A claim of self-defense states that the use of force was necessary for the protection oneself. It is also known as justification for behavior that would otherwise be criminal. The idea is that the person using force and claiming self-defense must have a reasonable belief that the use of such force was absolutely necessary to protect him or herself. Self-defense has limitations. For example, a person can't claim self-defense in resisting arrest by a peace officer.
Using Self-Defense to Protect Property
A person can't claim self-defense against someone who is protecting real property and knows that the person is claiming a legal right to the property. However, this situation will allow a claim of self-defense when:
- The person is a public officer in the performance of official duties or making an arrest
- The person has been unlawfully dispossessed of the property and is making an attempt to recapture it
- The person believes that the force is necessary to protect him or herself against death or serious bodily harm
Use of Deadly Force
The use of deadly force is not justifiable unless the person believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse brought about by force or threat. Also, a person who initiates an encounter with the use of deadly force can't justify using deadly force to protect himself against retaliation in that same encounter. In other words, an aggressor can't protect himself with deadly force if he was the one that initiated the use of deadly force in the first place.
Duty to Retreat
A person won't be able to justify the use of deadly force if he knows that he can safely retreat without using deadly force. Also, an encounter that turns deadly won't be justified on the ground of self-defense if the user of deadly force could have merely surrendered an item to the person claiming a right to the item. A person is not required to retreat from his dwelling or place of work unless the person was the initial aggressor in the encounter. A police officer is not required to retreat upon the threat of deadly force by a suspect.
When attempting to prove self-defense in a non-deadly case, the defense attorney should attempt to show the following:
- The defendant subjectively believed that the force used was necessary to protect himself
- The defendant believed that the force used had to be used immediately
- The other person wasn't a peace officer attempting to arrest the defendant
- The defendant was not protecting property under a claim of right
Questions for Your Attorney
- Does the law in my area recognize self-defense?
- What is required to prove self-defense in my state?
- Have you ever successfully defended a case on the ground of self-defense?