Affirmative Defense and Privilage

Question 1

D may use force proportional to interest being protected and injury or harm threatened.
Factors to Consider:
Differences in size/strength
Character and reputation of attacker
Belligerence/Overt Act by attacker (more than mere words)
Threat of serious harm
Impossibility of retreat

Answer 1

Defense of Self

Question 2

May only be used
To protect against serious bodily injury; or
Where statute permits such force

Answer 2

Use of Deadly Force

Question 3

No duty to retreat rather than use non-deadly force
Duty to retreat rather than use deadly force unless
At home
At place of business
Statute otherwise provides

Answer 3

Duty to Retreat

Question 4

P who provokes attack without justification may not rely on self-defense except:
Where confronted with excessive force in response
Where communicates intent to cease attack

Answer 4

Unlawful Provocation/Abandonment

Question 5

D permitted to assert self-defense even if mistaken as long as mistake is reasonable.

Answer 5

Mistake

Question 6

ictim’s may not rely on self-defense to get even

Answer 6

Retaliation

Question 7

Generally, self-defense may be invoked only when harm appears imminent. But see Battered Spouse Syndrome.

Answer 7

Imminence:

Question 8

Requires consideration of same factors as Defense of Self plus a reasonable belief that battery/assault was about to be committed by D on a third party and that third party could invoke self-defense
Mistake. Defense also applicable where a reasonable, but entirely mistaken belief

Answer 8

Defense of Others

Question 9

Generally may use reasonable force to protect one’s personal property.
Use of force that will take human life or inflict great bodily injury is not permitted unless conduct threatens persons as well as property
May be governed by statute
Mistake:
A mistake as to the degree of force necessary does not destroy privilege
Mistake as to P’s rights to the property may destroy the privilege

Answer 9

Defense of Property

Question 10

If P takes personal property by force, duress, or fraud, then D may use reasonable force to recapture property if
A demand for return precedes use of force
Recapture occurs in “hot pursuit”
Recapture is from P or third party having knowledge that property was wrongfully obtained
Mistake: D bears risk of mistake as to P’s right to take property

Answer 10

Recapture of Chattel

Question 11

One who believes another has taken property from his premises or has failed to make payment for property purchased may detain such person for a reasonable period of time to investigate
May use reasonable force to detain but not for purposes of coercion of payment or confession as to theft

Answer 11

Detention for Investigation

Question 12

D has right to use reasonable force to prevent or terminate P’s intrusion upon D’s land defense as long as
D reasonably believes intrusion may only be terminated by force
D first requests that D leave the premises unless such request would be useless
P’s purpose on the premises is not privileged

Answer 12

Defense of Land

Question 13

In order to avert a disaster affecting public, D may interfere with P’s right of exclusive possession
Necessity must be imminent, extreme
Generally, public entrant is not liable for damages reasonable under the circumstances unless separate statute mandates payment
Available to both public officials and private citizens

Answer 13

Public Necessity

Question 14

In order to protect D’s person or property, D may interfere with P’s exclusive right of possession of land or property.
BUT, D will be liable for any actual damages suffered by P.
BUT, P bears risk of mistake if as to privilege.

Answer 14

Private Necessity

Question 15

Generally as a matter of public policy, P’s unlawful conduct will be a complete bar to recovery
Conduct must be prohibited and not merely regulated
Requires a knowing and intentional participation in a criminal act

Answer 15

Unlawful Conduct