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- Apr 6, 2002
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Since I just took the multi-state bar examination, I can answer this question from a general (nationwide) perspective. I'm happy to do so, since I have so little to add to many of the other topics, but am thankful for all that I'm learning.
a person may use deadly force in self-defense if 1. he is without fault (not the original aggressor), 2. he is confronted with "unlawful force," and 3. he is threatened with imminent death or great bodily harm. There is no right to deadly force if assailant has no present ability to carry out threat. Generally, there is no duty to retreat except in a minority of jurisdictions if the victim can do so safely. However, there is (from my understanding) never a duty to retreat if the attack occurs in the victim's home, occurs while victim is making a lawful arrest, or assailant is in process of robbing. Deadly force in a dwelling may be used only to protect the inhabitants therein-NOT property (no spring guns). There is an "excessive beating rule" that holds that when an attack is repulsed, the defender's privilege ends.
The intent of the assailant as he is closing in on the victim doesn't matter. All that matters is that the victim had a reasonable belief that imminent danger exists. Whether "reasonable belief" is an objective or subjective standard, I cannot recollect. My hunch is that it's objective. If the victim doesn't meet that standard, I would imagine it would result in what is called an "imperfect self-defense" resulting in manslaughter instead of murder.
As to the second scenario, Force can be used to regain possession of propery wrongfully taken if it is in immediate pursuit. Deadly force may be used only to terminate or prevent a dangerous felony involving risk to human life.
In both of the above situations, the victim/defendant would need to raise the issue of self-defense as an affirmative defense by introducing "some" evidence (sometime a preponderance standard exists). Once done, the burden is on the state/feds to show the use of force was unjustified.
I am sorry for the lengthy reply. I am sure that your eyes have glazed over by now. These are the general (most prevalent) standards, from state to state it varies. I'll try not to be such a bore in future responses.
a person may use deadly force in self-defense if 1. he is without fault (not the original aggressor), 2. he is confronted with "unlawful force," and 3. he is threatened with imminent death or great bodily harm. There is no right to deadly force if assailant has no present ability to carry out threat. Generally, there is no duty to retreat except in a minority of jurisdictions if the victim can do so safely. However, there is (from my understanding) never a duty to retreat if the attack occurs in the victim's home, occurs while victim is making a lawful arrest, or assailant is in process of robbing. Deadly force in a dwelling may be used only to protect the inhabitants therein-NOT property (no spring guns). There is an "excessive beating rule" that holds that when an attack is repulsed, the defender's privilege ends.
The intent of the assailant as he is closing in on the victim doesn't matter. All that matters is that the victim had a reasonable belief that imminent danger exists. Whether "reasonable belief" is an objective or subjective standard, I cannot recollect. My hunch is that it's objective. If the victim doesn't meet that standard, I would imagine it would result in what is called an "imperfect self-defense" resulting in manslaughter instead of murder.
As to the second scenario, Force can be used to regain possession of propery wrongfully taken if it is in immediate pursuit. Deadly force may be used only to terminate or prevent a dangerous felony involving risk to human life.
In both of the above situations, the victim/defendant would need to raise the issue of self-defense as an affirmative defense by introducing "some" evidence (sometime a preponderance standard exists). Once done, the burden is on the state/feds to show the use of force was unjustified.
I am sorry for the lengthy reply. I am sure that your eyes have glazed over by now. These are the general (most prevalent) standards, from state to state it varies. I'll try not to be such a bore in future responses.
