Laws of Self-Defense
The United States Constitution and state laws permit people to protect themselves. Homeowners have legal measures that may be used to keep out intruders. The use of force by one person against another is illegal unless used in the line of duty, such as a police officer, or in reasonable self-defense. What is reasonable depends on the severity of the attack and the circumstance of the attack.
A person may use force, even deadly force, against another person if he/she reasonably believes that such force is immediately necessary for the purpose of protecting him/herself against the use of unlawful force by such other person. Such justifiable use of force is commonly called "self-defense." In other words, self defense is the right of a person to defend against any unlawful force or any seriously threatened unlawful force that is actually pending or may be reasonably anticipated. The force used by the defender must not be significantly greater than, and must be proportionate to, the unlawful force threatened or used against the defender. For example:
Unlawful force is defined as force used against a person without the person's consent in such a way that the action would be a civil wrong or a criminal offense. If the force used by the defender was not immediately necessary for his/her protection or if the force used was disproportionate in its intensity to that of the attacker, then the use of such force by the defendant was not justified and the self-defense claim in a criminal prosecution fails. For example:
The use of deadly force may be justified only to defend against force, or the threat of force of nearly equally severity, and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself/herself) against death or serious bodily harm. Serious bodily harm is an injury that creates substantial risk of death, causes serious permanent disfigurement, or causes a protracted loss or impairment of the function of any bodily member or organ.
One cannot respond with deadly force to a threat of, or even an actual, minor attack. For example, a slap or an imminent threat of being pushed would not ordinarily justify the use of deadly force to defend against such unlawful conduct.
When you must defend yourself and the attacks claims injury, most people worry about their possible liability. There are two vastly different grounds for liability: criminal liability (law) and civil liability (law). There are two types of law: criminal and civil. Criminal law delineates rules of behavior that, when violated, may lead to punishment by incarceration or fine, or both. Civil law states which actions may lead to personal liability. Since these are two entirely different types of law with separate courts and procedures, a person found not guilty of a crime in a criminal court may be found liable in a civil court. The results of a criminal court have no effect a civil court, and vice versa. In a criminal court, the government tries and punishes a person for a criminal action against society. In a civil court, a person may be found personally liable for an action that injures another party.
Most people have heard of the crime "assault and battery." Actually, assault and battery is two separate offenses: an assault (the threat to strike) and a battery (the actual strike).
A battery is the intentional offensive touching of another person. It may be a punch to the chest or simply pointing a finger that touches the chest, but it must be intentional. Accidentally bumping into someone on the street is not intentional. A battery must be offensive, an attention getting tap on the shoulder is not offensive. Any touching, however minor, is a battery under the law if it is intentional and offensive.
Whereas a battery requires an actual touching, an assault only requires the threat of the offensive touching of another person. It is not illegal to raise one's arm with the hand in a fist. However, if the act is proceeded by circumstances that would cause another person to believe reasonably that he/she is in danger of being injured, then an assault has been committed. As long as there is an overt act and the victim believes attack is imminent, then assault is committed, even if someone prevents the assailant from attacking or the assailant decides not to attack. For example
The state may charge a person with either an assault or a battery. However, since an assault must logically proceed a battery, many states call a battery an "assault and battery."
Just as in the old children's saying "sticks and stones may break my bones but words will never hurt me," mere words, no matter how offensive, usually do not constitute an attack to which you may physically defend yourself. A few states do permit defense against offensive words if they are used against a woman.
The law classifies assault and battery offenses as either misdemeanors or felonies. Misdemeanor offenses, such as a fistfight, are minor crimes for which the maximum punishment is one year in jail. Felony offenses, such as assault with a deadly weapon, are serious crimes for which the maximum punishment is one or more years in prison. Felonious assault and batteries are usually committed in during the commission of another serious crime, with the use of a dangerous weapon, by several perpetrators, or with the intent to cause serious bodily injury.
Since the courts are overrun with serious criminal cases, in simple assault and batteries where there is no serious injury, unless the victim signs a complaint and vigorously pursues a criminal prosecution, most district attorneys will decline to prosecute the cases. If one wishes to seek a legal remedy to a simple assault and battery, the best avenue is usually to sue in the civil law courts.
Laws may authorizes the use of physical force under certain circumstances but they doe not mandate the use of force, and the decision to use force lies solely with the user. Most state laws provide for the use of physical force in the protection of three things: people, Real property(land or structures), and personal property under four circumstances:
When force is used, the courts will consider:
Most laws include special circumstances in which the use of physical force is specifically authorized. Some of these circumstances may include:
Courts frown on use of force
Courts recognize the right of persons to protect themselves or others from physical attack, but they frown upon the use of force, even when used for self-defense, since it is clearly a breach of the peace. Anyone who uses force against another person, even for self-defense, must be prepared to justify the necessity for the violence. Allowing one to use force to defend him/herself in a self-defense situation is a privilege that permits one to so something that would otherwise be illegal. In many cases, the need to use force will be obvious from the circumstance of the attack. However, if there are any questions about the use of force, the burden will be on the person using the force to justify its use, especially if there were non-violent alternatives available. In a self-defense situation, a Taekwondo practitioner must be concerned with whether the use of force is reasonable under the circumstance and how much force is legally justifiable.
In 1987, In the case of Martin vs. Ohio, the U.S. Supreme Court ruled that due process did not forbid placing the burden of proving self-defense on the defendant. So in effect, the burden of proof shifts from the prosecution to the defendant in cases of self-defense. It also means that to convict, a jury does not necessarily have to believe that the defendant's behavior was unjustified.
When to use force
The use of force must be reasonable under the circumstances. Generally, force is reasonable when an offensive attack is imminent. One does not have to wait until an assailant strikes or even attempts to strike. Once the assailant demonstrates a clear intent to attack, coupled with an overt physical threat, one may defend. For example, if a person threatens to punch and cocks his/her fist to carry out the threat, you may begin your defense.
Amount of force
Most legal problems involve the amount of force used during a defense. The amount of force must be reasonable under the circumstances. Courts will consider what a reasonable and prudent person might have done under the same or similar circumstances. This means that a person's fear, confusion, and excitement will be considered to the degree that such emotions may reasonably be expected to influence ones behavior.
What is reasonable?
The issue of what is reasonable is often difficult for the courts to decide. What is reasonable in one circumstance may be unreasonable under another circumstance. Therefore, most states delineate certain circumstances when deadly force may be reasonable, such as when the attack is aggravated by the use of a deadly weapon or by multiple assailants. When one is in fear of losing his/her life or sustaining serious bodily injury, the courts may judge killing the assailant as reasonable force. In circumstances where the attack is only a misdemeanor attack, the law does not permit a person to use deadly force or seriously injure the assailant.
Who may defend?
As explained above, the law permits a person to defend him/herself, but a person may also defend another person or persons. The other persons may be family, loved ones, friends, or even complete strangers. Most states permit a person to defend another person with all the force that the other person would be allowed to reasonably use in his/her own defense.
One may justifiably intervene in defense of any person who is in actual or apparent imminent danger of death or serious bodily harm, and in so doing he/she may use such force as he/she has reason to believe, and does believe, necessary under the circumstances. The defender must be reasonable in his/her belief that the third party is in dire peril of death or serious bodily harm. The defender must also have a reasonable basis to believe that the force he/she uses is necessary to protect the apparent victim from the threatened harm. The defender has the burden of proving to jurors that he/she inflicted the injuries complained of while acting in defense of the third party within the foregoing principles.
Defending wrong person
One must be very careful in coming to the defense of another person; one may aid the wrong person. The person seen striking another may be the victim who is only defending him/herself. Unless it is obvious who the victim is, or you are positive who the victim is, you must be very careful before getting involved in a confrontation. For example, when you see two people fighting, how are you going to know who is in the right? Your first impression might be that a man is beating up another so you come to the defense of the man getting the worst of it. Then you find out, after you are in jail, that the man winning the fight was an off-duty policeman arresting a dangerous criminal and you interfered with the officer in the performance of his duty. If you assist the wrong person, the courts will be sympathetic as long as you used a reasonable interpretation of the circumstances at the time you acted. If it was a reasonable error and no one was seriously injured, the law may excuse your error.
Defense of property
Generally, where only property is involved and the offender makes no threat against a person, the use of force is not justified. If a person approaches you and demands your wallet, but makes no threats whatsoever, you may refuse the request, but you may not use force against the person. Remember there must be the threat of force and/or an overt action of force. In general, the law does not view property as important enough to justify the use of force to protect or regain it. An exception to this general rule is "hot pursuit."
If you witness the theft of your property and make a "hot pursuit" to recover it, you may use minimal force to recover the property but you may not cause serious injury. If the thief responds with force, you may use a reasonable amount of force to defend yourself, but you must end the confrontation as soon as possible. If your pursuit is not immediate or you did not see the actual theft, then the "hot pursuit" justification no longer applies.
Defense of home
To the law, your home is your castle. It is your place of last retreat. You are not required to retreat from a threat in your home. When defending your home against a burglary, authorities rarely question the use of force¾ even deadly force. Burglary is legally defined as:
If you believe a burglar is serious physical threat to you or your family, the law allows you to use whatever force you feel is necessary to neutralize the threat. However, here again, one must be careful since not all intruders are burglars. Someone may be intoxicated and enter the wrong apartment. A firefighter may be trying to break-in to warn you of a fire in your home. Wildly shooting at anyone who trespasses onto your property is not reasonable self-defense. If the mistaken use force is reasonable under the circumstance and no one is seriously injured. the law will generally excuse the action. However, remember that the victim may still pursue you in civil court.
The use of force is justifiable only if the actor first requests the intruder to desist from his interference with the property, unless the actor reasonably believes that:
These are defenses to criminal charges which will be brought against you if you defended yourself. Even if the prosecutor or police decide not to bring criminal charges against you or if you are successful in proving that you were protecting yourself as permitted under certain provisions of the criminal code, the attacker if injured still may attempt to bring a civil suit to recover for any medical expenses or injuries incurred.
Trespass occurs when a person enters property without permission or refuses to leave after permission is withdrawn and a person responsible for the property makes a clear request to the person to leave. If the person does not leave, he/she is considered a trespasser. As such, you may use minimal force to eject the trespasser, but you may not cause serious injury. The proper response to a trespasser is to notify the police. However, if the trespasser enters your property in a violent manner, you need not request him/her to leave before using reasonable force to eject the trespasser.
The use of force upon or toward the another person is justifiable when the actor is in possession or control of the premises or is licensed or privileged to be thereon and he/she reasonably believes such force is necessary to prevent or terminate what he/she reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises. A person commits a criminal trespass if, knowing that he/she is not licensed or privileged to do so, enters or surreptitiously remains in any structure or separately secured or occupied portion thereof.
Do not assume every trespasser is a burglar. A problem arises when a trespasser is on your property and you believe the trespasser may try to break and enter your home, but he/she has not yet attempted to do so. You cannot legally treat the trespasser as a burglar until he/she at least attempts to break and enter. On the other hand, if you treat the person as a simple trespasser, you may place yourself or your family in more danger than if you threat the person as a burglar. This is a judgment call that hopefully you will never face. If this situation does occur, the law will likely excuse your use of greater force than necessary if, in fact, the trespasser was planning to commit burglary. Such things as the person wearing a mask or carrying burglary tools may help prove this. However, if the intruder was merely a simple trespasser, authorities may prosecute you if you used excessive force.
Some have stated that, if you kill a trespasser make sure he/she is inside the home, even if you have to drag him/her inside after the shooting. This action would in itself be a crime, even if it were later determined that the initial shooting was justifiable.
One is not permitted to set up traps to kill or maim persons who attempt to trespass on his/her property. There is a responsibility to warn trespassers of dangerous conditions and an inherent risk of injuries. You may not use a deep pit to catch trespassers or rigged shotgun to kill a trespasser.
Any force that exceeds the minimum amount reasonably necessary to defend against an assailant may result in the authorities charging the defender with a crime as well as the assailant. Normally, law enforcement officers give great leeway to defenders in their use of reasonable force. Once the assailant stops the assault, the defender must stop his/her use of force. The defender may not use the initial attack as an excuse to punish the assailant. Although it is reasonable for a person to be angry with an attacker, anger is not an excuse for the use of excessive force in defending ones self.
When the threat to you ends, your right to self defense also ends. Assume I have attacked you, beaten you up, and have stopped and walked away. What do you do now? The only thing you can legally do is report the attack to the police. Under the law, if I am walking away, I am no longer a threat to you, so your right to self defense terminates.
When determining the reasonableness of the force used, the law will look to any non-violent alternatives, if any, available to the defender at the time of the incident. Non-violent alternatives may include such things as yielding to the assailant's verbal insults, backing away from a fight, refusing to engage in mutual combat, or other somewhat humbling actions. Some states permit a defender to "stand his/her ground" and not yield to an assailant. Under the Texas rule (Texas, Oklahoma, Oregon, Arizona, Colorado, West Virginia, Kansas, Kentucky, and Virginia), an individual, who is not a trespasser, need not retreat from an assailant if he/she truly fears death or serious bodily harm. It is assumed that the assailant is the person who initiated the attack without any provocation on the part of the defender. In either case, a Taekwondo practitioner should always do everything possible to avoid a confrontation. If a person enters a violent self-defense situation he/she could have reasonably avoided, the courts may hold the person legally responsible.
In October, 2005, Florida's "stand your ground" law took effect. The law states that people do not have to retreat in the face of an threat as long as they are in a place they have a legal right to be, including public streets or their places of business. They may "stand their ground" and use force, even deadly force including a firearm, if necessary. The law also gives immunity from criminal or civil charges as long as the person you used force against was not a police officer.
In September 2005, in the case of State vs. Duff, the North Carolina Court of Appeals ruled that bare hands, fists, or feet are not dangerous weapons. So, in North Carolina, if you use your hands and feet to defend yourself or even attack another person, you will not be charged with using a dangerous weapon, even if you are a black belt, although your actions may still be considered unreasonable under the circumstances.
When two persons mutually agree to enter a fight, both lose the legal protections of self-defense. In most states, if the fight occurs in public, both persons may be guilty of an affray or a breach of the peace.
Taekwondo practitioners are especially susceptible to exceeding the bounds of reasonable force in self-defense situations. They diligently train many years to react instinctively to an attack. The problem occurs when the instinctive reaction is excessive under the circumstances. In this respect, Taekwondo training may become a liability during a self-defense situation since the courts may expect a trained Taekwondo practitioner to be in more control of his/her actions than a ordinary citizen. The courts may view a Taekwondo practitioner's excessive force as merely taking advantage a self-defense situation as an excuse to practice techniques learned in class.
If a Taekwondo instructor only teaches techniques for severely injuring or maiming an opponent, the students should question the quality and practicality of the instruction. Mastering Taekwondo means being able to react to any type of situation with the appropriate level of force. Training that emphasizes only severe injury ignores the law and the ethics of Taekwondo.
Ordinarily, if someone is injured as a result of the intentional or negligent act of another, they can recover monetary damages to reimburse them for medical bills and injuries suffered. However, this is not always true when the person was injured while attacking someone else or attempting to steal from that person.
No person has a lawful right to lay hostile and menacing hands on another. However, the law does not require anyone to submit meekly to the unlawful infliction of violence upon him/her. A person may resist the use or threatened use of force upon him/her. A person may meet force with force, but he/she may use only such force as reasonably appears to him/her to be necessary under all the circumstances for the purpose of self-defense. One is not ordinarily expected to exercise the same refined degree of judgment at times of great stress or excitement that he/she would under more placid circumstances.
Civil law permits a person to sue another person for personal damages causing by that person's action or inaction. This includes suit for a violent attack, called an "intentional tort" under civil law. These intentional torts are almost identical to the illegal criminal attack discussed above and many use the same names, such as assault and battery, which mean the same in both criminal and civil law.
Torts and crimes are similar except in their punishments. In criminal court, the accused is subject to fine and imprisonment, but as explained above, unless the attacker actually injured you, prosecution is unlikely. On the other hand, a civil court may order the attacker to pay your medical expenses and pay for personal damages, even if you are not injured. Civil law is concerned with protecting your physical integrity and well as your physical safety. Therefore, even if the assailant caused you no physical harm, you may still collect damages for invasion of your physical integrity. No physical injury is required for legal action under civil law. Depending on the circumstances and the sympathies of the jury, the damages could be a substantial amount of money. At the very least, there may be a nominal award. Since you have such a superior remedy in the civil courts, prosecutors are reluctant to prosecute in simple assault cases with minor injuries. Of course, all this is contingent on the assailant's ability to pay. If the assailant has no money or objects of value, your chances of collecting an award are slim.
Civil law allows the same defenses as those under criminal law. Any act of defense that is legal under criminal law is free from liability under civil law. Where two people enter mutual combat, states differ as to where civil liability applies. Some states hold each person liable for the injuries of the other, while other states prohibit either party from collecting anything. The concept of consent to injury is important in mutual combat. There is a question is to what degree each consented and to how much injury. When two parties mutually enter a fistfight, the one who uses a hidden knife may be liable to the other since the other did not consent to a knife fight.
Deadly force is not justifiable when an opportunity to retreat with complete safety is known by the defender to be at hand. The use of such force is not justifiable if the defender knew that it could have been avoided with complete safety to by retreating. Where these conditions are present, the defender has a duty to retreat, and the use of deadly force under these circumstances may not be justified as an act of self-defense.
In intentional acts, your insurance company will not usually defend you or pay another person who is injured on your property as a result of the intentional. Check with you insurance agent and him/her to show you specifically in your policy where you are covered for injuries to someone.
When defending themselves, others, personal property, or their home, Taekwondo practitioners will usually have no problem with the law if they abide by the principles and tenets of Taekwondo. When force is unavoidable, only use the minimum force necessary to protect from attack or injury. Defense of property does not justify infliction of serious injuries. Remember a Taekwondo practitioner's duty is always to protect and preserve life. In this regard, the teachings of Taekwondo and the laws of self-defense are completely in harmony.
If you are involved in a self-defense altercation, take the following steps:
Self-defense has been recognized in both the criminal code and civil liability cases. One does not have a right to self-defense—self-defense is a privilege extended by the law, not a right. One may defend himself/herself or another person from physical harm when no other options are reasonably available, however, Taekwondo practitioners should be aware of the legal limitations. Taekwondo training may protect a person in a self-defense situation, but, if it is used improperly, it may lead to criminal charges or civil liability.
As a general rule, you should observe the following:
This topic has presented an overview of the laws of self-defense. The laws of each state pertaining to self-defense may be different, but there are certain basic premises that are basic to all states. English common law is the basis for most laws in the United States, but some states, such as Louisiana, base their laws on continental European law, so their laws may differ. You should contact your state attorney general or a library for specific information on your state.
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