For example: “A” is threatened by “B” a mafia thug, and therefore A feels there is a danger to his life and in order to save himself “A” when confronted by B shoots B. A can take the defense of self-defense in a court of law. This is a common legal defense used when someone is accused of a murder charge or any other violent crime. Each state has its own version of self-defense laws and in this article, we will be addressing the legal concepts of self-defense law in the USA.
Courts struggle with determining an appropriate level of force or violence when a person defends themselves and has reviewed of what such appropriate levels of violence, courts often consider the following:[1]
- What if the victim of a violent crime provoked the attack?
- Did the perpetrator threaten the use of deadly force or non-deadly force?
- Was the victim obligated to retreat from the violence or threat of imminent force?
- Did the victim have a reasonable belief or reasonable fear that the use of force against them was imminent?
- Did the victim use reasonable force in response to the attack?
- What protection exists for victims who feel, on reasonable grounds, that a threat exists when it does not?
“Self-defense law requires the response to match the threat level in question. In other words, a person can only use as much force as required to remove the threat. If the threat involves deadly force, the person defending themselves can use deadly force to counteract the threat. If the threat involves only minor force and the person claiming self-defense uses force that could cause grievous bodily harm or death, their claim of self-defense will fail.”[2]
In the U.S., the general rule is that “a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another”.[3] In cases involving non-deadly force, this means that the person must reasonably believe that their use of force was necessary to prevent imminent, unlawful physical harm.[4] When the use of deadly force is involved in a self-defense claim, the person must also reasonably believe that their use of deadly force is immediately necessary to prevent the other’s infliction of great bodily harm or death.[5]
In John Bad Elk v. United States,[6] the fact of the case reads as, “Three policemen in South Dakota attempted, under verbal orders, to arrest another policeman for an alleged violation of law when no charge had been formally made against him and no warrant had issued for his arrest. Those attempting to make the arrest carried arms, and when he refused to go, they tried to oblige him to do so by force. He fired and killed one of them. He was arrested, tried for murder, and convicted. The court charged the jury:
“The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him. It is claimed on the part of the defendant that he made no resistance, and he was willing to go with the officer in the morning.”
Held, that the court clearly erred in charging that the policemen had the right to arrest the plaintiff in error and to use such force as was necessary to accomplish the arrest, and that the plaintiff in error had no right to resist it. At common law, if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if, in the course of that resistance, the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter.”[7]
In some jurisdictions, there is an imperfect self-defense rule, where an individual who mistakenly believes that he was justified in using deadly force in self-defense, but is not legally justified, may have a murder conviction reduced to a manslaughter conviction instead.[8] A majority of U.S. jurisdictions do not follow the common law rule that a person must retreat prior to using deadly force,[9] but rather have rejected this theory via statutory law in what are known as “stand your ground laws”, which explicitly remove the duty to retreat.[10]
The English common law has long recognized the right of an individual to resist with reasonable force an attempt of a police officer to make an unlawful arrest.[11] This offered a complete defense if nonlethal force was used,[12] and would reduce a murder charge to manslaughter if death ensued.[13] In Hopkin Huggett’s case,[14] English officials illegally seized a man to serve in the King’s army.[15] Huggett and others observed this and fought to free the man.[16] In the course of the fight one of the King’s men, John Barry, was killed and Huggett was put on trial for murder.[17] The English court ruled that since the officer was making an unlawful arrest, the most that could be charged was manslaughter.[18] In 1709, in Queen v. Tooley,[19] the English court again found that when resisting an unlawful arrest, the death of an individual would result in a manslaughter charge instead of a murder charge.[20] When the United States separated from England, the common law was adopted by the new American courts and the right to resist unlawful arrest was clearly recognized.[21]
“The common law principle of “castle doctrine” says that individuals have the right to use reasonable force, including deadly force, to protect themselves against an intruder in their home. This principle has been codified and expanded by state legislatures. In the 1980s, a handful of state laws (nicknamed “make my day” laws) addressed immunity from prosecution in use of deadly force against another who unlawfully and forcibly enters a person’s residence. In 2005, Florida passed a law related to castle doctrine, expanding on that premise with “stand your ground” language related to self-defense and duty to retreat. Florida’s law states “a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”[22]
Certain states have what we call the “Duty to retreat” law. This law states that, an individual should at least refrain from using force by either running away or escaping a dangerous situation. If one is physically incapable of escaping, then self-defense can be applied. States that apply the “duty to retreat” principle are as follows:[23]
- Arkansas
- Connecticut
- Delaware
- Hawaii
- Iowa
- Maine
- Maryland
- Massachusetts
- Missouri
- Minnesota
- Nebraska
- New Jersey
- New York
- North Dakota
- Rhode Island
- Wisconsin
- Wyoming
In no way shall this article be considered as legal advice and merely serves as basic information on the topic. We advise our readers to contact the respective criminal law attorney in order to learn more about self-defense laws in your state.
[1] Self-Defense Law: Overview - FindLaw [2] Ibid. [3] George E. Dix, Gilbert Law Summaries: Criminal Law xxxiii (18th ed. 2010) (original emphasis); see generally David C. Brody & James R. Acker, Criminal Law 130 (2014). [4] Brody, at 130; Dix, at xxiii. [5] Brody, at 137; Dix, at xxiii; Raneta Lawson Mack, A Layperson's Guide to Criminal Law 141 (1999). [6] 177 U.S. 529 (1900). [7] John Bad Elk v. United States :: 177 U.S. 529 (1900) :: Justia US Supreme Court Center [8] Dix, at xxiv; Mack, at 142-43. [9] Brody, at 139; Dix, at 135. [10] Laura L. Finley, Crime and punishment in America: an encyclopedia of trends and controversies in the justice system 528 (2017). [11] Matthew Lippman, Contemporary Criminal Law: Concepts, Cases, and Controversies 250 (2009); Darrell A.H. Miller, Retail Rebellion and the Second Amendment 86 Ind. L.J. 939, 948 (2011). [12] Ibid, Lippman at 250. [13] Ibid 11, Miller at 948. [14] Hopkin Huggett's case (1666) 84 Eng. Rep. 1082 (K.B.). [15] Joseph Henry Beale, A Selection of Cases and Other Authorities Upon Criminal Law 682, 682-84 (2d ed. 1907); Miller at 949. [16] Ibid Beale at 682-84; Miller at 949. [17] Ibid. [18] Beale at 682-84; Miller at 948. [19] Queen v. Tooley (1709) 92 Eng. Rep. 349 (K.B.). [20] Miller at 950. [21] Lippman at 250; Wayne R. LaFave, 1 Search & Seizure § 1.13(a) (5th ed.). [22] Self Defense and “Stand Your Ground” (ncsl.org) [23] Self-Defense Laws by State (scharfflawfirm.com)
