Other Defenses Self & Others

Question 0

Retreat logic

Answer 0

As to retreat, remember the logic behind the rule to help you remember the rule: When it comes to deadly force, we want people to retreat, if possible. But the one time that is not true is when the person is in his or her own home. But in, say, a domestic violence situation, when the home is the home of both the plaintiff and the defendant, then again we want the person to retreat if possible.

Question 1

Self def w/deadly force

Answer 1

1) as self-defense, supra;
AND
(2) one of the following (per reasonable belief):
(a) safe escape (a.k.a. retreat) is not possible;
OR
(b) safe escape (a.k.a. retreat) is possible, but defendant is in own home that is not also the attacker’s home.

Significant minority variation #1: Eliminate (2)(b).
Significant minority variation #2: Eliminate all of (2).
Note that “deadly” always means threatening death OR serious bodily harm.

Question 2

Variations

The minority rules vary the thinking on retreat.

Answer 2

In variation #1, the courts say, you should always have to retreat, no matter where you are, unless it’s just not possible. In variation #2, the courts say you should never have to retreat if someone’s trying to kill you; you should be allowed to stand your ground and defend yourself. Thus these variations strike out in opposite directions, more and less permissive of self-defense with deadly force.

Question 3

Defense of others

Answer 3

1) as self-defense, supra, but on behalf of another;
AND
(2) reasonable belief in necessity to avert harm must be factually correct.

Significant minority variation: Eliminate limitation (2).

Question 4

Factual accuracy

Answer 4

Note that factual accuracy stands apart from objective reasonableness and subjective belief as yet a third standard. The difference becomes significant especially in cases of mistake of fact (a concept you will explore more in criminal law).

Suppose you see an orc attacking a wizard. You leap to the wizard’s defense. As it turns out, you have stumbled upon two actors from a Renaissance festival. The fight you witnessed was just practice for a show. You subjectively believed that the wizard was in physical danger, and let’s say furthermore that a jury has determined that a reasonable person too would have misapprehended the situation and believed that the wizard was in physical danger. (Orcs are very scary looking.) Still, in a majority-rule jurisdiction applying element (2), your affirmative defense of “defense of other” would fail. So much for good intentions.

Question 5

Defense of personal property

Answer 5

1) def. is exerting force to dispossess pl. of def.’s personal property;
(2) request for return of property has been made and failed, or would be useless;
(3) force is not deadly;
AND
(4) force is employed only to the extent necessary.
Once again, reasonablebelief controls all elements.

Question 6

Recovery of personal property

Answer 6

1)as defense of property, supra;
AND
(2) def. is engaged in immediate or continuing fresh pursuit.
Actions to defend or recover the property of another are, like defense of others, permitted on the same terms as the person who owns the property would be permitted to exercise; however, some jurisdictions impose limitations, such as that the necessity be factually correct, as in case of defense of others; or that the defender have a familial or duty-to-protect relationship with the person whose property is defended.