Self-Defense

[Gfactor]

How does the legal concept of self-defense work?

Great report Bricker.

[Elendil_s_Heir]

Kudos indeed… despite all that icky Michigan law.

[cmkeller]

Is it bad that when I saw that one of the footnotes was “People vs Riddle” my first thought was “Yes, Harry Potter killed Voldemort in self-defense”?

[Glassy]

Very clear and easy-to understand report.

I have a further question about self-defense, if I may.

Imagine if, not in my home, my friend is attacked and I have a reasonable belief that my friend will be killed. (For instance, we are walking in the park and someone leaps out of the bushes and attacks my friend.)

Can I use deadly force to defend another person? (I understand that this probably varies from state to state; I’m in Oregon, FWIW.)

[Gfactor]

@Glassy

Can I use deadly force to defend another person? (I understand that this probably varies from state to state; I’m in Oregon, FWIW.)

Typically you can under the same circumstances

1087001.pdf

12.1-05-04. Defense of others. A person is justified in using force upon another person
in order to defend anyone else if:

1. The person defended would be justified in defending himself; and
2. The person coming to the defense has not, by provocation or otherwise, forfeited the
   right of self-defense.

http://www.legis.nd.gov/cencode/t121c05.pdf

[Loach]

Thanks Bricker. I’ve been involved in several threads where the issue comes up. You answered it very nicely.

[TokyoBayer]

Great report!

Quite a while ago, there was a case in Utah which involved a person shooting a policeman who was enforcing a “no knock” warrant on what they considered a suspected drug dealer. So, the police bust into the house and the man shot one of the cops.

Utah law allows use of deadly force to defend one’s home, and the defense claimed this was self-defense. The prosecution claimed murder, of course.

Unfortunately, I moved to Japan and never heard how this finished, but would this defense work in this case?

[Apollyon]

@Gfactor

Typically you can under the same circumstances

And an additional twist on Glassy’s question: is the test / threshold for “imminent danger of death or great bodily harm” fixed, or is it conditional, based on who is being attacked?

For example, if a normal adult attacked a large man with fists alone, the danger of death or grievous harm would appear to be lower than if the same adult attacked a baby.

If I was coming to the defence of the baby am I justified in using deadly force against an attacker, where if they were attacking me instead it would not meet the requirements?

{and nice clear Staff Report Bricker}

[Gfactor]

[QUOTE=TokyoPlayer
]
Quite a while ago, there was a case in Utah which involved a person shooting a policeman who was enforcing a “no knock” warrant on what they considered a suspected drug dealer. So, the police bust into the house and the man shot one of the cops.

Utah law allows use of deadly force to defend one’s home, and the defense claimed this was self-defense. The prosecution claimed murder, of course.

Unfortunately, I moved to Japan and never heard how this finished, but would this defense work in this case?
[/QUOTE]

Deseret News, The (Salt Lake City, UT) - April 27, 1989

NEXT HEARING IN 2007 FOR MAN WHO SHOT DEPUTY
A man convicted of attempted murder for shooting a deputy sheriff serving a no-knock'' search warrant was denied parole Wednesday and told it would be 20 years before his case would be heard again.Karl Willy’’ Winsness, 38, had failed to convince a jury last year that he nearly killed a Salt Lake County deputy in self-defense in January 1988 and was sentenced to five years to life in prison. Members of the Utah State Board of Pardons…

http://nl.newsbank.com/nl-search/we/Archives?p_product=NewsLibrary&p_multi=DSNB&d_place=DSNB&p_theme=newslibrary2&p_action=search&p_maxdocs=200&p_topdoc=1&p_text_direct-0=0F35FB72F6B6E76C&p_field_direct-0=document_id&p_perpage=10&p_sort=YMD_date:D&s_trackval=GooglePM

[Gfactor]

@Apollyon

And an additional twist on Glassy’s question: is the test / threshold for “imminent danger of death or great bodily harm” fixed, or is it conditional, based on who is being attacked?

For example, if a normal adult attacked a large man with fists alone, the danger of death or grievous harm would appear to be lower than if the same adult attacked a baby.

Let’s stick with those North Dakota statutes I quoted in a previous post, just because they’re all in the same place and I’ve already got the link:

12.1-05-07. Limits on the use of force - Excessive force - Deadly force.

1. An individual is not justified in using more force than is necessary and appropriate
   under the circumstances.
2. Deadly force is justified in the following instances:
   a. When it is expressly authorized by law or occurs in the lawful conduct of war.
   b. **When used in lawful self-defense, or in lawful defense of others, if such force is
   necessary to protect the actor or anyone else against death, serious bodily
   injury, or the commission of a felony involving violence. ** The use of deadly
   force is not justified if it can be avoided, with safety to the actor and others, by
   retreat or other conduct involving minimal interference with the freedom of the
   individual menaced. An individual seeking to protect another individual must,
   before using deadly force, try to cause the other individual to retreat, or
   otherwise comply with the requirements of this provision, if safety can be
   obtained thereby. However, the duty to retreat or avoid force does not apply
   under the following circumstances:
   (1) A public servant justified in using force in the performance of the public
   servant’s duties or an individual justified in using force in assisting the
   public servant need not desist from the public servant’s or individual’s
   efforts because of resistance or threatened resistance by or on behalf of
   the other individual against whom the public servant’s or individual’s
   action is directed; and
   (2) An individual is not required to retreat within or from that individual’s
   dwelling or place of work or from an occupied motor home or travel trailer
   as defined in section 39-01-01, unless the individual was the original
   aggressor or is assailed by another individual who the individual knows
   also dwells or works there or who is lawfully in the motor home or travel
   trailer.

(Emphasis added.) http://www.legis.nd.gov/cencode/t121c05.pdf

[Bricker]

@Elendil's Heir

Kudos indeed… despite all that icky Michigan law.

Thanks… and a tip o’ the cap is due GFactor, who is licensed in Michigan and undertook to do an advance read to make sure I wasn’t screwing anything vital up. It would be great (for me, anyway) if all my legal questions came from Virginia residents, but the correspondents have been uncooperative…

[griffin1977]

So I posted this in the wrong section, thought it was Cecil’s work Try it again here…

I’m more interested in the crime-drama aspect of the question “: if you do hurt or kill someone in self-defense, is there a process you should follow to report the incident to minimize suspicion and/or time in custody?”…

Obviously the common-sense practical answer is the one given in the column, but if everyone did that it wouldn’t make good TV. Its a main-stay of crime dramas of all sorts that some character kills another in self defence, but attempts to cover it up. Legally speaking what are the implications of this, other than the practical ones (i.e. its harder to convince police/juries it was self defence if they acted like they were guilty, and as you say its an “affirmative defense”)

Is there some specific law or facet of a law that applies to this situation, that wouldn’t if the character involved had 'fessed up immediately

[Gfactor]

Assuming there is no other reason to exclude your prior statements (for example, the police complied with *Miranda * and its progeny) any statements that you made to them denying any involvement in the killing will probably be introduced into evidence to contradict your more recent claim of self-defense.

I cited this case upthread:

Here, appellant denied involvement in the offense, claiming he only watched the fray from a car. Nevertheless, appellant contends the trial judge erroneously failed to acquit because he acted in self-defense or justifiably in defense of others. However, such defenses were raised, not by defendant’s evidence, but, rather, the argument of his counsel, urging the fact finder to draw the inferences necessary to the defenses from the Commonwealth’s evidence. Under such circumstances, the trial court correctly concluded that appellant did not act in self-defense or in the defense of others.

http://www.courts.state.va.us/opinions/opncavwp/1087001.pdf

and see http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/062/grande.pdf

[Bricker]

@griffin1977

Its a main-stay of crime dramas of all sorts that some character kills another in self defence, but attempts to cover it up. Legally speaking what are the implications of this, other than the practical ones (i.e. its harder to convince police/juries it was self defence if they acted like they were guilty, and as you say its an “affirmative defense”)

Is there some specific law or facet of a law that applies to this situation, that wouldn’t if the character involved had 'fessed up immediately

I think the problem here is that “practical problems” sort of flow into legal problems, and I’m not sure how to divide the two.

As GFactor cogently notes, a prior inconsistent statement on your part can be used to impeach your credibility – so if you attempt some sort of coverup, and then later come clean, there’s a danger you won’t be believed. This is both a practical problem, as you note above, and a legal one, because prior inconsistent statements are legally admissible to impeach your credibility… but it’s at heart a practical problem: if you lie, and later try to tell the truth, you are still exposed as a liar.

[muldoonthief]

Thanks for the great report Bricker.

Has there ever been a legal tradition or culture where self-defense was not legally permitted? Where you really had to choose between saving your life and going to prison for manslaughter or murder?

[Apollyon]

@Gfactor

Let’s stick with those North Dakota statutes I quoted in a previous post… (Emphasis added.)

Thank you Gfactor. So, if I’m reading this right, (in North Dakota) if I catch a home intruder attacking my child, neither the child or I am required to attempt to retreat (being in our dwelling), and I can act (with deadly force if necessary) to protect my child (the “anyone else”), but I must give the intruder a chance to retreat or stop their attack (if this is possible to do safely) before using deadly force.

The statute you quoted also says that deadly force may be justified to protect against a “felony involving violence”. Does this mean that if the aggressor is involved in a felony (say, armed robbery, or rape) and has also used violence (but violence that taken by itself would not meet the threshold of likely causing death or serious bodily injury), that deadly force may still be justified? (The use of “or” between the clauses makes it read that way to my programmer’s mind, but may not be the legal intent).

[Gfactor]

@Apollyon

Thank you Gfactor. So, if I’m reading this right, (in North Dakota) if I catch a home intruder attacking my child, neither the child or I am required to attempt to retreat (being in our dwelling), and I can act (with deadly force if necessary) to protect my child (the “anyone else”), but I must give the intruder a chance to retreat or stop their attack (if this is possible to do safely) before using deadly force.

I don’t think you have to give the intruder a “chance to retreat or stop” in a dwelling, although if you shoot them in the back, a prosecutor might argue that the assault was over and that you therefore, used “more force than is necessary and appropriate under the circumstances.”

In non-dwelling situations, it says:

The use of deadly force is not justified if it can be avoided, with safety to the actor and others, by retreat or other conduct involving minimal interference with the freedom of the individual menaced. An individual seeking to protect another individual must, before using deadly force, try to cause the other individual to retreat, or otherwise comply with the requirements of this provision, if safety can be obtained thereby.

So you’d have to retreat and also try to get the person you are protecting to retreat. But

An individual is not required to retreat within or from that individual’s
dwelling or place of work or from an occupied motor home or travel trailer
as defined in section 39-01-01, unless the individual was the original
aggressor or is assailed by another individual who the individual knows
also dwells or works there or who is lawfully in the motor home or travel
trailer.

The statute you quoted also says that deadly force may be justified to protect against a “felony involving violence”. Does this mean that if the aggressor is involved in a felony (say, armed robbery, or rape) and has also used violence (but violence that taken by itself would not meet the threshold of likely causing death or serious bodily injury), that deadly force may still be justified?

I suspect “felony involving violence,” is a term of art in this case. For example, under federal sentencing law enticing a minor to have sex with you is a “crime of violence,” even if you never made it into the same room with the victim. In other words, “involving violence” does not describe the acts of the felon, but the kind of crime he’s committing.

I haven’t read any cases interpreting this statute, so I could have it all wrong, but that’s how I understood it when I read it.

[MarcusF]

Self-defense is a live issue in the UK. There have been a number of high profile cases over the last few years where intruders/attackers have been killed by the property owner. Some have resulted in prosecution and conviction - where the use of force was not considered reasonable - and some in the case being swiftly dropped. In the first case you see the law in England is as Gfactor indicates in N Dakota - force was judged to be unreasonable when the intruders were shot in the back as they tried to get away.

There have been a couple of attempts to change the law to give more rights to the defendent but it is hard to come up with anything better than allowing “reasonable force” and ultimately leaving it to the jury to decide what is reasonable. There has been a shift recently in the way the police and prosecutors deal with the person who has used force to try and get a decision on whether to proecute made quickly - as happened in the second link above. In response to the public outcry - that the law favoured the robber - the Crown Prosecution Service has produced a guide for householders on the use of force agains intruders.