Self Defense

Four parts of justification defenses

reasonable belief; triggering condition; necessity of response; proportionality of response

Under the common law, when is a person justified in using deadly force?

if she reasonably believes that such force is necessary to protect herself from the imminent and unlawful use of deadly force by that other person

Elements for common law self-defense

• reasonable belief

  • 1. reasonable belief (subjective and objective)**

• triggering condiction

  • 2. unlawful

  • 3. (threat or actual) use of deadly force

  • 4. by the aggressor**

• necessity of response

  • 5. use of force is necessary **

  • 6. to prevent imminent harm

• proportionality of response

  • 7. response by deadly force is only justified if the aggressor threatens or actually uses deadly force against the defendant

Element 1: reasonable belief

person claiming self-defense must have a reasonable belief about the threat, the triggering events, necessity, and proportionality of response

Common Law Subjective/Objective components of self defense

• defendant herself must have genuinely held these beliefs

  • can’t use if someone else would’ve been threatened but not defendant

  • up to the fact-finder to make the determination whether the defendant genuinely held these beliefs

• a reasonable person in the defendant’s position also would have had these beliefs

is self defense a complete defense?

yes - if someone meets all elements of the defense, the defendant is found not guilty.

Imperfect self-defense

• Some modern jurisdictions recognize an imperfect self defense.

• If the defendant meets the subjective part of the reasonable belief prong (genuinely had a belief about all of the elements), but the belief is not objectively “reasonable”, then the defendant will be found guilty of manslaughter, not murder.

• Defendant’s liability is reduced, not eliminated. 

MPC §3.04 - MPC version of reasonable belief

• the person claiming self-defense herself must believe that she faces death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat and that it is necessary for her to respond

• rejects the objective prong, focuses on the subjective prong

MPC §3.09 - MPC regarding reckless self defense

if the defendant’s belief was reckless (knowingly unreasonable), then it would not operate as a defense to a crime whose required mens rea is recklessness, although it would be for purposeful or knowing crimes

MPC §3.09 - MPC regarding negligent self defense

if the defendant’s belief was negligent (unknowingly unreasonable), then it would not operate as a defense to a crime whose required mens rea is negligence, although it would for crimes with a mens rea of recklessness and above

Element 2: triggering event (unlawful)

Originally included to prevent prosecution of law enforcement officers who “lawfully” used deadly force in their official duties

Police Officer self-defense

• Can only use self defense if a police officer was using unlawful force to arrest someone

• Places the burden of proof on defendant to establish that police officer was acting unlawfully, as opposed to putting police officer on trial for every arrest to show they were using lawful force

When was force lawful?

Law enforcement officers may be permitted to use force to affect arrest or prevent escape, in self defense or in defense of others. Depends on the type of crime defendant was being arrested for 

What force can be used if defendant was being arrested for a misdemeanor?

Non-deadly force.

If the officer used deadly force to arrest a defendant for a misdemeanor, that would have been “unlawful” and the defendant would have been able to use deadly force in self-defense provided all the other elements of the defense were met. 

What force can be used if defendant was being arrested for a felony?

Non-deadly force or deadly force as needed. However, can’t use excessive force

Graham v. Connor (Supreme Court 1989)

Applying the 4th amendment, the SC said deciding whether an officer used excessive force “requires careful attention to the facts and circumstances of each particular case, including:

• severity of the crime at issue

• whether the suspect poses an immediate threat to the safety of the officers or others, and 

• whether he is actively resisting arrest or attempting to evade arrest by flight

• The reasonableness of a particular use of force should be judged from the perspective reasonable officer on the scene, mindful that officers often make split-second decisions

Continuum of force

• officer presence

• verbalization

• empty hand control - officers use bodily force to gain control of a situation (soft technique - grabs, holds, joint locks; hard technique - punches, kicks)

• non-lethal methods - Chemical (pepper spray); Blunt impact (baton, projectile); Conducted energy devices (taser)

• lethal force

when should lethal force be used by an officer?

if a suspect poses a serious threat to the officer or another individual

Common Law rule for police officer excessive force

If a police officer uses excessive force to arrest a defendant for a felony, in other words uses “unlawful” force, that defendant may use proportionate force in self defense to resist the arrest provided the other elements of the defense are met… defendant may respond even with deadly force

Modern jurisdictions applying common law principles for law enforcement self defense

a police officer may only use “deadly” force in appropriate circumstances in cases where the defendant is being arrested for a “dangerous” felony (sometimes referred to by terms such as “forcible” felonies (rape, murder)

In addition to excessive force, when was a police officer’s arrest of a defendant considered unlawful?

Inconsistent with constitutional or statutory requirements. 

Ex: unlawful to arrest someone if the police officer lacked probable cause for the crime for which she was being taken into custody

common law rule: allowed defendants to use non-deadly force to resist such unlawful arrests

modern jurisdictions: don’t allow for defendants to use any force to resist arrest in these situations. have other recourse in court, approach is reflected in MPC. 

Element 3: (threat or actual) use of deadly force

Defendant may only use deadly force if the defendant was threatened with deadly force

Common law deadly force definition

force that was likely or reasonably expected to cause death or serious bodily injury

MPC deadly force definition

• force that the actor uses with the purpose of causing, or that he knows to create a substantial risk of causing death or serious bodily injury… brandishing a knife or gun by itself doesn’t constitute the use of deadly force.

• what matters is the person’s state of mind. consistent with subjective approach

• ex: if trying to scare with a knife, that does not mean deadly force is okay

can an aggressor claim self defense?

No

how can the aggressor regain the right of self-defense

• she withdraws from the conflict in good faith

• she fairly communicates the withdrawal to the other party

• she retreats if it is safe to do so

common law aggressor definition

one whose “affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences”

• omissions aren’t enough

• reasonably calculated - doesn’t have to be perfect

• affray - fight

• that will lead to injurious or fatal consequences

MPC aggressor definition

one who acts with the “purpose” of causing death or serious bodily injury - consistent with subjective approach

Common law individual having an affair scenario

Person having an affair with the defendant’s spouse could be seen as the aggressor, because that behavior is reasonably calculated to start a fight that can lead to death or serious bodily injury

MPC individual having an affair scenario

would have to ask why the other person was having the affair – were they doing it for the purpose to start a fight? If purpose was love etc, they wouldn’t be the aggressor

can informal words by themselves be enough to render a person an aggressor?

a few jurisdictions allow this

how do we look at the fight

we don’t look at the whole fight as one encounter - we break it into discrete parts

• A and B are in a fight, A starts the fight and is the aggressor. A can’t use self defense. B can use self-defense. A can reclaim the right to self defense. A does that. If A properly withdraws, they’re no longer the aggressor. If the fight continues, B has become the aggressor.

Non-deadly fight withdrawal scenario

A started a non-deadly fight (slapped someone), aggressor. B responds by escalating the situation by responding with deadly force. What was a non-deadly encounter transformed into a deadly encounter. In many jurisdictions, at this point, B has become the aggressor. A can use self-defense. 

in some jurisdictions, they will say A is still the aggressor - in these jurisdictions, A must retreat if they can do so in complete safety, can’t use self-defense. 

Element 5: Necessity of response

Use of force by defendant in responding to the threat is necessary

Common law use of force is necessary

a defendant could claim self-defense only if it was necessary to have used force to protect oneself

common law duty to retreat

there was a duty to retreat “to the wall” before using deadly force in self-defense… if you’re aware you can do so with complete safety. If they had an alternative, we want them to take that alternative. Didn’t want to encourage self-help.

castle exception common law

• A person did not have to retreat if the encounter was taking place in the person’s home. Reflects the idea that your home is your castle.

• If the aggressor also lived in the same home, then the person had to retreat from the home, if it was possible to do so with complete safety.

MPC duty to retreat

same as common law - a defendant could claim self-defense only if it was necessary to have used force to protect oneself

Exceptions to the duty to retreat rule under the MPC

• No duty to retreat before using deadly force even if the aggressor also lives in the same home. If trying to regain the ability to use self-defense, original aggressor would have to retreat first. 

• Castle exception was extended to the person’s place of work. doesn’t apply if the other party is a co-worker… person would have to retreat if aware she can do so with complete safety. 

Modern status of the duty to retreat

less than half of states today retain the retreat requirement. consider difficulty of retreating with modern weapons v. sword.

Common law rule “to prevent imminent harm”

The actual or threatened harm must be imminent - must be immediately impending, not something that will happen in the future. 

MPC rule for preventing harm

the need to respond must be “immediately necessary”. Can use for future events if it’s the one chance you’ll get to respond. 

Two people have gone hiking, they run out of water. One of them is faster, he leaves the other person to go poison the water at the next water station. Under the common law, victim wouldn’t have been able to use deadly force to stop the aggressor – poisoning was a future harm, not imminently inflicted. MPC would allow it if it’s the only time for you to respond, it was immediately necessary to use deadly force

Proportionality of Response

response by deadly force only if aggressor threatens or actually uses deadly force

Common law rule proportionality of response

deadly force can be used in self-defense only if deadly force was used (or threatened to be used) against that person.

if only threatened with non-deadly force, can only use non-deadly force to respond.

MPC rule proportionality of response

deadly force can be used in self-defense not only if the person was facing death or serious bodily harm, but also if the person was facing kidnapping or sexual intercourse compelled by force or threat

Battered spouses - three stages of abuse

• Tension building

• Acute battering encounter

• contrite/quiet

Tension building

• small episodes occur

• episodes gradually escalate

• tension continues to build

Acute battering encounter

• where most injuries occur, battering is out of control

• psychological abuse by threats of future harm is also prevalent

Contrite/quiet

• calm, loving period during which the batterer is contrite, seeks forgiveness, and promise to refrain from future violence

• positive reinforcement for the person to continue the relationship

• through repeating and escalating cycles, abuser methodically breaks down the person’s resistance - person develops learned helplesness

Battered spouse issues arise in three types of homicide cases

• confrontational killings - abusive spouse killed during a violent fight, 75%

• non-confrontational killings - abusive spouse killed during some lull in the fighting, such as sleeping, 25%

• third party (hired killer) - abused spouse hires someone to kill abuser, more problematic, account for very few

Stand your ground laws

expand the castle doctrine by providing that the retreat requirement does not apply “anywhere a person has a lawful right to be” - dramatic move since the 2000s

Why is it problematic?

• a person who invokes this statute is able to claim immunity in several of the state statutes – either civil or civil and criminal.

• How police officers who act lawfully are immune from prosecution, in the same way, these statutes allow for defendants who invoke their procedures to bypass a jury determination to have a judge make a determination ahead of trial whether the statutory requirements were met