T. Markus Funk, a Perkins Coie partner and a scholar, published an article about this topic at Bloomberg Law last Wednesday. I decided to reprint the article with Bloomberg’s permission. Markus contributed the English-German law material, while Markus created the U.S. law material. Markus and I may disagree on the definition of self-defense in some ways, but we want to present it as it is. (Thanks also to Perkins Coie’s Sean Solis for his help.)
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“U.S. Self-Defense Law—’Harsh’ By International Standards?”
Wall-to-wall coverage in the media of Kyle Rittenhouse’s Wisconsin murder trial was a highlight of November. He shot three people, killing two. The airwaves were filled with mixed legal and moral opinions about Rittenhouse’s self defense claims by criminal and law professors.
One constant aspect of Rittenhouse coverage was declarations about the U.S. self defense law’s apparent laxity, especially by international comparison.
For example, Vox offered the perspective that “America’s self-defense laws are incredibly permissive, making it difficult to convict someone in a violent situation who claims to fear for their life.” A New York Magazine article similarly asserted that there is an “anarchy latent in America’s … expansive self-defense rights,” and that America’s “increasingly permissive self-defense laws” have opened “up a vast zone of permissible killing.”
It is true that there are many issues to be debated about U.S. laws regarding self-defense and guns. In fact, the Rittenhouse case initiated calls to make it unlawful for a minor like Rittenhouse to openly carry a rifle except when hunting. What is reported about the apparent relative “looseness” of U.S. Self-Defense laws doesn’t reflect reality.
On close inspection it becomes apparent that the U.S. Self-defense Law in crucial ways is less restrictive than laws in England and Germany. These two countries are often described as having more humane and civilized criminal justice approaches to crime than the U.S. We put the words “harsh,” “humane, and “civilized” in quotations because of the possibility that what might be thought to be “harsh” to those who have been injured by self-defense may actually be “humane” to those who are self-defense.
U.S. Law—Objective Reasonableness Required
U.S. self-defense law generally requires the following, though with some differences among states.
The burden of proof on the state
Even though it’s a defense affirmative, when a defendant presents evidence in support of self-defense, prosecutors have to prove the contrary beyond any reasonable doubt.
Self-Preferential Force Available
Only if the following conditions are fulfilled, can a defendant rely upon the self defense justification.
- Attack:Subjectively, the defendant believed that they were under an unlawful attack.
- Necessity:According to the defendant, the use of force or threat was necessary in order to “prevent or terminate interference”.
- Objective rationality:Although the defense claimed that necessity was an attack, and it did so even though they were incorrect, their beliefs and actions were actually reasonable.
- Imminence: The attack was occurring or was imminent.
If the defendant has reasonable grounds to believe that deadly force is required in order to avoid imminent death or great bodily harm (e.g., severe permanent disfigurement or prolonged loss or impairment of any organ, body part, or other serious bodily injuries, like rape or kidnapping), then the defendant may use it.
In half of the states, deadly force can also be used to prevent robbery. Some states also allow deadly force for other felonies like arson or burglary.
Retirement is not a right.
Nearly 25 states have laws that provide deadly self-defense, which allows the defense to retreat safely. These states are not required to retreat from one’s residence, vehicle, or business. Some states are known as “stand your ground”, and do not have any obligation to retreat.
If the defender provoked the attack, they may not use deadly defensive force until they have communicated that they were desisting and have exhausted every other reasonable means to escape. Certain jurisdictions also prevent provokers from ever being able to regain the right to self-defense.
English Law—Championing the Dangerous Subjective-Belief-Only Standard
The belief in an attack can prove objectively unreasonable
Under contemporary English self-defense law, the defender need only prove that they “honestly” believed deadly force was necessary to avert imminent death or serious bodily harm. Under this rule, even entirely unreasonable mistaken beliefs will not preclude a self-defense claim, provided they are honestly held (though the potential unreasonableness of the purported belief is naturally relevant to whether it was, in fact, honestly held).
Think about Rittenhouse prosecution Thomas Binger’s closing argument. He repeatedly asked the jury, “Would a reasonable person do in Rittenhouse’s situation?” What would you have done if someone else was in your sights? What if you had to defend an empty lot with a gun? This is something that no reasonable person would have done.”
Nearly singular focus by the Rittenhouse prosecution on Rittenhouse’s alleged unreasonable conduct shows how transformative a shift to an English-style, honest-belief standard for self-defense would be. It would be no longer necessary for the defendant to show that he believed that using deadly force to stop an attack imminently was reasonable. It would make a difficult case such as Rittenhouse almost impossible to prosecute.
There is no obligation to avoid conflict or retreat
We now turn to the much-debated “stand your ground” rules found in most U.S. states (but notably not Wisconsin—though in Wisconsin, the defender, in certain circumstances, need not retreat from their dwelling, motor vehicle, or place of business).
England, however, rejects the requirement that the defender must either avoid or retreat from conflict if it is likely to occur. In fact, the same is true for legally, politically, and culturally diverse countries ranging from Argentina, Botswana, Canada, and France, to Ghana, Indonesia, Japan, Spain, and Sweden. While it can and should still be debated whether this approach is right, it is wrong to claim that the U.S. is alone with such laws.
German Law—Authorizing Deadly Force to Defend an Exceptionally Broad Range of Legally-Protected Interests
How can you defend yourself?
Germany’s storied self-defense law permits deadly force under a far broader array of circumstances than allowed in the U.S. Germany’s self-defense law allows deadly force to defend any legal-protected interest that is not trivial. Germany allows the use of deadly force, unlike in the U.S.A, to defend “mere property,” like a motorcycle or laptop.
Rittenhouse, if tried in Germany would have not had to show that he was reasonably afraid of bodily injury and death (questions that took up the remainder of his trial). Rittenhouse could, instead, have just argued that deadly force was required to stop his attackers beating and assaulting him.
He would have had to bear a much lighter load, given the fact that it was certain that he was going to be beaten. Prosecutor Binger stated that even though “Joseph Rosenbaum” was charged, this would have been a far lighter burden. [was] chasing after the defendant because he wants to do some physical harm to him … you don’t bring a gun to a fist fight.”
Under closer inspection, common assertions about the U.S. self defense law’s “exceptionalism” or “inhumanity,” fail to stand up. These claims are often made by media and academic observers. The self-defense laws of Germany and England, respectively, are not more humane towards the accused attackers. They place far fewer restrictions on circumstances in which deadly defensive force is allowed.
They are distracting from the fact that U.S. self defense law’s “harshness”, while it may be true, is not true. They prevent us from engaging in an informed national dialogue about the role and justification of self-preferential fatal force in democratic societies.
The opinions expressed in this article are not necessarily those of The Bureau of National Affairs, Inc., publisher of Bloomberg Law or Bloomberg Tax.