SELF DEFENSE: A SETTLED PRINCIPLE OF CRIMINAL LAW


20120811-174102.jpg

ADEYEMI OSHUNRINADE

No doubt we all have the reflexes of self-defense the moment we were born. It is innate and we react in self-defense when we feel the impulses or it is necessary to do so. If a fly lands on your shoulder, you are quick to react by slapping it off either with the palm of your hand or a paper towel. It is foreign to your body, you dislike it being on you and therefore, you do not want to catch a disease from such a creäture. Likewise, when you walk in the street and someone accidentally steps on your foot, you are quick to react depending on the magnitude of the force exerted. You either push the person away if the foot has prior injury and painful or you just tell her to excuse you if there is no injury to the area stepped on.

It is fair to say that the ability to act in self-defense has been in place before it became a legal phenomenon and a recognized defense in criminal law. Each individual reacts differently in self-defense; the force used can either be reasonable or unreasonable. Take for example in the analogy above, it would be ironic for one with a fly on his shoulder to stab the fly with a knife while on his shoulder, or to take a gun and shoot the fly in an attempt to drive it away. To do so, would be both unnecessary and unreasonable force; his act will not only put his life in danger but that of others around him as well.

Likewise, one who had his foot stepped on accidentally would be acting unreasonably and with excessive force, if he decides to strike the other party with a hammer (a deadly object) just for stepping on him or by striking her with the butt of a gun to the face in self-defense. Irrespective of his innocence, use of such unreasonable force, would make the actor liable in battery including both civil and other criminal sanctions.

The use of reasonable or unreasonable force is dependent upon the nature of the force itself and the circumstances that triggered its use. Nonetheless that the force exerted is deadly or not, a deadly or non-deadly force  is reasonable or unreasonable depending on the circumstances of each case. Deadly force is unreasonable if non-deadly force is obviously enough to prevent the threatened harm. (Etter v. State, 185 Tenn. 218, 205 S.W.2d 1[1947]). For example, one slapped slightly on the back, does not need to strike the other party back with a hammer or a baseball bat, a more reasonable force of the same size and that is not deadly will do to deter the threatened harm.

On the other hand, non-deadly force is unreasonable if it is obviously and substantially in excess of what is necessary for the particular defense. (People v. Moody, 62 Cal.App.2d 18, 143 P.2d 978 [1943]. For example, if one comes to your home uninvited and evidence shows he has not come to create harm, it would be unwise to kick the person to turn him away. A warning and a word of mouth such as “get out,” alone will do in such a situation.

Take the following, if during a fracas the other party decides to pour cold water on you, you may reciprocate by pouring cold water on him too or use a more reasonable and non-deadly force. But if instead of cold water, you chose to pour hot water on his person, such action will amount to the use of both lethal and unreasonable force. While you may act by using the same magnitude of force exerted that is (cold water), the use of hot water is excessive force and normally, “use of excessive force constitutes battery.” (Coleman v. State, 320 A.2d 740 [Del. 1974]).

The privilege of an actor to use force in an attempt to prevent harm threatened (actually or apparently) by the wrongful act of another, should be based upon the reasonable belief of the defender under the circumstances of the case. One who has knocked down another while acting under the reasonable belief that his action was necessary to avoid being stabbed, is not guilty of battery even though, evidence later show that the other party had no intention to harm but was just playing a joke with a rubber dagger. (See Restatement, Second, Torts § 63, Illustrations 5, 9 (1965)).

In essence, depending on the situation, some states follow what is known as the “retreat rule” and others the “no retreat rule” however, this is not absolute since no jurisdiction requires or permit a “standing of your ground” in all situations. However, if you are without fault and a victim of assault and a murderous attack, you are entitled to stand your ground and defend yourself, with deadly force if this reasonably seems necessary for your protection.

On the other hand, if you are the aggressor that is, responsible for the events that ensued or instigated the scenario, such as, in a fist fight and you realize the other party has resulted to use of deadly force, you’re required to retreat and not result to the use of deadly force in self-defense if a safe retreat is available, unless in the case under the “castle doctrine.” For in such a situation, you may not leave your own home but stand your ground in self-defense.

In the case where one started a murderous assault upon another or who willingly engaged in a mutual combat of a deadly nature and then changes his mind to end the encounter, such a person retains his right to self-defense and has not lost it forever (See State v. Goode, 271, Mo. 43, 195 S.W. 1006[1917]); but he has forfeited the privilege for the moment and may not reacquire it by “retreat to the wall.” He must bring his attack to an end. (People v. Button, 106, Cal. 628, 39 P. 1073 [1895]). And if unable to get entirely away from his adversary, he must in some manner convey to him the information that the fight is over. (State v. Smith, 10 Nev. 106 [1875]). If the circumstances do not permit him to do so this is his own misfortune for bringing such a predicament upon himself. (People v. Button, supra).

The law gives the right to self-defense in most cases where one is in danger of losing his life or sustaining a serious bodily harm; in such cases, a homicide committed in self-defense is excusable and the slayer is without fault. However, there is a fine line that must be drawn between what is reasonable use of force or not and what is deadly or non-deadly use of force. A deadly or non-deadly force is reasonable or unreasonable as described earlier. What matters is the nature of the force and the situations of use, as the fact of each case will determine whether the force is reasonable or not.

Dr. Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests,’  ‘Constitutional Law-First Amendment’ and ‘Criminal Law-Homicide.’  follow on Twitter @san0670

Advertisements


Categories: Academic Journal, Criminal Justice, Criminal Law, LAW

Tags: , , , , , , , , , , , ,

13 replies

  1. Very, very interesting… As all your posts. I have only one objection. In summer in Seville, many times I would like to shoot flies with a very big gun. Je, je, je.

    Like

    • Thanks Javier appreciate your comments as usual, Self-Defense is among the most recognized defenses in criminal law; it is part of both common law and statutory law, it is also given recognition in Civil law countries such as Spain and others. Hopefully, will get to spend remainder of the summer in Seville as suggested.

      Like

      • Now seriously… In spanish we have a proverb “El miedo es libre” (ask Lola). It means the same thing may not frighten one person and terrorizes another. What happens if a simple and innocent action makes someone be so afraid that reacts thinking he is in a serious danger. Suppose one dresses up one night as will dress up in Halloween, and wants to show it to a friend frightening him as a joke… What happens if the friend becomes so terrorized that takes a gun or a knife to respond? A person who is terrorized has no accurate perception of what is real or not. Two and two make four, but self defense is not maths. Sorry for my english… I think yo won’t understand anything…

        Like

      • Thank you Javier, I can understand your English very well and it is clear to grab. Now to your Halloween Scenario that is what is called IMPERFECT SELF-DEFENSE in criminal law it means the person who killed committed the homicide due to UNREASONABLE belief that his life was in danger; such a case will reduce the crime of MURDER to VOLUNTARY MANSLAUGHTER and because the killing was committed without reasonable justification, the killer will not be entitled to full exoneration meaning that, he will not be guilty of murder but guilty of voluntary manslaughter depending on the facts. You have asked me a very intelligent question Javier, one of those that American Criminal law recognize as imperfect self-defense. Thanks.

        Sent from my iPhone

        On Aug 14, 2012,

        Like

      • Javier, I will include your question about the Halloween in my next book titled: ‘Criminal Law-Homicide.’

        Sent from my iPhone

        On Aug 14, 2012,

        Like

  2. Interesting article you have here. To expand on the topic of self defense and less lethal options for it, I’d like to invite you to visit my web blog at http://www.LessLethalAlternatives.com where you can find reviews and industry news on these topics.

    http://www.LessLethalAlternatives.com

    Like

  3. Thank very much for your answer Adeyemi, and thank you very much for your blog. You know I’m architect, not lawer, but it’s so interesting for me!

    Like

  4. We have had a terrible example of unreasonable force in “self defense” in South Africa. I have seen the video in TV and absolutely dismayed. I expect UN and democratic countries condemn it. In the video, more than self defense, seemed to be a shooting execution. If South Africa continues saying it’s self defense, they are very, very far from democracy and law…

    Like

    • There have been serious of human rights violation in South Africa since the country gained independence after the end of Apartheid; I’m very skeptical about the country after the killings of African migrant workers few years ago by South Africans who believe other Africans have come to take their jobs and more so the crimes and brutality that have become common in the nation. Unfortunately, I’m not aware of the current event you just revealed but I’m not surprised; the nation claims to be a democracy and tries to be Westernized but in actuality, such is far from reality.

      Like

  5. You can see it here.
    http://www.nytimes.com/2012/08/17/world/africa/south-african-police-fire-on-striking-miners.html?_r=1
    And I wonder what do South Africa’s authorities think about “Public Authority” (remember your post). If the police shot and killed 34 strikers and injured 78 more; where is reasonable self defense and reasonable use of public authority?

    Like

    • Thanks for sharing, I remember the story now, it has been ongoing for a while the point is this is a classic example of a disorganized system and a law enforcement that is incompetent. While law enforcement may have Public Authority to use force while in danger, there are other ways the situation could have been handled without killing so many people under the cover of self-defense. With the current technology and innovations, other measures such as powered water canons, heavy barricade and other forms of restraint could have been used to prevent the strikers from getting near law enforcement and wait a minute, do they really have to use live ammunitions? What is wrong with rubber bullets? It shows the incompetency of the law enforcement; while they do have the right of self-defense to protect themselves from machete wielding protesters, they may have acted recklessly and unreasonably, the response was bad because other measures could have been employed without resulting to use of excessive and deadly weapon.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: