Self-Defense Laws and Use-of-Force Principles in Criminal Justice

The Statutory Right to Self-Defense

As far back as English Common Law, necessary self-defense — including killing under certain circumstances — mitigated or completely eliminated criminal responsibility (Dershowitz, 2002). In the contemporary United States, the laws of every state include self-defense as an affirmative defense to violent actions necessary to protect oneself from an unlawful physical attack. That particular defense is known more generally as the right to self-defense, although technically it is not a "right" but rather a defense to a criminal charge (Dershowitz, 2002).

The precise definition of the so-called "right of self-defense" and the exact nature of its specific elements differ from state to state. Some states authorize individuals to stand and defend themselves; others require the victim of an imminent physical attack to first retreat as far as reasonably possible before violent action is justified to prevent harm (Schmalleger, 2001). Generally, one does not have a duty to retreat in one's own home, or while being robbed or raped; nor must one actually suffer a first blow before reacting in self-defense.

In those situations, a victim is justified even in using deadly force. However, even in such cases, justified acts of self-defense must occur in the immediacy of the event itself and not subsequently. Therefore, a woman may use deadly force to protect herself from rape that is either imminent or already in progress; she may not use deadly force an hour later — such as after retrieving a weapon from home and returning to confront her attacker (Dershowitz, 2002).

Proportionality and the Limits of Justified Force

The right to defend oneself varies substantially with the context in which it arises and hinges most directly on the relative appropriateness of the actions undertaken in self-defense (Schmalleger, 2001). Where the nature or degree of violence caused by acts of self-protection is far more extensive than the type or degree of harm threatened or reasonably feared, even actions initially justified as self-defense become subject to criminal prosecution. One who is physically attacked with fists may not ordinarily respond with a firearm, unless the circumstances of the attack — such as the physical disparity between victim and assailant, their relative abilities, experience, and age — justify that escalation.

Furthermore, the fear upon which an act of self-defense is predicated must itself be reasonable. A large individual who is an accomplished fighter may not use more force than absolutely necessary to repel a feeble attack by a much smaller, completely unskilled attacker who poses no actual physical threat — even if that attacker strikes first. On the other hand, if the larger victim genuinely believed the attacker was an expert martial artist, he would be entirely justified in responding with a higher level of force to protect himself (Schmalleger, 2001).

Likewise, there is a clear distinction between actions necessitated as appropriate measures of self-protection and efforts that cross the line between defense and retaliation. Once the initial attack ceases, no further violent action by the victim is protected under the self-defense doctrine. In fact, an attacker who signals that he is withdrawing from a continued altercation may also acquire a right to defend himself — such as where the initial victim persists in retaliation for the original attack or escalates the level of violence in response to a first attack. In principle, the right to defend oneself extends to nothing beyond the minimum amount and type of force reasonably necessary to prevent great bodily harm, and even justified acts of self-defense must cease the instant an offensive attack ends.

The Police Use-of-Force Continuum

In law enforcement, a peace officer's right to use force to effect a lawful arrest also varies with the context and circumstances of every situation (Schmalleger, 2001). Police officers are trained to employ the minimal amount of force necessary to accomplish their objectives. In most agencies, this concept is represented and taught as the Use-of-Force Continuum (UOFC), which calls for a specific ascending order of potentially dangerous techniques and equipment to be deployed (McCauley, 2005).

The lowest levels of the UOFC consist of the officer's physical presence (known as "command presence"), voice commands, and "light hands" techniques for guiding individuals into compliance with lawful instructions. Only when these lowest levels of force fail to achieve the officer's objectives may the officer lawfully escalate to the deployment of pepper spray or mace. Higher levels of the UOFC include "heavy hands" such as physical restraints and holds, or hand strikes if necessary to gain compliance or subdue a subject (Schmalleger, 2001).

If further escalation is necessary, police officers may employ a baton or collapsible "asp" authorized by their agency, or electric tasers and other pain-inducing or physically incapacitating but non-lethal forms of force — such as rubber bullets and "pepper balls" — in place of standard lethal ammunition. Ultimately, where no lower level of force on the UOFC is sufficient to effect an arrest or protect others from danger, officers are authorized to employ deadly force, such as their duty firearms (Schmalleger, 2001). In general principle, the UOFC also applies to citizens, though not to the degree that it dictates specific incremental responses to physical attack or resistance to a lawful citizen's arrest.

References

Dershowitz, A. (2002). Shouting fire: Civil liberties in a turbulent age. Little Brown & Co.

McCauley, R. (2005). Use of force and high-intensity tactical police flashlight: Policy concerns. FBI Law Enforcement Bulletin, 74(11).

Schmalleger, F. (2001). Criminal justice today: An introductory text for the 21st century. Prentice Hall.