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253.6 Defense Of Others

    253.6.1 Applicability Of Self-Defense When Defending Third Parties 
    253.6.2 Defense Of Others: Lawfulness Should Be Based On Facts Known To The Defendant
    253.6.3 Defense Of Others: Defense Of Unconscious Person
    253.6.4 Justifiable Homicide In Defense Of Others
    253.6.5 Nonhomicidal Defense Of Self Or Others: Consideration Of Physical Disabilities
    253.6.6 Defense Of Others Applies To Unborn Fetus
    253.6.7 Defense Of Others: Unawareness Of The Danger By The Other Person
    253.6.8 Self Defense: Defense Of Others Applies to Attack On Person Trying To Prevent Rescue
    253.6.9 Defense Of Others: Intervener May Act Before Third Person Is Actually Struck
    253.6.10 Defense Of Others: Intervener May Gain Right To Self Defense Not Originally Held By The Person Defended
    253.6.11 Defense Of Others: Battered Person Syndrome
    253.6.12 Defense Of Others: Culture

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    253.6.1    Applicability Of Self-Defense When Defending Third Parties   

PRACTICE NOTE:  There are two general approaches to applying the principles of self-defense to the defense of third parties.

    "Alter ego": The "alter ego" approach accords the same right to defend another that one has to defend oneself. In other words, the person who defends another "stands in the shoes" of the person he is defending. He enjoys the same right to defend the other to the same extent the other would have the right to defend himself.

    The chief weakness of the "alter ego" approach is that it can impose criminal liability without fault. A selfless bystander can arrive after the onset of hostilities and unwittingly defend the original aggressor. Under the "alter ego" approach, since the original aggressor may have no legal right to self-defense, the bystander standing in his shoes could be held liable for joining the original aggressor in redoubling his attack on the victim. (See Lafave and Scott, Substantive Criminal Law, §5.8(b), pp. 664-666.)

    "Reasonable belief": The preferable approach is grounded in the reasonable belief of the defendant. It reduces or eliminates criminal liability for a defendant who reasonably believes that he is using reasonable force in defending another against unlawful attack. In this way, the "reasonable belief" approach does not rely on another person’s right to lawful self-defense when allotting criminal liability to the defendant. (Ibid.)

     In sum, the principles and issues which are applicable to self defense (see generally FORECITE National™ 253.4 [Self Defense]) should also be applicable to defense of others.

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RATIONALE: Fairness and sound policy require that self defense be available to a person who, in good faith, defends a third party even if it is later decided that the third party did not have a lawful right to defend himself or herself.

POINTS AND AUTHORITIES: "At common law, the reasonable use of force in defense of another was generally a defense to a charge of assault....Subject to limitations, the model Penal Code also permits the use of force to protect a third person under circumstances in which one would be privileged to use force in his own defense." (U.S. v. Grimes (7th Cir. 1969) 413 F2d 1376, 1379; see also Cook & Hermann, Criminal Defense Checklist (West, 1999) § 3.07(1).)

    On the other hand, under the "alter-ego" rule the defendant is placed "in the shoes" of the person being defended. If that person did not have the right to self defense, then the defendant also had no right to use force in defense of that person. This rule applies even if the defendant reasonably believed that the third party had a right of self defense. (See generally Ridinger v. State (OK 1953) 267 P2d 175, 182-83; see also e.g, OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 8-6 [When Defense Not Available], 8-7 [Defense Reestablished], 8-8 [When Defense Available], 8-9 [Aggressor Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

    However, this rule has been criticized and there is authority from other jurisdictions supporting the view that the right to defense of third parties should be based on the defendant's reasonable belief. (See LaFave & Scott, Substantive Criminal Law (West, 1986) §5.9; see also State v. Holmes (NJ 1986) 506 A2d 366, 368-71.)

    This view has been described as the "sound" one.  (See Perkins & Boyce, Criminal Law (Foundation Press, 1982) at 1147.)

    "...[N]ot only, on a matter of justice, should one ‘not be convicted of a crime if he selflessly attempts to protect the victim of an apparently unjustified assault, but how else can we encourage bystanders to go to the aid of another who is being subject to assault?’ [Citation.] To impose liability upon the defendant in these circumstances is to impose upon him liability without fault; and yet the assault and homicide crimes are crimes which require fault." (See State v. Fair (NJ 1965) 211 A2d 359, 368; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.8(b) p. 666.)

    See also FORECITE National™ 48.1.1 [Objective Reasonable Person Standard: Circumstances Known To The Person].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Annotation, Construction And Application Of Statutes Justifying The Use Of Force To Prevent The Use Of Force Against Another, 71 ALR4th 940.

Wharton’s Criminal Law (West, 15th Ed. 1993) § 130, pp. 201-04, 216-18.

Defense Of Others: Good Samaritan. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:01 [Defense Of Others] (Micpel, 1999).

    One who acts in defense of another, reasonably believing the other to be an innocent party, is justified in using force necessary to protect that person even if the person whom the actor is defending was actually the aggressor.

[See State v. Penn (WA 1977) 568 P2d 797 [adopting model Penal Code § 3.05(1) rule that one who intervenes on behalf of an aggressor is entitled to act upon the circumstances as the intervener reasonably believes them to be]; cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 16.04.01 [Aggressor-Defense Of Others] (West, 2nd ed. 1994).]

    The use of force upon or toward another person is justified to protect a third person when:

    (1)     Under the circumstances as the defendant reasonably believed them to be, ____________ (the third person) would have been justified in using such force to protect himself/herself; and

    (2)     The defendant reasonably believed that [his] [her] intervention was immediately necessary to protect ___________ (the third person). 

[See generally Cook & Hermann, Criminal Defense Checklist (West, 1999) § 3.07(1); Perkins & Boyce, Criminal Law (Foundation Press, 1982) at 1147; see also HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 7.02 [Defense Of Others] (West, 1998).]

    You must attempt to decide, if you can, whether _____________ (defendant) reasonably believed that the person whom [he] [she] sought to protect would have been justified in using such force in self defense.  In considering this issue, disregard any evidence that ______________ (name of person sought to be protected) was the aggressor or that no defensive measures on [his] [her] behalf were actually necessary.  Do consider, however, everything defendant knew when [he] [she] acted.

[See generally Cook & Hermann, Criminal Defense Checklist (West, 1999) § 3.07(1); Perkins & Boyce, Criminal Law (Foundation Press, 1982) at 1147; see also NEW JERSEY MODEL JURY CHARGES - CRIMINAL 2C.3-5 [Justification/use of Force in Protection of Others ] ¶ 3 (New Jersey ICLE 4th ed. 1997).]

SAMPLE INSTRUCTION # 4:

    A person may lawfully use force in the defense of another person if:

    (1) the defendant actually believed that the person defended was in immediate and imminent danger of bodily harm;

    (2) the defendant’s belief was reasonable;

    (3) the defendant used no more force than was reasonably necessary to defend the person defended in light of the threatened or actual force; and

    (4)    the defendant’s purpose in using force was to aid the person defended.

    To convict the defendant, the prosecution must prove beyond a reasonable doubt that the defense of others does not apply. This means that the prosecution must prove beyond a reasonable doubt that at least one of the four above factors was absent.

[See generally Cook & Hermann, Criminal Defense Checklist (West, 1999) § 3.07(1); Perkins & Boyce, Criminal Law (Foundation Press, 1982) at 1147; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:01 [Defense Of Others ] (Micpel, 1999).]

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PRACTICE NOTE: If the person defended was unconscious there it would be illogical to require consideration of the person's subjective mental. Therefore, in such situations there is no need to instruct on whether the person defended honestly and reasonably believed that he or she was in imminent or immediate danger of death or great bodily harm. (OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 411.33(3), comment [Self Defense Against Danger Of Bodily Harm] (Anderson, 2000).].) 

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RATIONALE: Without an explanatory instruction the jury may not understand the circumstances under which a person may lawfully defend another person from the threat of imminent death or great bodily injury.

POINTS AND AUTHORITIES: Nearly every American jurisdiction recognizes a justification for the defense of other persons. (See Robinson, Criminal Law Defenses (West, 1984) § 133; see also People v. Turner (CA 1948) 86 CA2d 791, 799 [195 P2d 809] ["application of the law of self defense has been before the courts on many occasions, and it is now firmly established, ... that it is based on the reasonable appearance of imminent peril of death of, or serious bodily injury to the party assailed, or the one sought to be protected."] [Emphasis added].) Defense of a third person is composed of an objective element: a reasonable belief that force is necessary to protect third person, and a subjective element: an actual belief that force is necessary to protect third person. (See David v. State (AK 1985) 698 P2d 1233, 1235.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    It is lawful for a person to defend [himself] [herself] [and] [or] [another] from attack if the person defending reasonably believes that death or bodily injury is about to be inflicted upon [him] [her] [and] [or] [another].

[Source: FORECITE National™.]

    A person may use a reasonable amount of force in defense of another person, including, in some circumstances, deadly force.  Deadly force is force which is likely to cause death or serious bodily harm. A person may use deadly force in defense of another person if [he] [she] actually believes at the time of the incident that that person is in imminent danger of death or serious bodily harm from which [he] [she] can save that person only by using deadly force against the assailant, and if [his] [her] belief is reasonable under the circumstances.

[See Fersner v. U.S. (DC App. 1984) 482 A2d 387, 392.]

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    See FORECITE National™ 253.4.11.8 [Self Defense: Reasonable Person Standard: Consideration Of Physical Disabilities].

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    253.6.6    Defense Of Others Applies To Unborn Fetus

PRACTICE NOTE: [NF] People v. Taylor REV GTD (CA 2/19/2003, S112443) 103 CA4th 1275 [127 CR2d 443] [insufficient evidence that defendant subjectively appreciated the danger vis-a-vis the fetus where defendant didn't know the victim was pregnant].)

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PRACTICE NOTE: The lawfulness of the use of force to defend another person should not depend on whether the other person is actually aware of the impending danger. (See FORECITE National™ 253.6.2 [Defense Of Others: Lawfulness Should Be Based On Facts Known To The Defendant].) Accordingly, any instruction on defense of others should make it clear that the subjective appreciation requirement does not apply to the other person. That is, the jury must conclude under the circumstances as they actually existed that the person being protected would have had the right to use [deadly] physical force -- he reasonably believed or would have reasonably believed that such force was necessary to protect himself. (Cooper, KENTUCKY INSTRUCTIONS TO JURIES 11.18, comment [Protection Of Another; Resisting Arrest Qualification] (Anderson, 4th ed. 2001).)

NOTE: Fetal Viability. See People v. Kurr (MI 10/4/2002) 654 NW2d 651 [pregnant defendant who killed boyfriend after he punched her in the abdomen was entitled to instruction on defense of others; question of fetal viability had no bearing on court’s ruling].

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RATIONALE: It would be incongruous to allow a person to lawfully defend a third party but not allow the person defending to also defend against one who attempts to prevent the defense of the third party.

POINTS AND AUTHORITIES: The common law "defense of others" doctrine is applicable to an attack on the defendant who is trying to defend another. The fact that the person the defendant originally defended against was not the original assailant does not render the defense inapplicable. (Duckett v. State (WY 1998) 966 P.2d 941, 947.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    A person who is lawfully defending another person also has the lawful right to defend against [an intervenor] [third party] who attempts to prevent the lawful defense.

[Source: FORECITE National™.]

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RATIONALE: As with self defense, defense of others should be available even though the defensive force was used before the aggressor actually attacked.

POINTS AND AUTHORITIES: See FORECITE National™ 253.4.11.9 [Self Defense: Reasonable Person Standard -- Defendant Need Not Wait For The Attack].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    To lawfully defend another person, it is not necessary that the person defended be physically touched. When a person has reasonable grounds to believe and does believe that the other person is in immediate danger of bodily harm, he or she may legally defend the other person without waiting for the person to be struck. 

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(d), p. 656; see also Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 6.45 [Instruction: Self Defense-Defense Of Third Persons] ¶ 5, sentences 1 & 2 (Lexis, 1993).]

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PRACTICE NOTE: When a person intervenes during an altercation to defend a person who has no right to self defense, the intervenor also has no right to claim defense of another. However, if the intervenor withdraws and is pursued, he or she may lawfully employ self defense. (See Moore v. State (OK 1923) 218 P 1102, 1105; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 8-6 through 8-9, comment [Aggressor Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

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    See FORECITE National™ 253.1 [Battered Person’s Syndrome].

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    See FORECITE National™ 250.8 [Cultural Background As Relevant To Defense Theories].