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. 

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

Tags: Coleman v. State, criminology.regis.edu, Deadly force, Etter v. State, Meaning of Reasonable force, Meaning of Unreasonable force, non-Deadly force, People v. Button, People v. Moody, regis University Legal education, Self Defense, State v. Goode, State v. Smith