- This article and defense of property deal with the legal concept of justified acts that might otherwise be illegal.
- For the article on the concept of protecting one's person from attack, see Self defense.
Self defense and defense of others (sometimes called alter ego defense or defense of a third person) are a pair of legal theories under which otherwise tortious or illegal acts may be justified when committed for the purpose of protecting oneself, or for the purpose of protecting another person. This may include the use of violence or even deadly force.
In the modern libertarian theory of law the right of self-defense from coercion (including violence) is considered to be a fundamental human right, and in all cases, with no exceptions, justified use of violence must stem from this right. It follows that initiation of aggression (including starting wars) is unlawful. The anarcho-capitalist school of libertarianism holds that because compulsory collection of taxes is de facto performed under threat of violence from a State, its subjects have the right to defend themselves from such extortion.
Legal status of self defense
The legal status of self defense varies between jurisdictions. It has been generally held by most courts, as well as prescribed by statute law, that the degree of violence used in self defense must be comparable to the threat faced, so that deadly force should only be used in situations of "extreme" danger. For instance, in most jurisdictions, it is illegal to deliberately kill a petty thief that does not appear to be a physical threat.
Many have ruled that self defense is only acceptable as a legal defense when the user doesn't have sufficient chance to flee. However, the castle exception (see: Edward Coke) argues that one cannot be expected to retreat from one's own home.
The concept of "pre-emptive" self defense is considered dubious due to common misconception of the act as murdering a person believed to someday attack with lethal force. Realistic "pre-emptive" self defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. Many self defense instructors and experts believe that if the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow and gaining the immediate upper hand to quickly stop the risk to their person.
Defense of others
Defendants who use this defense are arguing that they should not be held liable for a crime, since the actions taken were intended to protect another individual from danger. This defense is treated in a manner similar to self defense, in that the use of violent force, used by the defendant, must be in some manner appropriate to the situation. Generally, the defendant must have a reasonable belief that the third party they are seeking to defend is in a position where that third party would have the right to defend themself. For example, a person who unknowingly chances upon two actors practicing a fight would be able to defend his restraint of the one that appeared to be the aggressor. Most courts have ruled that such a defense cannot be used to protect friends or family members who have engaged in an illegal fight. Likewise, one cannot use this to aid a criminal.
English law provides for the right of people to act in a manner that would be otherwise unlawful in order to preserve the physical integrity of themselves or others or to prevent any crime. It is provided in both common law and more specifically in the Criminal Law Act (1967). If such a defense is proved to the satisfaction of the court then the person is fully acquitted of the charges against them.
The act of protection must fulfill a number of conditions in order to be lawful. The defendant must believe, rightly or wrongly, that the attack is imminent. While a pre-emptive blow is lawful the time factor is also important, if there is an opportunity to retreat or to obtain protection from the police the defendant should do so—demonstrating an intention to avoid violence. However the defendant is not obliged to leave a particular location even if forewarned of the arrival of an assailant.
The other key factor is reasonableness—the defendant's response must be necessary and in proportion to the nature of the attack - the force used must not be excessive in the circumstances. However, like immanency, the nature of the defense rests on the defendant's belief of whether their actions were in proportion to the circumstances they believed existed.
For greater detail see the Crown Prosecution Service's web site.
Considerable media coverage of this topic has resulted from the Tony Martin case.
While the statutes defining the legitimate use of force in defense of a person vary from state to state, the general rule makes an important distinction between the use of physical force and deadly physical force. A person may use physical force to prevent imminent physical injury, however a person may not use deadly physical force unless that person is in reasonable fear of serious physical injury or death. Most statutes also include a duty to retreat (notable exceptions include Louisiana and Florida), wherein deadly physical force may only be used if the person acting in self defense is unable to safely retreat. As discussed above, a person is generally not obliged to retreat if in one's own home (for example, a person doesn't have to retreat from the living room to the kitchen, then to the bedroom, then to the bathroom).
Self defense law in Sweden
Chapter 24 of the Swedish criminal code states various conditions for which a person will not be sentenced in court for committing an otherwise criminal act. Self defense is considered grounds for non-conviction if the accused acted in a situation of peril and acted in a manner that is not "blatantly unjustifiable" in relation to that which is defended.
A situation of peril is stated to exist if:
- a person is subjected to, or is in imminent danger of being subjected to, a criminal attack against property or person, or
- a person through threats, force or violence is prevented from taking back stolen property found on criminals "red handed", or
- an intruder attempts to enter a room, house, estate or ship, or
- another person refuses to leave a residence after being told to.
The interpretation of what is to be considered not "blatantly unjustifiable" is popularly expressed in Sweden as "that force which is required by the peril". In other words, the defending party may do whatever it takes so long as no alternative, less severe options are available. For example, if the defending party can flee a dangerous situation instead of engaging in a fight (in other words, a similar "duty to retreat" as described above). It should be noted that the expression "blatantly unjustifiable" allows fairly generous tolerance towards the defending party.
However, the defending party must also consider that which is defended and what injury is inflicted upon the attacker. If that which is defended is insignificant in comparison to the injuries to the attacker, the court may reject the claim that person acted in self defense since the damage done to the attacker is "blatantly unjustifiable". Loss of life or permanent bodily injury rarely justifies self defense unless the defending party was in danger of being subjected to the same.
For example, if the only way of stopping a criminal from escaping with stolen property would be by killing him, then it would not be justifiable to do so. This is because that which is defended (property) is not as valuable as a human life and therefore the action of killing the criminal is not justifiable.
Subjective peril
Swedish legal custom in regards to self defense states that peril is subjective. This means that the peril is measured from what the defending party perceived as peril and not the actual peril.
For example, if a person were to threaten someone with an unloaded gun (not a lethal threat), the defending party would not be convicted if defending themself as if the gun were loaded (a lethal threat). This is because the defending party may perceive the gun as loaded and thus lethal.
Excess
A person who commits acts which are "blatantly unjustifiable" while in peril may also escape conviction if the situation were such that the person "could not be expected to maintain control of himself". For instance, such a situation might be if the defending party were in a state of great fear or severe rage because of the peril.
Defense of others
The Swedish criminal code states that anyone who assists a defending party in peril shall have the same rights as the defending party.
See also
- External Links
- UseofForce.us — an independent, in-depth breakdown of US self-defense legalities
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