§ 18.02 Use of Deadly Force: Clarification of the General Principles
As stated in § 18.01, a person who is not the aggressor in a conflict is justified in using deadly force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful deadly force by the other party. This rule is examined here in greater detail.
[A] "Deadly Force": Definition
Statutes vary in their definition of the term "deadly force." However defined, the definition ordinarily applies both to the force used by the aggressor and by the innocent person threatened.
As summarized by one court,16 some states define the term "deadly force" on the basis of the likelihood that the force will result in death or serious bodily injury. Thus, "deadly force" is, for example, force "likely" or "reasonably expected" to cause death or serious bodily injury. Under this approach, the actor's state of mind in regard to the likely outcome is irrelevant—what matter is, objectively, what is likely to occur.17 Other jurisdictions include a mental-state element in the definition. Thus, "deadly force" is, for example, force "intended" to cause death or serious bodily injury, regardless of the likelihood of such a result occurring. Other definitions, while including a mental-state element, tie it to the likelihood of a result (e.g., the actor "knew" or "reasonably should have known" that the force used was likely to cause death or serious injury).
[B] The "Non-Aggressor" Limitation18
[1] Definition of "Aggressor"
An aggressor "has no right to a claim of self-defense."19 Although there is no universally accepted definition of the term, an "aggressor" has been defined by one court as one whose "affirmative unlawful act [is] reasonably calculated to produce an affray foreboding injurious or fatal consequences."20 For example, if A unlawfully brandishes a weapon and threatens to kill B, A is not justified in defending himself if B responds to A's threats by use of self-protective force against A.21 Quite simply, and obviously, A unlawfully initiated the incident; B is the innocent party. B has the right of self-defense; A, as the aggressor, does not have the right to defend himself by using force against B.
On the other hand, courts are split on whether words alone can render a person the aggressor. Some courts hold that words by themselves never make the speaker an aggressor.22 Other courts, however, indicate that words can legally constitute aggression,23 although a few jurisdictions explicitly distinguish between merely provocative (insulting) words on the one hand, and threatening words on the other, holding that the latter but not the former potentially constitutes aggression.24
Courts frequently state that a person is not privileged to use force to resist an attack unless he is, in essence, "free from fault in the difficulty,"25 but that is an overstatement.26 For example, if Dodgers fan D asks V, an acquaintance, "how in the world can you be a stupid Giants fan?" to which V take such umbrage that he pulls out a gun and threatens D with it, V is the aggressor, although D was not entirely free from fault in the conflict.
Three other features of the concept of "aggression" merit brief attention here. First, a person is an aggressor even if he merely starts a nondeadly conflict. Second, it is incorrect to state that the first person who uses force is always the aggressor.27 One who unlawfully brandishes a weapon in a threatening manner, but who does not use it, is an aggressor; the person threatened, although he may be the first to use actual force, can still potentially claim self-defense. Third, the issue of whether a defendant is the aggressor ordinarily is a matter for the jury to decide, based on a proper instruction on the meaning of the term.28
[2] Removing the Status of "Aggressor"
It is not the case that one who wrongfully starts a physical conflict is forever foreclosed from claiming self-defense in the affray.29 The initial aggressor in a conflict may purge himself of that status and regain the right of self-defense. The issue always is: Who was the aggressor at the time the defensive—in this context, deadly—force was used? In this regard, it is important to distinguish between "deadly" (or "felonious") and "nondeadly" aggressors.
[a] Deadly Aggressor
A "deadly" aggressor is a person whose acts are reasonably calculated to produce fatal consequences (or cause serious bodily injury30). The only way such a person may regain the right of self-defense is by withdrawing in good faith from the conflict (typically, by retreating) and fairly communicating this fact, expressly or impliedly, to his intended victim.31
This rule is strictly applied. For example, suppose that D initiates a deadly attack on V in the street, whereupon V responds with sufficient force that D is now fearful for his own life. If D runs behind a parked car, and V pursues him, D is still not entitled to act in self-defense, unless by actions or words D puts V on actual or reasonable notice that he no longer is a threat to V, i.e., that D's retreat is not simply a temporary strategic act of avoiding V's resistance. In the absence of fair notice to V of the termination of the conflict, D is guilty of murder if he kills V in "self-defense."
[b] Nondeadly Aggressor
Suppose that D wrongfully attempts to slap V. V improperly responds to the threat by pulling out a knife and attempting to kill D. In this conflict, D was the initial aggressor. On the other hand, V's response was disproportional to D's attack, as he wrongfully converted a minor altercation into a potentially deadly one. Thus, V is also an aggressor, indeed, a worse one than D. May D, therefore, now kill V in self-defense?
Case law in these circumstances is not uniform. Some courts provide that when the victim of a nondeadly assault responds with deadly force, the original aggressor immediately regains his right of self-defense, i.e., he is freed of the "aggressor" status.32 Thus, in the hypothetical, although D was the initial aggressor—and is subject to prosecution, therefore, for the original assault—he may defend himself (assuming he satisfies the other requirements for self-defense), including by use of deadly force if required.
The other approach is that D, the initial nondeadly aggressor, does not have an automatic right of self-defense.33 In these jurisdictions, D is not entitled to use deadly force against V unless and until he withdraws from the affray by availing himself of an obviously safe retreat, if one exists.34 If no safe place exists, or if D does retreat and V pursues him, then D may now resort to deadly force. If D does not retreat when he obviously could do so, he does not lose his status as an aggressor, and is not justified in killing V. However, in such circumstances, D may be convicted in some jurisdictions of manslaughter, rather than of murder.35
The rationale for reducing the offense to manslaughter in such circumstances is not always explained. Frequently, D's manslaughter verdict can be explained on grounds unrelated to self-defense: V's deadly response to D's nondeadly assault constitutes "adequate provocation," which brings D's conduct within the "sudden heat of passion" doctrine of homicide law.36 Sometimes, however, a court will treat the nondeadly aggressor as possessing an "imperfect" or "incomplete" right of self-defense, which results in the manslaughter conviction.37
[C] Necessity Requirement: The Special Issue of Retreat38
[1] Explanation of the Issue
The general rule is that self-defense "is measured against necessity."39 Thus, a victim of a deadly attack may only use deadly force in self-protection if it reasonably appears necessary, i.e., he should respond with nondeadly force if such lesser force will reasonably prevent the threatened harm. Likewise, one may ordinarily only use force when a threat has become imminent, a controversial requirement considered later in the text.40 At issue in this subsection is the question of whether an actor, under unlawful attack, must retreat before using deadly force. In other words, if an innocent person is attacked, and if he has only two realistic options—use deadly force or retreat to a place of safety—must he choose the latter option? As discussed immediately below, the law in this area has been undergoing significant change.
[2] Contrasting Approaches
If a person can safely retreat and, therefore, avoid killing a deadly aggressor, deadly force is, objectively speaking, unnecessary. And, as noted at the start of this chapter, self-defense has a necessity component. Nonetheless, American jurisdictions are split today on the issue of whether an innocent person, outside his home, must retreat when this can be done in complete safety. Although the original common law rule was that a person, outside the home, was required to retreat — thus, holding true to the necessity requirement — a strong majority of jurisdictions today do not require a non-aggressor41 in such circumstances to retreat from the threat of deadly force, even if he could do so in complete safety.42
The no-retreat position gained significant momentum in recent years as the result of efforts, particularly by the National Rifle Association, to broaden self-defense law by implementation of so-called "Stand-Your-Ground [SYG] statutes."43 These new SYG laws vary in language, but they generally provide that "a person who is not engaged in illegal activity has no duty to retreat from any place where the person is lawfully present."44 Indeed, these laws often provide the self-defender more than an affirmative defense at trial: They provide immunity from criminal prosecution itself.45
The no-retreat position is justified on various grounds. First, it has been claimed (particularly by male judges) that the law "should not denounce conduct as criminal when it accords with the behavior of reasonable men. . . . [T]he manly thing is to hold one's...
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