A person who acts reasonably in self-defense is no criminal. Self-defense is not a crime. That is the broad rule under Minnesota’s self-defense laws.
All over the world, and through history, people recognize this rule. The defense to assault and similar charges is universal. When it comes to self-defense laws, that much is simple.
Issues & conflicts in self-defense laws
In our legal history, our ways of thinking about self-defense attempt to balance competing interests.
Self-defense laws in Minnesota reflect these competing interests.
We wrestle with some important issues:
- bright line vs. totality of the circumstances
- self-help vs. state control
- position of authority vs. other – police, castle vs. other
- authority of attacker – lawful (police) vs. criminal
- relationship to favored location – home defense
- relationship to favored people – defense of other
- proportionality of response to threat
- reluctant participant – duty to retreat outside the home
- the reasonable person standard
- reasonable belief vs. historical fact
Is there a simple way to define when self-defense is legal?
No. That is the most asked question. People wish for simplicity, understandably. But there is no bright line test in the law when it comes to self-defense.
And that means that every time a person, police officer, home owner, mother or father, uses force in self-defense; that person is at risk. We risk criminal prosecution under Minnesota’s self-defense laws.
Reduce the risk of false accusation: self-defense laws
Sometimes prosecutors accuse innocent people. That can result in a wrongful conviction.
When that happens not only does the innocent person suffer life-altering damage; but the evil of that false conviction radiates outward, damaging their family, our community.
In the end false convictions destroy all the people who participated in the court process that caused that harm.
A lot is at stake for every one of us. Self-defense laws matter, whether we are a:
- regular person
- police officer
- martial arts practitioner
- student in a self-defense class
- gun owner with a home defense weapon or a carry permit
- gun carry permit holder facing felony Assault 2 charges, because some was afraid of a gun, or
- a kid facing a bully at school
We should take the necessary time to learn about and consider the law of self-defense.
Totality of the circumstances: self defense laws
If there is no bright-line separating criminal conduct from lawful self-defense; how does self-defense law ask us to separate legal self-defense from unlawful use of force?
It tells us to use a totality of the circumstances test. See, Minnesota Statutes Section 609.06 “Authorized use of force,” Subdivision 1. (“… 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 …”)
In other words, whether force used in self-defense was lawful and not criminal depends upon the situation, and situational factors. What factors?
Self-help vs state-control
Personal responsibility: One of the core issues implicit in self-defense law is the conflict between self-help and state control.
With the rise of the government power and control in recent decades; the attitude of the self-defense laws towards self-help has been increasingly restrictive of individual human rights.
Could this be a product of class privilege and socioeconomic status? The affluent and more educated people have less need for personal self-defense, and so don’t understand its necessity. And yet these are the people who most influence legislation, the legal system — even juries. Some perceive that a bias against the individual in modern self-defense laws, is the result.
The law has become more hostile to people acting in self-defense to protect themselves, their children, their homes.
Police have no legal duty to protect you
On the other hand, the U.S. Supreme Court has stated the obvious, that generally police have no constitutional duty to protect citizens from third party harm. See, DeShaney v. Winnebago County, 489 U.S. 189 (U.S. Sup. Ct. 1989).
Position of authority of defender vs. other
If we look at a typical scenario with two people in a violent conflict, usually one is the attacker. But the other person is defending against an attack. And often witnesses don’t see the circumstances leading up to the fight; only paying attention after underway. So many witnesses do not see who attacked. This can be important where the defendant acts in self-defense.
One important factor is whether one of the two combatants is in a position of authority.
Position of authority examples could include:
- police officers,
- security guards,
- a parent protecting a child,
- a person in their home, etc.
Because of their role, one person may have a greater legal claim to legitimate use of force in self-defense.
That role could be based on occupation (police officer), situation (defense of other), or location (home defense). Their role gives them greater authority to use force in self-defense, other factors being equal.
This is clear from Minnesota Statutes Section 609.06,
Subdivision 1. “When authorized. Except as otherwise provided in subdivision 2, 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:
(1) when used by a public officer or one assisting a public officer under the public officer’s direction:
(a) in effecting a lawful arrest; or
(b) in the execution of legal process; or
(c) in enforcing an order of the court; or
(d) in executing any other duty imposed upon the public officer by law …”
Authority of attacker: self defense laws
Another factor is whether the attacker was:
- in a position of authority,
- authority-neutral, or
- a criminal (in addition to the criminal attack).
This may color how the jury (or other fact-finder in a trial) views the circumstances.
Though the jury can consider this beyond the letter of the statute, Minnesota Statutes Section 609.06, Subd. 2, states:
“Deadly force used against peace officers. Deadly force may not be used against peace officers who have announced their presence and are performing official duties at a location where a person is committing a crime or an act that would be a crime if committed by an adult.”
Relationship to favored location: Castle Doctrine
Minnesota self-defense laws favor home defense over self-defense outside the home when it comes to a so-called duty-to-retreat. We sometimes use the term “Defense of Dwelling” to describe enhanced self-defense rights at home.
“Your home is your castle. There is no place to retreat, from one’s home.”
Whether we call it the Castle Doctrine or not, the government normally can’t claim a duty-to-retreat when the accused asserts self-defense in the home.
But there may be other favored locations; for example your workplace (vs. someone who is not a co-worker), or your car (vs. someone not a guest in your car).
Principles of trespass law can be helpful in understanding self-defense laws. Does the person belong there? If not, do they know or should they know they should not be there? If previously an authorized guest, was the person then on notice that they should leave?
Though this applies not only in use of deadly force situations, Minnesota Statutes Section 609.065 “Justifiable taking of life” states:
“The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.“
Relationship to favored people – defense of other
The defense of self-defense includes the defense of another.
The defender is using reasonable force against an imminent threat of force against a person other than the defender. The other person could be a complete stranger, anyone.
Whether the defender is in a position of authority (i.e. police officer) or in a special relationship (i.e. parent protecting child) to the targeted person, could color how people view defense of another.
Another way this variation can be different is the way the imminence of harm and the so-called duty-to-retreat may be viewed.
The jury (or other finder-of-fact in a trial) may be less harsh in judgment where the defender was acting in defense of another.
For example, see, Minnesota Statutes Section 609.06, Subdivision 1:
“When authorized. Except as otherwise provided in subdivision 2, 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 …”
Proportionality of force response to threat
Bias against The Other: People apply the self-defense laws. And people have bias. We need to be aware, in order to remedy that bias.
Many people are hostile to other people’s use of force in self-defense and exhibit that bias. Some may look for an excuse to blame the survivor of a violent attack. They sit in judgment in the comfort of their safety; with all the time in the world to reflect in retrospect.
The prosecuting attorney urges the jury to condemnation. If they can, they may urge that the force used in self-defense as disproportionate to the threat, and therefore unreasonable. Force used in self-defense must be “reasonable” under Minnesota self-defense laws. See, Minnesota Statutes Section 609.06, Subdivision 1 (“… reasonable force may be used …”).
What is reasonable in the circumstances? Numerous factors can influence that determination. But the proportionality of the force used to the threat presented, is one key factor. How can we break down proportionality? It can include the level of force, as well the timing of it.
Level of force continuum – force multipliers
The level of force is on a continuum, from hardly any to deadly force. A weapon, or other force multiplier can be used in self-defense. Though misleading, people often judge the level of force, after-the-fact based on the level of damage inflicted.
This is a problem in applying self-defense laws; since the legal question is always what was the reasonable belief of the defendant at the time.
Proportionate to threat perceived at the time
Force stops when threat stops
Weapon or not, the level of force should be proportionate to the threat reasonably perceived by the accused, at the time. The lawful self-defender seeks to stop the threat presented by the attacker; never to exact revenge, teach a lesson, or to repel insult.
Justifications mentioned in Minnesota self-defense laws
Minnesota’s self-defense laws (cited above) explicitly mention several justifications for the authorized use of force. And these include the following of more general application when resisting:
- an offense against the person
- a trespass upon or other unlawful interference with real or personal property
- great bodily harm or death, or
- preventing the commission of a felony in the actor’s place of abode
Deadly force examples: self-defense laws
Proportionate — in response to what? The response should be in some proportion to the threat. Examples of deadly force threats include attacks by:
- closed fists hitting your head
- a knife-wielding assailant 25 feet away
- someone with a firearm 100 feet away
- more than one person
Deadly force is on one end of the level of force continuum. The Minnesota self-defense laws on the use of deadly force demonstrate this.
Timing of use of force; not too soon, not too late
The timing of the defenders use of force is important as well.
If it comes too soon or too late, it may become a crime rather than lawful self-defense.
Too soon? Under Minnesota self-defense laws, the threat must reasonably appear to be imminent, meaning immediate or about to happen.
To use force to defend against a threat that is not imminent may be viewed as unreasonable. Whether the threat is imminent or not is properly an aspect of the reasonableness of the use of force. And that is why many view the so-called “duty-to-retreat” jury instruction as unfair.
Conflict between Duty to Retreat and Reasonableness
The duty-to-retreat law gives the prosecutor an unfair advantage. They emphasize something that is already part of the reasonableness test for self-defense. (Because retreat may be reasonable, or not, in any given case.)
Why should the prosecution have two ways to talk about the same thing; and two jury instructions repeating the same thing? This shifts a heavy burden of proof onto the defendant. It is unfairly prejudicial to the accused — a modern abomination that should be repealed.
And this is the reason for the rise of so-called “stand your ground” self-defense laws in many states in recent years.
When the threat stops, the use of force stops
Too late? Use of force after the threat is over might not be reasonable use of force. For example, deadly force against a home invader coming through your window might be reasonable. But using deadly force against the invader fifty feet away, running away, might not be.
The lawful self-defender uses force to stop the threat, then stops using force once the threat is over. The defender scales down force as the threat scales down; for example holding a burglar for police at gunpoint. In that example, if the burglar fled in a way not immediately threatening the defender; the defender should not use force to stop the fleeing criminal. Why? The threat of a single, fleeing burglar is unlikely to be imminent.
Real life problems: Applying the self-defense laws in real life situations is a challenge. And a jury may find it challenging to reconstruct past events from second-hand, biased information.
In real life, it’s often difficult to know when the threat is past. If possible, re-initiate alternatives. Leaving the scene, calling 911, bolting the door, or otherwise avoid the attacker’s potential renewed threat. And prepare for the renewed threat if necessary. If safe to do so, consider rendering First Aid to the injured attacker, after calling 911.
Prosecution tactics: Prosecutors will sometimes argue “two conflicts” – to attempt to break one conflict into part one and part two. Then they concede self-defense in part one; but claim the defendant then re-initiated a second conflict as an aggressor, not a lawful self-defender.
Reluctant participant; and duty to retreat outside the home
The lawful self-defender is a reluctant participant; and the more reluctant the better. Why? To be a lawful self-defender, the self-defense laws in Minnesota require the use of force in self-defense to be reasonable. And they assert a duty-to-retreat outside the home. That means that if there is a way to retreat from physical conflict; the defender must retreat, rather than volunteer for the conflict.
The lawful self-defender should verbally communicate and physically act to retreat. Criminal attackers frequently use words to deter onlookers from interceding. A “roll a drunk” robber outside a bar may yell at the would-be victim “where’s that $20 you owe me!” before the physical attack, to confuse bystanders as well as intimidate the target.
The lawful self-defender should often be loud and verbal about wanting to avoid physical conflict: “I don’t want any trouble. Don’t come any closer! I’m calling police! I am ready to defend myself!” She can say this, ideally, while backing away, running away, driving away, or leaving where possible. No insult is worth a fight, or a criminal charge.
Demonstrating your pure-heart
Demonstrating your reluctance to participate in conflict can have two good effects. It may deter the would-be attacker. Otherwise, observers can perceive your reluctance. Make clear that you are a reluctant participant under the self-defense laws.
If possible, the lawful self-defender should call 911 on his or her cell phone to request immediate help. The 911 call can also contemporaneously record the audio of the reluctant defender and the belligerent.
There is no duty to retreat in your own home in Minnesota self-defense law. This is more fair. But, in order for the jury to view the use of force as lawful self-defense; they must view it as having been reasonable from the perspective of the accused, at the time of the incident. They may not want to view the use of force as reasonable if there was a safe alternative available.
As a result, you may want to demonstrate that you are a reluctant participant even in your own home.
Reasonable belief vs. retrospective historical fact
Point-of-view: In a criminal case, the trial issue is “did the accused act criminally?” What matters most is what the accused reasonably believed at the time. See, Minnesota Statutes Section 609.06, Subdivision 1 (“… when the following circumstances exist or the actor reasonably believes them to exist …”). That is because criminal law requires some level of criminal intent, before there can be a crime.
If a person believed something to be true (subjective), and a person in his or her shoes would reasonably believe it (objective); then that will usually decide in the minds of others whether there was criminal intent. This is important for many reasons.
One big reason is that every person witnessing an event has their own unique point of view, their own perception, influenced by many things. But for purposes of self-defense laws, the perspective that matters is that of the accused.
Both the subjective belief and the objective facts must be viewed from the point-of-view of the self-defender, at the moment of the use of force.
Subjective belief plus reasonable belief
If a person feels threatened; then they have a subjective belief that they are under threat.
But is that perception reasonable? In other words, would “a reasonable person in the defendant’s shoes” feel threatened in the same situation? If so, then the defendant’s subjective belief that she was under threat, was a reasonable belief.
What if it later turns out that the perceived threat was not really there after all? What if the accused person perceived a threat, say a weapon, but later found out that there was no weapon?
The reasonable mistake: Could a person be a lawful self-defender even though she used deadly force against someone she thought had a weapon but actually did not? The answer is “yes.” If the mistaken belief was reasonable at the time, under the circumstances, then the accused could be a lawful self-defender. (But she might possibly be liable for money damages under a civil negligence “preponderance of the evidence” standard, in a civil suit.)
Of course, that kind of mistake puts a person at higher risk of another mistake by the criminal justice system.
Justification defense – Self-Defense Laws
Self-defense laws are an example of what legal scholars refer to as a justification defense. A justification defense means that there was no crime because the actions of the accused were justified under the circumstances. Without the justification, the act might have been a crime.
Analytically, we have what lawyers term the commission of an act (actus reus), but the act is non-criminal due to legal justification (self-defense).
Affirmative defense – Self-Defense Laws
Self-defense laws characterize this defense as an affirmative one.
An affirmative defense in Minnesota generally has the following characteristics:
- the defense gives notice of this defense to the prosecutor before the gross misdemeanor or felony trial;
- the burden of production of some evidence supporting self-defense is on the defense; and
- if that burden has been met, then the burden of proving the defendant did not act in self-defense is on the prosecutor, with evidence, beyond any reasonable doubt.
Consent defense vs. self-defense laws
A related, but different defense is Consent.
People can use force against each other with consent in sporting events, martial arts training, and so on. See, Minnesota Statutes Section 609.06, Subdivision 1 (“… reasonable force may be used upon or toward the person of another without the other’s consent …”).
Charges Where Defense of Self, Another or Property may apply
Self-defense type defenses may apply to these,among other, types of criminal charges:
And check out our series of in-depth articles on our blogs:
Question? You can call Minneapolis self-defense Lawyer Thomas Gallagher at 612 333-1500