Torts - Self-Defense

Self-Defense

• Privilege to use force against another to defend oneself

• Fork: One hand permits person to protect the very bodily integrity mean to be protected and vindicated by torts, other hand the extent privilege of self-defense runs the risk of sanctioning resort to forcible “self-help”

Haeussler v. De Loretto

Facts: P went to D’s house, P spoke loudly and waved at D, had violent history. Refused D’s request to leave, D struck him.
Rule of Law: The use of reasonable force in self-defense shields a defendant from a claim of assault and battery.

Self-defense applies…

• applies when the injury threatened consists of physical harm, inappropriate touching, or confinement

• to victim who actually and reasonably believes it is necessary to defend to avoid imminent injuries

*reasonableness judged in light of surrounding circumstances

Self-defense does not apply…

• if conduct threatens only to result in defamation, or distress to victim, also nonthreatening provocations like taunting or teasing

• If you start the fight

Response to Threat

• Must be an appropriate response

• Use of deadly force only justified when injurer actually and reasonably perceives victim is threatening him with imminent death or serious bodily injury

  • may use deadly force whenever she is being “attacked” in her “dwelling”

  • “Safe retreat” one is not privileged to use deadly force

Defending Others

• more or less under the same rules as self-defense

  • Can’t use defense if sparing oneself by injuring innocent 3rd party

Katko v. Briney

Rule of Law: A person, in protecting his property, may not use force calculated to cause death or serious bodily injury, except if there is also a threat to personal safety that justifies self‑defense.
Facts: D protected farm with concealed gun, no warning or signs. P trepassed and was hit. 

Use of non deadly force

A defendant may use nondeadly force for the purpose of defending himself against another only if the defendant reasonably believes that:

i) The other is intentionally inflicting or about to intentionally inflict unprivileged force on the defendant;

ii) The force that the defendant is using is proportionate to the other's use of force or threat of force; and

iii) The defendant can prevent the other's force or threat of force only by the immediate use of the force the defendant is employing.

No duty to retreat - use of non deadly force

When a defendant uses nondeadly force, the defendant has no duty to retreat even if he can do so safely. Similarly, the defendant is not required to give up a right (e.g., to use a public space) or privilege (e.g., to defend himself or a third person).

Plaintiff's unprivileged use of force - use of non deadly force

When the defendant has consented to the plaintiff's use of force, the defendant does not have the privilege of self-defense unless the plaintiff exceeds the scope of the defendant's consent. Similarly, if the plaintiff is privileged to use force against the defendant (e.g., self-defense), then the defendant does not have a privilege to respond with force.

Immediacy - use of nondeadly force

• For the defendant's use of force to be privileged, the plaintiff must either be using force against the defendant or threatening to immediately use force against the defendant. In addition, the defendant's own use of force must be an immediate response to the plaintiff's use of force or threat of force.

  • Spoken words or verbal gestures do not by themselves justify the use of force. Neither does a verbal threat of immediate physical harm unless there is additional conduct either at that time or in the past that demonstrates that the plaintiff's intent is to immediately act on the threat.

Use of Deadly Force

A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that:

i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;

ii) The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and

iii) The defendant can safely prevent the peril only by the immediate use of deadly force.

Restatement (Third) of Tort

No duty to retreat - use of deadly force

In most jurisdictions, when a defendant uses deadly force, the defendant has no duty to retreat even if he can do so safely

• minority of jurisdictions and the Restatement Third impose a duty to retreat on the defendant if the defendant knows or reasonably should know that he can avoid the need to use deadly force by retreating in complete safety.

  • However, even those jurisdictions, recognizing the "castle" doctrine, do not impose this duty on a defendant who is attacked at home, unless the plaintiff also lives there.

Burglar Exception - use of deadly force

Restatement Second recognizes an exception that permits a defendant to use deadly force to prevent a burglary of the defendant's home, even if the defendant was not threatened with bodily harm. The Restatement Third limits this exception to a burglary that puts the defendant in peril of bodily harm that does not constitute serious bodily harm, death, or rape.

Excessive Force

defendant who is privileged to use force but uses excessive force is generally liable only for the harm caused that is attributable to the excessive force

• However, if the harm caused by the use of privileged force and excessive force is indivisible, the defendant is subject to liability for all of the harm caused

  • defendant's use of excessive force does not excuse the plaintiff's prior unprivileged use of force but may give the plaintiff a privilege to respond to the defendant's use of excessive force Restatement (Third) of Torts

Withdrawal

When a plaintiff withdraws from a confrontation after using unprivileged force and the defendant recognizes or should recognize that the plaintiff has withdrawn, the defendant no longer has a privilege to use force in self-defense. If the defendant subsequently uses force against the plaintiff, the plaintiff may be entitled to use force in self-defense. Restatement (Third) of Torts

Harm to Bystander

If a defendant, when acting in self-defense, intentionally uses force against a bystander (i.e., a person who is not using or threatening to use force against the defendant or a third person), the defendant may use nondeadly force against the bystander if the defendant reasonably believes that:

(push person out the way to save from defendant)
i) The force that the plaintiff is using against the defendant is substantially greater than the force that the defendant uses against the bystander; and

ii) The defendant's use of force against the bystander is immediately necessary to avoid the plaintiff's threat or use of force.

Burden of Proof

defendant bears both the burden of production and the burden of persuasion regarding the privilege of self-defense. Restatement (Third) of Torts