The Volokh Conspiracy
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T. Markus Funk (a partner at Perkins Coie and a scholar of, among other things, self-defense law) and I published an article on this subject at Bloomberg Law last week; I thought I'd reprint it, with Bloomberg's permission. The material on English and German law is Markus's contribution, and the material on U.S. law is a joint effort. I think Markus and I disagree in some measure on how self-defense 2ought to be defined, but here we just want to lay out the law 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?"
Last November was marked by wall-to-wall media coverage of Kyle Rittenhouse's trial in Wisconsin for murder after he shot three men, two of whom died. Law professors, criminal lawyers, and laypersons alike filled the airwaves with varied legal and moral assessments of Rittenhouse's self-defense claims.
An evergreen aspect of the Rittenhouse coverage were declarations of U.S. self-defense law's purported laxness, particularly 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."
True, there is ample room for determined debate over the proper contours of U.S. self-defense and gun laws. In fact, the Rittenhouse case initiated calls to make it unlawful for a minor like Rittenhouse to openly carry a rifle except when hunting. But when it comes to the supposed comparative "looseness" of U.S. self-defense laws, what is being reported does not reflect reality.
On closer inspection, it turns out that U.S. self-defense law in critical ways is more restrictive than the laws found in England and Germany, two countries often described as having more "humane" and "civilized" criminal justice approaches than the U.S. (We put "harsh," "humane," and "civilized" in quotes because, of course, what might be seen as "harsh" to the people who are injured in claimed self-defense might be seen as "humane" to the people who are defending themselves, and vice versa.)
U.S. Law—Objective Reasonableness Required
U.S. self-defense law generally requires the following, though with some differences among states.
State's Burden of Proof
Though formally an affirmative defense, once a defendant introduces evidence supporting self-defense, prosecutors must disprove it beyond a reasonable doubt.
Availability of Self-Preferential Force
A defendant may only rely on the self-defense justification if all of the following are met:
- Attack: The defendant subjectively believed they were facing an actual unlawful attack;
- Necessity: The defendant subjectively believed the amount of force used or threatened was "necessary to prevent or terminate the interference";
- Objective reasonableness: The defendant's beliefs in attack and necessity, even if mistaken, were objectively reasonable; and
- Imminence: The attack was occurring or was imminent.
Deadly force may be used only if the defendant reasonably believes the force is necessary to prevent imminent (1) death; (2) great bodily harm, such as serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or other serious bodily injury, including rape; or (3) kidnapping.
In half of the states, deadly force can also be used to prevent robbery. Meanwhile, some states allow the use of deadly force against other specific felonies, such as burglary or arson.
No Duty to Retreat
Only approximately a quarter of the states provide that deadly self-defense is off the table when the defender can retreat with complete safety. But even those states do not require such a retreat from one's home or, in some states, one's business or vehicle. The remaining states, sometimes labeled "stand your ground" states, do not impose any such categorical duty 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. Some jurisdictions, moreover, prevent provocateurs from ever regaining the right of self-defense.
English Law—Championing the Dangerous Subjective-Belief-Only Standard
Belief in Attack Can Be 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).
Consider that Rittenhouse prosecutor Thomas Binger, in closing argument, repeatedly asked the jury what a "reasonable person" would have done in Rittenhouse's position: "Would you have gone out after curfew with an AR-15 looking for trouble? Would you have aimed at other people? Would you have tried to use the gun to protect an empty car lot? No reasonable person would've done these things."
The Rittenhouse prosecution team's near-singular focus on the alleged unreasonableness of Rittenhouse's conduct highlights how game-changing a switch to an English-style honest-belief self-defense standard would be. The defendant would no longer have to prove that his belief that deadly force was required to ward off an imminent attack was objectively reasonable. In the context of a case like Rittenhouse, it would convert a challenging case for the prosecution to one in which achieving a conviction is almost entirely out of reach.
No Duty 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).
It turns out that England also rejects a categorical requirement that the defender either avoid conflict or retreat once the conflict is imminent. 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. Whether this approach is the right one can and should be the subject of debate; but it is incorrect to say that the U.S. stands alone in having such laws.
German Law—Authorizing Deadly Force to Defend an Exceptionally Broad Range of Legally-Protected Interests
What Can Be Defended?
Germany's storied self-defense law permits deadly force under a far broader array of circumstances than allowed in the U.S. In Germany, virtually all non-trivial, legally-protected interests can be defended with up to deadly force when necessary. Unlike in the U.S., then, Germany to this day allows for deadly force to protect "mere property," such as a laptop or motorcycle.
If tried in Germany, Rittenhouse would not have had to establish that he was reasonably fearful of death or serious bodily injury (questions occupying the balance of his trial). Rittenhouse instead could have simply argued that deadly force was necessary to prevent his attackers from assaulting and battering him.
This would have been a far lighter burden for him to shoulder, considering that there was little dispute that a beating was in his future. According to prosecutor Binger, even if "Joseph Rosenbaum [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."
The Final Analysis
Common claims about U.S. self-defense law's "exceptionalism" and "inhumanity" fail under closer scrutiny. Observers in the media, academia, and elsewhere tend to conflate access to deadly force (via firearms) with the legal authorization of the same. England and Germany's self-defense laws, for example, far from being more "humane" toward the alleged attackers, place comparatively less legal restrictions on the circumstances under which deadly defensive force can be used.
Beyond assertions about U.S. self-defense law's "harshness" being factually off-base, they are distractions. They get in the way of our embarking on a more informed national debate about the proper role of, and justification for, self-preferential deadly force in a modern, democratic society.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
UPDATE 3/16/2022: Because of a miscommunication, the original version of the story said 25 states were duty-to-retreat states; the number is actually about a quarter of the states (12 or 13, depending on how you count them).