definition. This post discusses what is meant by imminent in the context of the defense of justification. Imminence is similarly applicable to the use of non-deadly or deadly force.
A classic dictionary definition of imminent might be: about to happen or happening very soon. Something that will happen in the very near future is often characterized as imminent. Is it something that is happening now with more of the same or similar likely to come? Yes. Is it something that will happen in a matter of a few seconds? Yes. Could it be something that will occur in a minute? Maybe. Is it a deadly danger that is inevitable, but which will occur some unknown time in the future? No. (The concept of imminence may be relaxed in a “battered spouse” case — that legal aberration is beyond the scope of this post).
Attorneys might demand a definition in “legalese.” They would (correctly) define imminent in the context of self-defense as — an apparent immediate danger; what must be instantly met with a response, because it cannot be effectively repelled by calling for or depending on the assistance of others or the response of law enforcement.
Will a jury be given specific or detailed instruction or examples explaining imminence when a defendant has asserted the defense of justification? Probably not. A California judge might describe it thusly: “. . . immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.” Or explain it with this limitation: “future harm is not sufficient, no matter how great or how likely the harm is believed to be.” A Florida judge might define imminent as something which is “about to take place, but a threat of harm sometime in the future would not be considered imminent.” In Alabama, the phrase “about to” might be used, instead of the word imminent. In Texas, a judge might instruct that it means “ready to take place, near at hand, impending, hanging threateningly over one’s head, menacingly near.” Use defensive force in New Mexico? The jury may hear “immediate danger” or “present impending peril” to convey the requirement of imminence. In Vermont as well. In a federal court, the jury will likely get an instruction including the words “present” and “impending.” In Oregon, the concept of imminence “speaks solely to the timing of the threat; it is not concerned with the nature of the threatened person’s response.” In Tennessee, the state’s highest court has said imminent “means near at hand; on the point of happening.” In Arizona, it is “immediately necessary.” In Colorado, it might be described as “near at hand, impending or on the point of happening.” A jury that expects or requests (i.e., sends out a question to the judge) some distinct time frame guidance to define imminent will likely be disappointed.
Common in self-defense failures is that the threat was not imminent, and thus force is used too soon, or a threat once imminent was no longer imminent at the precise moment when the defensive force was used, and thus force was used too late. Failure also occurs when the lawful use of non-deadly force is delayed, resulting in the apparent need for the application of deadly force. Those errors frequently occur because of unperceived or ignored changed circumstances. How do these scenarios usually play out? Included are a defender disarming an assailant, gaining the upper hand in a fight or grapple, or using force after making distance between him/herself and an assailant who is armed with a weapon other than firearm. Another is excessive shots when an imminent deadly threat has been neutralized and there is little chance the downed malefactor can arm/rearm him/herself. What about when the malefactor has surrendered or takes flight? Those situations as well may suggest a lack of imminence. But, note there may exist a common law right to ensure defensive force success and safety beyond the moment when force is justified, with continued application of force (think ejecting a trespasser), or what is sometimes called “hot pursuit.” In California a jury will likely hear as part of its instructions: “. . . and, if reasonably necessary, to pursue an assailant until the danger of . . . has passed. This is so even if safety could have been achieved by retreating.” (Consider that a “fleeing” armed person may turn at any time and shoot).
What about a deadly threat which will materialize in more than a few or several seconds? A person actively killing who is reloading or whose firearm has malfunctioned? The soon to be mass killer loading or slinging a rifle from a vehicle trunk, putting on a chest rig (maybe with armor) preparing for his criminal attack? Someone about to place an incendiary or explosive device or readying it to hurl or plant? Imminence is a somewhat different concept in those rare situations. With rather obvious answer — imminent can sometimes be minutes.
Takeaway: Imminence is typically analyzed against defensive force which was employed precisely or nearly contemporaneous with the action of the malefactor. Thus, for the vast majority of situations, the title of this post provides a sufficient definition. Here and now. When focused on imminence — don’t forget that for a justification defense to be successful, the perceived imminent danger or threat need not have been actual. It simply must have been so real based on appearances that a reasonably cautious and prudent person under the same circumstances (reasonableness) would have believed that the danger could be avoided only through the use of force (necessity).
Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.