When Self-Defense Is Your Best Defense
Written by: Stephen Palmer of Yavtich & Palmer
“Who started it?”
These are often the first words out of a parent’s mouth after a child’s fight with a sibling or neighborhood menace.
We learn from an early age that it is acceptable—even expected—to defend ourselves against an attack, in spite of the possibility that it may cause harm to someone else.
Injury to others can quickly turn from reprehensible to morally and legally justifiable with a simple self-defense explanation, and the law of the land in all 50 states has evolved to reflect this moral code.
But the law itself is not quite so simple.
Self-defense: You should be able to defend yourself against an attack. If that means deadly force, so be it. After all, when it’s you or them, you would rather it be them. But what does the law actually dictate? Like everything else, it seems that lawyers, judges, media and political officials have made it complicated for the average citizen to understand.
While I can only hope you never find yourself in need, below are a few general rules of thumb to follow when considering self-defense:
1. You can use force to defend yourself against an attack.
2. You can use only the amount of force necessary to repel the force used against us.
3. You generally can’t use force if we started the fight or we had a duty to retreat, or run away.
Let’s break down these three elements further.
Use of force
It is permissible to use force to repel an attack. If someone throws a punch at you, you can physically defend yourself. Pretty simple, and in line with our traditional notions of self-defense. But things start to get tricky when you consider how much force you should use and whether you can even use force at all.
How much force?
Unfortunately, the law doesn’t give us precise guidance on intensity. You can use only the force necessary to repel your attacker. As in, you can’t use deadly force to repel a non-deadly attack. You’re only meant to stop the attack, not retaliate.
Picture this: a brawl after a long night of drinking at a bar. Fistfights can turn deadly in the blink of an eye. Therefore, in some instances, a fistfight can warrant deadly force.
One particular real-life case comes to mind. My firm, Yavitch & Palmer, represented a man accused of murder. What started as a fistfight turned into a full on brawl. My client, surrounded by guys clearly not on his side, suddenly found himself being choked out on a pool table by his much larger foe. As protection, the client pulled a 2”-long knife from his pocket and swiped once, penetrating between the man’s ribs and piercing his pericardial sac, which then filled with blood and caused his heart to stop beating.
What started as a fistfight ended in death. Yet, my client was justified in self-defense.
Why? Because he thought his life was in danger given the circumstances of the fight.
The test to determine how much is too much is not just about what we (or a jury) might think afterward; it’s also about what was happening to the accused subjectively during the fight. Most trials involve the jury putting themselves in the shoes of the defendant to see if he was rational in his belief about the amount of force needed.
Who started the fight and who should run away?
The, “He started it” rule doesn’t guarantee us the right to beat the living daylights out of our enemy. We have a duty to avoid crime. Thus, if we have an opportunity to escape a fight, we must take it.
Our greatest American general “won” his most decisive battles by retreat. George Washington knew when to turn tail to avoid an otherwise disastrous result. If the British couldn’t find him, they couldn’t hurt him.
The law of self-defense today has absorbed this concept, meaning we can’t generally claim self-defense if we picked the fight.
But, as American law often goes, there are exceptions.
First, consider the castle doctrine. Our home is our castle. There is a unique justification for defending your castle. After all, where else would one go in retreat?
Second, “stand your ground” laws have become increasingly utilized in many states, with some of the most hyped criminal cases in modern times resting on the law. “Stand your ground” laws allow individuals to literally stand their ground in the face of an attack. These laws alter our traditional notions about the duty to retreat—sometimes with deadly results.
Finally, is it actually safe to retreat? If your adversary is at your heels, it’s hardly realistic to evade him. As evidenced, there is not a cookie-cutter approach for self-defense. Understandably, there can’t be. Every situation is different. That’s why, if you’re arrested while defending yourself, you need an experienced, professional criminal defense attorney.
About the author:
Stephen Palmer of Yavtich & Palmer has more than 15 years of experience as a criminal defense attorney in Columbus, Ohio. He graduated magna cum laude from Capital University Law School and is involved in many organizations including the National Association of Criminal Defense Lawyers, the Ohio State Bare Association and the Columbus Bar Association. He also regularly lectures on criminal defense and can be heard lending legal advice on Columbus’ 99.7 The Blitz morning show.