Table of Contents Explained
Below is a short description of each chapter and the legal issue it addresses.
Necessity lies at the heart of every self-defense claim. The idea is that people have a natural, God-given right to protect themselves from deadly danger, and that they shouldn't be punished if they use deadly force to avoid being killed or injured, provided they played no part in bringing about the danger. In self -defense cases, necessity means unavoidable. It describes situations in which people must either take someone else's life, or forfeit their own. The chapter begins the book by looking at the overarching question in every self-defense case: was it really necessary to kill anyone?
Self-defense occurs when one person kills another intentionally to avoid his or her own mortal peril. The slayer's intent, bad or good, when performing the deadly act is key to determining whether the killing was necessary, in other words unavoidable. Killing with malice, hostility, or ill will toward the victim is bad intent, and bars a claim of self-defense because the deadly act was motivated by a desire to hurt the victim. Killing to avoid one's own death or injury, however, is different. It is considered good intent, because the deadly act was motivated not by a desire to harm the victim, but rather by a desire to save oneself. Killing with good intent justifies a claim of self-defense. But what happens if the deadly act is unintentional, if the shooting occurs by accident? For example, a gun discharges without anyone intending to pull the trigger. This chapter looks at the issue of intent and what happens to the shooter's claim of self-defense if the gun fires by accident.
A person claiming to have acted in self-defense must be innocent of any behavior that helps to bring about the danger that justifies the use of deadly force. In addition to examining a shooter's intent, the law will also look at his or her behavior to see if it was good or bad. Good behavior seeks to avoid a confrontation, in favor of alternatives that avoid the use of deadly force. Bad behavior inflames the situation, or moves it toward a violent ending. Bad behavior and self-defense are incompatible. This chapter looks at what constitutes bad behavior by shooters in self-defense situations.
4 Deadly Threats
The threat of unlawful, deadly danger is what triggers the right of self-defense. It is the prospect of being killed or seriously injured that justifies the use of deadly force in response. Without a deadly threat, there can be no self-defense claim. Deadly danger can take many forms. It is as varied as human behavior. Regardless of how it manifests itself it must be clear, and detectable by human senses. There must be some physical act, some observable behavior, or some objective sign of impending violence that places an innocent person's life or well being in jeopardy, unless immediate action is taken to avoid it. What constitutes an unlawful, deadly threat is an important question in every self-defense case.
5 Verbal Threats
Words almost always begin an escalation toward physical violence, yet words alone never justify the use of deadly force against another person. Someone who is taunted, insulted, ridiculed, even threatened doesn't get to shoot his or her tormentor, no matter how provocative the language. Yet words are still very important in self-defense cases because they suggest motivation and purpose. They can reveal whether the shooter's intent was good or bad, and thus help determine whether the use of deadly force was justified. In some jurisdictions, a shooter's words will be examined to see if they were provocative. This chapter looks at the importance of words in self-defense cases.
6 Imminent Harm
The unlawful deadly threat that triggers the right of self-defense must be imminent, but how soon is imminent? Generally, the danger must be on the verge of happening, requiring an immediate "right now" response to avoid it. There is no right to use deadly force now to prevent some future danger, even if the future danger is almost certain to occur. A person must be about to be killed or seriously injured before using deadly force against his or her attacker. Some states have begun to see long term, physical violence against a spouse as justification for the present use of deadly force to prevent future danger. In such cases, the threat is said to be endemic, a continuing danger that can erupt at any time into life threatening danger. This chapter examines the question of how soon is imminent.
7 Reasonable Fear
A critical question in every self-defense case is whether the shooter reasonably fears that he or she faces imminent death or serious bodily injury, unless swift action is taken to avoid it. That said, the law doesn't tolerate overly active imaginations in deciding this question. Fear alone is not enough to justify the use of deadly force. The facts and circumstances of the situation must be such that people, other than the actor, would conclude that he or she was about to be killed or seriously injured. Different states use different approaches to decide what is reasonable fear.
8 Duty to Retreat
The concept of the duty to retreat is rooted in English common law, and its purpose is to avoid the use of deadly force wherever possible. It is a public policy preference that seeks to balance society's interest in preserving everyone's life, with the individual's interest in preserving his or her own life. Simply put, the duty to retreat says an individual must make every reasonable effort to avoid deadly danger, before using deadly force to defend against it. English colonists brought the idea with them to the new world, where resistance to its application grew, particularly in situations involving sudden, unexpected attacks. As Americans marched westward to the pacific, they cast off the idea of retreat in the face of sudden danger, and replaced it with a "true man" standard that says there is no duty to retreat in the face of a sudden threat. The duty to avoid the use of deadly force is still important, however, particularly in situations where the threat builds over time, and this chapter examines that issue.
9 Stand Your Ground
Stand-your-ground statutes are best understood in context of the "true man" standard and the duty to retreat. The "true man" standard replaced the duty to retreat in situations where a deadly threat appears suddenly and there is little time to react. When the danger builds more gradually, however, and there is some period of time for reflection before action is required, the duty to retreat still applies. In those cases, a person facing deadly peril must still first seek to end the confrontation, if possible, before resorting to deadly force. If avoiding the use of deadly force means an innocent person must retreat, or cede ground, or give up lawful rights in the face of an aggressor, and look to the law for redress, then in duty to retreat states, that is what the individual must do. Stand-your-ground laws modify the duty to retreat in situations specified in the statute to allow an innocent person to use deadly force, if necessary, without first retreating.
10 Castle Doctrine
The Castle Doctrine is also best understood in the context of the duty to retreat. It came into being to eliminate the requirement for a person to retreat in his or her own home. In that respect it is very much like a stand-your-ground statute. A person attacked in his or her own home is not obliged to retreat in the face of deadly danger, but may stand his or her ground, protect the home, and resist an attack, with deadly force if necessary. Every state has some version of the Castle Doctrine, but there are significant differences in how these laws are applied. Who can claim it, and what area is considered the "Castle" or place of refuge where no retreat is required, often varies form state to state.
The right of self-defense is tied closely to the existence of a deadly threat. Once the threat disappears, so too does the right to resist it with deadly force. An aggressor's willingness to end a confrontation must be respected. If an aggressor abandons the fight, or indicates he or she desires to seek peace, either by word or by deed, the right of the person threatened to use deadly force against him or her ceases to exist. If the person initially threatened fails to honor an attempt to de-escalate the confrontation, or turns the tables and attacks the aggressor, or uses the lull in hostilities to gain advantage, then he or she forfeits the right of self-defense, and it passes to the person who has attempted to walk away from the fight, and that person may the use deadly force, if necessary, to defend him- or herself against further attack.
In 1576, an Englishman shot an arrow intending to kill his enemy but missed, and mistakenly killed an innocent man. The archer was found guilty of murder because he was trying to hurt his victim, his intent was bad, and it "transferred" to the innocent person he actually shot. Thus was born the idea of "transferred intent," meaning that one's intent follows his or her act to its end result. Good intent, as well as bad intent, travels to the act's conclusion. So what happens if an innocent person uses deadly force to defend against what he or she reasonably fears is an imminent unlawful threat of death or serious bodily injury, but in doing so mistakenly kills the wrong person? This chapter examines that question.
13 Reasonable Force
The force used to avoid danger may be deadly, but it may not be excessive. Deadly force is reserved for situations of extreme necessity, where all lesser means of resistance have failed or cannot be employed. When deadly force is used in situations that don't warrant it, it is considered excessive, unreasonable, and the actor may not claim to have acted in self-defense. Many factors influence decisions about what is reasonable force. This chapter addresses what they are.
People have the right to go about their business, behave as they choose, and visit any place they want, so long as they behave legally, and do not seek to confront an adversary. That is true even if by moving about they expose themselves to deadly danger. Ignoring the threat of deadly peril may not be the wisest thing in the world, but people are entitled to do it. This chapter looks at how a person may arm him- or herself in the face of deadly danger and behave lawfully.
A self-defense shooting initiates a review process to decide what happened, by people who weren't there and didn't see or experience the confrontation. It involves police, prosecutors, defense attorneys, judges, and ultimately a jury, and no matter how strongly the facts appear to support the shooter, the decision about a claim of self-defense is never a foregone conclusion. Evidence is gathered, witnesses are interviewed, laboratory tests are performed, and the laws are discussed. The effort goes on and on until everyone is satisfied they have all the facts. Then a cold calculated decision is made. Is there enough evidence to charge the person claiming self-defense with murder, and to prove it to a jury beyond a reasonable doubt? If there is, criminal charges will be brought. If not, the actor will be exonerated in the victim's death. In the final analysis, the decision often turns on an assessment of whether the killing was really necessary.