The Volokh Conspiracy

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T. Markus Funk on Self-Defense Law


T. Markus Funk, a former prosecutor, has written extensively on self-defense law (and I was pleased to have had a chance to author one such piece with him); see, e.g., this post and this one, and also Rethinking Self-Defence: The 'Ancient Right's' Rationale Disentangled (2021), Understanding the Role Values Play (and Should Play) in Self-Defense Law, 58 American Criminal Law Review 331 (2021), Cracking Self-Defense's Intractable 'Difficult Cases,' 100 Nebraska Law Review (Rowman & Littlefield 2021), and What US Law Reformers Can Learn from Germany's Value-Explicit Approach to Self-Defense, 73 South Carolina Law Review 195 (2021).

I thought I'd pass along summaries of two of his recent articles, and also his comments on some recent self-defense stories in the news:

[1.] First, the comments:

As if to underscore my argument that the media—on both sides of the political divide—can't seem to get even the basics right, consider the April 18, 2023, Washington Post reporter's article (here, as reprinted in the Atlanta Journal-Constitution) about 84-year-old Missouri homeowner Andrew Lester's April 16 shooting of 16-year-old Ralph Yarl after the teenager accidentally stopped at the wrong house (that is, Lester's house).

In its initial reporting on the case, the reporter asserted that "'[s]tand your ground' laws say that when a person perceives a threat in a place where they have a right to be … they are permitted to respond immediately with physical, even lethal force."

This is simply wrong. Setting aside for now that the legal provision most likely relevant to this case is the castle doctrine, rather than stand your ground, "perceiving a threat" when you are in a place where you have a right to be is never, without more, enough to trigger deadly defensive force. Not in Missouri and not in any other state of the Union.

What the reporting apparently misunderstands is that stand your ground laws simply remove any otherwise existing state law duty to retreat. In other words, from a big picture perspective the person using the defensive force must still meet the following criteria:

  • The (Unprovoked) Attack: The defender subjectively (that is, honestly) believed he or she was facing an actual unlawful attack;
  • Necessity: The defender subjectively believed the amount of force used or threatened was necessary to prevent or terminate the interference (the underlying principle being that all human life, even the life of a violent criminal, is valuable and should be protected except when the defender has no option but to resort to defensive force);
  • Objective Reasonableness: The defender was objectively reasonable in his or her belief, even if mistaken, that defensive force was necessary to thwart the attack (another nonuniversal safeguard limiting defensive violence); and
  • Timing/Imminence: The attack was either ongoing or imminent.

Special Rules for Deadly Defensive Force

In the United States, deadly force is available only where the defendant reasonably believed the force was 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; or (3) the commission of certain serious offenses/forcible felonies, such as kidnapping, arson, rape, burglary, and robbery.

As relevant here, then, stand your ground laws only impact the duty to retreat – they do not otherwise alter the basic self-defense requirements.

For what it is worth, here is how my April 2023 Oxford University piece summarizes the current state of the law on stand your ground (and the castle doctrine):

Approximately one-fourth of U.S. states take deadly self-defense off the table when the defender could have retreated in complete safety. But, pursuant to the "castle doctrine," even those states do not require such retreat in one's own home or, in some states, one's own workplace or vehicle. The remaining states, sometimes labeled "stand your ground" states, do not impose any categorical duty of safe retreat, regardless of where the attack occurs.

The core argument advanced by those favoring such harder-edged laws is that, in a liberal society, individuals should have the right to go anywhere (and stay anywhere) they are legally permitted to be, because freedom of movement is integral to individual autonomy. Stated differently, opponents of retreat requirements tend to view individual autonomy as a categorical, nonderivative, noninstrumental, and, most significantly, noncompensable fundamental value.

These laws, therefore, primarily limit the traditional duty to retreat prior to using deadly defensive force. They do not, however, as many have erroneously claimed, somehow authorize deadly force to ward off nonserious threats.

Without a doubt, stand your ground laws are among the most controversial U.S. legal provisions. (In the interest of full disclosure, in the past I have argued that the values of collective societal violence reduction and protection of the attacker's right to life under certain circumstances outweigh the countervailing values of deterrence and protecting the defender's equal standing and autonomy interest and, therefore, in some circumstances justify imposing a conditional safe retreat requirement.)

That said, many readers will be surprised to hear that England and Germany similarly reject 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, France, and Nigeria to Ghana, Indonesia, Japan, Spain, and Sweden.

Stand your ground and castle doctrine laws should of course be subject to debate. Likewise subject to debate, however, should be the U.S. legal commentariat's inaccurate suggestion that only the United States permits deadly defensive force when safe retreat is available or when the defender could have somehow avoided the conflict altogether.

The Washington Post reporter's recitation of the law, in short, was simply incorrect; not as a matter of normative judgment—but as a matter of law. And, for what it is worth, the New York Times was not far behind in erroneously asserting that U.S. castle doctrine and stand-your-ground provisions afford greater protection to those who act pursuant to "misjudgments and mistakes," and then doubling down by proclaiming that castle doctrine laws "give people in their own homes the legal presumption of self-defense if they harm an intruder."

The significant danger created by such inaccurate reporting on the law is that some portion of these media outlets' substantial readerships may now believe that, when they are in their house, they can shoot at will as soon as they think there might be a "threat."

And, of course, this risk is no different when Fox on February 9, 2023, incorrectly reports that "Arizona . . . allows residents to shoot trespassers on their property." (Arizona law, as I discuss here, allows no such thing; neither the law in Arizona nor the law anywhere else in the U.S. permits deadly force to prevent a simple trespass.) Misreporting on self-defense law, in short, is a phenomenon not limited to just one side of the political/ideological aisle.

[2.] Here's the summary of Busting the Durable Myth That U.S. Self-Defense Law Uniquely Fails to Protect Human Life (Oxford University Comparative Legal Forum, April 2023), which is referred to above:

After each high-profile claim of self-defense, members of the legal commentariat follow the familiar practice of swiftly offering their takes. Much of what they say about these cases, for good reason, sparks spirited discussion.

There is, however, one disrupting note in the constant drumbeat of lawyers, legislators, academics, reporters, and other legal observers that is routinely and frustratingly out of sync: the claim that U.S. self-defense law is exceptionally severe by international standards and comparatively underappreciative of the value of human life and the need to prevent violence.

The problem with this narrative is that it fails to recognize that U.S. self-defense law is, in fact, very much within the international mainstream. In many respects, it in fact is significantly more protective of attackers and more carefully calibrated to reduce overall societal violence than the self-defense laws of many other nations. In terms of impact, such erroneous claims seriously distract from the much-needed debate over U.S. self-defense law's deeper public policy and moral grounding.

[3.] And here's the summary of Understanding the Development (and Surprising Deficiencies) of England's Storied Self-Defense Law (Columbia Journal of European Law, April 2023):

The media, scholars, public intellectuals, and legislators have long—not to mention confidently—instruct that US self-defense law is particularly loose and unregulated. They often characterize it as having a distinctly "wild west" or even "barbaric" edge. In stark contrast, England's approach to self-defense is commonly characterized as sensible, humanitarian, and civilized. But, as I discuss in this article and hope to reveal, these comparative law perceptions in large part reverse reality.

This article outlines and then deploys the value-based model of self-defense as the appropriate analytical yardstick. It then argues that it is, in fact, England's self-defense law that deserves to be characterized as unduly harsh and narrow, yielding outcomes that fail to account for the full range of implicated public and private interests. By way of illustration, unlike US law (and, for that matter, the laws in almost all of the world's jurisdictions), English law accords entirely unreasonably mistaken actors the right to cloak themselves in the doctrine of justification, provided their mistakes are "honest." Further, English law rejects any requirement of safe retreat prior to authorizing deadly self-preferential force.

The results of such approaches can have serious consequences. In fact, this article argues that England's self-defense law for no good reason devalues important systemic interests, such as overall violence reduction, protecting the lives of the morally innocent, ensuring the equal standing between people, and maintaining the legitimacy and creditworthiness of the legal order in the public eye. In other words, the conclusion reached here is that England's self-defense law pays insufficient attention to the inescapable conflicts created when rights and interests lock horns.