FOR EDUCATIONAL USE ONLY
Restatement (Second) of Torts § 65 (1965)
Restatement of the Law -- Torts
Restatement (Second) of Torts
Current through September 2005
Copyright © 1965-2005 by the American Law Institute
Division 1. Intentional Harms To Persons, Land, And Chattels
Chapter 4. Defenses Of Person, Land, And Chattels--Recaption
Topic 1. Self-Defense And Defense Of Third Persons
§ 65. Self-Defense By Force Threatening Death Or Serious Bodily Harm
Link to Case Citations
(1) Subject to the statement in Subsection (3), an actor is privileged to
defend himself against another by force intended or likely to cause death or
serious bodily harm, when he reasonably believes that
(a) the other is about to inflict upon him an intentional contact or other
bodily harm, and that
(b) he is thereby put in peril of death or serious bodily harm or ravishment,
which can safely be prevented only by the immediate use of such force.
(2) The privilege stated in Subsection (1) exists although the actor correctly
or reasonably believes that he can safely avoid the necessity of so defending
himself by
(a) retreating if he is attacked within his dwelling place, which is not also
the dwelling place of the other, or
(b) permitting the other to intrude upon or dispossess him of his dwelling
place, or
(c) abandoning an attempt to effect a lawful arrest.
(3) The privilege stated in Subsection (1) does not exist if the actor correctly
or reasonably believes that he can with complete safety avoid the necessity of
so defending himself by
(a) retreating if attacked in any place other than his dwelling place, or in a
place which is also the dwelling of the other, or
(b) relinquishing the exercise of any right or privilege other than his
privilege to prevent intrusion upon or dispossession of his dwelling place or to
effect a lawful arrest.
See Reporter's Notes.
Comment:
a. As to the meaning of the words "serious bodily harm," see § 63, Comment b. The
word "ravishment" is used not only to describe rape but includes any form of carnal
intercourse which is criminal in character as, for example, sodomy.
b. This Section deals only with the privilege to use force intended or likely to cause
death or serious bodily harm to another for the sole purpose of defending the actor from
death or serious bodily harm. The use of such force may be privileged for other purposes.
Thus, its use may be privileged for the purpose of preventing certain crimes, some of
which do not threaten death or serious harm to the actor (see §§ 140-144), or the
purpose of securing the apprehension of persons guilty of such crimes (see §§ 119-139),
or in the execution of a condemned criminal (see § 145).
c. The privilege to inflict upon another an offensive contact or bodily harm less than
death or serious bodily harm exists if the actor reasonably believes that the other's
conduct threatens him with an offensive contact or bodily harm, however great or small,
including at the one extreme, death, and at the other, the most trivial scratch. The
privilege to use force intended or likely to cause death or serious bodily harm exists if,
but only if, the actor reasonably believes that the other's conduct threatens him with
death or serious bodily harm or ravishment.
Illustration:
1. A attempts to slap B's face. B is not privileged to shoot or stab A to prevent him
from doing so, although, being much weaker than A, B cannot otherwise prevent A from
slapping him.
d. In all other respects, the conditions which are necessary to the existence of a
privilege to use against another force intended or likely to cause death or serious harm
are identical with those which are necessary to the existence of the privilege to use a less
dangerous force which are stated in § 63. Therefore, the comment to that Section is here
pertinent.
Comment on Subsection (1):
e. While it is necessary for the existence of the privilege stated in this Section that
the actor believe that the other's conduct is intended to inflict upon him a bodily contact
or other bodily harm, and that it threatens him with death or serious bodily harm, it is
not necessary that he shall believe that the other intends to bring about his death or to
inflict serious bodily harm upon him. The actor is privileged to use force intended or likely
to cause death or serious bodily harm to prevent a "battery" which he believes that
another is about to commit upon him if he reasonably believes that it may result in death
or serious harm to him, although he realizes that the other is ignorant of the facts which
make such a result probable and intends to commit a merely offensive, or comparatively
harmless, "battery" upon him. So too, the actor is privileged to use such force if he
believes that another intends to commit an "assault" upon him, but reasonably believes
that the other's conduct, though obviously intended only to frighten him, is, because of
circumstances unknown to the other, likely to go beyond his intention and cause death or
bodily harm to the actor.
On the other hand, the actor is not privileged to use against another force intended or
likely to cause death or serious harm to repel an attack which he believes is intended to
cause him a similar harm, but which he realizes is incapable of accomplishing its purpose.
Illustrations:
2. A is, to B's knowledge, ignorant of the fact that B's arm has been recently broken
and that the fracture is not as yet perfectly knit. A seizes B's arm and begins to twist it. B
realizing, though A does not, that A's conduct is likely to re-break his arm, is privileged to
use the same force to prevent A from continuing to twist his arm as though B believed
that A intended thereby to break B's arm.
3. A points a revolver at B. A, to B's knowledge, believes the revolver to be loaded
and intends to shoot B. B knows that the revolver is unloaded. B is not privileged to shoot
A to prevent him from pulling the trigger.
f. The use of force intended or likely to cause death or serious bodily harm is not
privileged merely to prevent a confinement not itself threatening death or serious bodily
harm. Thus, there is no privilege to use such force to prevent an unlawful arrest which
another is attempting to effect otherwise than by the use or threat of deadly weapons,
even where the actor's vastly inferior strength makes any other form of resistance
obviously futile. However, a person may attempt to effect the unlawful arrest of another,
or to overcome the other's resistance thereto, by the use of force intended or likely to
cause death or serious bodily harm, and the other may have no opportunity to submit to
the arrest and so avoid the necessity of using similar force in self-defense. In such a
case, the other may defend himself by the use of such force, not because its use is
necessary to protect him from the unlawful arrest, but because it is the only way in which
he can protect himself from death or serious bodily harm.
Comment on Subsections (2) and (3):
g. Standing one's ground. As stated in § 63, one whom another threatens to attack
may stand his ground and repel the attack with any reasonable force which does not
threaten death or serious bodily harm, although he realizes that he can safely retreat and
so avoid the necessity of using self-defensive force. But the interest of society in the life
and efficiency of its members and in the prevention of the serious breaches of the peace
involved in bloody affrays requires one attacked with a deadly weapon, except within his
own dwelling place, to retreat before using force intended or likely to inflict death or
serious bodily harm upon his assailant, unless he reasonably believes that there is any
chance that retreat cannot be safely made. But even the slightest doubt, if reasonable, is
enough to justify his standing his ground, and in determining whether his doubt is
reasonable every allowance must be made for the predicament in which his assailant has
placed him.
Illustrations:
4. A is standing upon a public highway. B points a revolver at him and threatens to
shoot him. If A cannot prevent B from shooting him by any other means than by shooting
B, he is privileged to do so.
5. A is standing upon a public highway. B, while still some distance away, starts
towards A brandishing a razor and threatening to kill him. B is lame, and A knows that he
can with perfect safety avoid B's attack by running away. A is not privileged to stand his
ground, await B's attack and shoot or stab B to defend himself against it.
h. Meaning of "dwelling place." The phrase "dwelling place" is used in this Section to
denote any building or habitation, or part of it, in which the actor is at the time
temporarily or permanently residing and which is in the exclusive possession of the actor,
or of a household of which he is a member. Only that part of the building or other
habitation which is actually used for residential purposes is a dwelling place. Thus, a
man's house is the dwelling place of himself, his family, his servants, and for the time
being, the dwelling place of one who is residing, however temporarily, in the house as a
guest. It is not the dwelling place of a visitor, social or business, who comes to the house
for a particular purpose and not to reside therein. The phrase "dwelling place" includes a
room or apartment in a hotel which the guest and his family are entitled to occupy
exclusively. It does not include the lobbies, halls or common rooms of a hotel or
apartment house.
A house, or even a room, may be the common dwelling place of more than one
person. So also, in the case of a lodging house, a part of the house, such as the room
occupied by the lodger, may be the exclusive dwelling place of the lodger although the
rest of the house is the common dwelling place of his fellow lodgers, the proprietor, and
the proprietor's servants.
i. Standing one's ground in his dwelling place. Under the statement in Subsection (2,
a), one attacked in his dwelling place may await his assailant and use deadly force to
repel him though he could prevent the assailant from attacking him by closing the door
and so excluding the assailant from the premises. But the mere fact that a man is
threatened with an attack while he is within his own dwelling place does not justify him in
using deadly weapons if he can avoid the necessity of so doing by any alternative other
than flight or standing a siege. A man can no more justify using deadly weapons when he
is in his own home than he can when he is upon a public highway, if he can avoid the
necessity of doing so by complying with a demand, other than a demand that he shall
retreat, give up the possession of his dwelling or permit an intrusion into it, or abandon
an attempt to make a lawful arrest.
Illustrations:
6. A is standing in the vestibule of his dwelling house. B starts toward A brandishing a
razor and threatening to kill him. A is privileged to stand his ground, await B's attack and
shoot or stab him, although A could with perfect safety avoid B's attack by retreating to
an inner room or by closing and locking the door of the vestibule.
7. A goes to B's dwelling place. Having gained admittance peaceably, he points a
revolver at B and threatens to shoot him unless B gives him a watch which B is carrying
and which is the property of B, but which A in good faith claims to be his. In determining
whether B is privileged to defend himself by shooting A rather than give up the watch,
the fact that the demand is made upon him in his own dwelling place instead of upon a
public highway is immaterial.
j. The actor is not required to permit the other to intrude upon, or dispossess him of
his dwelling place, although he knows that he can by so doing with safety avoid the
necessity of using such force. One whom another threatens with force likely to cause
death or serious bodily harm unless he surrenders to the other the possession of his
dwelling place or permits the other to enter therein is not required to submit to the
other's demand in order to avoid the necessity of defending himself by a similar force
when the other's threatened attack becomes imminent.
Illustrations:
8. A comes to the door of B's house and, drawing a pistol, threatens to shoot B unless
B surrenders the possession of the house. B may refuse to do so, and if A attempts to
carry out his threat, is privileged to shoot A in self-defense.
9. A comes to the door of B's house and drawing a pistol, threatens to shoot B unless
B opens the door and permits A to enter. B may refuse to do so and if A attempts to
carry out his threat, is privileged to shoot A in self-defense.
k. Actor engaged in making lawful arrest. The actor is not required to abandon an
attempt to effect a lawful arrest although he knows that he can, by so doing, safely avoid
the necessity of using such force.
Illustration:
10. A, a peace officer, has in his possession a lawful warrant for the arrest of B on the
charge of murder. He attempts to arrest B under the warrant. B draws a revolver and
threatens to shoot A unless A desists. A is not required to abandon his attempt to arrest
B, but is privileged to shoot B if B attempts to carry his threat into execution.
Case Citations
Reporter's Notes & Cross References Through December 1963
Case Citations 1964 -- December 1975
Case Citations 1976 -- June 1984
Case Citations July 1984 -- June 1994
Case Citations July 1994 -- June 2004
Reporter's Notes & Cross References Through December 1963:
REPORTER'S NOTES
This Section has been changed from the first Restatement by condensing it to
conform to the briefer style of later Sections. No change in substance is intended.
Retreat: The English common law is well settled to the effect that one threatened with
a deadly attack is privileged to defend himself by deadly force only if he is unable with
obvious safety to himself to avoid the necessity of doing so by retreat. Regina v. Smith, 8
C. & P. 160, 173 Eng.Rep. 441 (1837); Regina v. Bull, 9 C. & P. 22, 173 Eng.Rep. 723
(1839); see Beale, Retreat from Murderous Assault, 16 Harv.L.Rev. 567 (1903). The
Canadian Criminal Code, Section 53(2), apparently adopts the common law view.
American courts have differed radically on the question. In many parts of the country,
the ideal of social manhood has included as one of its prime requisites courage and
dignity. The interest of the actor in his personal dignity has been regarded as of greater
importance than the social interest in the prevention of deadly affrays, and in the
preservation of life and limb of those engaged in them. In many jurisdictions, therefore, it
is held that one threatened with a deadly attack may stand his ground and protect
himself against it by deadly force even though he knows that he can with perfect safety
avoid the necessity of doing so by retreat. Most of these cases emphasize the fact that
the defendant is where he has a right to be.
United States. Brown v. United States, 256 U.S. 335, 41 S.Ct. 501, 65 L.Ed. 961, 18
A.L.R. 1276 (1921).
Alaska. See De Groot v. United States, 78 F.2d 244 (9 Cir.1935); Frank v. United
States, 42 F.2d 623 (9 Cir.1930).
Arizona. Foster v. Territory, 6 Ariz. 240, 56 P. 738 (1899), semble.
California. People v. Estrada, 60 Cal.App. 477, 213 P. 67 (1923); People v. Turner, 93
Cal.App. 133, 266 P. 204 (1928).
Colorado. Enyart v. People, 67 Colo. 434, 180 P. 722 (1919); Harris v. People, 32
Colo. 211, 75 P. 427 (1904).
District of Columbia. Laney v. United States, 54 App.D.C. 56, 294 F. 412 (1923).
Illinois. People v. Bush, 414 Ill. 441, 111 N.E.2d 326 (1953); People v. Durand, 307
Ill. 611, 139 N.E. 78 (1923); Hammond v. People, 199 Ill. 173, 64 N.E. 980 (1902).
Indiana. Myers v. State, 192 Ind. 592, 137 N.E. 547, 24 A.L.R. 1196 (1922); Page v.
State, 141 Ind. 236, 40 N.E. 745 (1895).
Kansas. State v. Hatch, 57 Kan. 420, 46 P. 708, 57 Am.St.Rep. 337 (1896); State v.
Reed, 53 Kan. 767, 37 P. 174, 42 Am.St.Rep. 322 (1894).
Kentucky. Caudill v. Commonwealth, 234 Ky. 142, 27 S.W.2d 705 (1930).
Louisiana. State v. Boudreaux, 185 La. 434, 169 So. 459 (1936); State v. West, 45
La.Ann. 14, 12 So. 7 (1893).
Michigan. People v. Macard, 73 Mich. 15, 40 N.W. 784 (1888); but see Pond v.
People, 8 Mich. 150 (1860).
Mississippi. Conner v. State, 13 So. 934 (Miss.1893); McCall v. State, 29 So. 1003
(Miss.1901).
Montana. State v. Merk, 53 Mont. 454, 164 P. 655 (1917).
Nebraska. Willis v. State, 43 Neb. 102, 61 N.W. 254 (1894).
Nevada. State v. Grimmett, 33 Nev. 531, 112 P. 273 (1910); State v. Kennedy, 7
Nev. 374 (1872).
New York. People v. Ligouri, 284 N.Y. 309, 31 N.E.2d 37 (1940). See, however,
People v. Sullivan, 7 N.Y. 396 (1852); People v. Constantino, 153 N.Y. 24, 47 N.E. 37
(1897); People v. Kennedy, 159 N.Y. 346, 54 N.E. 51, 70 Am.St.Rep. 557 (1899).
North Carolina. State v. Ellerbe, 223 N.C. 770, 28 S.E.2d 519 (1944); State v. Gaddy,
166 N.C. 341, 81 S.E. 608 (1914). See, however, State v. Gentry, 125 N.C. 733, 34 S.E.
706 (1899).
Ohio. Graham v. State, 98 Ohio St. 77, 120 N.E. 232, 18 A.L.R. 1272 (1918); Irwin v.
State, 29 Ohio St. 186, 23 Am.Rep. 733 (1876).
Oklahoma. Perez v. State, 51 Okl.Cr. 180, 300 P. 428 (1931); Fowler v. State, 8
Okl.Cr. 130, 126 P. 831 (1912).
Oregon. State v. Rader, 94 Or. 432, 186 P. 79 (1919).
Texas. Taylor v. State, 85 Tex.Cr. 468, 213 S.W. 985 (1919); Clay v. State, 44
Tex.Cr. 129, 69 S.W. 413 (1902). Texas has a statute providing that the party is not
bound to retreat to avoid the necessity of killing his assailant.
Virginia. Dodson v. Commonwealth, 159 Va. 976, 167 S.E. 260 (1933); Stoneham v.
Commonwealth, 86 Va. 523, 10 S.E. 238 (1889).
Washington. State v. Meyer, 96 Wash. 257, 164 P. 926 (1917); State v. Hiatt, 187
Wash. 226, 60 P.2d 71 (1936); State v. Hilsinger, 167 Wash. 427, 9 P.2d 357 (1932).
West Virginia. State v. Donahue, 79 W.Va. 260, 90 S.E. 834 (1916); but see State v.
Zeigler, 40 W.Va. 593, 21 S.E. 763 (1895), overruled, State v. Clark, 51 W.Va. 457, 41
S.E. 204 (1902).
Wisconsin. Miller v. State, 139 Wis. 57, 119 N.W. 850 (1909).
Philippines. United States v. Domen, 37 Phil. 57 (1917).
Puerto Rico. People v. Barrios, 23 P.R. 772 (1916).
Georgia recognizes the privilege to use deadly force without retreat, but denies the
privilege to one who, by not retreating, substantially consents to a mutual affray. See
Ragland v. State, 111 Ga. 211, 36 S.E. 682 (1900), and Heard v. State, 70 Ga. 597
(1883).
On the other hand, a large minority of the American jurisdictions have followed the
English position, and have held that there is no privilege to use deadly force if the actor
knows that he can safely retreat.
Alabama. King v. State, 233 Ala. 198, 171 So. 254 (1936); Grubbs v. State, 213 Ala.
576, 105 So. 583 (1925).
Arkansas. Ford v. State, 222 Ark. 16, 257 S.W.2d 30 (1953); Bieard v. State, 189
Ark. 217, 72 S.W.2d 530 (1934); Luster v. State, 126 S.W.2d 276 (Ark.1939). Older
cases, such as La Rue v. State, 64 Ark. 144, 41 S.W. 53 (1897), are apparently
overruled.
Delaware. State v. Stevenson, 8 W.W. Harr. (Del.) 105, 188 A. 750 (1936); State v.
Phillips, 7 W.W. Harr. (Del.) 544, 187 A. 108 (1936).
Florida. Scholl v. State, 94 Fla. 1138, 115 So. 43 (1927).
Iowa. State v. Marish, 198 Iowa 602, 200 N.W. 5 (1924); State v. Dyer, 147 Iowa
217, 124 N.W. 629, 29 L.R.A.N.S. 459 (1910).
Maine. State v. Cox, 138 Me. 151, 23 A.2d 634 (1941).
Minnesota. State v. Sorenson, 32 Minn. 118, 19 N.W. 738 (1884); State v. Rheams,
34 Minn. 18, 24 N.W. 302 (1885); see State v. Gardner, 96 Minn. 318, 104 N.W. 971, 2
L.R.A.N.S. 49 (1905).
Missouri. State v. Roberts, 294 Mo. 284, 242 S.W. 669 (1922). See, however, State
v. Hudspeth, 150 Mo. 12, 51 S.W. 483 (1899); State v. Bartlett, 170 Mo. 658, 71 S.W.
148, 59 L.R.A. 756 (1902).
New Hampshire. State v. Grierson, 96 N.H. 36, 69 A.2d 851 (1949).
New Jersey. State v. Di Maria, 88 N.J.L. 416, 97 A. 248, affirmed, 90 N.J.L. 341, 100
A. 1071 (1916).
Pennsylvania. Commonwealth v. McKwayne, 221 Pa. 449, 70 A. 809 (1908); Kitay v.
Halpern, 104 Pa.Super. 167, 158 A. 309 (1932).
South Carolina. State v. Summer, 55 S.C. 32, 32 S.E. 771, 74 Am.St.Rep. 707
(1899); State v. George, 119 S.C. 120, 111 S.E. 880 (1921).
South Dakota. State v. Stumbaugh, 28 S.D. 50, 132 N.W. 666 (1911), under statute.
Vermont. State v. Roberts, 63 Vt. 139, 21 A. 424 (1890).
Rhode Island and Wyoming would appear to be doubtful. See State v. Sherman, 16
R.I. 631, 18 A. 1040 (1889); Palmer v. State, 9 Wyo. 40, 59 P. 793, 87 Am.St.Rep. 910
(1900).
Retreat from dwelling place. The common law has recognized an exception to the rule
that the defendant must retreat rather than use deadly force. Where the actor is attacked
within his own dwelling place, or its curtilage, he may stand his ground and meet deadly
force with deadly force. 26 Lib.Ass. pl. 23; 21 Hen. VII, pl. 50; Regina v. Ford, cited in
J.Kel. 51, 84 Eng.Rep. 1078, Hale P.C. 486. Substantially all American jurisdictions have
followed the common law in giving the actor this privilege. Bowen v. State, 217 Ala. 574,
117 So. 204 (1928); Hart v. State, 161 Ark. 649, 257 S.W. 354 (1924); Dunn v. State,
237 Ind. 398, 146 N.E.2d 529 (1957); State v. Bennett, 128 Iowa 713, 105 N.W. 324, 5
Ann.Cas. 997 (1905); Crawford v. State, 231 Md. 354, 190 A.2d 538 (1963); People v.
Kuehn, 93 Mich. 619, 53 N.W. 721 (1892); State v. Grierson, 96 N.H. 36, 69 A.2d 851
(1949); Collegenia v. State, 9 Okl.Cr. 425, 132 P. 375 (1909); Fortune v.
Commonwealth, 133 Va. 669, 112 S.E. 861 (1922); State v. Cushing, 14 Wash. 527, 45
P. 145, 53 Am.St.Rep. 883 (1896); State v. Preece, 116 W.Va. 176, 179 S.E. 524
(1935).
In a few jurisdictions a man's business office or storehouse is regarded as partaking
of the sanctity of his dwelling place, so that it becomes equally his "castle," and he need
not retreat if attacked in it, although he might safely do so. Askew v. State, 94 Ala. 4, 10
So. 657, 33 Am.St.Rep. 83 (1891); State v. Baratta, 242 Iowa 1308, 49 N.W.2d 866
(1951); Willis v. State, 43 Neb. 102, 61 N.W. 254 (1894); State v. Griggs, 218 S.C. 86,
61 S.E.2d 653 (1950); State v. Turner, 95 Utah 129, 79 P.2d 46 (1938). In some
instances this extension has been carried to even greater lengths. See State v. Sipes,
202 Iowa 173, 209 N.W. 458, 47 A.L.R. 407 (1926), driveway leading to place of
business; State v. Gordon, 128 S.C. 422, 122 S.E. 501 (1924), open field; State v. Davis,
214 S.C. 34, 51 S.E.2d 86 (1948), anywhere on his own premises; State v. Marlowe, 120
S.C. 205, 112 S.E. 921 (1921), club. Since the actor's privilege to stand his ground in his
dwelling is an exception to the common law rule which sets human safety above any
feelings of dignity or regard for privacy or property, it would seem unwise to extend it.
The justification for the privilege rests in the common and more or less instinctive feeling
that a home is sacred, and that it is improper to require a man to run from his own
house, or to submit to pursuit from room to room in it. No such sentiment can justly be
attached to a barn or a chickenhouse.
There are comparatively few cases dealing with the situation where the actor is
attacked in a dwelling place common to both parties. In some of these cases it has been
held that there is no greater duty to retreat from another occupant than from an
outsider. Bryant v. State, 252 Ala. 153, 39 So.2d 657 (1949); State v. Phillips, 38 Del.
24, 187 A. 721 (1936); State v. Leeper, 199 Iowa 432, 200 N.W. 732 (1924); People v.
Tomlins, 213 N.Y. 240, 107 N.E. 496, Ann.Cas. 1916C 916 (1914); State v. Gordon, 128
S.C. 422, 122 S.E. 501 (1924). In about as many cases it has been held that the actor
must retreat if he can safely do so. Baker v. Commonwealth, 305 Ky. 88, 202 S.W.2d
1010 (1947); State v. Grierson, 96 N.H. 36, 69 A.2d 851 (1949); Commonwealth v.
Johnson, 213 Pa. 432, 62 A. 1064 (1906); Watts v. State, 177 Ala. 24, 59 So. 270
(1912); State v. Dyer, 147 Iowa 217, 124 N.W. 629, 29 L.R.A. N.S. 459 (1910). The
position taken by the Restatement is that the exceptional privilege to stand one's ground
in a dwelling which is the final place of refuge should not apply as against an assailant
who is also within his own dwelling place and castle.
As to the privilege of the actor to stand his ground and resist an intrusion upon his
dwelling, see State v. Perkins, 88 Conn. 360, 91 A. 265, L.R.A. 1915A 73 (1914).
Cross References to
1. Digest System Key Numbers
Assault and Battery
Torts
16
13
2. A.L.R. Annotation
Danger or apparent danger of great bodily harm or death as condition of selfdefense in civil action for assault and battery. 25 A.L.R.2d 1215.
Self-defense in action for assault upon female. 6 A.L.R. 998.
Civil liability for killing or injuring one who was attempting to make an arrest. 7 A.L.R.
313.
Right without judicial proceeding to arrest and detain one who is, or is suspected of
being, mentally deranged. 92 A.L.R.2d 570.
Information, belief, or suspicion as to commission of felony, as justification for arrest
by private person without warrant. 133 A.L.R. 608.
Police officer's power to enter private house or inclosure to make arrest, without a
warrant, for a suspected misdemeanor. 76 A.L.R.2d 1432.
Injury to customer or patron by pushing, crowding, etc. of other patrons. 20 A.L.R.2d
8.
Admissibility of evidence of character or reputation of party in civil action for assault.
154 A.L.R. 121.
Case Citations 1964 -- December 1975:
No earlier citations
C.A.5, 1974. Cit. in sup. This case revolved around the riot, death and injury of
students at Jackson State College, Jackson, Mississippi on May 14, 1970. The defendants
were officers and supervising personnel belonging to the Jackson Police Department
(JPD) and the Mississippi Highway Safety Patrol (MHP). Plaintiffs sued for injuries and
deaths caused by a mixed force of the JPD and the MHP firing, in response to sniper fire,
into the front of a dormitory wing, which resulted in two persons being killed and seven
persons wounded. This court denied all the plaintiffs' motions that the trial court had
improperly failed to direct a verdict in their favor. There existed a privilege for law
enforcement officials to use reasonable deadly force when faced with deadly force or
serious bodily harm while putting down a riot. The plaintiffs had the burden of proof on
the issues of reasonableness of force, tortious non-privileged action, and harm resulting
from excessive action. Factual questions existed for the jury's determination on all these
issues and on the issue of whether supervisory personnel were negligent in developing
proper control and training procedures. In none of these areas could the trial court have
directed a verdict for the plaintiffs as a matter of law. Burton v. Waller, 502 F.2d 1261,
1275, cert. denied 420 U.S. 964, 43 L.Ed.2d 442, 95 S.Ct. 1356 (1975), rehear. denied
421 U.S. 939, 44 L.Ed.2d 95, 95 S.Ct. 1668 (1975).
C.A.7, 1975. Cit. in ftn. in sup. Plaintiffs brought suit against defendant police officer
for violating their constitutional rights by purportedly using excessive force while
arresting them. At the time the arrest was being made, defendant's partner was covering
plaintiffs' only means of escape. In affirming a judgment for plaintiffs, the court reasoned
that a person may employ deadly force against another, if such person reasonably
believes such force necessary to protect a third person or one-self from imminent death
or great bodily harm, without incurring civil liability for injury to the other. However, the
court upheld the district court's findings that, under the circumstances in this case, the
defendant's fear of bodily harm and imminent danger was not reasonable. Clark v.
Ziedonis, 513 F.2d 79, 81.
Fla.App.1970. Cit. in diss.op. in sup. This was an action to recover for an
"unprovoked assault" occurring when a store manager shot a customer with a shotgun.
The court held that where plaintiff merely verbally abused defendant this was no cause
for defendant to obtain a shotgun and to shoot plaintiff upon his refusal to leave the store
and putting his leg upon a counter. Austin v. U-Toe-M-of Broward, 241 So.2d 186, 189.
Fla.App.1974. Cit. in sup. This action was brought by the administrator of a person
who was fatally shot when he and a companion, an hour after an argument with one of
the defendant's on-duty armed guards, jumped the guard, pinned his arms to his side,
and beat him with his own club. The administrator claimed that the guard was negligent
in drawing his gun and firing. The lower court entered summary judgment for the
defendants, and the administrator appealed. This court, "amazed that the suit was ever
brought," held that since the guard was under violent and unexpected attack, had no
time for deliberation as to alternative courses of action, and had no reason to believe that
he could safely avoid defending himself, was not negligent for utilizing his gun. Price v.
Gray's Guard Service, Inc., 298 So.2d 461, 464.
Mass.App.1974. Subsec. (2) cit. in ftn. in disc. The defendant was convicted of
manslaughter. The evidence showed that she shot her paramour with a rifle after he had
made threatening remarks and as he was coming down into the basement where she and
her children were and where she was telephoning the police, and that she had a means of
escaping from the basement without encountering the victim. In affirming, the appellate
court held, inter alia, that the trial judge did not err in failing to instruct the jury that the
defendant had the right to stand her ground and resist the attack and in allowing the jury
to use the possibility of retreat as one consideration in its determination of the
reasonableness of the defendant's force. Commonwealth v. Shaffer, 318 N.E.2d 914,
917, aff'd. 326 N.E.2d 880 (1975).
Minn.1968. Cit. in sup. Plaintiff was convicted of second degree assault.He was
engaged in a fist fight over a girl when he pulled a knife and stabbed the other man in
the back. From the evidence it was apparent that the other fighter was attempting to get
away from defendant, and defendant chased him. Defendant appealed claiming the
instructions were erroneous. He contended that he did not have to retreat but could
pursue and stab the other fighter. The court affirmed the conviction, and held that the
established rule was that in self-defense, if this were self-defense, a man must only
respond with force necessary to protect himself. In the instant case the retaliation was
out of proportion to the assault, for defendant was not protecting himself, he was
pursuing the other fighter. State v. Baker, 280 Minn. 518, 160 N.W.2d 240, 243.
Case Citations 1976 -- June 1984:
D.V.I.1982. Com. (h) and illus. 6 cit. in disc. The plaintiff successfully brought a civil
action for assault, battery, and false imprisonment against the defendant and was
awarded both compensatory and punitive damages. The defendant moved for judgment
notwithstanding the verdict or, in the alternative, for a new trial. Among his contentions,
the defendant argued that it was prejudicial to permit the jury to visit his property, as the
visit demonstrated the higher economic status of the defendant. The defendant urged
that at the time he shot the plaintiff, he was standing in a vestibule-like area of his house
and was therefore entitled to stand his ground and not retreat. The court noted that the
question of whether the defendant was entitled to stand his ground and not safely retreat
was dependent upon whether the landing outside the defendant's front door met the
definition of a vestibule; therefore the jury's visit to view the property was not improper.
The court accordingly found no error warranting either judgment notwithstanding the
verdict or a new trial, and denied the defendant's motions. Clarke v. Bruckner, 93 F.R.D.
666, 671.
Conn.1981. Quot. in sup. The defendant appealed his conviction for first degree
assault, alleging that the trial court, in its instructions to the jury on self-defense, failed
to charge as requested that the defendant had no duty to retreat in his dwelling before
employing self-defense. The court found no error in the trial court's failure to give the
defendant's requested instruction, holding that the privilege to defend oneself against
another with the use of deadly force did not exist in a place which was also the dwelling
of the victim. The court noted that the defendant's use of a deadly weapon in the kitchen
of a home owned and occupied by the victim, where the defendant only rented one
bedroom, was not protected by the use of the castle doctrine. The court advocated the
limited use of the castle doctrine espoused by the Restatement: that the privilege of selfdefense with deadly force without retreat exists only when one is attacked in his own
dwelling which is not also the dwelling of another. The court noted that this view
supported the great value of human life and the demise of the concept of the home as a
solitary fortress. The court stated that this view was apropos in light of the fact that the
great majority of homicides occurred between relatives or close acquaintances. State v.
Shaw, 185 Conn. 372, 441 A.2d 561, 565, 566, certiorari denied 454 U.S. 1155, 102
S.Ct. 1027, 71 L.Ed.2d 312 (1982).
Del.1983. Cit. but not fol. The defendant owned a bar at which the plaintiff was to
perform. The night before the plaintiff was to perform, he was at the bar to set up his
instruments, and he and the defendant drank and gambled with others who were there.
During a scuffle, the defendant pulled a gun and shot the plaintiff in the leg. The trial
court found for the plaintiff, and the defendant appealed. This court reversed, holding
that the trial court's charge to the jury on the self-defense issue was incomplete
because the Delaware self-defense law required a finding of the subjective belief of the
defendant. The law also excused the defendant from the duty to retreat in certain
circumstances. Moor v. Licciardello, 463 A.2d 268, 270.
Md.Spec.App.1978. Com. (h) quot. in ftn. The defendant was convicted in criminal
court of second-degree murder and was sentenced to prison. On appeal, the defendant
assigned error principally in the trial court's refusal to grant an instruction, under the
"castle" doctrine, that there was no duty on his part to retreat because the defendant was
in his own home when he was attacked. The court noted that a universally recognized
exception to the "retreat rule" exists: there is no duty to retreat if one is attacked in his
own home, if in other respects he brings himself within the ordinary rules of selfdefense ("castle" doctrine). The court held that where self-defense was an issue in the
prosecution of the defendant for a homicide which occurred in the defendant's home and
a jury question existed as to whether the defendant was the aggressor, the trial court
should have instructed the jury on the "castle" doctrine that there was no duty on the
defendant's part to retreat since he was in his own home. Accordingly, the court reversed
the lower court's judgment and remanded the case. Gainer v. State, 40 Md.App. 382, 391
A.2d 856, 861.
Md.Spec.App.1980. Cit. in ftn. in disc. and quot. in part in ftn. in disc., com. (h) cit.
in disc. and in ftn. The defendant was convicted of second-degree murder and use of a
handgun in the commission of a crime of violence. The defendant appealed the
conviction, contending that the deceased was advancing toward him with a knife, and
that he acted in self-defense. The appellate court found that the evidence established
that the defendant was a member of the household where the killing took place at the
time of the incident. The court concluded that, for purposes of the law of self-defense,
the defendant was then in his dwelling and had no duty to retreat from attack by the
victim prior to defending himself. The court held that the lower court erred in instructing
the jury that the house in which the killing occurred was only a temporary abode of the
defendant. The judgment was reversed and remanded. Barton v. State, 46 Md.App. 616,
420 A.2d 1009, 1011.
Mass.1982. Cit. in disc. This action arose from an accident occurring at the
defendant's abandoned quarry. The plaintiff sustained injury when, while swimming in
the quarry, he hit a rock ledge under water. The action was brought on the theory that
the plaintiff, albeit an adult trespasser, was a foreseeable trespasser, as people had been
coming onto the land to swim for several years. As a foreseeable trespasser, the plaintiff
contended that the defendant owed him a duty to warn of dangers on the land. The trial
court granted summary judgment for the defendant; this court affirmed. The court
declined to abrogate the common law rule that a landowner is not liable to an adult
trespasser for injuries resulting from the landowner's negligence. The court was
concerned over the lack of consistency and predictability in allowing a jury to determine
the existence and extent of the duty of care owed by a landowner to a foreseeable adult
trespasser. Schofield v. Merrill, 386 Mass. 244, 435 N.E.2d 339, 343.
Mich.App.1980. Rptr's Note, Appendix, Vol. (through December 1963), quot. in part
in disc. (Cit. as Torts, Tentative Draft, Commentary to § 84). The defendant had been
placed in charge of a house while the owners were absent. During a party at the house,
the victim provoked a fight with the defendant, during which the defendant killed the
victim. The trial court found that the defendant had a duty to retreat, which he did not
observe, and he was convicted of voluntary manslaughter. The defendant argued that the
house he cared for was like his "home" for the time being, and a person has no duty to
retreat in his own home. This court stated that the no retreat rule was based on the
feeling that a home is sacred and one should not be required to submit to pursuit from
room to room in one's own house. However, the court did not resolve the appeal on this
ground because it found that the defendant had exceeded the force allowed to repel a
nonlethal attack by using deadly force. The conviction was affirmed. People v. Oster, 97
Mich.App. 122, 294 N.W.2d 253, 258.
Mo.App.1977. Com. (f) quot. in part but dist. Defendant appealed his conviction of
three counts of striking a police officer while he was performing his duties. Defendant
claimed that he was not aware that the men were police officers, and that his struggle
was in self-defense. Since the police officers were in uniform and arrived in marked
police cars, and since defendant did not submit when he became aware of the officers'
identities, the court held that defendant was not entitled to an instruction on selfdefense. State v. Nunes, 546 S.W.2d 759, 763.
Mo.App.1983. Com. (f) quot. but dist. The defendant was convicted of resisting
arrest. The trial court refused to instruct the jury on self-defense. This court affirmed. A
person had right to defend himself against excessive force used in an arrest, but not
against the arrest itself. If a defendant were charged with assault or homicide against a
police officer, he might be entitled to a self-defense instruction, but he was not entitled
to one when the charge was resisting arrest. State v. Hernandez, 651 S.W.2d 187, 190.
Case Citations July 1984 -- June 1994:
Conn.App.1985. Cit. in sup. Plaintiff sued to recover accidental death benefits for an
insured who died in a car accident during a high-speed automobile chase with the police.
The policy's accidental death benefit exclusion clause stated that no benefit would be paid
if the insured died from participation in an assault or felony. The trial court rendered
judgment for defendant insurance company, holding that the insured had participated in
a statutory assault in the third degree. The appellate court set aside the trial court's
judgment and remanded, holding that the insured's conduct, negligent as it may have
been, was not conduct constituting assault within the meaning of the exclusion clause.
The court stated that the ambiguity in the assault term must be interpreted in favor of
the insured, and adopted the view that an assault must be serious conduct which would
justify a victim's using deadly force against the insured for it to fall within the exclusion
clause. The court placed emphasis on the degree to which retaliation was reasonably
justified as opposed to the insured's mental state. Dewitt v. John Hancock Mut. Life Ins.
Co., 5 Conn.App. 590, 501 A.2d 768, 771.
Fla.App.1988. Cit. in case quot. in disc. An insured injured his ex-wife's son when his
gun discharged while he was attempting to strike the son with the gun. The son had been
moving towards the insured in a threatening manner. The insurance company sought a
declaratory judgment that it did not have to indemnify the insured in this personal injury
action pursuant to the exclusionary language of its homeowner's policy. The trial court
entered summary judgment for the insurance company. This court reversed and
remanded for trial, holding, inter alia, that the exclusion contained in the homeowner's
policy for "bodily injury or property damage which is expected or intended by the
insured" did not, as a matter of law, constitute a bar to coverage for an act of selfdefense. The court stated that the insured was privileged to use reasonable force in
defense of his person, which other jurisdictions have held not to fall within the "expected
or intended" exclusion in the policy. Marshall v. State Farm Fire and Cas. Co., 534 So.2d
776, 779.
N.Y.Sup.Ct.1984. Cit. but not fol. Defendant in a criminal action was accused of
attempted murder in the stabbing of complainant while defendant was a guest in his
girlfriend's home. Defendant raised the issue of self-defense and the state requested
that the jury be charged on the duty of retreat. The court denied the request. It noted
that New York law provided that defendant had no duty to retreat if he was "in his own
dwelling," and interpreted this to mean that one who is assaulted in a place where he had
a right to be is under no duty to retreat. People v. White, 127 Misc.2d 219, 484 N.Y.S.2d
994, 995.
N.C.App.1986. Com. (h) quot. in case quot. in disc. The defendant appealed from a
judgment of the trial court imposing a six-year sentence following her voluntary
manslaughter conviction. This court granted a new trial, holding that the trial court
should have instructed the jury, relying on the "castle doctrine," that the defendant had
no duty to retreat from the victim, because she was a member of the household where
the confrontation happened, however temporary this arrangement might have been.
State v. Stevenson, 81 N.C.App. 409, 344 S.E.2d 334, 336.
Ohio App.1990. Subsec. (2)(c) cit. in disc. A mother sued a police department and a
police officer for the wrongful death of her mentally ill son after the son was shot and
killed by the officer responding to a call for help made by the plaintiff. The trial court
granted the defendant's motion for a new trial on the issue of damages after the jury
returned a verdict in favor of the mother for $1 million in compensatory damages.
Affirming the judgment and remanding for a new trial on the issue of damages, this court
held, inter alia, that since the defendants premised their self-defense justification on the
officer's actions committed purely in self defense and not in performance of his duties
as an officer, the trial court properly omitted the "duty to retreat" rule in the selfdefense instruction to the jury. Fields v. Dailey, 68 Ohio App.3d 33, 587 N.E.2d 400,
406.
Case Citations July 1994 -- June 2004:
S.D.Iowa, 2003. §§ 63-66 cit. in sup. Former employee of direct-care services
provider sued employer for sexual harassment and retaliation after she was fired for
slapping a mentally disabled client. Entering judgment for employee on retaliation claim
and awarding compensatory and punitive damages, the court held that, where employer
failed to protect employee from client's escalating sexually harassing behavior despite
employee's requests for assistance, employee's reflexive slapping of client when he
pinched her breast was protected oppositional activity under Title VII. Van Horn v.
Specialized Support Services, Inc., 241 F.Supp.2d 994, 1013.
Conn.App.1999. Quot. in case quot. in disc. Criminal defendant appealed from
conviction for manslaughter, use of a firearm, and criminal possession of a weapon,
alleging that the trial court improperly instructed the jury on the statutory duty to
retreat. There was conflicting evidence as to whether the victim was, in fact, a co-dweller
at the defendant's home. This court affirmed in part and vacated in part, holding, inter
alia, that the trial court properly instructed the jury on the duty to retreat. The court
determined that the trial court's description of a co-dweller as "a person who also is
usually lodged in those premises at night" was not improper. State v. James, 54
Conn.App. 26, 734 A.2d 1012, 1018, certification denied 251 Conn. 903, 738 A.2d 1092
(1999).
N.D.1995. Subsec. (3)(a) cit. in headnote and in disc. Job Service awarded
unemployment benefits to employee who was terminated from employment for fighting
on the job. Affirming the trial court's reversal of the award, this court held that the
claimant's conduct in taking a pot from a co-worker, hitting her on the head with it, and
grabbing a butcher knife went beyond self-defense and constituted disqualifying
misconduct precluding the claimant from receiving unemployment benefits. The court
noted that the duty to retreat and attempt to avoid an altercation before resorting to
deadly force existed in the civil context. ProServe Corp. v. Rainey, 536 N.W.2d 373, 374,
378.
Ohio, 1997. Subsec. (1) cit. in headnote and in sup. The estate of a trespasser
brought a wrongful-death action against a property owner, alleging that defendant
negligently shot and killed the trespasser, who had been attempting to break into
defendant's barn. The trial court entered judgment on a jury verdict awarding plaintiff
damages, and the court of appeals reversed and remanded. Reversing and remanding,
this court held, inter alia, that defendant was not entitled to a jury instruction on the
affirmative defense of self-defense, since there was insufficient evidence that defendant
had a bona fide belief that he or his family were in imminent danger of death or great
bodily harm. Goldfuss v. Davidson, 79 Ohio St.3d 116, 117, 124, 679 N.E.2d 1099, 1100,
1105.
S.D.1999. Cit. in diss. op. Insured sued insurer for, inter alia, breach of contract after
insurer refused to defend her in underlying assault-and-battery case on ground that claim
was excluded under policy's intentional-acts exclusion. Reversing the trial court's grant of
summary judgment for insured and remanding, this court held that a genuine issue of
material fact existed as to whether insured acted to defend herself or intended to inflict
injury. A dissent argued for reversal as a matter of law, contending that insured's
response to attack by daughter-in-law was intentional use of force; self-defense was
not an involuntary response, but was a "justification" for assault and battery. Stoebner v.
South Dakota Farm Bureau Mut. Ins. Co., 1999 SD 106, 598 N.W.2d 557, 563.
(1965)
REST 2d TORTS § 65
END OF DOCUMENT