Fundamentals of Criminal Law
Adam J. McKee, Ph.D.
Jack Brown, Ph.D.
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This defense is based on the idea that while the police have a monopoly on the legitimate use of force, officers may not always be present to defend a person against a dangerous threat. In such a case, most jurisdictions allow for a carefully circumscribed use of force for the limited purpose of defending one’s self or another person from a criminal attack. While force experts tend to think of force as a continuum, the criminal law tends to classify it according to a dichotomy. Under most statutes, force is either deadly or nondeadly. Regardless of the breadth of state statutes, the obvious conclusion that should be drawn from the SCOTUS decision in Tennessee v. Garner is that deadly force is only legitimate as a counter to deadly force.
Tennessee v. Garner
This case remains the benchmark for the lawful use of force by police. In their analysis, the SCOTUS regarded the use of deadly force in an arrest as a Fourth Amendment issue because an arrest, after all, is a seizure of the person. The Fourth Amendment standard for searches and seizures, including arrest, is one of reasonableness. This logic has been extended to all use of force issues, regardless of whether the person using the force is a law enforcement officer or a private citizen. It is worthy of note that officers do not have any special powers when it comes to the use of deadly force compared with the private citizen. The major difference in most states is that while private citizens are often required to retreat from the confrontation if they can safely do so, police must stand their ground as a matter of public safety. Public safety, then, demands that officers must neutralize deadly force when it is encountered from criminal suspects.
Generally, a person may use nondeadly force to defend himself or another person from unlawful physical force. Both the need to defend yourself or another and the amount of force used in the defense must be reasonable. Self-defense and defense of others are most often used as a defense to assault, battery, and criminal homicide because it always involves the use of force. In the majority of states, self-defense is a statutory defense.
A person is not justified in the use of force under three conditions:
- If the person provokes the use of unlawful physical force by the attacker with the purpose to cause physical injury or death
- If the person is the initial aggressor
- If the physical force is the product of a combat by agreement not authorized by law
The baring of persons who can be considered the initial aggressor may have exceptions, depending on the particular statute. Some statutes provide that the defendant can be the initial aggressor and still raise a self-defense claim if the attacked individual responds with excessive force under the circumstances, or if the defendant withdraws from the attack and the attacked individual persists.
A person may use deadly force if he reasonably believes that the other person is committing or is about to commit a felony involving force or violence or that the person is using or is about to use unlawful deadly physical force. Deadly force may be authorized by statute when it is believed that the person is imminently endangering his or her life or imminently about to victimize the person under circumstances commonly characterized as domestic violence.
Most jurisdictions do not allow for the use of deadly force when a safe, nonviolent alternative is available. The Arkansas statute, for example, dictates that “A person may not use deadly force in self-defense if he knows that he can avoid the necessity of using that force with complete safety, by….Retreating, except that the person is in his or her dwelling and was not the initial aggressor or the person is a law enforcement officer or someone under the direction of a law enforcement officer” or “By surrendering property to a person claiming a lawful right to the property.” A few jurisdictions use a “stand your ground” standard that does not require a person to retreat when threatened. Still, other jurisdictions require retreat in general but make an exception with regard to confrontations taking place within the person’s home or (to a lesser extent) the curtilage of the home.
The defendant cannot use any degree of force in self-defense unless the defendant is faced with an imminent attack. In this context, imminent means the attack is immediate and not something that will occur in the future. If the defendant is threatened with a future attack, the required response is to inform law enforcement, so that they can subdue the threatening individual by arrest or prosecution. Another situation where imminence is lacking is when the attack occurred in the past. When the defendant uses force to remedy a previous attack, this is retaliatory, and a self-defense claim is not allowable. Again, the appropriate response is to inform law enforcement so that they can incapacitate the attacker by arrest or prosecution.
The reasonableness standard for the use of force as a justification is one of objective reasonableness: what would a “reasonably prudent person” have believed under the circumstances? A person may not use physical force to resist arrest, whether the arrest is lawful or unlawful, by a person who is known is reasonably appears to be an LEO or someone acting under the direction of an LEO.
Modification History File Created: 07/17/2018 Last Modified: 07/17/2018
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