Step Two—Unjustified Force: Misconceptions and Exceptions
With a basic understanding of the precepts of Ability, Opportunity, Jeopardy, and Preclusion (or AOJP), and additional research on your part, you can begin to judge most situations accurately. However, there are a few common areas of confusion that bear clarifying.
In and of themselves, verbal threats are fairly meaningless. (They may constitute a crime under harassment laws, or something similar, but that’s not relevant here). However, they do matter when they denote or imply serious “jeopardy.”
In other words, suppose somebody sends you a threatening email. Are you justified in driving to his house and beating him up? Probably not. Every aspect of AOJP is missing, most of all the third: If someone actually wanted to hurt you, would he send you an email about it? It’s pretty unlikely that you (or any “reasonable and prudent” person) would consider this an immediate threat, even if it is sincere.
On the other hand, suppose a young man bearing gang tattoos and carrying a metal pipe approaches you in a parking lot at night, appearing to be under the influence of drugs, swinging the pipe, and yelling that he’ll bash your brains in. Now, not only are the conditions of Ability and Opportunity fulfilled, the threat itself (of imminent physical harm) is also credible. Context, context, context is all! A meek gray-haired grandmother saying the same thing in a book store probably won’t invoke fear in your heart, and rightly so.
Anything expressed verbally or in another non-physical fashion that does not denote or imply immediate physical jeopardy is not legal justification for the use of force. Insults are not. Generic shouting is not.
One case in which you are not justified in using force, whether or not you follow the rules of AOJP, is when the situation you’re responding to is a lawful one. The most obvious possibility is a lawful police action.
If, in the rightful execution of his duties, a law enforcement officer grabs you, throws you to the ground, and handcuffs you, shouldn’t that justify your hitting him back? No. If he were just some guy on the street it would, but the fact is, a cop is legally allowed to do what he’s doing—it’s necessary to do his job. If you respond with force, it is not justified and you would be breaking the law.
There are exceptions to this, depending on certain technicalities and issues concerning degree of force—basically, whether the officer himself was acting legally—but they’re nothing to stake your life and liberty on. Check your state legislation for exact details.
One commonly misunderstood facet of justified self-defense is so-called “required retreat” laws, which a number of states have enacted.
The idea here is to encourage you to retreat (in other words, run away), if it’s at all possible. “Required retreat” is meant to discourage force in situations where you can use force but do not have to do so. If you’re driving in your car and someone starts yelling at you from the sidewalk, should you drive away, or run him over? Gee . . . .
In short, “required retreat” is largely just a clarification of AOJP, specifically of the Preclusion condition. If you have any other options, including retreat, use them before you use force; however, you needn’t use them if doing so would put you in danger. “Required retreat” laws do not change this fundamental right.
The so-called “castle doctrine” is another type of law enacted in many states, which essentially provides a partial exception to the rule of Preclusion.
If you are in your home, it says, you are not expected to retreat from it. If a burglar breaks down the front door, you need not climb out a window or dart out the back door. Doing so may very well be the smart thing, for your safety, but legally, you’re not required to flee your own home. This comes from the ancient notion that your “house is your castle,” and you should not be expected to cooperate in being chased out of it. So if you feel legitimately threatened within your home and have no other options except to run, appropriate force is justified. Check your state laws to see whether this applies to you.
Defense of Property
You are generally permitted to use minimal force to remove a trespasser from your property (someone on your property who has no lawful claim to it, whom you have asked to leave and who has refused), but you may not cause him serious harm unless he is violent, in which case the usual AOJP rules apply.
You cannot shoot someone for stealing your car. You cannot shoot someone for stealing your wallet. You cannot shoot someone for wandering over your property line. In the eyes of the law, life has priority over possessions—even a criminal’s life. You may defend your own safety with the use of force, but not your stuff.
Defense of Others
But how about defending your family, friends, or a stranger? You are generally permitted to use the same amount of force, under the same rules, in defense of another person as you would in self defense. However, while this is technically the case, unless the third party is a close friend or family member, doing so can be a very risky proposition simply because you do not always know the whole story. For instance, if you turn a corner and see one man hitting another, he may be defending himself from an earlier attack; he may be a plainclothes police officer; or he may be protecting someone else altogether. AOJP applies, but it’s more difficult to judge because appearances can deceive. You may not know everything. Be wary.
Engaging in a fight, or consensual combat—in other words, a brawl where all parties willingly (even if implicitly) agree to be involved—strips all participants of any justification for the use of force. You all may be prosecuted, or none of you may be; check your state laws. Unless serious injury results, even if you can be charged, the chances are that the DA’s office (District Attorney) won’t bother; they’ll just look at it as a brawl.
Remember, though, that a fight can turn into a case of one-sided battery within moments. Is your opponent starting to lose and trying to withdraw? Better stop hitting him, because he has withdrawn his consent to fight. What if you’re having a fistfight, and one of you breaks a chair over the other’s head, or pulls a knife? Odds are that’s illegal, too, because both parties didn’t “consent” to a knife- or chair-fight. Fighting is dangerous legal ground.