THE USE OF FORCE Self Defense and the Defense of Others ▪ Self – defense – The elements to evaluate whether an act of force or self-defense is justified include an unlawfulness of the other’s actions, the necessity to defend oneself immediately, and the reasonableness of the act of self-defense under the circumstances. ▪ Unlawfulness – is what the other person is doing unlawful? If not, force is NOT justified. ▪ Necessity – Force must be immediately necessary to protect the person or another from the use of unlawful force or interference by another. ▪ Reasonableness – The amount of force used in self-defense or defense of another must be reasonable under the circumstances that exist. Good Samaritan Law ▪ These are laws that encourage people to come to the aid of another or to defend against unlawful force or interference. ▪ Here is a video that examines Arkansas Good Samaritan Laws: http://www.youtube.com/watch?v=TfEYlmrxMU8 Stand your Ground Law ▪ This is a VERY hot topic right now in the eyes of the public and in the legal world! ▪ Recent laws passed in many states that permit using deadly force in RESPONSE to an unlawful attack rather than the traditional “duty to retreat policy” ▪ Note the Zimmerman Controversy ▪ “A person who is NOT engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has NO duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force IF he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. (Fla. 2005 Stand your Ground Law) Loss of Self-Defense Privilege ▪ Cannot start the fight and claim self-defense ▪ State statutes and court decisions recognize 2 situations in which 1. - 2. the aggressor or wrongdoer can regain the right and privilege of self-defense: A wrong doer (X) begins an encounter with the unlawful use of his or her fists or some non-deadly weapon. The victim, however, unlawfully uses deadly force, which under the circumstances, is unnecessary and unreasonable. X now may use force in selfdefense BUT is not privileged to resort to the use of force intended or likely to cause death unless he has: Tried every means of escape (under duty to retreat) and Every means of avoiding death or great bodily harm to himself or herself. A wrongdoer may regain the right of self-defense by withdrawing in good faith from the fight and giving adequate notice to the victim as to the withdrawal. Castle Doctrine and Minority Duty to Retreat Exception to that Doctrine. ▪ Castle Doctrine vs. The doctrine permitting people who have been assaulted in their homes by a trespasser to stand their ground and use such force as necessary and reasonable to defend themselves. “Make my Day” rules Rules adopted by some states that put NO limits on the use of deadly force by the occupant of a dwelling in response to trespasser. Battered Women and Domestic Homicides ▪ 500-750 women kill men who abused them every year. ▪ A woman is abused in the U.S. every 13 seconds. ▪ To use this defense, a real or reasonable fear of imminent death or great bodily harm MUST exist. If no immediate threat is present, then, the law believes other alternatives are available to abused women, such as going to shelters or going to family members. ▪ NOTE: The majority of women in abusive relationships will wait until the male is vulnerable i.e. asleep to retaliate against the abuse, thus, this defense is often unavailable. ▪ Watch a case review of this defense, what do you think? http://www.youtube.com/watch?v=2lVDxvyvfP8 Use of Force in Defense of Property ▪ Interference with the property must be unlawful. Force may be used only when necessary to terminate the interference, and the amount of force must be reasonable under the circumstances ▪ Y a store employee, observes X snatch merchandise and run out of the store. Y may use necessary and reasonable force to prevent the unlawful taking of merchandise by X. ▪ Applies also if the owner is not present but has a type of trap; i.e. spring gun that is triggered by opening a door (this act of “booby trapping” may be an illegal act in itself depending on the state). Use of Force in Making an Arrest ▪ Force may be used by an arresting officer IF he reasonably believes it is necessary to: 1. Detain the offender, make the arrest and conduct lawful searches 2. Overcome any resistance by the offender 3. Prevent an escape and retake the person IF an escape occurs 4. Protect the officer, others, and the prisoner, if necessary A claim of excessive force is analyzed under the 4th Amendment (prevents physical intrusive governmental conduct). Unreasonable Seizure ▪ A seizure made by a government officer that is unreasonable under the circumstances and thus violates the 4th Amendment. ▪ Deadly force may NEVER be used to make the arrest of or to prevent the escape of a person who has committed a misdemeanor. ▪ Deadly force may never be used on mere suspicion. ▪ Deadly force may never be used by law enforcement officers to arrest or prevent the escape of a person who has committed a nonviolent felony. To Tase or Not to Tase ▪ Bryan v. McPherson (2009) the court held that the police use of a Taser gun was excessive force,. There, the motorist, Bryan, was stopped by a Ca. police officer for failure to wear a seat belt. Bryan exited his car wearing only boxers and socks, slapping his thighs and yelling gibberish, acting agitated, the officer fired his Taser gun from 20-26 feet away. Bryan fell to the ground, fractured four teeth and had to have one Taser prong removed with a scalpel. ▪ The Court held “Traffic violations will not support the use of a significant level of force.” End of Power Point 6
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