Defenses Flashcards
Does a person have the right to use force to defend herself against the use of force by another? (Q) (Russo)
Yes. A person has the right to use force to defend herself against the imminent use of unlawful force by another person. However, the right of self-defense is limited in important ways, especially the use of deadly force.
What is the imminent use of unlawful force? (Q) (Russo)
The imminent use of unlawful force means that the force is actually occurring or is about to occur without delay. A belief that the unlawful force will be used at some non-immediate, future time is insufficient to justify defensive force. Unlawful force is force that is not privileged.
What degree of defensive force must a person use? (Q) (Russo)
A person must only use no more defensive force than is reasonably necessary to resist another’s use of unlawful force. Thus, a person must not use deadly force to protect against non-deadly force. A person who uses excessive defensive force may be deemed to be the aggressor, which negates the defense.
A patron at a bar tried to punch the bouncer, narrowly missing the bouncer’s face. The patron then immediately held up his open palms, stepped backward, and said, “Sorry, man, I shouldn’t have done that.” The enraged bouncer, however, tried to punch the patron. Reasonably perceiving himself to be in danger, the patron punched the bouncer, knocking the bouncer to the floor and inflicting a concussion. The patron was charged with felony assault.
May the patron lawfully invoke a claim of self-defense? (Q)
Yes. The patron may lawfully invoke a claim of self-defense. A person may use non-deadly force in self-defense if the person reasonably believes it necessary to avoid imminent bodily harm. The force must be proportionate to the threat. Although normally, an initial aggressor cannot claim self-defense, an initial aggressor can regain the right to self-defense by withdrawing from the confrontation and communicating that withdrawal to the other party.
Here, the patron was the initial aggressor, but he regained the right to self-defense after he withdrew and apologized. The bouncer then became the aggressor by attacking the patron and putting him in reasonable fear that he was about to suffer bodily harm. The patron’s punching the bouncer was a proportionate response to the bouncer’s attempted punch. Thus, the patron was entitled to react in self-defense as he did.
May a defendant lawfully use deadly force in self-defense? (Q) (Russo)
Yes. A defendant may lawfully use deadly force in self-defense if he actually and reasonably believes it necessary to protect himself from either imminent death or imminent serious bodily injury.
Does a person have a duty to retreat before using deadly defensive force? (Q) (Russo)
No. Most jurisdictions do not require a person to retreat before using deadly defensive force, even if the person can retreat safely, unless the person was the initial aggressor. A minority of jurisdictions hold otherwise. Even in these jurisdictions, the castle doctrine provides that a person has no duty to retreat while inside her home or curtilage unless the person was the initial aggressor. Some jurisdictions extend this doctrine to the workplace.
Can a person claim self-defense if he is the initial aggressor? (Q) (Russo)
No. Generally a person cannot claim self-defense if he is the initial aggressor. There are two exceptions to this rule. First, a person may claim self-defense if the person provoked an altercation using non-deadly force and was met by the use or imminent use of deadly force. Second, a person can claim self-defense if the person provoked an altercation and then withdrew from the altercation while providing reasonable notice to the other party of the withdrawal.
May a person use force in the defense of others? (Q)
Yes. A person may use force in the defense of others. The law governing the defense of others parallels the law of self-defense. Thus, a person may use no more force than is reasonably necessary to protect another if (1) the person actually and reasonably believes (2) that such force is necessary to protect another person from the imminent use of unlawful force. Additionally, a person may use deadly force only to prevent serious bodily injury or death. Most jurisdictions do not require any special relationship between the defender and the person he is seeking to protect.
What is the legal effect of a person reasonably, but mistakenly, believing that the use of force in defense of another person is necessary? (Q)
In most jurisdictions, under the reasonableness rule, a person is justified in defending another if a person reasonably, but mistakenly, believed that the use of force was necessary. A few states still follow the alter-ego rule, that provides that a person may use force to defend another only if the person being defended has the right to act in self-defense. Under the alter-ego rule, the defender will be criminally liable if she mistaken in her belief that the use of force is necessary.
What would someone be charged with if they complete an imperfect self-defense? (Russo)
Voluntary manslaughter.
What are the elements of self-defense? (Russo)
(1) Honest belief (Actual, Subjective)
(2) Objectively reasonable (Most jurisdictions) belief
(3) An imminent threat
(4) Necessitates the use of force (or deadly force, if threat is of death or serious bodily injury) to repel it and
(5) Safe retreat is not possible or legally required
Are you required to retreat when you are subject to a sudden, violent attack? (Russo)
No. One who is without fault is never obligated to retreat from a sudden, violent attack or to retreat when to do so would be unsafe, and in such circumstances, the presence of an avenue of retreat cannot be a factor in determining necessity. (People v. Riddle - Backyard Shooting)
For self-defense, what does the necessary belief require? (Q) (Russo)
The requirement of actual and reasonable belief entails both a subjective and an objective component. The defendant must personally believe that the person against whom he uses deadly force is about to kill or gravely wound him and that belief must be reasonable under the circumstances.
What is the duty to retreat? (Russo)
If the target of the attack can safely retreat from the attack and avoid the necessity of using lethal force, the target is legally required to do so.
What is the castle doctrine? (Russo)
Homeowner not required to retreat if necessity standard is met [exception] accepted by MPC. Some jurisdictions apply this to the workplace.
