Legal Issues Surrounding the Use of Self Defense
By Marlene Gundlach | July 11, 2008
Self Defense Laws
You have the right to defend yourself. However, knowing when to act, how to act, and why you should act is important as well.
The use of force is justified if you believe it is necessary to protect yourself or another person against someone who is unlawfully using force against you. This part of the law is easily interpreted: if you are being unlawfully attacked, you may fight back.
If you can reasonably anticipate that unlawful force will be used, you are then permitted to respond with force. This part of the self defense law can be left up to interpretation. If someone is verbally threatening to harm you, is it safe to assume that they will follow through with that threat when the opportunity arises. In these situations though, should you attack first — instead of waiting to be attacked — you may find yourself in front of a jury explaining yourself. In which case, you will then have to prove to the jury that you believed you were in danger and were acting in self defense to prevent an attack.
The last part of the self defense law states that the force you use to fight back must be reasonable under the circumstances. Again, there is a degree of interpretation. A solid example of unreasonable circumstances follows: if someone shoves you off a curb, you cannot fight back with deadly force. That would an unreasonable use of force under the circumstances.
Who do the Laws Protect?
Anyone who is attacked with an unlawful show of force, or anyone who is threatened with an unlawful use of force is protected under the law. This also means that you have a right to use force when you are protecting someone else from harm. For example: should you come upon a situation where there is a fight taking place, be sure you know who the victim is before stepping in. The person being attacked, when you approach, might indeed be the attacker, but what you witness coming upon the scene is the victim fighting back. Do not step in and help unless you are perfectly clear who the victim is.
Most self defense laws include special circumstances where physical force is authorized. For example, officials working in a jail or correctional institution may need to use force to maintain order. Anyone responsible for maintaining order on a common mode of transportation, such as a bus, train, or plane, may also use force to maintain order.
In general, if you are stopping someone from stealing your property, but they do not threaten you with force, you may not respond forcefully. However, if you are defending your home, the laws are different. When defending your home against a burglar, force is justified. Burglary is defined as, “The breaking and entering, without consent, of the dwelling house of another while it is occupied, with the intent to commit a felony or larceny within.”
As strange as it may sound, your one-time attacker may, under special circumstances, also be protected under the self defense law. If someone attacks you, and, after you fight back, they begin to retreat, you cannot continue the assault. If you do, your attacker would then be acting in self defense if he comes back after you. At this stage, it is best to let them run, get a good description of the attacker, and contact the police.
Duty to Retreat vs. Stand Your Ground
Self defense laws vary from state to state. There are different components of the law that will determine how a civil case will be tried against a victim. In a situation where a victim fights back and injures their attacker, a civil suit may be filed against the victim.
A state with a Duty to Retreat clause in their self defense law will want the defense to prove that the victim tried to retreat when they were attacked. If there was opportunity to retreat and the victim did not take it, then s/he may be liable for any harm caused to the attacker during an altercation.
At the other end of the spectrum is a Stand Your Ground clause, which is just the opposite of Duty to Retreat. If there is a Stand Your Ground clause, you are under no obligation to retreat and may immediately defend yourself.
Another term you may hear is a Castle Doctrine. This is based on English Common Law, which states that a man’s home is his castle and he has every right to defend it. A person, under this doctrine, has the legal right to defend his home, with deadly force if necessary.
One thing to consider is that when faced with a situation to defend yourself, you normally have only a split-second to react. Grabbing an improvised weapon or using pepper spray to help defend yourself is perfectly acceptable. You must go with your gut instinct in this case. An individual cannot spend a lot of time thinking about the consequences, or whether down the road your actions will be seen as justified. Rely on your gut feelings and act accordingly. Always remember the quote: “Better to be tried by twelve than carried by six,” which can happen, as the Stand Your Ground laws do not always protect the victim.
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