Self-defense and “The Other:” Self-defense is a legal defense to certain criminal charges in Minnesota. A defendant can plead self-defense when facing charges of assault, murder, and disorderly conduct, among others.
It is not a bright-line sort of law. If it were, the law would be easier to apply. Instead, the law asks the finder-of-fact (the jury in the case of a jury trial) to look at the totality of circumstances to determine whether the accused person acted in self-defense. And a “totality-of-the-circumstances” test is more difficult to apply than a bright-line test; but more fair, more just, for more serious cases.
However, when a person judges another and their past choices under that test; that person must use their discretion.
And discretion means applying their own life experiences, biases, and point of view.
Who is “The Other?”
In the popular Clint Eastwood film “Gran Torino,” character Walt Kowalski leads a lonely existence. But he takes great pride in his lawn.
Gangbangers arrive to kidnap the young man next door, character Thao Vang Lor. During a scuffle on his lawn, Walt appears with a rifle to defend the kid and his Hmong family. He warns the gang members: “Get off my lawn!”
His use of racial slurs reveals his initial view of the kid he is defending and his family as “The Other.”
But by the end of the film, protagonist Walt Kowalski fully connects with young Thao. And Thao is then like a son to him. Walt feels part of Thao’s family and Hmong culture. Thao is no longer “The Other,” nor is his family or the Hmong culture. Walt identifies with them completely.
This is one of the story arcs of the film, the movement from “The Other,” to “One of Us.”
What difference does it make?
Will we view a person as The Other, or as One of Us? When it comes to self-defense; that makes a big difference.
If another person is “One of Us,” then we are naturally empathetic. We see each situation through their eyes, from their point-of-view.
But, if someone is “The Other,” they are not like us. And we are naturally suspicious of their motives and behavior.
This may be part of our genetic nature as humans. Throughout human existence, until relatively recently, humans lived in small groups of ten to fifty people. Each group member needed to cooperate with other group members to survive.
But we viewed a person from outside the group suspiciously, as a threat; at least until some reason came to light to assure us otherwise.
You start out as “The Other”
Imagine this scenario: You have just left a bar downtown at closing time. A few dozen people are standing around in the warm summer night. They’re chatting in small groups, before leaving for their next stop.
Facing east, you notice three young men walking down the street towards the crowd that fills most of the sidewalk. You’ve trained in self-defense. You’re situationally aware.
You see one pull back his arm, and make a fist. He strikes a heavy blow into the side of a man’s head ten feet from you. The man doesn’t see it coming; sucker-punch. And he drops to the ground.
Your jaw slackens in shock. The man who was hit is on the ground, shaking it off, trying to comprehend what just happened. The lone attacker squares off and goes after the man again, as he regains his feet.
The victim of the attack tries to defend himself, blocking and striking back with fists. Then, you see other people in the crowd only now turning to look to see what the fuss is about. They back away, to form a circle around the pair.
You overhear several people in different groups say: “why are those two guys fighting?” and “What the hell is wrong with those two!”
Now, instead of being the bystander, imagine you are the target of the attack.
But 95% of the witnesses in the crowd do not see how it began, or why. They turn and notice only after that; to see “two guys fighting.” They see “The Other.”
Minnesota’s general self-defense statute is Section 609.06. It includes the language:
“reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist: … (3) when used by any person in resisting or aiding another to resist an offense against the person… .”Minn. Stat. §609.06
Notice these two phrases in the self-defense statute:
- “reasonable force” and
- “circumstances exist or the actor reasonably believes them to exist.”
Whenever we see the word “reasonable” in the law, we have a totality-of-circumstances test; not a bright-line test. So what is reasonable depends upon all the circumstances, at the time. These principles are key aspects of the reasonable person standard in Minnesota criminal law.
And all real crimes require proof of the element of criminal intent of the actor (the accused person), if any. As a result, the jury needs to evaluate the evidence from the point-of-view of the accused. So, the jury should not consider the point-of-view of anyone else, even a victim.
The statute emphasizes this point. It says that the fact-finder (jury) must consider the circumstances that the defendant reasonably believed to exist at the time.
The law is curative here – meaning that the law tries to fix a recognized bias endemic to our culture. If that bias did not exist, we would not need legal language attempting to remedy it.
From this we can see some basic factors in the self-defense “totality-of-circumstances.” Was the force used:
- reasonable under either the circumstances that actually existed, or,
- under the circumstances that the actor (defendant) reasonably believed existed?
- proportionate to the circumstances, whether actual or reasonably believed to exist?
See our related articles:
Cultural bias in the post hoc observer
When people in our culture see two people fighting they’ll generally view them both as “The Other;” with suspicion. Similarly, people hearing about people fighting, will tend to presume that both must be guilty of something.
This – despite their personal experience that most “fights” involve an aggressor attacking an unwilling, eventual participant, forced to defend herself.
“Duty to Retreat:” shifting the burden of proof
This cultural bias takes form in the current Duty to Retreat in Minnesota.
In certain cases, the prosecuting attorney can try to reverse the burden of proof. The prosecutor forces the defendant to show some evidence that she met “the duty to retreat.”
The “Duty to Retreat” jury instruction is unfair. Because it gives the prosecutor a second bite at the apple. The same aspect of “reasonableness” is presented twice: first as a precondition to self-defense, then again as a factor in the totality of circumstances.
After all, would a juror find the use of force reasonable, if the defendant could have safely retreated before the altercation?
The Minnesota duty to retreat encourages the cultural bias of viewing the abstract self-defender as “The Other,” with initial suspicion.
Note: Minnesota law currently does not impose a “duty to retreat” in the defender’s home, or when defending another. For a discussion of that, see our Minnesota Self-Defense Laws page.
Implications for the future & for the past
We should think about how we will defend against a future attack, should it occur. Ideally that will include self-defense training, whether it is one class or life-long learning and training practice.
Consider: “How can I help others perceive me as a good guy (one of us) rather than The Other?” Our appearance can play a part in this, as can our words and conduct.
“The Other” as a core issue in self-defense
Are you a lawyer or a defendant in a criminal case where the defendant acted in self-defense? If so, you recognize that one of the core issues will be “good guy vs. The Other.”
Here, the self-defender’s appearance, words and conduct will matter.
But the point-of view adopted by the fact-finder (jury) will also be key. The law asks the fact-finder to look at what was happening at the time, from the point-of-view of the defendant. Afterall, hindsight bias is a trap.
Moving from “The Other” to “one of us”
So, the defense lawyer, judge and other jurors need to help the jurors overcome our initial bias against The Other. And the defense lawyer helps jurors get to know that the accused is a good guy; and acted reasonably.
Question? Call Attorney Thomas Gallagher: 612 333-1500
The author, Thomas Gallagher is a Minneapolis criminal lawyer.
His practice includes cases where the accused person acted in self-defense. So, for more, see our page: Minnesota self-defense laws.