Self-defense (United States): Difference between revisions

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In the United States, self-defense is an affirmative defense that is used to justify the use of force by one person against another person under specific circumstances.

In the U.S., the general rule is that "[a] person is privileged to use such force as reasonably appears necessary to defend herself against an apparent threat of unlawful and immediate violence from another."^[1]

On a federal level, self-defense is legal only in response to "An affirmative, unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences." ^[2]

The definition of legal self-defense on a state level often varies significantly from this definition and from other states, but each state makes an important distinction between the use of non-deadly and deadly force. A person may use non-deadly force to prevent imminent injury; however, a person may not use deadly force unless that person is in reasonable fear of serious injury or death. Some states also include a duty to retreat, where deadly force may only be used if the person is unable to safely retreat. A person is generally not obligated to retreat if in one's own home in what has been called the castle exception (from the expression "A man's home is his castle").

Runyan v. State (1877) 57 Ind. 80, 20 Am.Rep. 52, is one of the earliest cases to strongly support and establish in U.S. law an individual's right to initiate self-defense actions up to and including the justifiable use of lethal force against an aggressor.

In Runyan, the court stated "When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justiciable."

A related case is the U.S. Supreme Court case Bad Elk v. United States (1900) 177 U.S. 529, 44 L.Ed. 874, 20 S.Ct. 729, where an off-duty police officer was granted a new trial after being convicted of killing an on-duty police officer who was attempting to illegally arrest the man, because, at the initial trial, the jury was not instructed that it could convict on a lesser offense, such as manslaughter. Runyan v. State is further supported by additional cases such as Miller v. State (1881) 74 Ind. 1., Jones v. State (1888) 26 Tex.App. 1, 9 S.W. 53, 8 Am.St.Rep. 454, Beaverts v. State (1878) 4 Tex.App. 175, and Skidmore v. State (1875) 43 Tex. 93.

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In most jurisdictions, defense of self or of others is an affirmative defense to criminal charges for an act of violence. It acts to provide complete justification.

The defense of justification (New York Penal Law art. 35) affirmatively permits the use of force under certain circumstances... The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful...

In this regard, the current statutory defense reflects the common-law "right" of an individual to repel a threat to life or limb... Defense of oneself or one's relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful.^[3]

The defense of justification would fail, for example, if a defendant deliberately killed a petty thief who did not commit robbery and who did not appear to be a physical threat.

However, when an assailant ceases to be a threat (e.g. by being tackled and restrained, surrendering, or fleeing), the defense of justification will fail if the defending party presses on to attack or to punish beyond imposing physical restraint. A somewhat less obvious application of this rule is that admitting the use of deadly force in an attempt to disable rather than kill the assailant can be construed as evidence that the defendant was not yet in enough danger to justify lethal force in the first place. Sometimes there is a duty to retreat which makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense), and in burglary situations given the castle doctrine (see: Edward Coke), which argues that one cannot be expected to retreat from one's own home, namely, "a man's house is his castle, et domus sua cuique est tutissimum refugium" i.e. Latin for "and one's home is the safest refuge").^{[citation needed]}

New York Penal Law section 35.15 effectively ordains that:

"A person may... use DEADLY physical force upon another person" "when and to the extent he reasonably believes such to be NECESSARY to defend himself or a third person from what he reasonably believes to be .... a kidnapping, forcible rape, forcible sodomy or ROBBERY; or (c) ... a burglary...."

There is no duty to retreat under these circumstances. However, if one is "challenged" in a bar for a fight, accepting such challenge and using deadly force, instead of walking away, generally will not constitute a self-defense.

In some countries and U.S. states, the concept of "pre-emptive" self-defense is limited by a requirement that the threat be imminent. Thus, lawful "pre-emptive" self-defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. Many self-defense instructors and experts believe that if the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow and gaining the immediate upper hand to quickly stop the risk to their person.

Justification for self-defense usually cannot be applied to actions committed after a criminal act has taken place, but the laws of many states authorize the use of force, sometimes even deadly force, to effect the citizen-arrest of a fleeing offender. A rape victim who, after the rape is committed and the rapist leaves, subsequently finds and shoots the rapist, is not entitled to claim self-defense. Most other victims of assaultive offenses are similarly not entitled to this defense if they act in revenge. In many U.S. jurisdictions, using deadly force against a burglar/thief who is attempting to escape with stolen property is likewise not justifiable. (Texas law holds the defendant to a high burden of proof that the deadly force was the only means available to recover the property without a serious risk of death or serious injury). However, the Common Law and the Model Penal Code makes a distinction between mere thieves and those who are guilty of "robbery". Many states apply the Common Law's "fleeing felon" rule as a justification for private persons to use deadly force necessary to "arrest" violent criminals.^{[citation needed]}

Although the Law of Justification has heretofore been considered a matter of state law, the recent Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago may have constitutionalized some of the common law rules of "self-defense" as fundamental rights. The U.S. Supreme Court held that the Second and Fourteenth Amendments "protect[] the right to possess a handgun in the home for the purpose of self-defense." And, "stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was 'the central component of the right itself.'"; The Constitution, they wrote, secured "the right to keep and bear arms for self-defense." Prior to these decisions, other Constitution provisions were recognized as securing a right of self-defense.

• Castle Doctrine
• Deadly force
• Imperfect self-defense
• Plummer v. State
• Right of self-defense
• Self-defence (Australia)
• Self-defence in English law
• Self-defense (Sweden)
• Stand-your-ground law
• Use of force

• Branca, Andrew. ["http://www.lawofselfdefense.com "The Law of Self Defense, 2nd Edition"]. lawofselfdefense.com. Retrieved 12 March 2014. {{cite web}}: Check |url= value (help)
• Louisiana Criminal Code: Use of force or violence in defense, La. R.S. 14:19 [1]. Justifiable homicide, La. R.S. 14:20 [2].
• Texas Penal Code: Chapter 9. Justification Excluding Criminal Responsibility, § 9.31/§ 9.44 [3].