Self-defense (theory)
Encyclopedia
The right of self-defense (according to U.S. law) (also called, when it applies to the defense of another, alter ego defense, defense of others, defense of a third person) is the right for civilians acting on their own behalf to engage in violence for the sake of defending one's own life or the lives of others, including the use of deadly force
.
of the person and defense of property. Whether consciously or not, this builds on the Roman Law
principle of dominium where any attack on the members of the family or the property it owned was a personal attack on the pater familias
the male head of the household, sole owner of all property belonging to the household, and endowed by law with dominion over all his descendants through the male line no matter their age. In Leviathan
(1651), Hobbes proposed the foundation political theory that distinguishes between a state of nature
where there is no authority and a modern state. Hobbes argues that although some may be stronger or more intelligent than others in their natural state, none are so strong as to be beyond a fear of violent death, which justifies self-defense as the highest necessity. In the Two Treatises of Government
, John Locke
asserts the reason why an owner would give up their autonomy:
In earlier times before the development of national policing, an attack on the family home was effectively either an assault on the people actually inside or an indirect assault on their welfare by depriving them of shelter and/or the means of production. This linkage between a personal attack and property weakened as societies developed but the threat of violence remains a key factor. As an aspect of sovereignty
, in his 1918 speech Politik als Beruf (Politics as a Vocation
), Max Weber
defined a state
as an authority having the monopoly of the legitimate means of organised violence
within defined territorial boundaries. Recognizing that the modern framework of nation
s has emerged from the use of force, Weber asserted that the exercise of power through the institutions of government
remained indispensable for effective government at any level which necessarily implies that self-help is limited if not excluded.
For modern theorists, the question of self-defense is one of moral
authority within the nation to set the limits to obedience to the state and its laws given the pervasive dangers in a world full of weapons. In modern societies, states are increasingly delegating or privatizing their coercive powers to corporate providers of security services either to supplement or replace components within the power hierarchy. The fact that states no longer claim a monopoly to police within their borders, enhances the argument that individuals may exercise a right or privilege to use violence in their own defense. Indeed, modern libertarianism
characterizes the majority of laws as intrusive to personal autonomy and, in particular, argues that the right of self-defense from coercion
(including violence
) is a fundamental human right, and in all cases, with no exceptions, justifies all uses of violence
stemming from this right, regardless whether in defense of the person or property. In this context, note that Article 12 Universal Declaration of Human Rights
states:
The inclusion of defense of one's family and home recognizes the universal benefit claimed to stem from the family's peaceable possession of private property. This general approach implicitly attacks Hohfeld's
focus on the correlative
relationship between right and duty as an aspect of human interactiveness as opposed to rights deemed implicitly more important because they attach to a person by virtue of his or her ownership of property. Further, it follows that, in this moral balancing exercise, laws must simultaneously criminalize aggression resulting in loss or injury, but decriminalize qualitatively identical violence causing loss or injury because it is used in self-defense. As a resolution of this apparent paradox and in defiance of Hohfeld, Robert Nozick
asserted that there are no positive civil rights
, only rights to property and the right of autonomy. In this theory, the "acquisition principle" states that people are entitled to defend and retain all holdings acquired in a just way and the "rectification principle" requires that any violation of the first principle be repaired by returning holdings to their rightful owners as a "one time" redistribution. Hence, in default of self-defense in the first instance, any damage to property must be made good either in kind or by value. Similarly, theorists such as George Fletcher and Robert Schopp have adopted European concepts of autonomy in their liberal theories to justify the right-holder using all necessary force to defend his or her autonomy and rights. This right inverts the felicitation principle of utilitarianism
with the responsive violence being the greatest good to the individual, but accurately mirrors Jeremy Bentham
who saw property as the driving force to enable individuals to enhance their utilities through stable investment and trade. In liberal theory, therefore, to maximise the utility, there is no need to retreat nor use only proportionate force. The attacker is said to sacrifice legal protection when initiating the attack. In this respect, the criminal law is not the tool of a welfare state
which offers a safety net for all when they are injured. Nevertheless, some limits must be recognized as where a minor initial attack simply becomes a pretext for an excessively violent response. The civil law
systems have a theory of "abuse of right" to explain denial of justification in such extreme cases.
s, defense of self or of others is an affirmative defense
to criminal charges for an act of violence. It acts to provide complete justification.
"Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all. ... The defense of justification (NY 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 (see, People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534). ... In this regard, the current statutory defense reflects the common-law "right" of an individual to repel a threat to life or limb. Defense [was] deemed a natural, inalienable right at common law." People v. McManus, 67 N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986).
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, the owner or lawful possessor of property has a privilege to use any degree of non-deadly force necessary to protect his possession or recover his property, regardless of no physical threat to his person.
"'Property' is more than just the physical thing-the land, the bricks, the mortar-it is also the sum of all the rights and powers incident to ownership of the physical thing. [T]he right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value.'" Dickman v. Commissioner, 465 U.S. 330, 336 (1984).
"The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession." People v. Kane, 131 N.Y. 111 (142 N.Y. 366, 37 N.E. 104).
In Cross v. State, 370 P.2d 371 (Wyo 1962) the Court found that the Due Process of Law clause in the state constitution guaranteed "the inherent and inalienable right to protect property."
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 wasn't 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 so-called castle exception
(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").
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 (sucker punch) 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.
New York Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest or in preventing an escape", provides:
"4. A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense [in his presence] and who in fact has committed such offense; and he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) Effect the arrest of a person who has committed Murder, manslaughter in the first degree, Robbery, forcible Rape or forcible sodomy and who is in immediate flight therefrom.
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 Supreme Court held that each of the Second and Fourteenth Amendments "protects 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. In Frank v. Maryland
, 359 U.S. 360 (1959) the Supreme Court recited the Rights of Englishmen, including the "Right to Resist" Unauthorized Deprivations, was incorporated in the Constitution:
s have ruled that such a defense cannot be used to protect friends or family members who have engaged in an illegal fight. Likewise, one cannot use this to aid a criminal.
Deadly force
Deadly force, as defined by the United States Armed Forces, is the force which a person uses, causing—or that a person knows, or should know, would create a substantial risk of causing—death or serious bodily harm...
.
Theory
The early theories make no distinction between defenseCivil defense
Civil defense, civil defence or civil protection is an effort to protect the citizens of a state from military attack. It uses the principles of emergency operations: prevention, mitigation, preparation, response, or emergency evacuation, and recovery...
of the person and defense of property. Whether consciously or not, this builds on the Roman Law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
principle of dominium where any attack on the members of the family or the property it owned was a personal attack on the pater familias
Pater familias
The pater familias, also written as paterfamilias was the head of a Roman family. The term is Latin for "father of the family" or the "owner of the family estate". The form is irregular and archaic in Latin, preserving the old genitive ending in -as...
the male head of the household, sole owner of all property belonging to the household, and endowed by law with dominion over all his descendants through the male line no matter their age. In Leviathan
Leviathan (book)
Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil — commonly called simply Leviathan — is a book written by Thomas Hobbes and published in 1651. Its name derives from the biblical Leviathan...
(1651), Hobbes proposed the foundation political theory that distinguishes between a state of nature
State of nature
State of nature is a term in political philosophy used in social contract theories to describe the hypothetical condition that preceded governments...
where there is no authority and a modern state. Hobbes argues that although some may be stronger or more intelligent than others in their natural state, none are so strong as to be beyond a fear of violent death, which justifies self-defense as the highest necessity. In the Two Treatises of Government
Two Treatises of Government
The Two Treatises of Government is a work of political philosophy published anonymously in 1689 by John Locke...
, John Locke
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
asserts the reason why an owner would give up their autonomy:
- ...the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.
In earlier times before the development of national policing, an attack on the family home was effectively either an assault on the people actually inside or an indirect assault on their welfare by depriving them of shelter and/or the means of production. This linkage between a personal attack and property weakened as societies developed but the threat of violence remains a key factor. As an aspect of sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
, in his 1918 speech Politik als Beruf (Politics as a Vocation
Politics as a Vocation
Politics as a Vocation is an essay by German economist and sociologist Max Weber. It originated in a lecture he gave to the Free Students Union of Munich University, in January 1919, during the German Revolution....
), Max Weber
Max Weber
Karl Emil Maximilian "Max" Weber was a German sociologist and political economist who profoundly influenced social theory, social research, and the discipline of sociology itself...
defined a state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
as an authority having the monopoly of the legitimate means of organised violence
Monopoly on violence
The monopoly on violence is the conception of the state expounded by Max Weber in Politics as a Vocation. According to Weber, the state is that entity which claims a monopoly on the legitimate use of violence, which it may therefore elect to delegate as it sees fit...
within defined territorial boundaries. Recognizing that the modern framework of nation
Nation
A nation may refer to a community of people who share a common language, culture, ethnicity, descent, and/or history. In this definition, a nation has no physical borders. However, it can also refer to people who share a common territory and government irrespective of their ethnic make-up...
s has emerged from the use of force, Weber asserted that the exercise of power through the institutions of government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
remained indispensable for effective government at any level which necessarily implies that self-help is limited if not excluded.
For modern theorists, the question of self-defense is one of moral
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
authority within the nation to set the limits to obedience to the state and its laws given the pervasive dangers in a world full of weapons. In modern societies, states are increasingly delegating or privatizing their coercive powers to corporate providers of security services either to supplement or replace components within the power hierarchy. The fact that states no longer claim a monopoly to police within their borders, enhances the argument that individuals may exercise a right or privilege to use violence in their own defense. Indeed, modern libertarianism
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
characterizes the majority of laws as intrusive to personal autonomy and, in particular, argues that the right of self-defense from coercion
Coercion
Coercion is the practice of forcing another party to behave in an involuntary manner by use of threats or intimidation or some other form of pressure or force. In law, coercion is codified as the duress crime. Such actions are used as leverage, to force the victim to act in the desired way...
(including violence
Violence
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
) is a fundamental human right, and in all cases, with no exceptions, justifies all uses of violence
Violence
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
stemming from this right, regardless whether in defense of the person or property. In this context, note that Article 12 Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
states:
- No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
The inclusion of defense of one's family and home recognizes the universal benefit claimed to stem from the family's peaceable possession of private property. This general approach implicitly attacks Hohfeld's
Wesley Newcomb Hohfeld
Wesley Newcomb Hohfeld was an American jurist. He was the author of the seminal Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays .During his life he published only a handful of law journal articles...
focus on the correlative
Corelative
Correlative is the term adopted by Wesley Newcomb Hohfeld to describe the philosophical relationships between fundamental legal concepts in jurisprudence.- Hohfeldian analysis :...
relationship between right and duty as an aspect of human interactiveness as opposed to rights deemed implicitly more important because they attach to a person by virtue of his or her ownership of property. Further, it follows that, in this moral balancing exercise, laws must simultaneously criminalize aggression resulting in loss or injury, but decriminalize qualitatively identical violence causing loss or injury because it is used in self-defense. As a resolution of this apparent paradox and in defiance of Hohfeld, Robert Nozick
Robert Nozick
Robert Nozick was an American political philosopher, most prominent in the 1970s and 1980s. He was a professor at Harvard University. He is best known for his book Anarchy, State, and Utopia , a right-libertarian answer to John Rawls's A Theory of Justice...
asserted that there are no positive civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
, only rights to property and the right of autonomy. In this theory, the "acquisition principle" states that people are entitled to defend and retain all holdings acquired in a just way and the "rectification principle" requires that any violation of the first principle be repaired by returning holdings to their rightful owners as a "one time" redistribution. Hence, in default of self-defense in the first instance, any damage to property must be made good either in kind or by value. Similarly, theorists such as George Fletcher and Robert Schopp have adopted European concepts of autonomy in their liberal theories to justify the right-holder using all necessary force to defend his or her autonomy and rights. This right inverts the felicitation principle of utilitarianism
Utilitarianism
Utilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness", by whatever means necessary. It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can...
with the responsive violence being the greatest good to the individual, but accurately mirrors Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
who saw property as the driving force to enable individuals to enhance their utilities through stable investment and trade. In liberal theory, therefore, to maximise the utility, there is no need to retreat nor use only proportionate force. The attacker is said to sacrifice legal protection when initiating the attack. In this respect, the criminal law is not the tool of a welfare state
Welfare state
A welfare state is a "concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those...
which offers a safety net for all when they are injured. Nevertheless, some limits must be recognized as where a minor initial attack simply becomes a pretext for an excessively violent response. The civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
systems have a theory of "abuse of right" to explain denial of justification in such extreme cases.
Legal status of self-defense
In most jurisdictionJurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s, defense of self or of others is an affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
to criminal charges for an act of violence. It acts to provide complete justification.
"Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all. ... The defense of justification (NY 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 (see, People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534). ... In this regard, the current statutory defense reflects the common-law "right" of an individual to repel a threat to life or limb. Defense [was] deemed a natural, inalienable right at common law." People v. McManus, 67 N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986).
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, the owner or lawful possessor of property has a privilege to use any degree of non-deadly force necessary to protect his possession or recover his property, regardless of no physical threat to his person.
"'Property' is more than just the physical thing-the land, the bricks, the mortar-it is also the sum of all the rights and powers incident to ownership of the physical thing. [T]he right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value.'" Dickman v. Commissioner, 465 U.S. 330, 336 (1984).
"The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession." People v. Kane, 131 N.Y. 111 (142 N.Y. 366, 37 N.E. 104).
In Cross v. State, 370 P.2d 371 (Wyo 1962) the Court found that the Due Process of Law clause in the state constitution guaranteed "the inherent and inalienable right to protect property."
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 wasn't yet in enough danger to justify lethal force in the first place. Sometimes there is a duty to retreat
Duty to retreat
In the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the...
which makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense
Abuse defense
The abuse defense is a criminal law defense in which the defendant argues that a prior history of abuse justifies violent retaliation. While the term most often refers to instances of child abuse or sexual assault, it also refers more generally to any attempt by the defense to use a syndrome or...
), and in burglary
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
situations given the so-called castle exception
Castle Doctrine
A Castle Doctrine is an American legal doctrine arising from English common law that designates one's place of residence as a place in which one enjoys protection from illegal trespassing and violent attack...
(see: Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
) 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
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "and one's home is the safest refuge").
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 (sucker punch) 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.
New York Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest or in preventing an escape", provides:
"4. A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense [in his presence] and who in fact has committed such offense; and he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) Effect the arrest of a person who has committed Murder, manslaughter in the first degree, Robbery, forcible Rape or forcible sodomy and who is in immediate flight therefrom.
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 Supreme Court held that each of the Second and Fourteenth Amendments "protects 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. In Frank v. Maryland
Frank v. Maryland
Frank v. Maryland, 359 U.S. 360 , was United States Supreme Court interpreting the Fourth Amendment to the United States Constitution.Frank refused to allow the health inspectors into his home citing the Fourth Amendment...
, 359 U.S. 360 (1959) the Supreme Court recited the Rights of Englishmen, including the "Right to Resist" Unauthorized Deprivations, was incorporated in the Constitution:
"In 1761 the validity of the use of the Writs [of Assistance] was contested in the historic proceedings in Boston. James Otis attacked the Writ of Assistance because its use placed 'the liberty of every man in the hands of every petty officer.' [Otis argued: "This Writ is against the fundamental Principles of Law." ] His powerful argument so impressed itself first on his audience and later on the People of all the Colonies that President Adams was in retrospect moved to say that 'American Independence was then and there born.' ... [It was therefore recognized that] the broad constitutional proscription [against Unauthorized Deprivation in the Due Process of Law clauses, includes] the right to shut the door on officials of the state unless their entry is under proper authority of law. [AND] self-protection: the right to resist unauthorized [deprivations of Life, Liberty and Property]"
http://www.usscplus.com/online/index.asp?case=3590360
Defense of others
The rules are the same when force is used to protect another from danger. Generally, the defendant must have a reasonable belief that the third party is in a position where they would have the right of self defense. For example, a person who unknowingly chances upon two actors practicing a fight would be able to defend their restraint of the one that appeared to be the aggressor. Most courtCourt
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s have ruled that such a defense cannot be used to protect friends or family members who have engaged in an illegal fight. Likewise, one cannot use this to aid a criminal.
Definition in specific countries
- AustraliaSelf-defence (Australia)In the criminal law of Australia, self-defence may be a complete defence to criminal liability for causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder if the degree of force used was excessive...
- SwedenSelf-defense (Sweden)In Sweden, the law of self-defense allows a person attacked to excuse or justify a proportionate use of violence in defense of the person or property.-The law:...
- England and WalesSelf-defence in English lawSelf-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act...
- United StatesSelf-defense (United States)In the United States, the defense of self-defense allows a person to use reasonable force in his or her own defense or the defense of others ....
See also
- Castle DoctrineCastle DoctrineA Castle Doctrine is an American legal doctrine arising from English common law that designates one's place of residence as a place in which one enjoys protection from illegal trespassing and violent attack...
- Gun politicsGun politicsGun politics addresses safety issues and ideologies related to firearms through criminal and noncriminal use. Gun politics deals with rules, regulations, and restrictions on the use, ownership, and distribution of firearms.-National sovereignty:...
- Imperfect self-defenseImperfect self-defenseImperfect self-defense is a common law doctrine of criminal procedure recognized by some jurisdictions whereby a defendant may mitigate punishment or sentencing imposed for a crime involving the use of deadly force by claiming, as a partial affirmative defense, the honest but unreasonable belief...
- Justifiable homicideJustifiable homicideThe United States' concept of justifiable homicide in criminal law stands on the dividing line between an excuse, justification and an exculpation. It is different from other forms of homicide in that due to certain circumstances the homicide is justified as preventing greater harm to innocents...
- Ossian SweetOssian SweetOssian Sweet was an American physician. He is most notable for his self defense in 1925 of his newly-purchased home in a predominantly white neighborhood against a mob attempting to force him out of the neighborhood in Detroit, Michigan, and the subsequent acquittal by an all-white jury of murder...
- Son assault demesneSon assault demesneSon assault demesne, or "his own first assault," is a form of a plea to justify an assault and battery, by which the defendant asserts that the plaintiff committed an assault upon him, and the defendant merely defended himself...
External links
- UseofForce.us, an independent, in-depth breakdown of US self-defense legalities.
- Self-Defence and the Canadian Criminal Code, a look at reasonable force as it applies in Canadian lawLaw of CanadaThe Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
. - Canadian Association for Self Defense, a group dedicated to the promotion of self-defense in Canada.
- Canada Carry, a group dedicated to the use of a concealed firearm as a means of self-defense in Canada.
- Self Defense World Canada, dedicated to teaching self-defense skills.