Self-defense

Self defense and defense of others (in the United States called alter ego defense or defense of a third person) convert what would otherwise have been tortious or criminal acts into excused (sometimes termed justified) acts when committed for the purpose of protecting oneself or another person. This necessarily includes the use of violence and, sometimes, deadly force.

Theory

The early theories make no distinction between defense 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[1]. 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 men 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 man's highest necessity. In the Two Treatises of Government, John Locke asserts the reason why an owner would give up his or her 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.

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. 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.

Legal status of self defense

In most jurisdictions, when the defense succeeds, it operates as a complete justification when the degree of violence used is comparable or proportionate to the threat faced, so deadly force should only be used in situations of "extreme" danger. The defense would fail if a defendant deliberately killed a petty thief who did not appear to be a physical threat. 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 each man’s home his safest refuge”).

In some countries, 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.

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 he or she would have the right of self defense. For example, a person who unknowingly chances upon two actors practising a fight would be able to defend his restraint of the one that appeared to be the aggressor. Most courts 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.

Defense of property

The defense of property is a possible justification used by defendants who argue that they should not be held liable for the loss and injury they have caused because they were acting to protect their property. Courts have generally ruled that the use of force may be acceptable, but that "deadly force" is generally not acceptable in defending property, although it may be acceptable in self-defense or, in some countries, the defense of one's home. As deadly force is not allowed, the setting of booby-traps and the use of dangerous guard dogs is also either not allowed or only allowed on strict terms such as the prominent dispay of warning notices.

National self-defense

In politics, the concept of national or mutual self-defense to counter a war of aggression refers to a defensive war organised by the state, and is one possible criterion in the Just War theory.

Self-defense in the United States

In the United States, the defense of self-defense allows a person attacked to use reasonable force in their own defense and the defense of others.

While the statutes defining the legitimate use of force in defense of a person vary from state to state, the general rule makes an important distinction between the use of physical force and deadly physical force. A person may use physical force to prevent imminent physical injury, however a person may not use deadly physical force unless that person is in reasonable fear of serious physical injury or death. Most statutes also include a duty to retreat (notable exceptions include Louisiana and Florida: see stand-your-ground law), wherein deadly physical force may only be used if the person acting in self defense is unable to safely retreat. A person is generally not obligated to retreat if in one's own home (for example, a person doesn't have to retreat from the living room to the kitchen, then to the bedroom, then to the bathroom) in what has come to be called the "castle exception".

Self-defense in the United Kingdom

In English criminal law, the defence of self-defence provides for the right of people to act in a manner that would be otherwise unlawful in order to preserve the physical integrity of themselves or others or to prevent any crime. For the theoretical introduction, see the theory of self-defence.

Discussion

Common law

Self-defence in English law is a complete defence to all levels of assault and cannot be used to mitigate liability, say, from murder to manslaughter where a soldier or police officer acting in the course of his duty uses a greater degree of force than necessary for self-defence (compare the situation in some of the Australian states in Self-defence). Hence, self-defence is distinguishable from provocation which only applies to mitigate what would otherwise have been murder to manslaughter, i.e. it is not a complete defence. Self-defence is therefore interpreted in a relatively conservative way to avoid creating too generous a standard of justification. The more forgiving a defence, the greater the incentive for a cynical defendant to exploit it when planning the use of violence or in explaining matters after the event. Thus, although the jury in self-defence cases are entitled to take into account the physical characteristics of the defendant, that evidence has little probative value in deciding whether excessive force was actually used. The general common law principle is stated in Beckford v R (1988) 1 AC 130:

A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property.

Reasonable Force

In R v Lindsay (2005) AER (D) 349 the defendant who picked up a sword in self-defence when attacked in his home by three masked intruders armed with loaded handguns, killed one of them by slashing him repeatedly with that sword. The prosecution case was that, although he had initially acted in self defence, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder. In fact, the defendant was himself a low-level cannabis dealer who kept the sword available to defend himself against other drug dealers. The Court of Appeal confirmed an eight-year term of imprisonment. In a non-criminal context, it would not be expected that ordinary householders who 'go too far' when defending themselves against armed intruders would receive such a long sentence.

Law enforcement by police officers

The use of force to prevent crime including crimes against property should be considered justifiable because of the utility to society, i.e. where a police officer uses reasonable force to restrain or arrest a criminal or suspect, this bring the greatest good to the largest number of people. But, where the officers make mistakes, the law can be unpredictable.

Law enforcement by soldiers

Since the "war on terrorism" began in 2001, the U.K. has seen a substantial increase in the use of armed police officers (and, sometimes, specialist counter-terrorism units including military personnel: see Metropolitan Police [2]). The issue of the extent to which soldiers may be allowed to shoot a suspect in defence of themselves and others has therefore become more relevant to English law, although it has always been highly relevant given the role of the military in the policing of Northern Ireland. In AG for Northern Ireland's Reference (No 1 of 1975) (1977) AC 105, a soldier on patrol in Northern Ireland shot and killed an unarmed man, who ran away when challenged. The trial judge held that the prosecution had failed to prove that the soldier intended to kill or cause serious bodily harm, and that the homicide was justifiable under s3 Criminal Law Act (Northern Ireland) 1967 (identical wording to the English section). The Lords decided that the Judge's ruling was purely one of fact, and, therefore, declined to answer the legal question of justification.

Defence of property

For the full page, see defence of property

Reform

The Law Commission Report on Partial Defences to Murder (2004) Part 4 (pp78/86) rejects the notion of creating a mitigatory defence to cover the use of excessive force in self-defence but accepts that the "all or nothing" effect can produce unsatisfactory results in the case of murder. For example, a battered woman or abused child using excessive force because he or she is physically at a disadvantage and not under imminent attack, would be denied a defence. Further, an occupier not being sure whether the proposed use of violence to defend his property against immediate invasion is reasonable, may feel forced to do nothing. It was always possible that the same set of facts could be interpreted as either self-defence or provocation where there was a loss of control resulting in death. Thus, the Commission recommends a redefinition of provocation to cover situations where a person acts lethally out of fear. This reflects the present view of psychiatrsts that most people act in violent situations with a combination of fear and anger in their minds, and to separate the two emotions is not legally constructive.

Self-defense in Sweden

In Sweden, the law of self-defence allows a person attacked to excuse or justify a proportionate use of violence in defence of the person or property.

The law

Chapter 24 of the Swedish criminal code states various conditions for which a person will not be sentenced in court for committing an otherwise criminal act. Self defense is considered grounds for non-conviction if the accused acted in a situation of peril and acted in a manner that is not "blatantly unjustifiable" in relation to that which is defended.

A situation of peril is stated to exist if:

1. a person is subjected to, or is in imminent danger of being subjected to, a criminal attack against property or person, or
2. a person through threats, force or violence is prevented from taking back stolen property found on criminals "red handed", or
3. an intruder attempts to enter a room, house, estate or ship, or
4. another person refuses to leave a residence after being told to.

The interpretation of what is to be considered not "blatantly unjustifiable" is popularly expressed in Sweden as "that force which is required by the peril". In other words, the defending party may do whatever it takes so long as no alternative, less severe options are available. For example, if the defending party can flee a dangerous situation instead of engaging in a fight (duty to retreat). It should be noted that the expression "blatantly unjustifiable" allows fairly generous tolerance towards the defending party.

However, the defending party must also consider that which is defended and what injury is inflicted upon the attacker. If that which is defended is insignificant in comparison to the injuries to the attacker, the court may reject the claim that person acted in self defense since the damage done to the attacker is "blatantly unjustifiable". Loss of life or permanent bodily injury rarely justifies self defense unless the defending party was in danger of being subjected to the same.

For example, if the only way of stopping a criminal from escaping with stolen property would be by killing him, then it would not be justifiable to do so. This is because that which is defended (property) is not as valuable as a human life and therefore the action of killing the criminal is not justifiable.

Subjective peril

Swedish legal custom in regards to self defense states that peril is subjective. This means that the peril is measured from what the defending party perceived as peril and not the actual peril.

For example, if a person were to threaten someone with an unloaded gun (not a lethal threat), the defending party would not be convicted if defending themself as if the gun were loaded (a lethal threat). This is because the defending party may perceive the gun as loaded and thus lethal.

Excess

A person who commits acts which are "blatantly unjustifiable" while in peril may also escape conviction if the situation were such that the person "could not be expected to maintain control of himself". For instance, such a situation might be if the defending party were in a state of great fear or severe rage because of the peril.

Defense of others

The Swedish criminal code states that anyone who assists a defending party in peril shall have the same rights as the defending party.

Self-defense in Australia

In the criminal law of Australia self-defence may be a complete defence to criminal liability for causing injury 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. For the general theory, see the theory of self-defence.

Self-defence

In the South Australian Court of Criminal Appeal in R v Howe (1958) SASR 95, Mason J formulated six propositions on the law of self-defence which were accepted as a model direction on self-defence in murder trials. Thus, a full acquittal was achieved if the jury found that the accused had reasonably believed that he or she was being threatened with death or serious bodily harm and, if so, that the force used was reasonably proportionate to the perceived danger.

References

ISBN links support NWE through referral fees

• Carpenter, Of the Enemy Within, The Castle Doctrine, and Self-Defense, (2003) Vol. 86, No. 4 Marquette Law Review, 653.
• Sir Edward Coke, The First Part of the Institutes of the Laws of England, or, A Commentary on Littleton (London, 1628, ed. F. Hargrave and C. Butler, 19th ed., London, 1832)
• Dressler, Joshua, New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking, (1984) 32 UCLA L. Rev. 61.
• Fletcher, George P. (1990) Crime of Self-Defense: Bernhard Goetz and the Law on Trial, Chicago: University of Chicago Press, ISBN 0226253341.
• Fletcher, George P. (2000) Rethinking Criminal Law, Oxford: Oxford University Press, ISBN 0195136950.
• Getman & Marshall, The Continuing Assault on the Right to Strike, (2001) Vol. 79 Texas Law Review, 703.
• Green, Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Property, (1999) University of Illinois Law Review, 1.
• McCoy, The Homosexual-Advance Defense and Hate Crimes Statutes:Their Interaction and Conflict, (2001) Vol. 22 Cardozo Law Review, 629.
• Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, (1991) Vol. 140 University of Pennsylvania Law Review, 79.
• Nourse, Self-Defense and Subjectivity, (2001) Vol. 68 University of Chicago Law Review, 1235.
• Schopp, Robert F. (1998) Justification Defenses and Just Convictions, Cambridge: Cambridge University Press, ISBN 0521622115.
• Segev, Fairness, Responsibility and Self-Defense, (2005) Vol. 45, No. 2 Santa Clara Law Review, 383.

The Law Commission Partial Defences to Murder is available at [3]

Texas Penal Code. Chapter 9. Justification Excluding Criminal Responsibility § 9.31/§ 9.44 [4]

External Links

• UseofForce.us — an independent, in-depth breakdown of US self-defense legalities
• [5]
• An article about the mindset of self defense, titled "The psychology of self defense and the force continuum": http://www.sightm1911.com/lib/ccw/continuum.htm

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