Criminal Law

Limits on Self-Defense

By Micah Schwartzbach, Attorney
Learn about self-defense issues like self-protection after starting a fight, "stand your ground," and the "castle doctrine."

Updated October 15, 2015

People have the right to defend themselves—this much we all know. We also know that there are limits to what one can do in self-defense. For instance, the self-defense doctrine doesn’t allow someone to use a minor scuffle as an excuse to shoot the opponent.

In this article, we take a look at some of the nuances to self-defense law. To read up on the basics—including fundamental limitations on the right to defend—see our article on self-defense basics.

Self-Defense and “Aggressors”

Self-defense is designed to protect people who don’t start trouble. It fundamentally doesn’t apply “aggressors.”

Acts of Aggression

The most basic definition of “aggressor” would include someone who illegally attacks another. Some state definitions include under the “aggressor” umbrella a person who threatens to attack another or intentionally provokes a fight.

Assume Doolittle approaches Vaughn, grabs a baseball bat and waves it, and shouts threats to kill. To protect himself, Vaughn punches Doolittle in the gut and grabs the bat. As the aggressor, Doolittle isn’t entitled to forcefully defend himself against Vaughn’s act of self-protection.

But the aggressor limitation to self-defense doesn’t mean that you can never use force if you did anything to contribute to a fight. If one man insults the fit of another’s suit, and the insulted party retrieves a revolver and points it as if to shoot the insulter, the insulter is likely legally justified in using deadly force to prevent the shot.

Regaining the Right to Defend

Despite the general rule, aggressors can gain the right of self-defense in some circumstances. It comes down to who the aggressor was at the moment defensive force was used.

Deadly aggression. To earn the self-defense right, an aggressor who employs deadly force must generally “withdraw” from the conflict and in some way communicate the withdrawal to the other person. Suppose Donald tries to stab Violet in the neck with a knife. Violet fights off Donald, so successfully that Donald runs away and hides. Violet pursues. Donald has to communicate to Violet that he’s done with the confrontation in order to have the right to self-defense. Otherwise, Violet might think that Donald is simply regrouping in order to attack again. If Donald doesn’t communicate his withdrawal to Violet and he kills Violet in what might otherwise be self-defense, he’s guilty of murder. (It might work for Donald to come out of hiding, drop the knife, and yell, “Hey, I’m sorry and I give up! Please don’t hurt me!”)

Escalation. Courts have differed when it comes to situations of “escalation,” where one person uses nondeadly violence and the other responds unreasonably with deadly force. The question is whether the instigator may respond in turn with deadly force.

Suppose Drummond tries to give Vinson a slap with his knuckles. Vinson grabs a nearby samurai sword and tries to kill Drummond with it. Drummond can be convicted of simple assault for the attempted backhand. But can he be convicted of murder if he defends himself against the sword attack with a gunshot to Vinson’s head?

Some courts would say that Drummond acquired the right to self-defense once Vinson escalated with the sword attack. In one of these courts, Drummond would have a self-defense claim if the other components of self-defense were met (he reasonably believed that the gunshot was necessary, and so on).

Other courts have said that, to claim self-defense, an initial aggressor like Drummond would have to first take any opportunity to safely retreat. In these courts, Drummond would have been entitled to use deadly force only after retreating, provided that a clearly safe retreat was available. If he retreated or there wasn’t an opportunity for safe retreat, he would be allowed to use deadly force in self-defense. Otherwise, Drummond would likely be guilty of either murder or manslaughter if he killed Vinson.

Self-Defense and the Duty to Retreat

Out of nowhere, Danson attacks Venters. Given the circumstances, Venters has only two feasible options: retreat to a safe place or use deadly force. What must Venters do?

American laws give different answers.

Stand Your Ground

Many states apply some kind of “stand your ground” or “no retreat” rule, which in its basic form allows:

  • a nonaggressor
  • who is aware of an opportunity to safely retreat but doesn’t take it
  • to use deadly force against an attacker whom the nonaggressor reasonably believes will kill or cause serious physical harm.

The fundamental theory behind such laws is that people who’ve done nothing wrong shouldn’t have to run in fear from their attackers. Critics contend, however, that “stand your ground” encourages violent encounters. States of this latter perspective require that innocent people who are aware that they can retreat in complete safety do so instead of responding with deadly force to threats of deadly force. Supporters of this “retreat requirement” point out that falling back isn’t necessary when it would endanger the victim of the attack.

Laws in states with the retreat requirement generally say that the duty to retreat arises only if the threatened party is actually aware of the opportunity for completely safe escape; it doesn’t pop up simply if a reasonable person would have been aware of such an opportunity. “Retreat” proponents argue that, where one person points a gun at the other, the retreat requirement is highly unlikely to kick in because it probably wouldn’t be completely safe to retreat—and even if it were, the victim might well not be aware of that fact.

The Castle Doctrine

While there’s quite a bit of disagreement over stand-your-ground laws, there’s much less when it comes to the “castle doctrine.” Even in states with the retreat requirement, people generally don’t have to run from their homes—even when they know they can do so completely safely.

While specifics of castle-doctrine laws vary from state to state, generally, innocent people who are under attack in their own homes don’t need to retreat, even if they can do so safely. Instead, they can typically use even enough force to kill if they are in apparent danger of serious injury. States seem to agree that one’s home is indeed one’s castle.

Questions for Your Lawyer

  • How does self-defense law vary from state to state and from state to federal court?
  • Does the “stand your ground” defense depend on where you are when you defend yourself?
  • What constitutes a “home” for purposes of the castle doctrine?
  • Does the castle doctrine apply if the attacker isn’t an intruder?
  • How does the castle doctrine compare to “defense of habitation”?
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