This defense is based on the idea that while the police have a monopoly on the legitimate use of force, officers may not always be present to defend a person against a dangerous threat. In such a case, most jurisdictions allow for a carefully circumscribed use of force for the limited purpose of defending one’s self or another person from a criminal attack.
While force experts tend to think of force as a continuum, the criminal law tends to classify it according to a dichotomy. Under most statutes, force is either deadly or nondeadly. Regardless of the breadth of state statutes, the obvious conclusion that should be drawn from the SCOTUS decision in Tennessee v. Garner is that deadly force is only legitimate as a counter to deadly force.
Tennessee v. Garner
This case remains the benchmark for the lawful use of force by police. In their analysis, the SCOTUS regarded the use of deadly force in an arrest as a Fourth Amendment issue because an arrest, after all, is a seizure of the person. The Fourth Amendment standard for searches and seizures, including arrest, is one of reasonableness. This logic has been extended to all use of force issues, regardless of whether the person using the force is a law enforcement officer or a private citizen. It is worthy of note that officers do not have any special powers when it comes to the use of deadly force compared with the private citizen. The major difference in most states is that while private citizens are often required to retreat from the confrontation if they can safely do so, police must stand their ground as a matter of public safety. Public safety, then, demands that officers must neutralize deadly force when it is encountered from criminal suspects.
The Reasonableness Requirement
Generally, a person may use nondeadly force to defend himself or another person from unlawful physical force. Both the need to defend yourself or another and the amount of force used in the defense must be reasonable. Self-defense and defense of others are most often used as a defense to assault, battery, and criminal homicide because it always involves the use of force. In the majority of states, self-defense is a statutory defense.
The principle of self-defense is a cornerstone in legal systems around the world, but it comes with specific limitations designed to prevent abuse. One such limitation is the condition that a person is not justified in using force if they have intentionally provoked the attack. In other words, if an individual deliberately instigates a situation with the aim of causing physical injury or death, they cannot later claim self-defense as a legal justification for their own use of force. This provision aims to discourage people from creating volatile situations where they then claim a right to use force, thereby ensuring that self-defense remains a genuine last resort for those genuinely at risk.
Another condition where the use of force is not justified is when the person claiming self-defense is the initial aggressor in the confrontation. This is designed to ensure that individuals cannot initiate a conflict and then use force disproportionately, claiming it was in self-defense. The idea here is to prevent people from taking the law into their own hands, acting as both the aggressor and the supposed victim. If you are the one who started the physical altercation, you generally cannot claim self-defense unless you can prove that you withdrew from the encounter and clearly communicated your intent to do so, yet the other party continued to attack.
The third condition where the use of force is not justifiable is a bit more nuanced and involves “combat by agreement,” which is not authorized by law. This covers situations where both parties have agreed to engage in a physical fight but without legal sanction, such as an unsanctioned street fight or duel. In these instances, neither participant can later claim that their use of force was justified under self-defense, as both willingly entered into a situation that inherently involves the use of force. This condition serves to discourage people from engaging in violent behavior outside the bounds of legal oversight and societal norms.
The baring of persons who can be considered the initial aggressor may have exceptions, depending on the particular statute. Some statutes provide that the defendant can be the initial aggressor and still raise a self-defense claim if the attacked individual responds with excessive force under the circumstances, or if the defendant withdraws from the attack and the attacked individual persists.
Deadly Force
A person may use deadly force if he reasonably believes that the other person is committing or is about to commit a felony involving force or violence or that the person is using or is about to use unlawful deadly physical force. Deadly force may be authorized by statute when it is believed that the person is imminently endangering his or her life or imminently about to victimize the person under circumstances commonly characterized as domestic violence.
Most jurisdictions do not allow for the use of deadly force when a safe, nonviolent alternative is available. The Arkansas statute, for example, dictates that “A person may not use deadly force in self-defense if he knows that he can avoid the necessity of using that force with complete safety, by….Retreating, except that the person is in his or her dwelling and was not the initial aggressor or the person is a law enforcement officer or someone under the direction of a law enforcement officer” or “By surrendering property to a person claiming a lawful right to the property.” A few jurisdictions use a “stand your ground” standard that does not require a person to retreat when threatened. Still, other jurisdictions require retreat in general but make an exception with regard to confrontations taking place within the person’s home or (to a lesser extent) the curtilage of the home.
The defendant cannot use any degree of force in self-defense unless the defendant is faced with an imminent attack. In this context, imminent means the attack is immediate and not something that will occur in the future. If the defendant is threatened with a future attack, the required response is to inform law enforcement, so that they can subdue the threatening individual by arrest or prosecution. Another situation where imminence is lacking is when the attack occurred in the past. When the defendant uses force to remedy a previous attack, this is retaliatory, and a self-defense claim is not allowable. Again, the appropriate response is to inform law enforcement so that they can incapacitate the attacker by arrest or prosecution.
The reasonableness standard for the use of force as a justification is one of objective reasonableness: what would a “reasonably prudent person” have believed under the circumstances? A person may not use physical force to resist arrest, whether the arrest is lawful or unlawful, by a person who is known is reasonably appears to be an LEO or someone acting under the direction of an LEO.
Expanding the Castle Doctrine
In Arkansas, the concept of self-defense extends beyond the interior of a home to include the “curtilage,” or the area immediately surrounding it. This is an extension of the “Castle Doctrine,” which is a legal principle that allows individuals to use force, including deadly force, to defend their homes against intruders. Under Arkansas law, specifically Arkansas Code Annotated § 5-2-620, an individual is justified in using deadly physical force upon another person if they believe it is necessary to prevent the commission of arson or burglary in or upon a dwelling. The law specifically defines “dwelling” to include not just the residence itself but also “curtilage thereof.”
This extension to the curtilage of the home reflects the view that an individual’s right to feel safe and secure should not be confined strictly to the four walls of their house. Curtilage often includes front and back yards, patios, and sometimes even detached garages. Essentially, these are areas intimately linked with the home and the daily lives of its occupants. Therefore, the rationale is that a person should have the same right to defend themselves in these spaces as they would inside their home.
While the extension to the curtilage of the home in Arkansas’s self-defense law provides broad protections for property owners, it also comes with responsibilities. For example, the use of deadly force is generally not justified if the person knows that they can avoid the necessity of using such force with complete safety by retreating. However, Arkansas law makes an exception to this retreat requirement if the person is in their own dwelling or on its curtilage.
Modification History File Created: 05/03/2021 Last Modified: 09/13/2023
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
