Chapter 18
SELF-DEFENSE
§ 18.01
[A]
GENERAL PRINCIPLES
Overview
Every state in the United States recognizes a defense for the use of force,
including deadly force, in self-protection. Indeed, one court has observed:
It is difficult to the point of impossibility to imagine a right in any state
to abolish self defense altogether, thereby leaving one a Hobson's
choice of almost certain death through violent attack now or statutorily
mandated death [or life imprisonment] through trial and conviction of
murder later. 1
If a state legislature were to abolish the defense of self-defense, it might very
well violate the United States Constitution. 2
Most issues regarding the application of defensive force arise in the context
of homicide and attempted murder prosecutions. Therefore, this chapter
primarily focuses on the question of when deadly force may be used in
self-defense.
[B]
Elements of the Defense
At common law, a non-aggressor is justified in using force upon another if
he reasonably believes such force is necessary to protect himself from
imminent use of unlawful force by the other person. 3 Specifically, however,
deadly force is only justified in self-protection if the actor reasonably believes
that its use is necessary to prevent imminent and unlawful use of deadly force
by the aggressor. 4
1
Griffin v. Martin, 785 F .2d 1172, 1186 n.37 (4th Cir. 1986), aff'd en bane and op. withdrawn, 795
F.2d 22 (4th Cir.1986).
2
See District of Columbia v. Heller, 554 U.S._, 128 S.Ct. 2783 (2008) (holding that the Second
Amendment to the United States Constitution provides an individual the right to possess a firearm,
and to use that weapon for traditional lawful purposes, including self-defense within the home); see
also Eugene Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 TEx.
REV. LAw & PoLITICs 399, 400 n2 (2007) (reporting that 44 of the 50 state constitutions "secure either
a right to defend life or a right to bear arms in defense of self' and, therefore, concluding that "a
constitutional right to self-defense is firmly established in American legal traditions").
3
People v. Dunlap, 734 N.E.2d 973, 981 (Ill. App. 2000); State v. Gheen, 41 S.W.3d 598, 606 (Mo.
Ct. App. 2001).
4
United States v. Peterson, 483 F.2d 1222, 1230--31 (D.C. Cir. 1973); State v. Smullen, 844 A.2d
429 (Md. 2004).
223
CH.18
§ 18.02
These principles are subject to substantial clarification, as discussed in the
next chapter section. However, it should be noted at the outset that the
defense of self-defense, as is the case with other justification defenses,
contains: (1) a "necessity" component; (2) a "proportionality" requirement; and
(3) a reasonable-belief rule that overlays the defense.
[E]
SELF-DEFENSE
224
[C]
The Necessity Component
The necessity rule provides that force should not be used against another
person unless, and only to the extent that, it is necessary. One aspect of this
requirement-one which is increasingly controversial-is that self-defense is
limited at common law to imminent threats. 5 Moreover, a person may not use
deadly force to combat an imminent deadly assault if some nondeadly response
will apparently suffice. For example, if V, an elderly or infirm aggressor,
attempts to stab D, D may not kill V if D knows or should know that he could
avoid death by disarming V, or by using nondeadly force. 6 And, in some
jurisdictions, a person may not use deadly force against an aggressor if he
knows that he has a completely safe avenue of retreat.7
[D]
The Proportionality Component
The proportionality rule provides that a person is not justified in using
force that is excessive in relation to the harm threatened. 8 Assuming all of the
other elements of the defense apply, a person may use nondeadly force to
repel a nondeadly threat; he may also use nondeadly force against a deadly
threat (and, in some circumstances may be required to do so, as noted above).
However, a person is never permitted to use deadly force to repel what he
knows is a nondeadly attack, even if deadly force is the only way to prevent
the battery. For example, if V threatens to strike D on a public road, and the
only way D can avoid the battery is to push V into the street in front of a fastmoving car, D must abstain and seek compensation for the battery after the
fact. 9
DEADLY FORCE: CLARIFICATION
225
The "Reasonable Belier' Component
A self-defense claim contains a subjective and an objective component. 10
First, the jury must determine that the defendant subjectively believed that he
needed to use deadly force to repel an imminent unlawful attack. Second, the
defendant's belief in this regard must be one that a reasonable person in the
same situation would have possessed. Notice, however, the implication of the
latter component: A defendant is justified in killing a supposed aggressor if the
defendant's belief in this regard is objectively reasonable, even if appearances
prove to be false, i.e., even if the decedent did not represent an imminent threat
to the defendant. 11
On the other hand, the defense is unavailable to one whose self-defense
belief, although genuine, was unreasonable. In such circumstances, the
traditional rule is that the unreasonably mistaken actor loses his self-defense
claim and, therefore, is guilty of murder. An increasing number of
jurisdictions, however, now permit an unreasonably mistaken actor to assert
an "imperfect" or "incomplete" claim of self-defense, which mitigates the
offense to manslaughter. 1 2
§ 18.02
DEADLY FORCE: CLARIFICATION OF THE
GENERAL PRINCIPLES
As stated in § 18.01, a person who is not an aggressor is justified in using
deadly force upon another if he reasonably believes that such force is necessary
to protect himself from imminent use of unlawful deadly force by the other
party. This rule is examined here in detail.
[A]
"Deadly Force": Definition
Statutes vary in their definition of the term "deadly force." However
defined, it applies whether one is considering the force used by the aggressor
(decedent) or the innocent person threatened (defendant).
As summarized by one court, 13 some states define the term on the basis of
the likelihood of the force causing death or serious bodily injury. 14 Thus,
"deadly force" is, for example, force "likely" or "reasonably expected" to cause
death or serious bodily injury; the actor's state of mind in regard to the likely
outcome is irrelevant. 15
5
See § 18.02[D][l], infra.
People v. Riddle, 649 N.W.2d 30, 34 (Mich. 2002); see State v. Garrison, 525 A2d 498 (Conn.
1987) (V, intoxicated, moved menacingly toward G with a gun in his waistband; G disarmed V; V
then pulled out a knife; G shot V to death; G's conviction was upheld, in part on the ground that G
knew, or should have known, that he could have disarmed V again).
6
7
See § 18.02[C], infra.
State v. Warren, 794 A2d 790, 793 (N.H. 2002). But see Renee Lettow Lerner, The Worldwide
Popular Revolt Against Proportionality in Self-Defense Law, 2 J. LAw, EcoN. & PoL'Y 331, 333
(2006) ("A popular revolt against certain notions of proportionality has been underway for the past
several decades in the United States, and for at least the past five years abroad.").
10
11
State v. Simon, 646 P.2d 1119, 1120--21 (Kan. 1982); People v. Goetz, 497 N.E.2d 41, 46-48
(N.Y. 1986); Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415, 1421 (E.D. Cal.
1990). For more discussion of the "reasonable belief' topic, see § 17.04, supra.
12
See § 18.03, infra.
13
People v. Vasquez, 148 P.3d 326, 328-329 (Colo. App. 2006).
8
9
For the definition of "deadly force," see § 18.02[A], infra.
People v. Watie, 100 Cal. App. 4th 866, 877 (2002); State v. Clark, 826 A2d 128, 134-35 (Conn.
2003).
14
Notice: The definition of "deadly force" usually is broadly defined to include serious bodily
injury (or, alternatively, "grievous bodily injury'' or "life-threatening injury"), and not just death.
15
E.g., if D stabs V, this constitutes deadly force, even if D only intended to wound V slightly,
SELF-DEFENSE
226
CH.18
Other jurisdictions include a mental-state element in the definition. Thus,
"deadly force" is, for example, force "intended" to cause death or serious
bodily injury, regardless of the likelihood of such a result occurring. Other
definitions, while including a mental-state element, tie it to the likelihood of a
result (e.g., the actor "knew" or "reasonably should have known" that the force
used was likely to cause death or serious injury).
[B]
[1]
An aggressor "has no right to a claim of self-defense."16 Although there is
~
no universally accepted definition of the term, an "aggressor" has been defined
as one whose "affirmative unlawful act [is] reasonably calculated to produce an
affray foreboding injurious or fatal consequences."17 Or, he is one who
threatens unlawfully to commit a battery upon another or who provokes a
physical conflict by words or actions calculated to bring about an assault. 18 For
example, if A unlawfully brandishes a knife and threatens to kill B, A is not
justified in defending himself if B responds to A's threats by use of selfprotective force.
Courts frequently state that a person is not privileged to use force to resist
an attack unless he is "free from fault in the difficulty," 19 but that is an
overstatement. 2 ° For example, if D calls V, an acquaintance, "a jerk," to which
V take such umbrage that he pulls out a gun and menaces D with it, D is
justified in killing V (assuming that the other requirements of the defense are
met), although D was not entirely free from fault in the conflict. D was not the
aggressor: his mild insult was not an "affirmative unlawful act reasonably
calculated to produce an affray foreboding injurious or fatal consequences."
Three features of the concept of "aggression" merit brief attention here.
First, a person is an aggressor even if he merely starts a nondeadly conflict.
Second, it is incorrect to state that the first person who uses force is always
and regardless of whether V dies from the wounds. On the other hand, applying this definition, a
minor battery does not ordinarily constitute deadly force, even if death unexpectedly results. E.g.,
V throws a fist at D; D protects himself by lightly pushing V away; V falls and unexpectedly dies.
D may successfully claim self-defense because he used force proportional to the threat-he used
nondeadly force (force unlikely to cause death or serious bodily injury) to repel a nondeadly attack.
16 Bellcourt v. State, 390 N.W.2d 269,272 (Minn. 1986); see Loesche v. State, 620 P .2d 646,651
(Alaska 1980) (''The law of self-defense is designed to afford protection to one who is beset by an
aggressor and confronted by a necessity not of his own making.") (quoting Bangs v. State, 608 P.2d
1, 5 (Alaska 1980)).
17 United States v. Peterson, 483 F.2d 1222, 1233 (D.C. Cir. 1973).
1 8 State v. Brown, 450 S.E.2d 538, 541 (N.C. Ct. App. 1994); see also People v. Dunlap, 734
N.E.2d 973 (Ill. App. Ct. 2000) (D beat on Vs apartment window and threatening V; the court noted
that "[e]ven the mere utterance of words may be enough to qualify one as an initial aggressor").
19
United States v. Peterson, 483 F.2d 1222, 1231 (D.C. Cir. 1973).
State v. Corchado, 453 A.2d 427,433 (Conn. 1982) (stating that "[i]t is not difficult to visualize
self-defense situations where . . . there is some fault on both sides").
20
227
the aggressor. 21 One who unlawfully brandishes a weapon in a threatening
manner, but who does not use it, is an aggressor; the person threatened,
although he is the first to use actual force, can still potentially claim selfdefense. Third, the issue of whether a defendant lost the right of self-defense
in a conflict ordinarily is a matter for the jury to decide, based on a proper
instruction on the meaning of the term "aggressor."22
[2]
The "Non-Aggressor" Limitation
Definition of "Aggressor"
DEADLY FORCE: CLARIFICATION
§ 18.02
Removing the Status of "Aggressor"
The initial ag~essor in a conflict may purge himself of that status and
regain the right of self-defense. The issue always is: Who was the aggressor at
the time the defensive-in this context, deadly-force was used? In this
regard, it is important to distinguish between "deadly" (or "felonious") and
"nondeadly" aggressors.
[a]
Deadly Aggressor
A "deadly" (or "felonious") aggressor is ,a person whose acts are reasonably
calculated to produce fatal consequences. The only way such a person may
regain the right of self-defense is by withdrawing in good faith from the
conflict and fairly communicating this fact, expressly or impliedly, to his
intended victim. 23
This rule is strictly applied. For example, suppose that D initiates a deadly
attack on V in the street, whereupon V responds with sufficient force that D is
now fearful for his own life. If D runs behind a parked car, and V pursues him,
D is still not entitled to act in self-defense, unless by actions or words D puts
Von actual or reasonable notice that he no longer is a threat to V, i.e., that D's
retreat is not simply a temporary strategic act of avoiding Vs resistance. In
the absence of fair notice to V of the termination of the conflict, D is guilty of
murder if he kills V in "self-defense."
[b]
Nondeadly Aggressor
Suppose that D wrongfully attempts to slap V. V improperly responds to the
threat by pulling out a knife and attempting to kill D. In this conflict, D was the
initial aggressor. On the other hand, Vs response was disproportional to D's
attack, as he wrongfully converted a minor altercation into a deadly one. Thus,
Vis also an aggressor, indeed, a worse one than D. May D, therefore, now kill
V in self-defense?
Although case law is not uniform, most courts provide that when the victim
of a nondeadly assault responds with deadly force, the original aggressor
immediately regains his right of self-defense.24 Thus, in the hypothetical,
although D was the initial aggressor-and is subject to prosecution, therefore,
for the original assault-he may defend himself, including by use of deadly
force if required.
21
State v. Jones, 665 A.2d 910, 913-14 (Conn. App. Ct. 1995).
22
Swann v. United States, 648 A.2d 928, 933 (D.C. 1994).
23
People v. Gleghorn, 193 Cal. App. 3d 196, 200 (Ct. App. 1987); State v. Miller, 868 So.2d 239,
243 (La. Ct. App. 2004); State v. Morrow, 41 S.W.3d 56, 59 (Mo. Ct. App. 2001).
24
E.g., Watkins v. State, 555 A.2d 1087, 1088 (Md. Ct. Spec. App. 1989).
SELF-DEFENSE
228
CH.18
The other approach, particularly followed in earlier law, is that D, the initial
nondeadly aggressor, does not have an automatic right of self-defense. 25 In
these jurisdictions, D is not entitled to use deadly force against V unless he
avails himself of an obviously safe retreat, if one exists. 26 If no safe place
exists or if D does retreat and V pursues him, then D may resort to deadly
force.' If D does not retreat when he obviously could do so, he does not lose his
status as an aggressor, and is not justified in killing V. However, in such
circumstances, D may be convicted in some jurisdictions of manslaughter,
rather than of murder. 27
The rationale for reducing the offense to manslaughter in such
circumstances is not always explained. Frequently, D's manslaughter verdict
can be explained on grounds unrelated to self-defense: V's deadly response to
D's nondeadly assault constitutes "adequate provocation," which brings D's
conduct within the "sudden heat of passion" doctrine of homicide law. 28
Sometimes, however, a court will treat the nondeadly aggressor as possessing
an "imperfect" or ''incomplete" right of self-defense, which results in the
manslaughter conviction. 29
[C]
[1]
Necessity Requirement: The Special Issue of
Retreat30
§ 18.02
[2]
25 See American Law Institute, Comment to § 3.04, at 50--51.
26 Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1128-29 (3d ed.
27 !d.
28
See § 31.07[B][2], infra.
29
See § 18.03, infra.
30
State v. Abbott, 174 A2d 881, 884 (N.J. 1961).
32
See § 18.01[C], supra.
33
See § 18.02[D][1], infra.
Contrasting Approaches
A majority of jurisdictions today apply a "no retreat" rule: a nonaggressorM is permitted to use deadly force to repel an unlawful deadly attack,
even if he is aware of a place to which he can retreat in complete safety. 35
The no-retreat position has gained additional recent support as the result of
efforts, particularly by the National Rifle Association, to broaden self-defense
law. According to one review of state legislative efforts, between 2005 and
2007, "thirty states ... considered altering their laws on self-defense to
replace the retreat element with a right to 'stand your ground.' " 36 Although
not all of these states changed their law, by 2006, fifteen states "enacted laws
that expand the right of self-defense, allowing crime victims to use deadly
force in situations that might formerly have subjected them to prosecution for
murder."37
The new statutes are, to differing degrees, modeled after "Stand Your
Ground" legislation enacted in Florida in 2005, which provides in part:
A person who is not engaged in an unlawful activity and who is
attacked in any . . . place where he has a right to be has no duty to
retreat and has the right to stand his or her ground and meet force
with force, including deadly force if he or she reasonably believes it is
necessary to prevent death or great bodily harm to himself or another
or to prevent the commission of a forcible felony. 38
The rule that a person is not required to retreat is justified on various
grounds. First, it is claimed that the law "should not denounce conduct as
criminal when it accords with the behavior of reasonable men. . . . [T]he
manly thing is to hold one's ground, and hence society should not demand what
smacks of cowardice." 39 Second, "Right" should never give way to ''Wrong," yet
this is what the retreat doctrine demands of those in the right. Third, the
no-retreat rule sends a positive, utilitarian message to criminals that they
threaten innocent persons at their own risk. As one legislator put it, "It's going
34
Aggressors who wish to defend themselves are required to retreat, even in no-retreat
jurisdictions. See § 18.02[B][2], supra.
1982).
See generally Joseph H. Beale, Retreat from a Murderous Assault, 16 HARv. L. REV. 567
(1903); Catherine L. Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-Defense, 86
MARQ. L. REv. 653 (2003).
31
229
If a person can safely retreat and, therefore, avoid killing the aggressor,
deadly force is, objectively speaking, unnecessary. Nonetheless, American
jurisdictions are split on the issue of whether an innocent person must retreat
if this can be done in complete safety.
Explanation of the Issue
The general rule is that self-defense "is measured against necessity."31
Thus, as explained earlier, 32 a person under deadly attack should only respond
with nondeadly force, if such lesser force will reasonably prevent the
threatened harm. Likewise, one may ordinarily only use force when a threat
has become imminent, a controversial requirement considered later in the
text.33 At issue in this subsection is the question of whether an actor, under
attack, must retreat before using deadly force. In other words, if an innocent
person is attacked, and if he has only two realistic options-use deadly force or
retreat to a place of safety-must he choose the latter option? As discussed
immediately below, the law in this area is in flux.
DEADLY FORCE: CLARIFICATION
35 See State v. Anderson, 631 A.2d 1149, 1154, 1155 (Conn. 1993) (stating, but rejecting, what it
characterized as the majority "no retreat" rule); Wayne R. LaFave, Criminal Law 547 (4th ed. 2003)
(describing the no-retreat rule as the majority view, but also indicating there is a "strong minority"
position).
36 P. Luevonda Ross, The Transmogrification of Self-Defense by National Rife AssociationInspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground, 35 S.U. L.
REV. 1, 2 (2007).
37 Adam Liptak. 15 States Expand Victims' Rights on Self-Defense, New York Times, Aug. 7,
2006, at Al.
38
39
Fla. Stat. 776.013(3) (2008).
State v. Abbott, 174 A2d 881, 884 (N.J. 1961).
SELF-DEFENSE
230
CH.18
§ 18.02
DEADLY FORCE: CLARIFICATION
231
to give the crooks second thoughts about carjackings and things like that.
They're going to get a face full of lead."40
even though he knows he could do so in complete safety, before using deadly
force in self-defense. 49
A minority of jurisdictions reject these arguments and provide that an
innocent person threatened by deadly force must retreat rather than use
deadly force if he is aware that he can do so in complete safety.41 Defenders of
the retreat rule state that the defense of self-protection-and especially the
necessity doctrine-is based on the principle that all human life, even that of an
aggressor, should be preserved if possible. The retreat requirement properly
places protection of human life above the supposedly "manly" response of
standing up to aggression.42
As one scholar has explained, 50 the castle doctrine is justified on two
grounds. Sometimes courts view the rule, although used in self-defense cases,
as a form of "defense of habitation,"51 in that the home-dweller is permitted to
kill to protect the sanctity of his home, which has been intruded upon. Second,
the home, as castle, is viewed as a person's final sanctuary from external
attack. Therefore, "[h]aving retreated as far as possible, the actor should not
be compelled to leave the sanctuary."52
Moreover, defenders of the retreat requirement contend that the retreat
rule should not increase the risk of harm to innocent persons because retreat
is never demanded when it would imperil the would-be defender. 43 Indeed, in
retreat jurisdictions, the duty to retreat is not triggered unless there is a place
of complete safety to which the non-aggressor can turn. 44 Furthermore, the
issue is not simply whether a place of such safety exists and that a reasonable
person would have been aware of its presence: The duty to retreat only exists
if the person under siege is subjectively aware of its existence. 45 The practical
effect of these conditions is that a person under attack rarely is compelled to
retreat, especially when the aggressor is armed with a gun: There is almost
never a place of complete safety to which one can turn when confronted by a
gun; and even when a place of safety exists, the person is apt to be unaware of
it because of the attendant excitement of the situation. 46
[3]
The "Castle" Exception to the Retreat Rule
Even in jurisdictions that ordinarily require a person to retreat to a known
place of safety before using deadly force, a universally recognized
exception-the so-called "castle doctrine"- exists. This doctrine provides that
a non-aggressor is not ordinarily required to retreat from his47 dwelling, 48
40
41
Robert Tanner, States Signing on to Deadly Force Law, Associated Press, May 24, 2006.
E.g., Sydnor v. State, 776 A2d 669,675 (Md. 2001); People v. Riddle, 649 N.W.2d 30,34 (Mich.
2002).
42 See Beale, Note 30, supra, at 581 (in which the author states that a ''really honorable
man . . . would perhaps always regret the apparent cowardice of a retreat, but he would regret
ten times more . . . the thought that he had the blood of a fellow-being on his hands."). Indeed, as
Susan Estrich has observed, this feature of self-defense law (a retreat requirement) is not subject
to criticism on the ground that it is biased in favor of the "male" view of proper conduct. Susan
Estrich, Defending Women, 88 MicH. L. REv. 1430, 1431-32 (1990).
43
State v. Gardner, 104 N.W. 971, 975 (Minn. 1905) ("Self-defense has not, by statute nor by
judicial opinion, been distorted, by an unreasonable requirement of the duty to retreat, into
self-destruction.").
44 State v. Anderson, 631 A.2d 1149, 1155 (Conn. 1993) (holding that a judge's "retreat"
instruction to the jury was erroneous because it failed to include the word "complete").
45
46
Redcross v. State, 708 A.2d 1154, 1158 (Md. Ct. Spec. App. 1998).
State v. Abbott, 174 A2d 881, 884-86 (N.J. 1961).
47 Should a social guest also be able to apply the "castle" no-retreat doctrine against an
intruding aggressor, although the guest is not in his own dwelling? Case law is split. Compare State
May a person in his home stand his ground, even if the assailant is a codweller, with an otherwise equal right to be there? This is a matter of
considerable significance, in view of the fact that "[i]n the great majority of
homicides the killer and the victim are relatives or close acquaintances."53
More to the point, many in-the-home self-defense cases involve a female who
needs to defend herself from an abusive domestic partner. As recent courts
have increasingly observed, "imposing a duty to retreat from the home may
adversely impact victims of domestic violence."54 Particularly in the case of a
battered woman who has attempted to leave her abusive partner-she has
tried to retreat permanently from the situation-but has been dragged back
home, literally or figuratively, it seems especially unjust to deny her the right
of self-defense because she did not retreat again from her home, when she
would have no such legal duty if her assailant was a stranger in the dwelling. 55
Most retreat jurisdictions, especially in recent years as courts have grown
more sensitive to the plight of battered women, have adopted the rule that the
assailant's status as a co-dweller is irrelevant, i.e., the innocent person need
not retreat from the home, even if the aggressor also lives there. 56 The
v. Brown, 467 S.E.2d 922, 924 (S.C. 1996) (extending the castle doctrine to an invitee) with State v.
James, 867 So.2d 414, 417 (Fla. Dist. Ct. App. 2003) (holding that, given that "[h]uman life is
precious," the castle doctrine should not be expanded).
48
For purposes of the castle doctrine, the "dwelling" typically includes a porch physically
attached to the home, People v. Canales, 624 N.W.2d 439, 442 (Mich. Ct. App. 2000), but not the
lobby or common stairway in a person's apartment building, People v. Hernandez, 774 N.E.2d 198,
201-03 (N.Y. 2002). See also State v. Marsh, 593 N.E.2d 35, 38 (Ohio Ct. App. 1990) (Ms tent at a
campground constituted a home, for purposes of the castle doctrine).
49
State v. James, 867 So.2d 414, 416 (Fla. Dist. Ct. App. 2003).
50
Carpenter, Note 30, supra, at 667.
51
52
See generally § 20.03, infra.
Carpenter, Note 30, supra, at 667; see also People v. Aiken, 828 N.E.2d 74, 77 (N.Y. 2005)
("Our contemporary castle doctrine grew out of a turbulent era when retreat from one's home
necessarily entailed increased peril and strife. . . . [O]ne should not be driven from the inviolate
place of refuge that is the home.").
53
54
State v. Shaw, 441 A.2d 561, 566 (Conn. 1981).
Weiand v. State, 732 So.2d 1044, 1052 (Fla. 1999).
55 State v. Gartland, 694 A2d 564, 570-71 (N.J. 1997) (calling on the state legislature to
reconsider its retreat rules in this context).
56 State v. Glowacki, 630 N.W.2d 392, 400 (Minn. 2001) (characterizing the no-retreat rule among
co-dwellers as the majority rule).
SELF-DEFENSE
232
CH.l8
contrary position is that, in the absence of express legislation, a court will not
conclude that a "legislature intended to sanction the reenactment of the
climactic scene from 'High Noon' in the familial kitchens of this state."57
[D]
[1]
Nature of the Threat: "Imminent, Unlawful Deadly
Force"
"lmminent"5 s
At common law, a person who wishes to use force in self-defense must
reasonably fear that the threatened harm is imminent. 59 In the context of selfdefense, force is said to be ''imminent" if it will occur "immediately,"60 or "at
the moment of . . . danger."61 The danger must be "pressing and urgent."62
Force is not imminent if an aggressor threatens to harm another person at a
later time: " 'later' and 'imminent' are opposites."63 Indeed, even if it seems
clear that harm at the hands of another is inevitable, use of force is premature
until the threat is immediate. 64
The imminency requirement is controversial. Some scholars advocate its
abolition on the ground that it is nothing more than "an imperfect proxy to
ensure that the defendant's force is necessary."65 This argument has gathered
greater support and attention in recent years because of society's increased
57 State v. Shaw, 441 A.2d at 566. As Professor Carpenter has observed, these jurisdictions may
be especially influenced by the defense-of-habitation, rather than home-as-sanctuary self-defense,
rationale of the castle doctrine: These courts "choose to emphasize the shared property interest of
the deadly aggressor," rather than ''the defender's right of protection in the sanctuary." Carpenter,
Note 30, supra, at 671.
58
See generally Larry Alexander, A Unified Excuse of Preemptive Self-Protection, 74 NOTRE
DAME L. REv. 1475 (1999); Joshua Dressler, Battered Women and Sleeping Abusers: Some
Reflections, 3 OHIO ST. J. CRrM. L. 457 (2006); Kimberly Ferzan, Defending Imminence: from
Battered Women to Iraq, 46 ARiz. L. REv. 213 (2004); Whitley R.P. Kaufman, Self-Defense,
Imminence, and the Battered Woman, 10 NEw CRrM. L. REv. 342 (2007); Jane Campbell Moriarty,
''While Dangers Gather"; The Bush Preemption Doctrine, Battered Women, Imminence, and
Anticipatory Self-Defense, 30 N.Y.U. REv. Law & Soc. Change 1 (2005); Richard A. Rosen, On
Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. REv. 371 (1993).
59
§ 18.02
DEADLY FORCE: CLARIFICATION
233
awareness of the plight of battered women, who are victims of repeated,
seemingly inevitable, but not always imminent, beatings.66
According to Professor Richard Rosen, because imminency "serves only to
further the necessity principle, if there is a conflict between imminence and
necessity, necessity must prevail."67 Therefore, he reasons, if it is truly
necessary for a person, such as a battered woman, to use deadly force before a
threat is imminent, she should be justified in doing so, just as the law should
disallow the use of force, even if harm is imminent, if it is unnecessary.
Moreover, Professor Jane Moriarty argues, in the context of international law,
"anticipatory self-defense" "may be legitimately invoked if a targeted country
has been victimized by prior attacks and learns more attacks are planned.
When a prior aggressor threatens to commit future violence, international law
treats the threat as real. So should domestic criminallaw."6a
There may be good reason to enlarge the defense of self-defense. The Model
Penal Code provides an alternative that narrowly expands on the common
law.69 Professor Stephen Morse would take the matter further, suggesting
that "[i]f death or serious bodily harm in the relatively near future is a virtual
certainty and the future attack cannot be adequately defended against when it
is imminent and if there really are no reasonable alternatives, traditional selfdefense doctrine ought to justify the pre-emptive strike." 70
Professor Morse's characterization of the use of deadly force as a "preemptive strike"- what Professor Moriarty describes as "anticipatory selfdefense"-is a valuable one. In some sense, all self-defense cases involve preemptive strikes. 71 Seen this way, the issue becomes how prematurely or
anticipatorily the perceived aggression may be pre-empted. The difficulty is
that when one moves away from an imminency requirement to something
less-or to no temporal requirement of any kind-the risks of error in
predicting the future and in predicting whether options less extreme than
deadly force may be available are greatly enhanced. Weather forecasters
predict the future, but "even funnel clouds sometimes turn around, and human
beings sometimes defy predictions."72 Indeed, because humans have the
capacity for free choice, humans are far less predictable than funnel
clouds-there is very little ''virtual certainty" about human behavior. One
Ha v. State, 892 P.2d 184, 190 (Alaska Ct. App. 1995).
60
State v. Norman, 378 S.E.2d 8, 13 (N.C. 1989). According to Professor Holly Maguigan, the
terms "imminent" and ''immediate" are not precisely interchangeable in the self-defense, particularly battered-woman, context. Holly Maguigan, Battered Women and Self-Defense: Myths and
Misconceptions in Current Reform Proposals, 140 U. PA. L. REV. 379, 414-16 (1991). However,
many courts and scholars, even in the latter context, use the terms interchangeably. E.g., State v.
Norman, supra; State v. Kelly, 478A.2d 364,385 n.23 (N.J.1984); Richard A. Rosen, Note 58, supra,
at 373 n.4; Robert F. Schopp et al., Battered Woman Syndrome, Expert Testimony, and the
Distinction Between Justification and Excuse, 1994 U. ILL. L. REv. 45, ~5.
61
62
63
64
65
Sydnor v. State, 776 A.2d 669, 675 (Md. Ct. App. 2001).
Ha v. State, 892 P.2d at 191.
United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998).
Ha v. State, 892 P.2d at 191.
Alafair Burke, Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes,
out of the Battered Woman, 81 N.C. L. REV. 211,271 (2002).
66
The subject of self-defense in the battered-woman context is considered in detail at
§ 18.05[B], infra.
67
Rosen, Note 58, supra, at 380.
68
Moriarty, Note 58, supra, at 25. But see Sanford H. Kadish, Respect for Life and Regard for
Rights in the Criminal Law, 64 CAL. L. REv. 871, 880 (1976) (stating the traditional view of the law
that "[t]he life of the good man and the bad stand equal, because how a man has led his life may
not affect his claim to continued life.").
69
70
See § 18.06(A], infra.
71
72
Alexander, Note 59, supra, at 1477.
Stephen J. Morse, The "New Syndrome Excuse Syndrome", 14 CRrM. JusT. ETHICS (Winter/
Spring 1995), at 3, 12.
Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing
Approaches to Due Process, 85 MrcH. L. REv. 510, 557 (1986).
SELF-DEFENSE
234
CH.18
§ 18.03
un:av~lila.ble
benefit of the imminency requirement, therefore, is that it reduces the risk of
unnecessary use of deadly force.
There are two other defenses of the imminency requirement, both of which
understand imminence as more than a proxy for necessity. First, according to
Professor Kim Ferzan, "[s]elf-defense is uniquely justified by the fact that the
defender is responding to aggression. Imminence, far from simply establishing
necessity, is conceptually tied to self-defense by staking out the type of threats
that constitute aggression."73 In short, in the absence of imminence there is no
aggression, and ''we blur the distinction between offense and defense."74
Second, the imminence requirement is defended on political theory grounds:
"The basic idea is that the state claims a monopoly on force, under which no
individual or non-state group is permitted to resort to force without the state's
authorization."75 This requirement of authorization, which controls the use of
violence in society, "rests on the venerable natural law principle . . . that no
one should be a judge in his own case; the decision to use force against another
person must be made by an objective and disinterested authority."76 The
exception is when "danger is present and immediate, and there is no time to
resort to a central authority."
[2]
"Unlawful Force"
A person may not defend himself against the imposition of lawful, i.e.,
justified, force. For example, a robber may not assert self-defense if he shoots
and kills his intended robbery victim when the latter responds with force to the
robbery attempt. 77 Likewise, reasonable force applied by a police officer in the
performance of his duties is justified. Consequently, a citizen may not use
deadly force to resist an officer's proper use of force against him.78
DEADLY FORCE: "IMPERFECT" SELF-DEFENSE CLAIMS
to a defendant, 79 and the
states, however, now
of self-defense to
of imperfect
aggressor who is the
place of complete
right of self-defense is
235
ae1~ndar1t
may be
a so-called
results in
some courts provide
response must retreat
using deadly force; if he fails to
imperfect. 80
many states now
case lawB 1 or statute82 that one
believes
that factual l'l.l'l'1.1TYI~~t!
another because he
the killing, is guilty of
, rather than murder.
guilty
because: (1) D urureasoiltabJly
of manslaughter if
that Vis
intends only
about to use
although, in fact, V
to realize, as
nondeadly
V intends to use deadly
that nondeadly n"'"'t~.r>t.i~u,
suffice. In short,
!l!lt-I"IP.t·P.n!;;P. consists of the
[as "perfect" selfan objectively reasonable
that the defendant need
death or serious bodily
was in ... imminent
. . , requiring the use of
It is unfortunate to
this realm as involving "imper£
self-defense. It is a
to say that a person has a "ri
and yet convict an
''privilege") to use
for enforcing this
the claim either shoul
failure-of-proof
the ground that the defenda
actions demonstrate he lacked a
mens rea (at common law
ce aforethought),85
or as a partial excuse for the killing, on the ground
he actor's culpability
is mitigated by his honest, albeit mistaken, belief. 86
Conduct that would constitute a crime or a tort is "unlawful," even if the
actor could escape conviction or liability by assertion of an excuse defense. For
example, if V, an insane person or an infant, uses unjustifiable force upon
another, this constitutes "unlawful force," notwithstanding V's potential excuse
claim.
defense of
ex<meration of the person acting
common law rule is that if any
esulting in
, the traditional
nse are missing, the
79 Ross v. State, 211 N.W.2d 827, 830 (Wis. 1973) (stating, but rejecting, the historical
ali-or-nothing rule).
80 E.g., People v. Amos, 414 N.W.2d 147, 150 (Mich. Ct. App. 1987); State v. McAvoy, 417 S.E.2d
489, 497 (N.C. 1992). See§ 18.02[B)[2][b], supra.
81
E.g., In re ChristianS, 872 P.2d 574, 575 (Cal. 1994); Swann v. United States, 648 A.2d 928,
(D.C. 1994); State v. Peterson, 857 A.2d 1132, 1147-48 (Md. Ct. Spec. App. 2004).
93~1
73 Ferzan, Note 58, supra, at 262.
74
/d. at 252.
75 Kaufman, Note 58, supra, at 354.
76 /d. at 359.
77
State v. Amado, 756 A.2d 274, 282--84 (Conn. 2000).
78 However, in the absence of special legislation restricting his rights, a person may defend
himself against excessive (and, therefore, unlawful) police force. See § 18.05[D], infra.
82 E.g., Kan. Stat. Ann§ 21-3403(b) (2006).
83 State v. Peterson, 857 A.2d at 1148.
84
See § 16.02, supra.
85 State v. Smullen, 844 A.2d 429, 440 (Md. Ct. App. 2004); In re ChristianS., 872 P.2d at 576.
86 See State v. Abeyta, 901 P.2d 164, 171 (N.M. 1995), overruled on other grounds, State v.
Campos, 921 P.2d 1266 (N.M. 1996) (recognizing the inappropriateness of the terminology, and
treating the matter as a non-justificatory form of mitigation).