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So I killed this guy. Can I claim self defense?

October 31, 2011

1. History, 2. Law

So I killed this guy.  Can I claim self defense?

I sure hope so, otherwise your next long-term girlfriend is gonna have an Adam’s Apple.

First of all, Self-Defense is just that – a defense.  You’ve done everything to be guilty of Murder, but your behavior was excused because of the totality of the circumstances.

The initial issue is your use of deadly force.  Chances are that you didn’t bitch slap the guy.  You used some sort of weapon or choked the life out of him.  You cannot use deadly force unless the other guy was gonna use it on you.

Here’s the rule:  You need to have a reasonable fear of imminent serious injury or death.

Reasonable fear.  That’s not waiting until he beats you to the point of unconsciousness.  You can anticipate it to some degree.  But your assessment of the situation needs to be “reasonable” – that is, another person knowing what you knew would have arrived at the same conclusion.  Some yoko points a gun at you – good enough.  Makes no difference that the gun wasn’t loaded – unless, of course, you knew it wasn’t.  Then you have some ‘splaining to do.

The fear needs to be of an imminent event.  That’s now.  Right now.  Not tomorrow or the next time he sees you.  Or even five minutes from now.  This very moment.  In fact, over time the term “immediate” was replaced with “imminent” to underscore the timeliness of the event.

You don’t have to just fear death.  Serious injury is enough.  People die from “serious” injuries.

So you need to have a reasonable fear of imminent serious injury or death.  Next up is the twists and turns of laws in the different states.

There’s a Duty to Retreat Rule in some states.  If you can retreat – get out of the situation – and do so safely, then you have to do that.  Some states are doing away with this Rule.  Fire away.

There’s also the much older Castle Exception.  A man’s home is his castle.  As the law developed at times when only men owned property, any intrusion into the home was viewed as a crime against the home – his – and a potential crime against his family – who had no individual rights – and so, in the end result the entry was viewed as an assault against him personally.  He had the right, therefore, to use deadly force against anyone unlawfully entering his home.  The Castle Exception was drifting away under some soft-on-crime legislatures.  They actually expected you to retreat from your own home.  F that.  It’s coming back strong.

What if you happen upon two people in a face off and you go to the aid of one of them – acting in the same manner that you would have if the person getting thumped was you?  Yeah, sure, you can do it.  But most states tell you that you had better be right – absolutely right.  Particularly if you fire off a round or three.

Think about it.  Criminals don’t usually wear clothes with “I’m the bad guy your mother told you about” cross-stitched into them.  How do you know which one is the aggressor?  You want to help, you better limit your assistance to ending the situation with all parties still breathing.

Self-defense is very real, but it can be tricky.  A guy in NJ heard someone rummaging through his shed at night.  The shed was just ten or so feet off his kitchen.  The homeowner confronted the guy.  Killed him.  Asserted Self-Defense.  Lost.  I think he got some variant of Manslaughter.  Why?  He went to the situation.  He could have stayed inside and called the police.  The dead guy didn’t invade his castle.  The homeowner was in no way physically threatened until he created the circumstances under which he became threatened.

Is that a fine line?  Sure.  But it illustrates the problem with a Self-Defense assertion.  The bottom line is that someone died.  Our laws frown upon people dying from anything other than natural causes.  Deaths are reviewed closely.

Remember the Burning Bed?  This woman gets beaten regularly by her husband.  She believes that she has no way out.  After years of abuse, the guy gets drunk (I think) and is sleeping on the bed.  She ties him down and sets the dial to “Toast.”

You see the first problem – imminent.  There was no fear, reasonable or otherwise, of imminent anything.  The dude was snoring ever so peacefully.

It also doesn’t feel too good.  She burned him to death!  Whew!  Tie him down and cut his throat – let him bleed out in several minutes.  Or tie the clothes iron to the end of the broom and crack his skull like a walnut.  But burn him?  That’s a bit edgy.

But in her reality – and the reality of many abused partners – they feel that they have no way out.  And when an attack is happening they have no recourse but to take it.  The only time she could have protected herself was when he was out cold on the bed.

The law struggled a lot with these cases.  They were usually resolved through a lesser form of Homicide – Voluntary Manslaughter, for example.  Which makes no sense from a legal perspective.  Murder 2 fits it better.  But courts wanted to get the sentence length down.  And I’m sure some folks had their sentences suspended.

Yes, battered partners can plead Self-Defense.  The law is catching up to the psychology of battered people.  But …

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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