“Use of Force” law has applications in both in civil and criminal contexts. Established principles give civilians the right to apply force to the person of another and to engage in violence for the sole purpose of defending one’s own life or the life of a third party from physical harm, great bodily injury, and/or even death.
What Is Force?
Force is any verbal or physical action taken to control, restrain, or stop another. If you make physical contact with another person in order to stop, disable, injure, or inflict great bodily injury, or even to kill them, your actions will be reviewed to determine if you acted as a “reasonable person” (see below for definition). In the context of this book, we address force used to keep you free from physical and emotional harm, serious bodily injury, or death. Generally, a person may lawfully react in self-defense, but only if she uses an amount of force that is reasonable to maintain her safety.
What is the “Reasonable Person” Standard?
The legal phrase “reasonable person” describes a hypothetical person in the community who exercises average care, skill, and judgement in conduct. The determination of whether the defender is guilty involves the application of an objective test that compares your conduct to that of a reasonable person under the same or similar circumstances. Persons with greater than average skills, or with special duties to society, are usually held to a higher standard of care.
Once the danger has been eliminated and the assailant is controlled, you must stop applying force and inflicting injury; otherwise, your actions may no longer qualify as “self-defense” but may appear as delivering punishment to your attacker. Such action is likely to be considered an “unreasonable” application of force.
Legal Status of Self-Defense in a Criminal Context
Self-defense is justified when the degree of violence used to protect yourself is objectively reasonable and proportionate to the threat faced. As an example, the use of deadly force for defensive purposes is permissible in situations of “extreme” danger when you’re the victim of a forcible and atrocious crime, or face serious bodily injury or a potentially fatal attack. On the other hand, defense against criminal charges is unjustified, for example, if you claimed the right of self-defense when using deadly force and killed the perpetrator of a minor crime when the criminal did not appear to be a physical threat to anyone. The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.
Self-Defense against Assault
It’s lawful for a person who is being assaulted to defense against a physical attack, as long as a reasonable person has grounds for believing, and actually does believe, that bodily injury is about to be inflicted. If that’s the case, that person may use all the physical force that she believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury that appears to be imminent. You’ll be judged by all the information that’s known and apparent to you at the time you defend yourself. You won’t be judged with 20/20 hindsight. Ultimately, the question will be whether your actions are “objectively reasonable” in light of all of the facts and circumstances confronting you at the time. Justification for self-defense typically cannot be applied to actions committed after a criminal act has taken place. For example, a victim of a sexual assault, after the rape is committed and the rapist leaves the scene of the crime, is not entitled to later seek revenge against the attacker.
The Assailed Person Need Not Retreat
A person who is threatened with a violent attack may exercise the right of self-defense and need not retreat. If you exercise your right to self-defense, you may hold your original position and stand your ground and defend yourself by the use of all force and means that would appear to be essential to a reasonable person in a similar situation and with similar knowledge.
Actual Danger Is Not Necessary
“Actual danger” is not necessary as a good reason for acting in self-defense. If you’re confronted by the appearance of danger and, as a reasonable person, you possess an actual belief and fear that you’re about to suffer bodily injury, and if a reasonable person in a similar situation, seeing and knowing the same facts, would be justified in believing that they were in similar danger, you may use reasonable force to act in self-defense whether the danger itself is authentic or merely apparent.
The right of self-defense exists only as long as the real or apparent threatened danger continues. So if you’re attacked and use force to defend yourself, and you use enough force on the attacker as to leave the attacker seemingly incapable of inflicting further injuries to you, the right to use force in self-defense ends.
Preemptive Self-Defense
In some countries as well as a number of U.S. states, the notion of “preemptive” self-defense is limited to only those situations where the threat is imminent. Thus, lawful “preemptive” self-defense is simply the act of landing the first blow in a situation that has reached a point for no de-escalation, resolution, or escape. Many people believe that if the situation is so obvious as to feel assured that violence is inescapable, the defender has a much better probability of surviving by landing the first blow and gaining the immediate upper hand to quickly stop the risk to her person.
Use of Force in Defense of Another
It’s lawful for you, as a reasonable person, to use force to save another person from harm. If you have grounds for believing, and you actually do believe, that bodily injury is about to be inflicted upon another person, you can use force to protect that individual from attack. In that situation, you may use all force and means that you believe to be reasonably necessary and that would appear to a reasonable person, in the same or similar circumstances, to prevent an injury that appears to be imminent. Old Rule: The defender stands in the shoes of the person they’re defending and if that person doesn’t have a right in FACT to use force, then neither does the defender. This is NOT the rule in most states anymore. New Rule: If the defender has a reasonable belief that force is necessary to protect a third party, then they’re justified in using it, even if the third party is not truly in danger. This is the law in most states now.
The Castle Doctrine: Resisting an Intruder upon One’s Property
The idea of defending your home, or “castle,” is legally known as the Castle Doctrine. You may reasonably defend your home or dwelling against anyone who intends or attempts in a violent manner to enter your home or dwelling and who appears to be a threat to any person in your home or dwelling. In essence, the law presumes that, at the time you used force against an intruder to your residence, you possessed a reasonable fear of imminent peril of death or great bodily injury to you or a member of your family or household. You were thus entitled to use a higher level or force, even deadly force.
Note: States may differ with regard to the specific instances in which the Castle Doctrine is triggered and the degree of retreat or non-deadly force, if any, that is required before deadly force can be used.
Three Golden Rules of Self Defense
Golden Rule #1: You may use no greater force than a reasonable person would deem necessary to defend against the threat proffered.
- What constitutes a threat varies significantly by state, but it always includes physical harm against you.
- If you’re a martial arts expert and you KNOW that your assailant is unskilled and unarmed, you can’t respond with more force than necessary to eliminate the threat. However, if you don’t know the skill level of your assailant, if a reasonable person would THINK that use of your martial arts abilities was necessary to eliminate the threat (generally the case with most situations involving thugs in dark alleys), it doesn’t matter if that is true in FACT. You can and should use your abilities to protect yourself.
- You may not use deadly force unless you reasonably believe that the assailant is using or about to use deadly physical force or is likely to inflict great bodily injury, or is about to commit any other crime (usually burglary, arson, rape, or kidnapping).
Golden Rule #2: Once the threat is eliminated, you cannot continue to use force.
- If your assailant retreats, you cannot continue to fight him unless he poses a threat to someone else.
- If you can retreat to avoid confrontation, you may be required to do so, but not necessary. KNOW THE LAW IN YOUR STATE!
- “True Man” Doctrine: If you didn’t initiate the encounter, you’re not obligated to retreat, even if you can do so safely, so long as your assailant still poses a threat.
- “Castle Doctrine” (an exception to the retreat rule): If you’re in your own home, you’re not obligated to retreat, even under a state following the retreat rule.
- The law is unsettled in the area of fighting with someone you share your home with, but many states are considering an exception to the “Castle Doctrine” for cohabitants.
Golden Rule #3: Don’t be the aggressor.
- “Peterson Doctrine”: If you’re the initial aggressor, you can’t use self-defense as a justification for a use of force, unless you’ve made a good-faith showing that you wanted to stop fighting.
- If you started a fist fight and the person pulls a knife on you, you probably won’t be able to use self-defense as a justification. Most jurisdictions prevent even not-lethal aggressors from using self-defense as a justification if they later use lethal force to defend against lethal force.
Use of Force Reporting Guidelines
Civilians have generally not been trained to write reports that document the general nature of the events that took place during a use of force incident. However, current trends in civil litigation and allegations of excessive force suggest a need to reevaluate that philosophy. Therefore, it may be prudent for those who have been involved in a use of force incident to memorialize it in a truthful, detailed, and comprehensive manner, as described below. You should write the reports in plain English and avoid the use of legalese whenever possible.
Recommended Procedures
- Document the incident in written form as soon as reasonably possible following the incident. The checklist below may help you to organize your thoughts and to memorialize the use of force incident in a detailed and accurate manner.
- Make sure you give the circumstances resulting in the initial contact; this helps to show reasonable force (i.e., the amount of force, which is objectively reasonable, based on the facts and circumstances confronting you at the time of the event). See “Checklist: Documenting Use of Force” below for a list of things you should try and detail.
- Describe the assailant, including, but not limited to: sex, race, age, height, weight, build, and clothing worn (any unusual bulges). Also include any factors or observations that indicate the subject was under the influence of alcohol or drugs. An evaluation of strength, physical condition, and possible combative skills of the assailant should be articulated. If you’ve had prior contact with the adversary, this information will be relevant to your state of mind. Also, who else was with the combatant (e.g., friends, relatives) and did their presence pose an additional potential threat to the safety of you or a third party?
- Describe how the conflict ultimately concluded. Indicate the actions that were necessary for you to overcome the attacker’s actions, his resistance, how you eliminated the danger posed by the assailant, and what you did to resolve the dangerous circumstances and restore your safety.
Checklist: Documenting Use of Force
Consider all of the factors below:
❏ Describe the nature of the incident concisely and clearly.
❏ Location (remote, obscure, isolated, or high-crime area; lighting, or lack thereof)
❏ Time of incident (late night/early morning)
❏ Document the objective signs that were apparent to you regarding the attacker’s emotional, mental, and physical state. Clearly describe why you perceived the subject to be dangerous and how this perception influenced your own mental state (e.g., concerned, fearful, etc.).
❏ Detail any and every aggressive action by the subject directed toward you or third parties. Include verbal threats, gestures, aggressive stance, demeanor, any weapons displayed, and applications of force toward you.
❏ Describe any conversation or orders, if any were made, that you directed to the assailant before the actual physical confrontation. Be sure to describe the assailant’s verbal and physical conduct and the reactions (e.g., clenched fists, took a fighting stance, etc.).
❏ Describe the force used to overcome the subject’s resistance:
- To the extent possible, identify any techniques and strikes you used and the intended target areas and areas actually struck.
- Describe the force referencing the circumstances that occurred, including any verbalization or directions given to the assailant. Articulate any escalation or de-escalation of force and the attenuating reasons, such as the lack of the combatant’s response to the force you used. Describe the combatant’s reactions to the force applied in specific detail. This is of critical importance if the force you use is ineffective in stopping the assailant. This will clearly justify the why, out of necessity, you had to escalate the level of force used.
- Describe obstacles and difficulties encountered, including fatigue and/or the inability to overcome injuries received from the assailant.
Use of Force: How Much Force Can Use to Defense Myself? courtesy of the book Krav Maga for Women – Your Ultimate Program for Self-Defense.