Law of Self Defense Question of the Week
USA – -(Ammoland.com)- This week’s Law of Self Defense: Question of the Week comes from Adam Grigsby (@agrigs21):
What are the rules of engagement in defense of another in a stick-up at cashier counter?
Before we get into the details of that specific scenario, it is worth first considering some of the troublesome dynamics of defense of others generally.
“Reasonable Belief” vs. “Alter Ego” Standards for Defense-of-Others
A first area of concern is whether the jurisdiction you’re in applies the “reasonable belief” standard to defense of others cases, or the “alter ego” standard. To illustrate the difference, let’s consider the following scenario.
You walk around a corner and come across two large, rough-looking men grappling with a small woman. The woman spots you and starts screaming for help, and that the men are kidnapping/raping her.
Based on her claims and their conduct, it would appear that there’s a clearly imminent threat of death or grave bodily harm (e.g., the threatened rape) about to occur to her. Do you draw your pistol to come to her defense?
But What’s Really Going On?
Well, if you do, what are you REALLY doing? Are you coming to the defense of a prospective rape victim?
Or are you committing aggravated assault (or worse) against two undercover LEOs making a felony drug arrest?
Let’s assume the worst case scenario—it’s actually two cops making an arrest.
Under the “reasonable belief” standard of defense of others, so long as a reasonable and prudent person under those circumstances would have perceived a lawful justification for the use (or threat) of deadly force in defense of the woman, your conduct in coming to her defense is probably lawful.
(I’m setting aside for purposes of this discussion the likelihood of taking fire from two armed LEOs who might well assume you’re a drug-dealing associate of their suspect prepared to shoot them to prevent her lawful arrest.)
But the outcome is quite different in states that apply the “alter ego” standard to defense of others. Under the “alter ego” standard you effectively stand in the shoes of that other person to whose defense you come. Your legal authority to use deadly force on their behalf is precisely as broad—and precisely as narrow—as that person’s own authority to use deadly force in self-defense.
Under our “drug arrest” scenario, if you come to that woman’s defense you have no more and no less authority to threaten those officers with force than she does. Assuming the arrest is lawful, her authority to forcibly arrest is zero. Therefore, your authority to use force on her behalf is also, you guessed it, zero.
Where’s that leave you? Two counts of aggravated assault on a police officer, and no legal justification for having done so. In most jurisdictions an aggravated assault is good for 15 years, and both having police as the victim and the use of a firearm are common factors that result in much more severe sentencing.
What You Don’t Know Can Really, Really Hurt You
Similar outcomes can occur without the factor of a lawful arrest. Say, for example, that you stumble upon a fight in which one person is clearly losing. You use force against those winning the fight in defense of the person losing it. Later, it turns out that the person who was losing the fight had, in fact, started it—that is, they were the aggressor. As the aggressor they cannot claim self-defense. In an “alter ego” jurisdiction, if they cannot claim self-defense, you cannot claim defense of others as justification for your use of force on their behalf.
If you don’t know whether the jurisdiction you are in is a “reasonable belief” or an “alter ego” state, the risks of coming to the defense of a third person where you are not absolutely certain about the circumstances.
Didn’t See the Start of the Fight? Off to Jail With You.
Some states have their own interesting wrinkles around the defense of others, even if they are “reasonable belief” states. In Virginia, for example, used to be an “alter ego,” state, so it has many older court decisions that apply that law. Today, however, Virginia is a “reasonable belief” state for purposes of defense of others. Virginia Uniform Jury Instruction 62:3 “Defense of Others” provides that:
If you [the jury] believe from that the defendant reasonably believed, under the circumstances as they appeared to him, that [name of third party] was without fault in provoking or bringing on the fight and that [name of third party] was in danger of bring killed or of suffering great bodily harm, then the wounding by the defendant was in defense of another and you shall find the defendant not guilty.
So, as long as your perceptions were reasonable, you’re good to go, right? Careful! The Virginia courts have ruled that in order for your perception to have been reasonable you must necessarily have witnessed the start of the fight. This does make common sense. If you didn’t see the start of the fight how would you know, for example, whether the person you’re defending was not in fact the initial aggressor?
What these rulings effectively mean, however, is that if you come across a fight already in progress you have no reasonable means by which to determine whether any particular person involved in the fight would be authorized to use defensive force in their own defense, and therefore could not know whether you would be authorized to use defensive force on their behalf.
The Cashier Stick-Up Scenario
Now, let’s get back to Adam’s initial question about coming to the defense of a third person in a cashier stick-up scenario.
Obviously, the element of uncertainty that clouds so many defense of others scenarios is lacking here—someone is pointing a gun at a cashier and demanding money. Under a “reasonable belief” standard it would seem a clear case in which defense of others would be authorized. The risks that it was the cashier who initiated the confrontation seem minimal, also minimizing the risks under an “alter ego” standard. There are still hazards, however.
Naturally, your use of force in defense of the cashier must still meet all the necessary elements of self-defense in that jurisdiction. For example, if this is occurring in a duty to retreat state, and the cashier could have safely retreated rather than use deadly force in his own defense, then the cashier would be required to do so—say, for example, that the robber has a bat, rather than a gun, and the cashier behind the counter could simply step back out of range of the bat. In an “alter ego,” state, then, because the cashier would not have been authorized to use deadly force in his own defense, you would not be authorized to use deadly force on his behalf.
Of course, there are exceptions even to this general rule. Maryland, for example, is a duty-to-retreat state, and one that is quite aggressive about denying self-defense if that duty is breached. But their duty to retreat is an element only of self-defense, not of defense of others. So, if a maniac attacks you, you must take advantage of an available safe avenue of retreat before you can use deadly force in defense of yourself.
But if that same maniac instead attacks someone a few feet from you, you can come to their defense without any duty to retreat.
Defense of Others? Or Defense of Self?
Perhaps more important, however, is whether defense of others is even required under the scenario raised. After all, if you are in a position to bring deadly force to bear against a robber armed with a gun, surely he is equally in a position to bring deadly force to bear against you. In most jurisdictions these circumstances would justify a claim of defense of self as well as defense of others. (But not all jurisdictions. Some of the blue states, particularly CT, MA, MD, and NY, can be very tough on the issue of necessity, and may well seek to deny a claim of self-defense if the robber had not threatened you personally.)
Or To Stop a Forcible Felony?
Finally, numerous states allow for the use of even deadly force to stop a forcible felony. Those that do, however, also often have an explicit list of which forcible felonies are covered. Is armed robbery one of them? Probably. But if you don’t know for certain, are you willing to take the chance.
There are also, of course, all the practical considerations that arise with any use of deadly force against another. Does the prosecutor in that locale look favorably upon the justified use of deadly force in defense of self and others, or are they of the mind that every such use of force must be “put to the test” of a jury trial? If the latter, that fired shot can readily cost you hundreds of thousands of dollars in legal expenses. And, of course, there’s no guarantee of a not guilty verdict in the end. (Going to a jury is like getting cancer—you might make it, but the pain and cost are vast.)
I always advise my students to think long and hard about under what circumstances they would be able to spend the rest of their lives in a jail cell and to their last dying day believe that firing that shot was the right thing to do, and that given the choice they would do it again without hesitation.
For me personally, there are a handful of situations that fall into that category. In defense of my life? Sure. In defense of the lives of my wife and children? Absolutely. After that, however, the list tapers off pretty rapidly.
Each armed citizen must necessarily draw their own personal line where they think best. Neither I now anybody else can make such a moral decision for another. All I can hope to do is inform you about the legal risks and consequences for drawing that line at various places.
Ok, that’s probably enough for this week’s question of the week. This week’s “winner”, Adam Grigsby (@agrigs21), will get his choice of a complimentary autographed copy of “The Law of Self Defense, 2nd Edition” or a snazzy LOSD ball cap.
If you’d like to submit your own Question of the Week, and become eligible to win a free book or hat, simply submit your question at Ask Andrew at the @LawSelfDefense., to my Twitter account at @LawSelfDefense (no “of”).Stay safe! -Andrew, @LawSelfDefense
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (where a custom autograph can be specified, great for gift purchases!), Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.
In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country. Seminars for 2014 are currently being scheduled, if you’d like to see one held in your area fill out the comment box on the LOSD Seminar review page, where you can also see reviews of recently completed seminars in New Hampshire, Maine, Texas, Massachusetts, Ohio, Virginia, Florida, South Carolina, Georgia, and elsewhere.
Andrew is also a contributing author on self defense law topics to Combat Handguns, Ammoland.com, Legal Insurrection, and others.