Self Defense

Self-Defense in Homicide and Assault Cases Involving Deadly Force

Self-defense can be a complete defense to a homicide or assault involving deadly force. For this form of self-defense to exist, you must have reasonably believed that death or grievous bodily harm was about to be inflicted wrongfully on you, and you must have actually believed that the force you used was necessary to protect against that harm.

“Grievous bodily harm” means serious bodily injury. It can involve a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Depending on their severity, examples can include fractured or dislocated bones, deep cuts, torn members of the body, or serious damage to internal organs. Minor injuries such as a black eye or a bloody nose generally do not meet that standard.

In other words, self-defense involving deadly force has two parts.

First, you must have had a reasonable belief that death or grievous bodily harm was about to be inflicted wrongfully on you. The test is whether an ordinary, prudent person faced with the same facts and circumstances would have believed there were grounds to fear that immediate harm. Intoxication or emotional instability does not lower that objective standard.

Second, you must have actually believed that the amount of force you used was required to protect against death or grievous bodily harm. To determine your actual belief, the jury must look at the situation through your own eyes. In addition to the circumstances known to you at the time, your age, intelligence, and emotional control are important factors in determining what you believed was necessary.

This second part concerns your actual belief, even if someone else would consider the amount of force excessive. You are not required to use the same amount or kind of force as the attacker. But you must still satisfy the requirement that your fear be reasonable, and the rules on provocation, mutual combat, and withdrawal still apply.

Once self-defense is properly raised, the prosecution’s burden extends beyond proving the elements of the charged offense. To convict you, the jury must also be convinced beyond a reasonable doubt that you did not act in self-defense.

Self-Defense Against Nondeadly Force

If you reasonably believed that bodily harm less than death or grievous bodily harm was about to be inflicted wrongfully on you, you could use the force you actually believed was necessary to protect yourself, subject to an important limit. Under this form of self-defense, the force used must be less than force reasonably likely to cause death or grievous bodily harm. You are not required to use the same amount or kind of force as the attacker.

The remaining requirements still apply, including the rules on starting a fight, mutual combat, and regaining the right to defend yourself. Once this defense is properly raised, the government must disprove it beyond a reasonable doubt. The law does not require you to prove that you acted in self-defense.

Self-Defense When a Death Was Unintended

If someone dies as an unintended result of your lawful use of nondeadly force in self-defense, you may still have a complete defense. Self-defense and accident can operate together when the death results from a lawful act performed in a lawful manner. The questions include whether:

1. 1You reasonably believed that bodily harm was about to be inflicted wrongfully on you.
2. 2You actually believed that the force you used was necessary to protect yourself.
3. 3The force you used was less than force reasonably likely to cause death or grievous bodily harm.
4. 4You did not intend the death.
5. 5The death was not a reasonably foreseeable result of your actions.

You must have had a reasonable belief that bodily harm was about to be inflicted on yourself. The test here is whether, under the same facts and circumstances, any reasonably prudent person faced with the same situation, would have believed that there were grounds to anticipate immediate physical harm. Because this test is objective, intoxication or emotional instability does not lower the standard.

If the jury is convinced beyond a reasonable doubt that you either did not fear immediate bodily harm or that your fear was not a reasonable one under the circumstances, the defense of self-defense does not exist.

The force must also have been lawful. You are not required to match the attacker’s weapon or use the same type or amount of force, but the limits on nondeadly self-defense still apply. An unintended death does not excuse an otherwise unlawful or negligent act. The rules on retreat and losing the right to self-defense also remain part of the analysis.

Threatening Force to Deter an Attack

If there is evidence that you displayed or brandished a weapon solely to defend yourself by deterring the alleged victim rather than for the purpose of injuring the alleged victim, then you may have a defense.

A person may act in self-defense to frighten or discourage an assailant or threaten more force than he or she is legally allowed to use under the circumstances.

Under the military rule for certain aggravated assaults involving a threat of force, you must have reasonably feared that bodily harm was about to be inflicted wrongfully on you. You must have offered force to deter the assailant without actually inflicting or attempting to inflict substantial or grievous bodily harm. Substantial bodily harm means an injury involving temporary but substantial disfigurement, or temporary but substantial loss or impairment of the function of a bodily member, organ, or mental faculty.

Whether you were using the weapon as a deterrent, and what you actually did with it, are factual questions. Two points matter.

First, you must have reasonably and honestly believed that the alleged victim was about to inflict bodily harm wrongfully on you. The test here is whether, under the same facts and circumstances, a reasonably prudent adult faced with the same situation, would have believed that there were grounds to anticipate immediate physical harm. Because this test is objective, intoxication or emotional instability does not lower the standard.

Second, you must have offered the force to deter the assailant without actually inflicting or attempting to inflict substantial or grievous bodily harm.

If you crossed that line, this particular deterrence rule does not justify your actions. Whether another form of self-defense applies depends on the threat you faced, the force you used, and the remaining requirements of that defense.

Once self-defense is properly raised, the prosecution’s burden of proof to establish your guilt also applies to the issue of self-defense. To find you guilty, the jury must be convinced beyond a reasonable doubt that you did not act in self-defense.

Duty to Retreat and Standing Your Ground

Your ability or inability to move away from an assailant can matter, but the opportunity to leave does not automatically defeat self-defense.

A person who is lawfully present does not lose the right to self-defense merely by failing to retreat. Whether you had an opportunity to withdraw safely remains a factor in deciding whether your fear was reasonable and whether you actually believed the force was necessary. The jury may also consider whether you knew other people who might have helped you were nearby.

That rule does not erase the separate restrictions on an aggressor or a person engaged in mutual combat. Those restrictions are addressed below.

Under the pressure of a fast-moving situation or immediate attack, you are not required to pause at your own peril to evaluate the degree of danger or the amount of force necessary to protect yourself. In deciding the issue of self-defense, the jury must consider the violence and rapidity involved in the incident.

Intoxication and Self-Defense

Being under the influence of alcohol or drugs does not automatically defeat self-defense. We still need to examine what happened, what you perceived, and what the witnesses can establish.

Voluntary intoxication does not lower the objective standard for a reasonable fear of immediate bodily harm, death, or grievous bodily harm. Being intoxicated does not itself justify the use of force.

Provocation, Mutual Combat, and Regaining the Right to Self-Defense

An aggressor, a person who voluntarily engages in mutual fighting, or a person who provokes the attack generally loses the right to self-defense. But that is not always the end of the analysis. Withdrawal in good faith, physical inability to withdraw, and escalation by the other person can affect whether the right to self-defense is available.

A person has provoked an attack and, therefore, given up the right to self-defense if he or she willingly and knowingly does some act toward the other person reasonably calculated and intended to lead to a fight or a deadly conflict. Unless such act is clearly calculated and intended by you to lead to a fight or a deadly conflict, the right to self-defense is not lost on the ground of intentional provocation.

A person may seek an interview with another in a nonviolent way for the purpose of demanding an explanation of offensive words or conduct or demanding redress of a grievance or settlement of a claim without giving up the right to self-defense. One need not seek the interview in a friendly mood. The right to self-defense is not lost merely because the person arms himself or herself before seeking the interview. Threatening someone with a weapon or initiating an unlawful assault is a different matter.

When self-defense is properly raised, the prosecution carries the burden. It must prove beyond a reasonable doubt that you did not act in self-defense, including any claim that you lost the right and did not regain it.

If you withdraw from the fight in good faith and communicate a desire for peace through words or actions, but the other person follows you and renews the conflict, you may regain the right to defend yourself.

Physical inability to withdraw can also matter. The law does not require a mutual combatant to accomplish an impossible withdrawal before the circumstances can support self-defense. The remaining requirements, including the applicable limits on force, still have to be considered.

If the jury has a reasonable doubt that you remained a person provoking an attack or were a voluntary mutual combatant at the time of the offense, the jury must find that you did not lose the right to act in self-defense, and then, the jury must decide if you acted in self-defense.

Escalation is another important issue. If you provoked a nondeadly fight or voluntarily engaged in mutual fighting without deadly force, and the other person escalated it to force likely to cause death or grievous bodily harm, you may regain the right to self-defense. You must reasonably fear immediate death or grievous bodily harm and actually believe the force you use is necessary to protect against it.

The rule is different if you began the confrontation with unlawful deadly force. The other person’s resistance to that threat does not, by itself, restore your right to self-defense.

Defense of Another

If the evidence properly raises defense of another, you may have a complete defense.

A person may use force in defense of another only if that other person could lawfully have used that force in self-defense under the same circumstances. You cannot use more force than the person you defended was legally entitled to use.

If that person was an aggressor, intentionally provoked the attack, or engaged in mutual combat, and had not regained the right to self-defense, your mistaken understanding of the situation does not create a right to use force on that person’s behalf.

The distinction between deadly and nondeadly force applies here too. Defense of another does not always require a threat of death or grievous bodily harm. Nondeadly force may be justified against an immediate unlawful threat of lesser bodily harm, subject to the same limits on force and the other person’s legal right to defend himself or herself.

In other words, defense of another involving deadly force has two parts, in addition to the requirement that the other person was legally entitled to defend himself or herself.

First, you must have had a reasonable belief that death or grievous bodily harm was about to be inflicted wrongfully on the person you defended. The test here is whether, under the same facts and circumstances, a reasonably prudent person, faced with the same situation, would have believed that death or grievous bodily harm was about to be inflicted.

Second, you must have believed that the amount of force you used was necessary to protect against death or grievous bodily harm. To determine your actual belief as to the amount of force necessary, the jury must view the situation through your eyes. In addition to what was known at the time, your age, intelligence, and emotional control are all important factors to consider in determining your actual belief as to the amount of force necessary to protect the person you defended. You are not automatically required to use the attacker’s type of weapon or match the amount of force used. The limit remains that you cannot use more force than the person you defended was lawfully entitled to use.

Once defense of another is properly raised, the burden is on the prosecution. Unless the jury is convinced beyond a reasonable doubt that you did not act in defense of another, it must acquit you of the offense to which that defense applies.