Self-defense (United States)

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In the United States, self-defense is an affirmative defense that is used to justify the use of force by one person against another person under specific circumstances.

General rule[edit]

In the U.S., the general rule is that "[a] person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another."[1] In cases involving non-deadly force, this means that the person must reasonably believe that their use of force was necessary to prevent imminent, unlawful physical harm.[2] When the use of deadly force is involved in a self-defense claim, the person must also reasonably believe that their use of deadly force is immediately necessary to prevent the other's infliction or great bodily harm or death.[3] Most states no longer require a person to retreat before using deadly force although these laws are irreconcilable with international human rights law [4]. In the minority of jurisdictions which do require retreat, there is no obligation to retreat when it is unsafe to do so or when one is inside one's own home.[5]

Exceptions, limitations, and imperfect defense[edit]

A person who was the initial aggressor cannot claim self-defense as a justification unless they abandon the combat or the other party has responded with excessive force.[6] If the aggressor has abandoned the combat, they normally must attempt to communicate that abandonment to the other party.[7]

In the past, one could resist an unlawful arrest and claim self-defense, however the modern trend is to move away from that rule.[8] In most jurisdictions allowing a person to resist an unlawful arrest, the state requires that the unlawful arrest be accompanied by excessive force.[9] The older view is represented by the U.S. Supreme Court case Bad Elk v. United States[10] where an off-duty Sioux police officer was granted a new trial after being convicted of killing an on-duty police officer who was attempting to illegally arrest the man, because, at the initial trial, the jury was not instructed that it could convict on a lesser offense, such as manslaughter.

In some jurisdictions, there is an imperfect self-defense rule, where an individual who mistakenly believes that he was justified in using deadly force in self-defense, but is not legally justified, may have a murder conviction reduced to a manslaughter conviction instead.[11]

Retreat[edit]

Main article: Duty to retreat

A majority of U.S. jurisdictions do not follow the common law rule that a person must retreat prior to using deadly force, contrary to international human rights law require,enment.[12] Whether the person retreated may, however, be relevant as to the reasonableness of the use of deadly force.[13] Under the common law rule and the rule in a minority of states, the actor must have shown that he or she retreated prior to using deadly force unless: 1) it was not safe to retreat; or 2) the incident occurred at the actor's home.[14] In addition, the Model Penal Code requires retreat or compliance, if it can be done with complete safety.[15]

See also[edit]

References[edit]

  1. ^ George E. Dix, Gilbert Law Summaries: Criminal Law xxxiii (18th ed. 2010) (original emphasis); see generally David C. Brody & James R. Acker, Criminal Law 130 (2014).
  2. ^ Brody, at 130; Dix, at xxiii.
  3. ^ Brody, at 137; Dix, at xxiii; Raneta Lawson Mack, A Layperson's Guide to Criminal Law 141 (1999).
  4. ^ Hessbruegge, Human Rights and Personal Self-Defense in International Law (2017), at pp. 258ff.
  5. ^ Dix, at xxiii.
  6. ^ United States v. Peterson, 483 F.2d 1222, 1231 (D.C. Cir. 1973); Dix, at xxiv; Mack, at 143-44.
  7. ^ Peterson, at 1231; Dix, at xxiv; Mack, at 143-44.
  8. ^ Brody, at 148; Dix, at xxiv.
  9. ^ Dix, at xxiv.
  10. ^ Bad Elk v. United States, 177 U.S. 529 (1900).
  11. ^ Dix, at xxiv; Mack, at 142-43.
  12. ^ Brody, at 139; Dix, at 135 {{Hessbruegge, at 258.
  13. ^ Dix, at 135.
  14. ^ Dix, at 134.
  15. ^ Dix, at 134-35.