• Video

The Question of Self-Defense

When is it permissible for someone to use force to defend themselves? Professor Paul Cassell discusses some of the factors that go into this consideration. Can you prove who was the aggressor and what force was used? What options besides force were available to someone? Different states or local jurisdictions may have different criminal standards based on these types of questions. https://youtube.com/watch?v=L2eiK8tBr84


Statutes regarding self-defense are at the center of a lot of controversy in criminal law, and I suppose in society as a whole today, because they're setting the boundaries for permissible use of force, and that's where the criminal law becomes extremely important. If the boundaries are very narrow then we're going to have limited rights to use force. But I suppose on the other hand, then maybe less force will be used. And so striking the right balance between competing concerns is what these defenses are all about. Now, the defense of self-defense looks at a couple of different things. First of all, the defense of self-defense requires that there be some imminent threat that the defender is responding to. So if someone says, “I'm going to shoot you next Friday” on a Monday there certainly would not be a viable claim of self-defense. If someone swung into action immediately and let's say shot the person who was making the threats, we would say that there wasn't an imminent risk of death in that situation. And we would also like to think that there were other options available to someone who had been threatened in that way. They could call the police or they could take protective measures or otherwise maybe try to diffuse the situation. Because when we allow self-defense, particularly when we allow deadly force in self-defense, we're allowing obviously very serious consequences to follow. So the criminal law will look for an imminent threat. You will also ask the question, who was the first aggressor? We don't want people to run around preemptively self defending. We need to require that there be some sort of a threat that they're responding to. The law likes to define who is the innocent person and who is the culpable person. And so you can see the notion of who is the first aggressor would track very nicely with those other bodies of criminal law. And then the last thing would be that the defense that's being used needs to be proportionate to the threat that exists. So if somebody is there and saying, well, I'm gonna punch you in the nose, or something like that. I suppose without any other facts that wouldn't justify somebody pulling out a firearm and, and killing them because they're not, at least on those sort of law school hypothetical facts facing some kind of risk of death or serious bodily injury. And so those are the kinds of concepts that get molded into self-defense law. And different jurisdictions may have more expansive or narrower conceptions of self-defense that they recognize in their criminal code.

Related Content