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Self-defense and defense of others are defenses to a charge of criminal conduct in which the defendant concedes the transgression of a norm or statute against violence, for example, assault or homicide, but maintains that under the circumstances the use of force was either not wrongful ( justification) or is wrongful, but it would be unfair to impose punishment (excuse). Either as a justification or as an excuse, the defendant is completely exonerated. In contrast, ‘‘imperfect’’ or ‘‘incomplete’’ self-defense, where a significant element of the defense is absent, mitigates or reduces the charge, for example, from murder to manslaughter.
That one’s force is not aggressive but defensive in nature is a defense to criminal conduct in all fifty states and is recognized in nearly every jurisdiction in the world. The pervasiveness of this legal right has its root in a number of extralegal ideas. First, the use of protective force is considered a fundamental, inalienable right of natural law or morality. Second, the Old Testament demands, in the face of violence, that we take an ‘‘eye for an eye, a tooth for a tooth.’’ Third, human psychology suggests that using force in self-defense embodies the instinctual and overwhelming impulse toward self-preservation. As the great English legal scholar William Blackstone put it, killing in self-defense embodies ‘‘the primary law of nature’’ (vol. iii, p. 3). Based on this principle of self-preservation, the philosopher Thomas Hobbes, in his rationale for the defense of duress, provides a persuasive account for the illogic of refusing valid claims of self-defense:
If a man by the terrour of present death, be compelled to doe a fact against the Law, he is totally Excused; because no Law can oblige a man to abandon his own preservation. And supposing such a Law were obligatory; yet a man would reason thus, If I doe it not, I die presently; if I doe it, I die afterwards; therefore by doing it, there is time of life gained. (Leviathan, chap. 27 (1651))
In other words, faced with certain present death at the hands of a villainous assailant or possible subsequent death from the state’s executioner, the will to live inculcated in our human nature is so strong that it would be futile to criminalize self-defense. Though the inevitability and inalienability of self-defense is perhaps selfevident, and serves as a necessary adjunct to the other self-evident truths of the right to life and liberty, the right to self-defense is curiously not a constitutional right (Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994)).
The origin of self-defense in Anglo-America is believed to stem from the pollination by the Normans, subsequent to the Norman Conquest of England in 1066, of the Anglo-Saxon conception of the sanctity of life with more nuanced Continental ideas. Previously, any killing, even in self-defense, was culpable. Once the accused was found liable, regardless of blameworthiness, the remedy was either monetary compensation to, or personal vengeance wrought by, the victim’s family. Over time, the personal injury nature of a homicide became a public crime against the king, a breach of the king’s peace. Private vengeance and reparations gave way to public punishment and forfeiture of the accused’s land and possessions to the crown.
Gradually, English jurists began to wrestle with the issue of the relevance of the circumstances of a killing. The promulgation of the Statute of Gloucester in 1278 allowed defendants who killed by accident or in self-defense to apply to the king for a pardon. By the beginning of the fourteenth century, justifiable homicide preserving the king’s peace—the execution of a felon sentenced to death or one resisting capture—was distinguished from excusable homicide or se defendendo, for example, in self-defense. In 1532, King Henry VIII’s parliament enacted a statute that eliminated the forfeiture of property. In 1769, Blackstone explained that justifiable homicide could only be killings required by law that promoted the social good. Personal killings in self-defense could only be excused because they could not be absolutely free from guilt. In excusable homicide, the accused had to retreat to ‘‘the wall’’ before killing (except if he was in his ‘‘castle’’) but in justifiable homicide the accused need not retreat and could even pursue the felon.
Blackstone’s interpretation was imported into the New World and became quite influential, indeed it was often the only source of law. As the frontier expanded westward, however, sentiment grew that retreat before using force in the face of a wrongful assault was cowardly and unmanly and gradually the retreat requirement dissolved. (Cynthia Gillespie contends that this male perspective infuses present self-defense law to the detriment of women.) Even today, while eastern states generally retain some form of retreat requirement, most western states do not. Gradually, self-defense became justified even though it did not further the public good in Blackstone’s sense.
Various theories have been advanced, none of which are entirely satisfactory, to account for the law’s recognition of the right to use defensive force.
Under Blackstone’s view, or the social theory of self-defense, the rights of the defender are constrained by acknowledging the interests of society; self-defense is only legitimate when it promotes social welfare. For Blackstone, the use of force in the defense of others, apprehending felons, crime prevention, and punishing convicted criminals promoted interests beyond those of who was employing the force and was justifiable. In contrast, the use of force in self-defense only promoted the interests of the defender (not society’s interests) and was only excused. The basis for the excuse was that self-preservation is instinctual. The weakness of Blackstone’s theory is that it failed to see that a defender vindicating his interests against a wrongful aggressor might benefit society as well.
The causation theory suggests that but for the aggressor’s attack the victim would not have employed force and thus it is not the defender, but the aggressor who is responsible for the harm to the aggressor. Not being responsible, the defender’s force is excused. Under a character theory of excuse, it is the aggressor, and not the innocent defender, whose acts manifest a bad character. Thus only the aggressor should be held liable and the defender is excused. Explaining self-defense as merely an excuse is typically thought unsatisfactory because of the intuition that the nature of defensive force is not wrongful.
The private punishment theory justifies defensive force because it inflicts punishment on a deserving wrongdoer instead of, or in addition to, the state. The theory is reflected by the common sentiment heard on the street when a robber or rapist is killed by the victim in self-defense: ‘‘He got what he deserved.’’ The philosopher Robert Nozick partially develops the analogy between self-defense and punishment by suggesting that an aggressor’s punishment should be reduced by the amount of suffering inflicted upon the aggressor by the defender. Perhaps the original source of the theory may be Blackstone’s observation that if a petty thief is not executed by the state for his crime then lethal force is impermissible to prevent the theft. Analogizing Blackstone’s observation to self-defense, if a minor assault is not an offense serious enough to warrant the death penalty, then lethal force is impermissible in defense of the assault. Yet the analogy breaks down because permissible defensive force fails to correspond with an aggressor’s punishment by the state. For example, though lethal self-defense is permissible against a violent rape, the death penalty is a constitutionally disproportionate punishment for rape (Coker v. Georgia, 433 U.S. 584 (1977)).
A number of utilitarian-based arguments might be made to justify defensive force. In a deadly conflict in which one person will inevitably die it is better that the innocent defender live and the wrongful aggressor die. This is so because, first, an innocent person’s life is worth more than the aggressor’s; the aggressor’s death constitutes the lesser evil. But this argument violates the principle that everyone is of equal moral worth; no life is more valuable than another. Second, it is better that the aggressor be killed because of the general danger the aggressor poses to future victims. But in many cases of physical conflict it is difficult to ascertain which is the culpable party, or alternatively both parties may be partially at fault (Garrett Epps). Third, permitting the use of defensive force will serve to preserve life by deterring wrongful aggression (lawful resistance creating a disincentive for wrongful aggression) (Herbert Wechsler and Jerome Michael). But whether violence deters violence or only begets more violence is exceedingly controversial.
The moral forfeiture theory maintains that by threatening to violate another’s right to life or sphere of autonomy, the aggressor forfeits or loses the right to life or autonomy. Defensive force against the aggressor is permissible because it does not violate any right of the aggressor to be free from force. This is so because by the aggressor’s own attack, the aggressor has lost the right to life or autonomy. The theory has been extensively criticized because it would seem to justify disproportional, unnecessary, and retaliative force. That is, force would be justified against an aggressor who abandoned the attack, was retreating, or disabled, or who no longer posed a threat to the defender. The philosopher Judith Jarvis Thomson has, in part, rehabilitated the theory to avoid this criticism. The forfeiture of the right to life is made contingent on a present or imminent threat to violate another’s right to life; once the aggressor has ceased to be violating another’s right to life, the aggressor regains the right to life.
The theory of personal autonomy, championed by the philosophers Immanuel Kant, Georg Hegel, and the criminal theorist George Fletcher, emphasizes not the devaluation of the aggressor but the enhancement of the defender’s rights. The theory holds that wrongful aggression breaches the sphere of autonomy enjoyed by everyone as well as affronting the abstract concept of Right itself. Since Right must never yield to Wrong, the victim of wrongful aggression not only has the right but the duty to exercise defensive force. Or putting it in Locke’s terms, aggression breaches the social contract and returns both aggressor and defender to the state of nature establishing a state of war between the combatants. Since yielding to aggression enslaves the victim, the victim is entitled to use any and all necessary force. But in its absolutist conception of the defender’s rights, lethal defensive force must be employed if it is necessary to prevent even a minor assault. Critics argue that the theory goes too far in authorizing disproportional force.
Sanford Kadish’s right to resist aggression theory postulates that everyone has a right against the state for protection from wrongful aggression. The state licenses the right of self-defense to its citizens because of practical difficulties in providing round-the-clock protection. But because the use of defensive force is only licensed or derived from the state, the state can place reasonable limits on its use and impose, for example, necessity and proportionality requirements. Though avoiding the criticisms of the latter two theories, it succumbs to a different problem. Self-defense is generally regarded as an inalienable, moral right not merely a civic or political right.
The leading formulation of self-defense in the United States is contained in the Model Penal Code (MPC), which has influenced the criminal codes of over thirty-five states. Section 3.04 of the MPC is, in part, as follows:
(1) the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
In the sections that follow the variations between the MPC and state law, as to the principal elements of self-defense, are discussed.
American law does not require an actual threat of aggression to trigger the right to use force in self-defense, but does require a belief in the necessity of force. This has two ramifications. First, one who uses force against another without the belief that the other poses a threat, when in fact the other is a threat, is not eligible to be justified in self-defense. Second, and more importantly, a defender who mistakenly believes that another poses a threat and uses force against that threat is still eligible to be justified in self-defense. As to the latter case, at issue is just what sort of belief suffices, or alternatively what sort of mistake is acceptable.
The MPC appears to require merely a plain belief and thus allows any mistake. But section 3.09(2) provides that where the mistake is reckless or negligent, a defendant will not be eligible for the defense when charged with an offense in which recklessness or negligence suffices to establish culpability. For those offenses, only a reasonable belief or mistake will establish the defense. But if charged with an offense requiring a higher level of mens rea, even an unreasonable belief or mistake as to the necessity of using force will suffice.
The general approach of the common law and modern statutes is simply to allow the defense if the belief or mistake is reasonable. This is criticized from both sides. Glanville Williams argued for the standard of honest belief because otherwise a negligent or reckless mistake will be punished as an intentional offense. On the other hand, Fletcher and Paul Robinson maintain that even reasonable belief is insufficient; an actual threat is required.
To determine the reasonableness of a belief, the standard is whether a reasonable person in the defendant’s situation would believe the use of force necessary. But how much of the circumstances, experiences, and attributes of the defendant should be attributed to the reasonable person? If too much is included—subjectifying the standard to the extent it could become the unreasonable reasonable person standard—the standard becomes meaningless, but if not enough of the defendant’s situation is included, the standard may be unfair.
Consider two cases that struggled with this issue. Bernhard Goetz, dubbed the ‘‘subway vigilante,’’ shot four African American youths after some of them asked him for five dollars (People v. Goetz, 497 N.E.2d 41 (N.Y. 1986)). Claiming that their conduct was the prelude to an armed robbery, Goetz claimed that he acted in reasonable self-defense. In determining whether a reasonable person would have acted as Goetz did, should Goetz’s three prior muggings, the prevalence of crime in the New York City subway, and Goetz’s beliefs and attitudes about his claimed attackers’ race, apparel, sex, and age be included? If so, the standard risks degenerating to what a reasonable racist would have done in the situation. On the other hand, assume arguendo that Goetz’s views on race and crime were empirically justified; does that make his conduct more reasonable?
In another case, Wanrow, a short woman with a broken leg and using crutches, shot and killed in her home Wesler, a large, inebriated man (State v. Wanrow, 559 P.2d 548 (Wash. 1977)). Though not presently attacking her when she shot him, she claimed that he had startled her. Are Wanrow’s suspicions that Wesler had attempted to sexually molest her son, did molest her neighbor, and had been in a mental institution to be attributed to the reasonable person? Additionally, is the reasonable person a large, athletic man or a short, slight, woman on crutches?
What the defendant’s situation is meant to include is, according to the MPC, purposely ambiguous so as to leave the issue open to jurors and/or courts to decide. Although most courts have avoided the complete subjectivization of the standard, a considerable amount of the defendant’s situation is included. As the Goetz court explained, a reasonable person in the defendant’s situation may consider:
—–the physical movements of the potential assailant [,] . . . any relevant knowledge the defendant has about that person [and,]. . .the physical attributes of all persons involved, including the defendant. Furthermore, the defendant’s circumstances encompass any prior experiences he had which could provide a reasonable basis for the belief that another person’s intentions were to [attack] . . . him or that the use of deadly force was necessary under the circumstances. (Goetz, p. 52)
Though this standard leaves open many questions, the law will continue to grapple with the issue as it lurches toward a consensus.
That the force used must be necessary encompasses a number of requirements. First, force may not be used unless the situation requires that some force be used. If, without retreating, the threat may be safely prevented without the use of force, then force is unnecessary. Second, the amount of force used must be the minimally necessary force to thwart the attack. Third, the amount of necessary force used must be proportional in relation to the gravity of the harm threatened.
Necessary force and proportional force must be carefully distinguished. Force may be necessary but disproportional. For example, it may be the case that only lethal force will thwart a minor assault. Though necessary, lethal force to prevent a minor assault is disproportional. Force may also be proportional but unnecessary. Suppose a frail, old woman attempts to attack a martial arts master with a knife. Defending against a potentially lethal attack, the master’s use of lethal force is proportional. But it would not be the minimally necessary force if the master could safely grab the knife out of the woman’s hand.
There is some dispute as to the limitation of proportional force where to repel the aggression disproportional force is necessary. The law of self-defense must make a choice between an innocent victim suffering a comparatively minor harm from an aggressor’s attack because of the inability to repel the attack using only proportional force and an aggressor suffering comparatively greater harm from the defender’s use of disproportional force. While American law has chosen the former option, the moral forfeiture and personal autonomy theories, which dispense with the proportionality requirement, have chosen the latter. The argument is that if either an innocent victim or a wrongful aggressor must suffer an unjust harm, it is preferable that the aggressor sustain the harm from disproportional force. After all, the aggressor has created the situation and is responsible for the necessity of the innocent victim to use force. Furthermore, the aggressor has chosen the type of attack and the type of victim who, under the circumstances, is unable to thwart the attack without using disproportional force. As a result, it is the aggressor who should bear the burden of sustaining any unjust harm.
The limitation of proportional force is particularly problematic where there is a significant disparity in the physical prowess between the aggressor and the defender, especially where the aggressor is a large man and the defender is a slight woman. The large man may repeatedly attack the slight woman with substantial but nonlethal force, which the slight woman is unable to defend against without using lethal force. Increasingly, but not uniformly, the law has moved in the direction of relaxing the proportionality requirement in just such cases. In addition, the admission of battered woman syndrome evidence may make the defender’s use of disproportional force nonetheless reasonable and justified. The continued adherence to some form of the proportionality requirement may be best defended by the need to deter escalations of violence and the view that human life, even those of aggressors, should be preserved.
Deadly Force and The Duty to Retreat
Deadly force is eligible to be justified in self-defense against attacks risking death or serious bodily injury, forcible rape, and forcible kidnapping. The majority rule that deadly force may be employed without retreating is defended on the grounds that retreat is unmanly and thus unreasonable, Right should not yield to Wrong, and that it deters aggression. The minority rule that deadly force should not be used if the defender is aware of the ability to retreat in complete safety is justified by its placing a higher value on human life than an archaic sense of ‘‘manly’’ honor. Even under the minority rule requiring retreat, according to the ‘‘castle’’ exception, one need not retreat if one is attacked in one’s home, and in some states, one’s place of business. In most states adopting the retreat rule, one need not retreat if attacked in the home even if it is by a co-dweller.
An initiator of deadly aggression may regain the right to use deadly force only after completely withdrawing from the conflict. Courts are split on whether the initiator of nondeadly aggression immediately regains the right to deadly self-defense force against a deadly and disproportional response or whether the initiator must first retreat.
The MPC section 3.04(2) (b) adopts the minority rule requiring retreat, if it can be done safely, before resort to deadly force with the exception of when the defender is at work or at home. If attacked at home by a co-dweller, the defender need not retreat; if attacked at work by a coworker, the defender must retreat. In another exception, the defender need not continue to retreat once the defender has already retreated and the aggressor has pursued the defender. One who initiates a deadly conflict may not use deadly force without first completely withdrawing from the conflict. One who initiates a nondeadly conflict and faces a response of deadly force may use deadly force under the same conditions as an ordinary defender.
Force in self-defense may only be used against a threat of unlawful force. Conduct that satisfies the definition of a criminal offense or tort is unlawful. But if such conduct is justified it is lawful; if the conduct is only excused it is unlawful. The definition of unlawful force in MPC section 3.11(1) is essentially the same as the common law except for also including unlawful confinement even if it does not involve any physical force.
Self-defense force cannot be justified in self-defense then against a police officer using lawful force to make a lawful arrest. If the police officer uses excessive and thus unlawful force, nondeadly self-defense force against it is justified. At common law, there was generally a right to resist an illegal arrest due to lack of probable cause, absence of warrant, or an improperly issued warrant. However, some states have now eliminated the right to resist such technically illegal arrests (e.g., Cal. Pen. Code 834a (1985)). The MPC similarly disallows self-defense against technically illegal arrests but does allow self-defense against excessive force arrests (section 3.04(2)(a)(i)). The trend toward eliminating the right to resist technically illegal arrests may be due to the amelioration of the harsh consequences following an arrest and the increased seriousness of resisting armed officers.
Self-defense is crucially a matter of timing. If the defensive force is used too soon in relation to the fruition of the threatened aggression, the force is a preemptive attack and unjustified. If used too late, that is, after the aggression is complete, it is retaliation and is also unjustified. The general rule is that defensive force can only be used against aggression that is imminent or about to occur (State v. Norman, 378 S.E.2d 8 (N.C. 1989)). The rationale of the imminence standard is that it ensures that defensive force is used neither too late nor too soon; defensive force should be used only when absolutely necessary. The rule has been heavily criticized for barring self-defense in situations where defensive force is necessary to prevent a certain, but distant (in time), attack. Supporters of the imminence rule rejoin that it insures that defensive force is used only against certain attacks and not speculative ones. But the imminence rule is overinclusive: not all imminent attacks will come to pass, even imminent attacks may be abandoned or frustrated. Richard Rosen argues that the real principle involved is that defensive force must be necessary (380). Imminence is a good proxy for the principle, but where the proxy and the principle diverge, the principle should control.
In spousal abuse cases, the imminence standard is particularly problematic. When a powerful man’s attack is imminent, a slight woman’s defensive response may be ineffective. However, force used at a point when the attack is not quite imminent but is nonetheless fairly certain might be effective. Joshua Dressler argues that one difficulty with relaxing the imminence requirement, for example, allowing a battered spouse to use force used against the battering, but sleeping spouse, is that it might trigger a right of self-defense in the battering spouse.
Under the MPC, force may be used not merely when the threat of aggression is imminent but when defensive force is ‘‘immediately necessary . . . on the present occasion.’’ Though allowing force to be used sooner than the imminence standard, it may still not suffice to aid battered women or defenders in other situations. For example, suppose you are wrongfully being held captive and are told that you will be killed in ten days. Your best chance to escape is when you are brought food each day by your captor. On day five your captor lets down his guard and you kill him and escape (Kadish, p. 832). Though your force is not imminent or even immediately necessary, as under the MPC, it certainly seems necessary and arguably should be justifiable self-defense.
Risk to Innocent Bystanders
If a defender, who is justified in using force against an attacker, instead (or also) accidentally harms (or risks harm to) an innocent bystander, the defender does not lose the justification for harming the aggressor. Is the defender’s harming the bystander also justified? Generally, the defendant’s harm to the innocent bystander is also justified (Smith v. State, 419 S.E.2d 74 (Ga. Ct. App. 1992)). But the defendant may not be justified if he acts carelessly or endangers a large number of bystanders. Under the MPC, recklessly or negligently harming an innocent bystander would not be a justification for an offense in which recklessness or negligence suffices to establish culpability (section 3.09(3)).
The issue becomes more difficult where it is unclear whether the innocent is a bystander or part of the threat. A famous hypothetical supposes that an aggressor is driving a tank, with a baby strapped to the front, at you intending to run over and kill you. Your only defense is to fire an anti-tank gun which you know will kill both the aggressor and the baby (Nozick). While the moral forfeiture theory would not find your killing the baby justifiable because the baby has not forfeited its rights by any culpable wrongdoing, the personal autonomy theory might justify the killing of the baby so as to prevent Wrong triumphing over Right. A utilitarian theory might also find that the killing of two to save one is not justified.
Defense of Others
At early common law, the right to defend others was only extended to family members and employees. In addition, an intervenor’s force was only justified if the third party being defended would in fact also have been justified in self-defense; the intervenor was put in the shoes of the party being defended. These limitations on the right to defend others—the act-at-peril rule—has now become the minority rule. The majority rule, largely through the influence of the MPC, is that an intervenor may come to the aid of any person if the intervenor reasonably believes that such force is necessary to defend a third party from unlawful force.
The limitation on who may be aided may be defended by the greater chance of error when defending another as compared to defending oneself. But where an intervenor was defending a family member or employee, rather than a stranger, this risk of error was reduced. Furthermore, the efficacy of a rule prohibiting one from defending a family member would likely have little deterrent effect. The act-at-peril rule also reflects the concern that, due to the enhanced risk of error in defense of others, the preservation of life would be better promoted by restricting defense of others (Wechsler and Michael). An intervenor mistakenly coming to the aid of a criminal being lawfully arrested by undercover officers may have been a particular concern (People v. Young, 183 N.E.2d 319 (N.Y. 1962)).
The modern majority rule views these concerns as being outweighed by the importance of citizens not being deterred from coming to the aid of others in need. Furthermore, punishing intervenors for the use of force despite the reasonable appearance that such force was necessary might entail punishing nonblameworthy conduct. The MPC largely applies the majority rule (section 3.05).
The debate over which limitations should be placed on the right to self-defense arises from the delicate balancing of interests of the aggressor and the defender. The disagreement is testament to the quandary self-defense represents to the belief in the sanctity of life and the suppression of violence: The goal is to craft a formulation of self-defense that maximally protects the autonomy of innocent victims while not authorizing such excessive violence as to turn the aggressor into another victim. Another dimension to this delicate balance is the relationship between the defender and the state. Putting it in the terms of Locke’s and Hobbes’s social contract theory, the law of self-defense ideally should not so overly restrict the defender so as to provide less protection than would be enjoyed in the state of nature. Nor should it be so uninhibited so as to usurp the virtual monopoly power over the use of force that the defender has ceded to the state to better the dismal condition of mankind in the state of nature. The proper balance lies somewhere between the vengeance of the Old Testament and the pacifism of the New Testament.
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