- Education and Science
Legally Defending Yourself
Self Defense Laws of All 50 States by Attorney Mitch Vilos
Legal Aspects of Self Defense
The Legal Aspect
Many people think of self defense of more of a combat term. However, that is one of the few aspects that encompasses self defense. Self Defense is a legal term that was written into law. It allows people to defend themselves (and in several jurisdictions, allow people to defend others and property) through use of force ranging from pain compliance to lethal force. A person cannot be engaged in criminal acts or be 'fighting' to claim self defense. To understand the laws, we must look into common laws regulating use of force and how the courts determine if the use of force is self defense or assault/murder. Please keep in mind these concepts are based of US and Western Laws.
Retreat Laws are required by several jurisdictions before using force (especially force that can severely injure or kill) on a person. Some jurisdictions don't require retreat laws when the person is in their place of residence, vehicle, business or a public place where they are legally allowed to be at. This often includes but not limited to attempting to flee, avoiding, de-escalation or escaping. Here we will cover the different forms of retreat laws.
Absolute Retreat- a person defending cannot legally use force on another person unless that person defending attempted to flee the situation, or de-escalate the situation, even if that situation doesn't allow it. For example, if a robber breaks into my room in my house through one door which is my only escape route, I must try to escape the situation first before using force.
Strong Retreat- a person defending has to demonstrate that they attempted to flee, or de-escalate the situation if that situation allows. If the situation doesn't allow the person to do these three in a safe manner, then the person can legally use force. However, the person defending in court must demonstrate to the court that all practical means to avoid using force was deplenished. For example, a robber breaks into my room through one door which is the only exit. If I can demonstrate that escaping puts me at a greater risk to myself, I can legally use force.
Weak Retreat- a person defending themselves doesn't have to establish that they try to avoid, de-escalate or flee the situation because the situation doesn't allow it. This must be presented in court. For example, a robber breaks into my room through the only door trapping me with him. Since he is in close proximity and I feel like I can't get out, he is an imminent threat and force can be used.
No Retreat- a person defending themselves can use force without considering to retreat, de-escalate or avoid the situation. Common examples of laws based on this concept is the Stand Your Ground Law and Castle Doctrine. For example, a person breaks into my house. I can assume the person is armed and dangerous and use lethal force.
Self Defense vs Fighting/Assault/Murder
If you are not a police officer, a military service member carrying out duties or security officer carrying out their duties, and you use force out on the streets, chances are, the police, the district attorney and courts will be involved in your case. How to they determine what is self defense vs a street fight, assault or murder? Here are the three basic criteria that must be met in most jurisdictions:
Imminence- an actual threat that can immediately and physically harm, maim, injure or kill someone. This is the first step to recognizing the threat and deciding whether or not to use force or flee. Examples are include not limited to being hit, assault, running at you to attempt assault, robbery, or a criminal with a firearm.
Necessity- the need to respond to a threat by using force preserve one's property, physical well being (and or companions) or life. This also includes deciding to use and implementing force to stop the threat (this can occur in seconds or even hundredths of a second). While necessity can establishing the need for using force. The amount of force in relation to the threat is also addressed as well.
Proportionality- if force was used, is it appropriate in accordance to law? Remember, the legal aspect of self defense is to neutralize a physical threat from committing further injury or death. For example, if I encountered a person pointing a knife at my throat, I can execute the disarm and either 1) snapping joints or 2) killing him. In most jurisdictions, that is legal because I was threatened (and can be killed) by the person carrying the knife because he was within distance to do harm. In the same scenario, lets say the knife wielding man standing was 50 yards away and is just shouting at me. If I pull out a gun and just shoot him, I can be charged with murder because he wasn't in close proximity to physically threaten my life.
Often times, a person claiming self defense can justify that their actions do constitute self defense if they establish these three criteria in accordance to law. If they cannot, they can be sent to prison for assault or murder.
Use of Force Continuum
Understanding use of force continuum and proficiency in combat or martial arts can help one understand and apply appropriate techniques out on the street if the situation requires self defense.
Escalation of force is very useful in a volatile situation where it can escalate into violence. This combines the use of verbal de-escalations and gradually using escalation of force as needed. This is a great concept and if practiced correctly, it can save lives and limit legal liability to the person using force and/or the agencies. This is why the concept is adapted with many police, military and security agencies. Many civilian martial arts, and self defense classes have also incorporated some concepts of use of force continuum because it addresses the legal aspects of proportionality.