Right of Self-defense - Legal Status of Self-defense

Legal Status of Self-defense

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In most jurisdictions, defense of self or of others is an affirmative defense to criminal charges for an act of violence. It acts to provide complete justification.

Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all: Dennis J. Baker, Glanville Williams Textbook of Criminal Law (London: 2012) at Chapter 21.

The defense of justification (Penal Law art. 35) affirmatively permits the use of force under certain circumstances… The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful…

In this regard, the current statutory defense reflects the common-law "right" of an individual to repeal a threat to life or limb… Defense of oneself or one's relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful.

The defense of justification would fail, for example, if a defendant deliberately killed a petty thief who did not commit robbery and who did not appear to be a physical threat. However, the owner or lawful possessor of property has a privilege to use any degree of non-deadly force necessary to protect his possession or recover his property, regardless of no physical threat to his person.

'Property' is more than just the physical thing-the land, the bricks, the mortar-it is also the sum of all the rights and powers incident to ownership of the physical thing. he right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value.' The ownership and possession of property confer a certain right to defend that possession, a defense of it which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession."

In Cross v. State, 370 P.2d 371 (Wyoming 1962) the Court found that the Due Process of Law clause in the state constitution guaranteed "the inherent and inalienable right to protect property."

However, when an assailant ceases to be a threat (e.g. by being tackled and restrained, surrendering, or fleeing), the defense of justification will fail if the defending party presses on to attack or to punish beyond imposing physical restraint. A somewhat less obvious application of this rule is that admitting the use of deadly force in an attempt to disable rather than kill the assailant can be construed as evidence that the defendant wasn't yet in enough danger to justify lethal force in the first place. Sometimes there is a duty to retreat which makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense), and in burglary situations given the so-called castle exception (see: Edward Coke) which argues that one cannot be expected to retreat from one's own home, namely, "a man's house is his castle, et domus sua cuique est tutissimum refugium" i.e. Latin for "and one's home is the safest refuge").

New York Penal Law section 35.15 effectively ordains that: "A person may... use DEADLY physical force upon another person" "when and to the extent he reasonably believes such to be NECESSARY to defend himself or a third person from what he reasonably believes to be .... a kidnapping, forcible rape, forcible sodomy or ROBBERY; or (c) ... a burglary...." There is no duty to retreat under these circumstances. However, if one is "challenged" in a bar for a fight, accepting such challenge and using deadly force, instead of walking away, generally will not constitute a self-defense.

In some countries and U.S. states, the concept of "pre-emptive" self-defense is limited by a requirement that the threat be imminent. Thus, lawful "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 (sucker punch) and gaining the immediate upper hand to quickly stop the risk to their person.

Justification for self-defense usually cannot be applied to actions committed after a criminal act has taken place, but the laws of many states authorize the use of force, sometimes even deadly force, to effect the citizen-arrest of a fleeing offender. A rape victim who, after the rape is committed and the rapist leaves, subsequently finds and shoots the rapist, is not entitled to claim self-defense. Most other victims of assaultive offenses are similarly not entitled to this defense if they act in revenge. In many U.S. jurisdictions, using deadly force against a burglar/thief who is attempting to escape with stolen property is likewise not justifiable. (Texas law holds the defendant to a high burden of proof that the deadly force was the only means available to recover the property without a serious risk of death or serious injury). However, the Common Law and the Model Penal Code makes a distinction between mere thieves and those who are guilty of "robbery". Many states apply the Common Law's "fleeing felon" rule as a justification for private persons to use deadly force necessary to "arrest" violent criminals.

New York Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest or in preventing an escape", provides: "4. A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense and who in fact has committed such offense; and he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) Effect the arrest of a person who has committed Murder, manslaughter in the first degree, Robbery, forcible Rape or forcible sodomy and who is in immediate flight therefrom.

Although the Law of Justification has heretofore been considered a matter of state law, the recent Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago may have constitutionalized some of the Common Law rules of "self-defense" as fundamental rights. The Supreme Court held that each of the Second and Fourteenth Amendments "protects the right to possess a handgun in the home for the purpose of self-defense." And, "stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was 'the central component of the right itself.'”; The Constitution, they wrote, secured "the right to keep and bear arms for self-defense." Prior to these decisions, other Constitution provisions were recognized as securing a right of self-defense. In Frank v. Maryland, 359 U.S. 360 (1959) the Supreme Court recited the Rights of Englishmen, including the "Right to Resist" Unauthorized Deprivations, was incorporated in the Constitution:

In 1761 the validity of the use of the Writs was contested in the historic proceedings in Boston. James Otis attacked the Writ of Assistance because its use placed 'the liberty of every man in the hands of every petty officer.' His powerful argument so impressed itself first on his audience and later on the People of all the Colonies that President Adams was in retrospect moved to say that 'American Independence was then and there born.' ... the broad constitutional proscription the right to shut the door on officials of the state unless their entry is under proper authority of law. self-protection: the right to resist unauthorized