Self-defense

A person who acts reasonably in self-defense is no criminal.  This rule is recognized all over the world, and has been throughout history.  It is a universal defense to assault and similar criminal charges.  When it comes to self-defense laws, that much is simple.

In our legal history, we have developed ways of thinking about self-defense that we hope balance competing interests in the best way.  In doing so, we have had to wrestle with some 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
  • 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 the answer was “yes,” but there is no bright line test in the law when it comes to self-defense.  That means that every time a person, a police officer, a home owner, a mother or father is required to use force in self-defense — that person is at risk of criminal prosecution.

Jacob_Wrestling_with_the_Angel-sm
Jacob Wrestling Angel

When innocent people are criminally prosecuted, sometimes they are wrongfully convicted.  When that happens not only do they suffer life-altering damage, but the evil of that false conviction ripples outward damaging their family, our community — and all the people who participated in the court process that caused the harm.  A lot is at stake for every one of us., whether we are a regular person, a police officer, a martial arts practitioner, a student in a self-defense class, or a gun owner with a home defense weapon or a carry permit — even 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
If there is no bright-line separating criminal conduct from lawful self-defense, how does the law ask us to determine which is which?  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
One of the 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 years, the attitude of the laws towards self-help has been more and more restrictive of individual human rights.  The law has become more hostile to people acting in self-defense to protect themselves, their children, their homes.  Could this be a product of class privilege and socioeconomic status?  The affluent and more educated people have less need for personal self-defense, 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.

On the other hand, the U.S. Supreme Court has stated what may have appeared to be the obvious to most, 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).  If police have no duty to protect you, your family or your home, who does?

Position of authority of defender vs. other
If we look at a hypothetical scenario with two people involved in a violent conflict, usually one is the attacker and the other is defending against the attack.  (Note that witnesses often don’t witness what circumstances led up to the fight, only paying attention once underway.)  One of the factors that can be important is whether one of the two combatants is in a position of authority.  Examples of positions of authority could include police officers, security guards, parent protecting a child, a person in their home, etc.  Because of their role, one person may have a greater 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
Another factor can be whether the attacker was in a position of authority, was authority-neutral, or was 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
Minnesota Statutes favor home defense over self-defense outside the home when it comes to a so-called duty-to-retreat.  “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 assert a defense of 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 here.  Does the person belong there?  If not, do they know or should they know they should not be there?  Has the person been given notice that they should leave, if they previously had reason to believe they were an authorized guest?

Though this applies not only in what later turned out to be  use of deadly force situation, 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 self-defense defense include the defense of another.  For the most part, there is little difference except that the threat of force or the force being defended, is being directed 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 this defense of another defense.  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 of those 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
Many people are hostile to other people’s use of force in self-defense and exhibit that bias.  They may be looking 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.  They are being urged to condemnation by a prosecuting attorney.  If they can, they may view the force used in self-defense as disproportionate to the threat, and therefore unreasonable.  Force used in self-defense must be “reasonable.” 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 one key factor is the proportionality of the force used to the threat presented at the time.  How can we break down proportionality?  It can include the level of force, as well the timing of it.

The level of force can be thought of as being on a continuum, from hardly any to deadly force.  Force can be used in self-defense with a weapon, or other force multiplier.  To a great extent, the level of force will be judged after-the-fact based on the level of damage inflicted.  This is a problem, since legal question is always what was the reasonable belief of the defendant at the time.   Whether a weapon is used or not, the level of force should be roughly in proportion to the threat reasonably perceived by the accused at the time.  The lawful self-defender seeks to stop the threat presented by the attacker, not to exact revenge, teach a lesson,  or to repel insult.

Minnesota’s self-defense statutes (cited above) explicitly mentions several justifications for the authorized use of force, with the following of more general application:

  • resisting an offense against the person
  • resisting a trespass upon or other unlawful interference with real or personal property
  • resisting great bodily harm or death
  • preventing the commission of a felony in the actor’s place of abode

Proportionate — in response to what?  The response should be in some proportion to the threat.  If you are being hit in the head with closed fists, that can be deadly force.  If you are being attacked by a knife-wielding assailant 25 feet away, that can be deadly force.  If you are being attacked by someone with a firearm 100 feet away, that can be deadly force.  If you are being attacked by more than one person, that can be deadly force.

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?  The threat of 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” as unfair.

The duty-to-retreat law gives the prosecutor an unfair advantage of emphasizing something that is already part of the reasonableness test for self-defense.  Why should the prosecution have two ways to talk about the same thing, and two jury instructions repeating the same thing?  It is unfairly prejudicial to the accused — a modern abomination that should be repealed.  This is the reason for the rise of so-called “stand your ground” laws in many states in recent years.

Too late?  Use of force after the threat is over may not be viewed as the reasonable use of force.  For example, using deadly force against a home invader coming through your window may be viewed as reasonable, while using it against the invader fifty feet away, running away with the loot, may not be.  The lawful self-defender uses force to stop the threat, then stops using force once the threat is over.  Force used can also be scaled down as the threat is scaled down, for example holding a burglar for police at threat of gunpoint.  In that example, is the burglar fled in a way not immediately threatening the defender, the defender should not use force to stop the fleeing criminal.

In real life though, it’s often difficult to know when the threat is past.  If possible, re-initiate all alternatives such as leaving, calling 911, bolting the door, or whatever else can be done to avoid the attacker’s potential renewed threat, and prepare for it if necessary.   Prosecutors will sometimes speak of “two conflicts” — to break one conflict into part one and part two so they may 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 – duty to retreat outside the home
The lawful self-defender is viewed as a reluctant participant, and the more reluctant the better from the legal perspective.  Why?  To be a lawful self-defender, the law in Minnesota asserts 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 do what can be done to 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 own me!” before the physical attack, to confuse bystanders as well as intimidate the target.  In most any scenario, the lawful self-defender should 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 prepared to defend myself!”  This ideally should be done while backing away, running away, driving away, or leaving in whatever way possible.  No insult is worth a fight or a criminal charge.

If possible, the lawful self-defender can be helped by calling 911 on his or her cell phone to request immediate help as well as contemporaneously recording the audio track of the reluctant defender and the belligerent.

There is no duty to retreat in your own home.  This is more fair.  But, as mentioned above, in order for the jury (or other fact-finder) 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.

Reasonable belief vs. historical fact
In a criminal case, because the trial is about whether the accused acted 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 not only believed something to be true, but also it would be reasonable for a person in his or her shoes to believe that something at the time; then that will usually decide in the minds of others whether there was criminal intent or not.  This is important for many reasons.  One big one is that every person witnessing an event has their own unique point of view, their own perception, influenced by many things.  For purposes of criminal law, the perspective that matters is that of the accused.

If a person feels threatened without any doubt in their mind at all, then they have a subjective belief that they are under threat.  But is that perception of being threatened reasonable?  In other words, would a “reasonable person in the defendant’s shoes” feel threatened in the same situation?  If so, then the defendant had not only a belief that he or she was under threat, but had a reasonable belief — one that the law would credit.

What if it turns out later that the perceived threat was not really there after all?  What if the accused person perceived a threat, for example a weapon, but later it was revealed that the other person did not actually have a weapon?  In that situation, the accused had a belief, but was mistaken.  Could that person be a lawful self-defender even though deadly force was used against someone thought to have  weapon who 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, at least for purposes of criminal liability.  (They might be found liable for money damages under a civil negligence standard.)

Justification defense
Self-defense is an example of what legal scholars sometimes 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.

Affirmative defense
Self-defense law characterizes this defense as an affirmative one.  An affirmative defense in Minnesota generally has the following characteristics:  the defense should give notice of this defense to the prosecution before the trial; the burden of production of some evidence supporting self-defense is on the defense; and once that burden has been met, then the burden of proving the defendant did not act in self-defense is on the prosecuting lawyer, with evidence, beyond any reasonable doubt.

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 …”).

Question?  You can all Minneapolis self-defense attorney Thomas Gallagher at (612) 333-1500