Defenses

DEFENSES Self-Defense R2 §63: Self-Defense by Force NOT Threatening Death or Serious Bodily Harm (1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him. (2) Self-defense is privileged under the conditions stated in (1), although the actor correctly/reasonably believes that he can avoid the necessity of so defending himself, (a) By retreating or otherwise giving up a right or privilege, OR 7 (b) By complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened. R2: §64: Self-Defense Against Negligent Conduct (1) Except as stated in (2), an actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against harmful or offensive contact or other bodily harm which he reasonably believes to be threatened by the conduct of another, although he recognizes such conduct to be negligent (2) The actor is not privileged so to defend himself if he knows or should know that he an escape the necessity of doing so by retreating, or by giving up the exercise of a right or privilege which, under the circumstances, it is reasonable to require him to relinquish. R2 §65: Self-Defense by Force Threatening Death or Serious Bodily Harm (1) Subject to the statement in (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that (a) The other is about to inflict upon him an intentional contact or other bodily harm, AND that (b) He is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force. (2) The privilege stated in (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by (a) Retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, OR (b) Permitting the other to intrude upon or dispossess him of his dwelling place, OR (c) Abandoning an attempt to effect a lawful arrest (3) The privilege stated in (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by (a) Retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, OR (b) Relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest. R2 §70: Character and Extent of Force Permissible 8 The actor is not privileged to use any means of self-defense which is intended or likely to cause a bodily harm….in excess of that which the actor correctly or reasonably believes to be necessary for his protection. §71: Actor who uses excessive force in self-defense is liable “for only so much of the force… as is excessive”   Reasonable person standard key for self-defense o Only good when socially reasonable o ∆’s fear for life must be reasonable Self-defense may constitute a defense to liability for intentional torts, even if the actions taken by a defendant in self-defense result from a mistaken but reasonable belief that the defendant is under attack. (Courvoisier v. Raymond) o An action of force is justified by self-defense wherever the circumstances are such to cause a reasonable man to believe his life is in danger or that he is in danger of receiving great bodily harm and that it’s necessary to use such force for protection Defense of Others      Early common law: privilege to defend third persons against harmful conducts encompassed only one’s family/household o Now: privilege extends to protecting total strangers as well Force that can be used by an intervener is measured by the force that the other could lawfully use o If the attack imperils the life of the third person, the intervenor can use deadly force on behalf of the that person Exception for mistakes! o Intervenor may be mistaken as to (1) who is the aggressor, or (2) the nature of the threat  split authority on how to treat this Common perception: if protected person could legally use force then intervenor can too (derivative privilege) However, R2 §76: intervenor’s privilege is independent of that held of person to be protected o Intervenor is entitled to use force to protect the third party as long as he reasonably believes intervention is necessary (even if person to be protected would not be entitled to use it) Defense of Property R2 §77: Defense of Possession by Force Not Threatening Death or Serious Bodily Harm 9 An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actors’ land or chattels, if (a) The intrusion is not privileged…AND (b) The actor reasonably believes that the intrusion can be prevented or terminated only by the force used, AND (c) The actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made. R2 §79: Defense of Possession by Force Threatening Death or Serious Bodily Harm The intentional infliction upon another of a harmful or offensive contact or other bodily harm by a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other’s intrusion upon the actor’s possession of land or chattels, is privileged if, but only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor or to a their person whom the actor is privileged to protect.  One is not allowed to utilize deadly force (a spring gun or similar dangerous devices) which will likely take a life or inflict great bodily injury for the purpose defending property (but can to protect life) (Katko v. Briney) o Mere trespassing on a dwelling is not sufficient to use deadly force except when there is a threat to personal safety that justifies self-defense o The use of force must not be in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property…never cause serious bodily injury (different if they had lived there) o Prosser – the law has always placed more importance on human life than property rights Posner Article   Sharply attacks the idea of black letter law because it is too inflexible (doesn’t have balance and doesn’t reflect social concern) When can’t you use deadly force? (6 considerations Posner weighs) o Adequate legal remedy o Value of property large or small o Heavily populated area o Reasonable precaution been used to protect the innocent o Deadliness of force o Cost of avoidance 10    Much of Posner’s analysis is about weighing the value of human life: Cost/benefit analysis (how much is your earning potential?)  materialistic analysis, wealthy people are favored (poor will suffer horrible injury) No discussion about public (no mention of government or community agreement, education/policy improvement not discussed)  About ME shooting to protect MY goods (can be perceived as a social problem instead of individual)  leaves Landsman troubled Deterrence notion (from Posner) greatest good for the greatest number is a powerful notion and it makes a huge deal of sense a great deal of the time. Palmer Article     Punitive damages = indication of social condemnation, target anti-social behavior Government is supposed to protect the citizenry o First punitive damages case – Wilkes v. Wood When the monetary award is not sufficient to deter bad conduct, society makes the damages bigger o Needs a big enough economic hit to deter such conduct in the future Katko: good choice on proceeding with the intentional tort (π) o No contributory claims allowed; opens the door to punitives o ∆ misses counter-claim (trespass), failure to attack punitives at trial, asked for jury when he didn’t have to 11