Busting the Durable Myth That U.S. Self-Defense Law Uniquely Fails to Protect Human Life

by T. Markus Funk*

(2023) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Self-defense, the “first civil right,” continues to be among criminal law’s most controversial, enduring , and intuitively understood topics.[1] The February 2020 murder of Ahmaud Arbery,[2] the November 2021 Wisconsin trial of Kyle Rittenhouse,[3] the January 2023 shooting of a masked robber in a Houston taqueria,[4] and the February 2023 second-degree murder charges lodged against 73-year-old Arizona rancher George Alan Kelly for killing an allegedly trespassing migrant near the US-Mexico border[5] all have helped bring to full boil the long-simmering national debate about where the state’s monopoly on force should end and the individual’s right to rely on self-preferential force should begin.

After each of these incidents, members of the legal commentariat followed the familiar practice of swiftly offering their takes on all aspects of these flashpoint cases. Much of what they said about these cases, for good reason, sparked 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[6] 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 and, in many respects, 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.

The Media Persistently Portrays U.S. Self-Defense Law as Overly Permissive and Insufficiently Concerned with Preventing Societal Violence

The popular media has made a habit of uncritically portraying U.S. self-defense law as uniquely unforgiving toward aggressors and out of step with international norms. Consider, for example, Vox’s confident declaration 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.”[7] The New York Times, for its part, offers that in the United States, “the tendency has been to expand the right to claim self-defense rather than protect those who may be harmed by misjudgments and mistakes.”[8] Testimony before the U.S. Senate Committee on the Judiciary similarly asserts that “[e]ven the Wild West had more stringent laws governing the taking of life than we have now.”[9] The American Public Health Association opines that “most US states have expanded civilian rights to use deadly force in self-defense outside the home” and contends that US self-defense laws are “rapidly chang[ing].”[10] And a 2021 law review  article argues that any contention that “armed individual self-defense” in the United States serves “some sound public purpose” reflects nothing more than “the bravado of the Old West.”[11] To give a final example, New York Magazine denounces the “anarchy latent in America’s … expansive self-defense rights” and seeks to make the case that “increasingly permissive self-defense laws” have created a “vast zone of permissible killing.”[12]

Caricatures like these have understandably led many to think that in the United States, callous lawmakers and courts deviate dramatically from their international counterparts, announcing an “open season” on supposed lawbreakers. But are U.S. self-defense laws really exceptionally punitive? As I in this short piece will try to explain, U.S. self-defense laws in the main are not only unexceptional but also in fact far more protective of the lives of attackers and calibrated to reduce overall societal violence than many of their international counterparts.

Some Preliminary Observations on Context

Let me say at the outset that it is critically important to distinguish between the law of self-defense (that is, statutes and court rulings) and the means to defend oneself (that is, weapons and firearms). There is, of course, plenty of room to debate the precise contours of U.S. self-defense and gun laws—both in public policy and in ethics. Nevertheless, to be meaningful in its aims for justice, the public policy discourse around law reform, arms ownership, and the right to exercise self-preferential force must first be properly informed by the type of defensive violence that U.S. self-defense law actually sanctions.

To understand how U.S. self-defense law stacks up by international comparison, we turn to the laws of Germany and England. Popular scholarship, after all, often cites these representative countries as operating models of “sensible,” “humane,” and “civilized” criminal justice systems and suggests that the United States should emulate them.[13]

But prior to embarking on this cross-border examination, we must first understand the legal guardrails U.S. self-defense law sets around use of force.

Deconstructing U.S. Self-Defense Law

U.S. self-defense is structured as follows (with, as noted, some differences among states):

The State’s Burden of Proof

Though formally an affirmative defense, once a defendant introduces evidence supporting a self-defense claim, the prosecutor must disprove it beyond a reasonable doubt.[14]

Availability of Self-Defense

As state statutes, court decisions, and jury instructions make clear, a person in the United States may rely on the self-defense justification only if the following criteria are met:

  • The (Unprovoked) Attack: The person subjectively (that is, honestly) believed he or she was facing an actual unlawful attack;[15]
  • Necessity: The person 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);[16]
  • Objective Reasonableness: The person 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);[17] and
  • Timing/Imminence: The attack was either ongoing or imminent.[18]

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.[19]

As we will see, these basic self-defense elements are, perhaps surprisingly to many who read this, entirely within the international mainstream. In fact, they are significantly more protective of the actual/purported attacker’s life than the self-defense laws of England and Germany (and many other jurisdictions).

U.S. Self-Defense Law’s Objective Reasonableness Requirement Limits Interpersonal Violence

One of the just-discussed bedrock limitations on a person’s ability to successfully claim justified defensive force in the United States is the requirement that the person’s belief that defensive force was necessary to prevent or stop an attack must be objectively reasonable.[20]

For a recent example of how objective reasonableness in practice serves to limit a defender’s exercise of force, consider a patron’s January 2023 shooting of a masked burglar in a Houston taqueria. Although the first shots were unquestionably justified, the last shots may fall short of the objective reasonableness requirement and could expose the defender to criminal liability.[21]

As this brief example demonstrates, the United States’ objective reasonableness requirement is eminently sensible if the related goals are to reduce interpersonal violence and to be more protective of purported attackers. Yet, England categorically rejects it.

English Law Allows Unreasonably Mistaken Persons Facing an Imagined Attack to Cloak Themselves in Self-Defense

Beginning in the mid-1980s, English law, in a rather abrupt deviation from the prior standard, dropped the objective reasonableness requirement.[22] Today, a person claiming self-defense in England need only prove that he or she honestly believed deadly force was necessary to avert imminent death or serious bodily harm.[23] Under this remarkably lax rule, then, even entirely unreasonable and mistaken beliefs will not stand in the way of a successful self-defense claim, provided those mistaken beliefs are honestly held. (That said, the potential unreasonableness of the purported belief is naturally relevant to whether it was, in fact, honestly held.)

To illustrate the real-world impact of this honest-belief-only standard, recall Rittenhouse prosecutor Thomas Binger. In his closing arguments, Binger asked the jury repeatedly 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!”[24]

Prosecutor Binger’s near-singular (and statutorily compelled – see WI Stat § 939.48(1)) focus on the alleged objective unreasonableness of Rittenhouse’s conduct highlights how game-changing England’s honest-belief-only standard is.

In England, the jury would not need to be persuaded of the objective reasonableness of Rittenhouse’s asserted belief that deadly force was required to ward off an imminent attack. Instead, Rittenhouse would be entitled to an acquittal if the jury merely concluded that he honestly held his belief (regardless of that belief’s objective reasonableness).

Suffice it to say that it does not take a practitioner with years of in-the-trenches experience to recognize that this honest-belief-only standard imposes significant additional burdens on prosecutors. It removes the objective reasonableness safeguard and requires prosecutors to focus their entire energy on the difficult task of disproving defendants’ claims about what they were thinking when they, say, pulled the trigger.

U.S. Self-Defense Law’s Limits on What Can Be Defended by Deadly Force Further Protect Even a Culpable Aggressor’s Life

Though German self-defense law is in line with U.S. law in that it requires objective reasonableness,[25] it deviates sharply when it comes to the question of what can be defended.

Only Threats of Serious Injury Justify Deadly Defensive Force in the United States

As we have seen, in the United States deadly force is only justified if the defendant reasonably believed the force was necessary to prevent imminent (1) death or (2) great bodily harm or other serious bodily injury.

In addition, most states allow deadly force to ward off/stop (3) certain particularly inherently dangerous serious offenses/forcible felonies, such as kidnapping, arson, rape, burglary, and robbery.[26]

German Law Authorizes Deadly Force to Prevent or Stop Attacks on Most Legally Protected Nontrivial Interests

Germany’s storied self-defense (Notwehr) law—specifically § 32 of the German criminal code (Strafgesetzbuch or “StGB”)—permits deadly force under a far broader array of circumstances than would be considered acceptable in the United States.[27] In fact, German law sanctions the use of deadly force when necessary to protect against attacks on a considerable swath of nontrivial, legally protected interests, including mere property.

Defensive force, at times up to deadly force, has also been permitted to “defend” interests such as one’s freedom and honor,[28] life,[29] nondeadly assaults,[30] property,[31] the right to hunt,[32] the right to engage in religious services,[33] home ownership rights,[34] the right to privacy (for example, persons threatened by an intrusive photographer, a “peeping Tom,” or a drone),[35] and the right to be free from excessive noise.[36]

Turning to German self-defense’s theoretical grounding, the traditionally dominant view is that self-defense in the first instance protects the empirical inviolability of the legal order (the Rechtsbewährungsprinzip, i.e., the “protection of the legal order justification”) rather than first protecting the individual.[37] Under this view, the exercise of legitimate defensive force protects and preserves the collective legal order and reaffirms the long-standing maxim that “the right need not yield to the wrong” (das Recht muss dem Unrecht nicht weichen).[38] In fact, it is fair to say that German self-defense law’s “harshness” derives from this collective legal order justification.[39]

In situations of conflict, then, the importance of protecting the legal order has traditionally trumped almost all rights of the attacker. The result has been that defenders in Germany could exercise all force necessary to protect their legal rights with little regard for the proportionality or balance of harms.

One illustrative 1923 textbook, for example, declared that “[o]ne can shoot down an attacker to defend one’s ownership of a match…,”[40] and a 1935 court ruling provided that the “defense” of “a few pennies” would justify deadly force.[41]

In today’s Germany, defensive force up to deadly force is still permitted in circumstances unimaginable in the United States. That said, the post-World War II concept of “socio-ethical limits” (sozialethische Einschränkungen) on self-defense introduced important limits on lawful defensive force.

The appearance of these “humane” bounds reflects the German legal community’s growing skepticism about individual self-protection. This German law reform, particularly controversial when first introduced, was animated by the view that the Schneidigkeit or Schärfe (“severity” or “harshness”) of German self-defense law went too far and dramatically undervalued the legally guaranteed “minimal solidarity” (Mindestsolidarität) between people that compelled a greater modicum of tolerance (Pflicht zur Rücksichtsnahme or Nachsicht gegenüber Rechtsgenossen).[42]

Nevertheless, even with these added restrictions of relatively recent vintage in place, contemporary German self-defense law continues to grant defenders exceptionally wide latitude. Though it is inherently difficult to predict at what point the courts will consider the given defensive conduct grossly disproportionate, as a general guideline, it is said that one can use deadly force to defend a culpable attack on property worth more than 100 EUR.[43]

U.S. self-defense law is by comparison far more protective of human life. Though reasonable force is permitted to defend both personal property and dwellings,[44] in the United States, a defender is never authorized to intentionally kill an attacker solely for purposes of protecting property (as opposed to, for example, preventing the attacker from committing serious crimes in a dwelling).[45] The only deviations from this rule are found in states such as Texas that narrowly permit deadly force “to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property [when no other safe means of recovery are available].”[46]

Providing insight into the humanitarian objective of the limitation, a 1929 U.S. court case put it this way: “The preservation of human life . . . from grievous harm is of more importance to society than the protection of property. Compensation may be made for injuries to, or the destruction of, property; but for the deprivation of life, there is no recompense; and for grievous bodily harm, at most, but a poor equivalent.”[47]

The person with no option but deadly force to protect mere property, therefore, in most cases has to suffer the harm, even at the hands of a fully culpable attacker, and seek redress at law.[48]

We now turn back to the Rittenhouse case to appreciate the practical impact of the German rule. Wisconsin statute § 939.48(1) required the defense in Rittenhouse to focus on whether Rittenhouse had been reasonably fearful of (1) death or (2) serious bodily injury. These questions, in fact, consumed a significant part of the trial.

In Germany, on the other hand, Rittenhouse would have merely had to persuade the fact finder that Rittenhouse’ exercise of deadly force was necessary to prevent the attackers from, among other things, robbing, assaulting, or battering him, regardless of whether those attacks posed a threat of serious bodily injury or worse. This would have been a fairly easy lift for competent defense counsel.

Underscoring this point, recall Prosecutor Binger’s argument that “Joseph Rosenbaum [was] chasing after [Rittenhouse] because he want[ed] to do some physical harm to him[, but] you don’t bring a gun to a fist fight.” The contention that Rittenhouse used excessive, unnecessary force against Rosenbaum who “merely” wanted to batter Rittenhouse (“do some physical harm” to Rittenhouse) may carry some weight in the United States. But if prosecutor Binger made this argument in Germany, he would in effect be conceding that a nontrivial attack (“some harm”) was in Rittenhouse’s future courtesy of the pursuing Rosenbaum, thereby all but guaranteeing Rittenhouse’s speedy acquittal.

Analogs to Controversial U.S. “Stand Your Ground” and “Castle Doctrine” Laws Are Commonplace Around the World

Approximately one-fourth of U.S. states take deadly self-defense off the table when the defender could have retreated in complete safety.[49] 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 (in some circles[50] descriptively referred to as “highly-defensible property”).[51] The remaining states, sometimes labeled “stand your ground” states, do not impose any categorical duty of safe retreat, regardless of where the attack occurs.[52]

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.[53] Stated differently, opponents of retreat requirements, like Professor Robert F. Schopp, 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.[54]

Without a doubt, stand your ground laws are among the most controversial U.S. legal provisions.[55] (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.[56])

That said, many readers will be surprised to hear that England[57] and Germany[58] 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.[59]

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.

In the Final Analysis

As this brief journey through U.S. and foreign self-defense law has hopefully illustrated, common claims about U.S. self-defense law’s “exceptionalism” and “inhumanity” crumble under closer scrutiny. One possible explanation for this wholesale misreading of the law by those who should know better is that, in addition to an overreliance on uncritically accepted received wisdom, there is a pervasive tendency to conflate access to deadly force in the form of firearms (via what some consider excessively lax gun law) with the legal authorization of the same. Perhaps this commingling can be traced to an overreliance on ideological priors.[60]

But whatever the explanation for the persistent misunderstandings, the reality is that U.S. self-defense law is very much within the mainstream of self-defense law around the globe and, in crucial respects, is far more restrictive than that of many overseas counterparts.

In the final analysis, impactful misconceptions about U.S. self-defense law distract us from having a more fully informed debate about the appropriate role of, and justification for, self-defense in a modern, democratic nation. Correcting such fallacies, then, is a vital first step toward a more balanced and promising conversation about the extent to which we should reform our laws governing the use of deadly defensive force in a pluralistic society like ours.

 

Endnotes

* Markus Funk, Ph.D. (Oxford), is a former federal prosecutor (Chicago) and US State Department Section Chief (Kosovo) who has taught criminal and comparative law at, among other law schools, Northwestern University, the University of Chicago, the University of Colorado, and Oxford University. He is the author of the book Rethinking Self-Defence: The ‘Ancient Right’s’ Rationale Disentangled (Bloomsbury, 2021), as well as a number of law review articles on self-defense, including Cracking Self-Defense’s Intractable “Difficult Cases” (100 Nebraska Law Review, 2021); Understanding the Role Values Play (and Should Play) in Self-Defense Law (58 American Criminal Law Review, 2021); and What U.S. Law Reformers Can Learn From Germany’s Value-Explicit Approach to Self-Defense (73 South Carolina Law Review, 2021). Markus can be reached at mfunk@perkinscoie.com. ↑

  1. Cicero famously described self-defense, which early philosophers and historians prized as the ultimate pre-legal civil right, as a “universal natural moral law.” Their perspective was that self-defense is timeless, lacks a history, and, consequently, is incapable of being abrogated. See generally Cicero, De Re Publica III xxii.33 (T.E. Page et al eds, Clinton Walker Keyes trans, 1928); See also Hugo Grotius, The Rights of War and Peace n3 (Richard Tuck ed, 2005) (reprint of 1737 English translation by John Morrice of the 1724 annotated French translation by Jean Barbeyrac) (1625) (“In Reality, the Care of defending one’s Life is a Thing to which we are obliged, not a bare Permission.”); Samuel Pufendorf, Of the Law of Nature and Nations 198 (4th ed, J. Walthoe, et al., 2005) (reprint of 1726 London edition of the 1706-07 Barbeyrac French translation and annotation, with English translation by Mr. Carew) (1672) (“But Defence is a thing of more ancient date than any Civil Command . . . and accordingly, no state could legitimately forbid self-defense.”); Emmerich De Vattel, The Law of Nations; Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns 79 [Droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains] (Joseph Chitty trans, 1854) (2005) (1758) (“Self-preservation is not only a natural right, but an obligation imposed by nature, and no man can entirely and absolutely renounce it.”). ↑
  2. For a more in-depth discussion of the Ahmaud Arbury case, see my article, T. Markus Funk, ‘Understanding the Role Values Play (And Should Play) In Self-Defense Law’ [2021] 58 Am. Crim. Law Rev. 331. <https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2021/04/58-2-Funk-Understanding-the-Roles-Values-Play.pdf> accessed 15 March 2023. ↑
  3. I outline my concerns with the Rittenhouse prosecution’s missteps (and, in particular, with their failure to understand and properly explain to the jury how provocative conduct bars a self-defense claim under Wisconsin law) in a Bloomberg Law article, T. Markus Funk, ‘The Rittenhouse Case – Misunderstanding When Provocative Acts Bar Self-Defense,’ Bloomberg Law (14 January 2022) <https://news.bloomberglaw.com/white-collar-and-criminal-law/the-rittenhouse-case-misunderstanding-when-provocative-acts-bar-self-defense> accessed 15 March 2023. ↑
  4. For an examination of where the Houston restaurant shooter’s defensive conduct may cross the line, see my discussion in Reason, T. Markus Funk, ‘The Houston Restaurant Self-Defense Shooting: Neutralizing a Threat v. Killing a Criminal,’ Reason (11 January 2023) <https://reason.com/volokh/2023/01/11/the-houston-restaurant-self-defense-shooting-neutralizing-a-threat-v-killing-a-criminal/> accessed 15 March 2023. ↑
  5. See generally Terry Tang and Ken Ritter, ‘Judge OK’s Arizona rancher trial in Mexican migrant killing,’ AP News (24 February 2023) <https://apnews.com/article/mexico-arizona-crime-2f19aa60f39df28071039237af6cbc5d> accessed 15 March 2023. ↑
  6. Although there is no unified “US self-defense law,” the laws of the individual U.S. states are, except where indicated, largely aligned in overall approach. I, therefore, will throughout this article refer to the singular “U.S. self-defense law” to refer to the common elements of the laws of the individual U.S. states. See also United States v. Melhuish, 6 F 4th 380, 396-97 (2d Cir 2021) (“Because the law pertaining to self-defense is a matter of federal common law, we find it appropriate to look to state court decisions for guidance.”). ↑
  7. Zack Beauchamp, ‘Kyle Rittenhouse and the Scary Future of the American Right,’ Vox (22 November 2021) <https://www.vox.com/policy-and-politics/22792136/kyle-rittenhouse-verdict-militia-violence-self-defense> accessed 15 March 2023. ↑
  8. Shaila Dewan, ‘Can Self-Defense Laws Stand Up to a Country Awash in Guns?,’ New York Times (New York City, 13 November 2021) <https://www.nytimes.com/2021/11/13/us/rittenhouse-arbery-self-defense.html> accessed 15 March 2023. ↑
  9. Lucy McBath, ‘“Stand Your Ground” Laws: Civil Rights and Public Safety Implications of the Expanded Use of Deadly Force, Hearing Before the Sen. Judiciary Comm., Subcomm on the Const., Civ. Rts. and Hum. Rts.,’ United States Senate (29 October 2013) <https://www.judiciary.senate.gov/imo/media/doc/10-29-13McBathTestimony.pdf> accessed 15 March 2023. ↑
  10. Alexa R. Yakubovich, et al., ‘Effects of Laws Expanding Civilian Rights to Use Deadly Force in Self-Defense on Violence and Crime: A Systematic Review’ [April 2021] American Journal of Public Health <https://ajph.aphapublications.org/doi/10.2105/AJPH.2020.306101> accessed 03.04.2023. ↑
  11. Patrick J. Charles, ‘The Invention of the Right to “Peaceable Carry” in Modern Second Amendment Scholarship’ [2021] Univ. of Ill. LR Online 195, 199-200 <https://illinoislawreview.org/online/the-invention-of-the-right-to-peaceable-carry-in-modern-second-amendment-scholarship/> accessed 15 March 2023. ↑
  12. Eric Levitz, ‘Kyle Rittenhouse’s Defense Was Strong: It’s Also a Threat to the Rule of Law,’ New York Magazine: Intelligencer (New York City, 19 November 2021) <https://nymag.com/intelligencer/2021/11/rittenhouse-jury-verdict-self-defense-legal-analysis.html> accessed 15 March 2023. ↑
  13. See generally Franklin Stockdale, ‘Withdrawing the License to Kill: Why American Law Should Jettison “Stand Your Ground” and Adopt the English Approach to Retreat’ [2016] 39 B C Int’l & Compar LR 453; see also Joyce Lee Malcolm, ‘Self-Defence in England: Not Quite Dead’ [2011] 23 J Firearms & Pub Pol’y 60 (contending that “modern England only grudgingly tolerates self-defence, even in extremis”); Floyd Feeney, ‘German and American Prosecutions: An Approach to Statistical Comparison,’ U.S. Dep’t of Justice, Bureau of Justice Statistics (February 1998) (“Germany imposes sentences much shorter than those imposed in the United States.”) <https://www.ojp.gov/ncjrs/virtual-library/abstracts/german-and-american-prosecutions-approach-statistical-comparison> accessed 15 March 2023. ↑
  14. See generally Rosemond v. United States 134 S. Ct. 1240, 1256-57 [2014]; United States v. Barrett 797 F.3d1207, 1218 (10th Cir. [2015]); United States v. Feather 768 F.3d 735, 739-41 (7th Cir. [2014]); United States v. Taylor 686 F.3d 182, 192 (3d Cir. [2012]); United States v. Leahy 473 F.3d 401, 408-09 (1st Cir. [2007]); United States v. Thomas 34 F.3d 44, 47-48 (2d Cir. [1994]); People v. Leffew 975 N.W.2d 896, 907 (Mich. [2022]); People v. Pickering, 276 P.3d 553, 555 (Colo. [2011]); People v. Huckleberry, 768 P.2d 1235, 1239 (Colo. [1989]). Unlike in England, a defendant in the U.S. must affirmatively raise self-defense before the defense is introduced into a case. See Rosemond 134 S. Ct. at 1256-57. ↑
  15. See generally United States v. Mattox 27 F.4th 668, 676 (8th Cir. [2022]); Ohio v. Jacinto 155 N.E.3d 1056, 1072 (Ohio App. [2020]); Kansas v. Qualls 439 P.3d 301, 305 (Kan. [2019]); Minnesota v. Radke 821 N.W.2d 316, 324 (Minn. [2012]); Mich. Comp. Laws § 780.951(1) [2023]; Tenn. Code Ann. § 39-11-611(b)(1)-(2) [2023]; The subjective belief standard has, in fact, been part of U.S. law for a long time. See generally Rowe v. United States 164 U.S. 546, 557 [1896]; Acers v. United States, 164 U.S. 388, 392-93 [1896]; Addington v. United States 165 U.S. 184, 186-87 [1897]; Beard v. United States 158 U.S. 550 [1895]; North Carolina v. Gray 77 S.E. 833 (N.C. [1913]); People v. Williams 88 N.E. 1053, 1056 (Ill. [1909]); Young v. Nebraska, 104 N.W. 867 (Neb. [1905]); Louisiana v. Sadler 26 So. 390, 399 (La. [1899]); Nabors v. Alabama 25 So. 529 (Ala [1899]); Redd v. Georgia 25 S.E. 268 (Ga. [1896]); Missouri v. Berkley, 19 S.W. 192 (Mo. [1892]); Missouri v. Harrod, 15 S.W. 373, 377 (Mo. [1891]); South Carolina v. Jones 7 S.E. 296, 305-06 (S.C. [1888]); Wisconsin v. Clifford 17 N.W. 304, 307-08 (Wis. [1883]). ↑
  16. See generally United States v. Armajo 38 F.4th 80, 82-83 (10th Cir. [2022]); Brown v. Eplett 48 F.4th 543, 548-49 (7th Cir [2022]); Stillwagon v. City of Delaware 175 F.Supp.3d 874, 895 (S.D. Ohio [2016]); Wisconsin v. Ruffin 974 N.W.2d 432, 438-39 (Wis. [2022]); Washington v. Jennings 502 P.3d 1255, 1264-65 (Wash. [2022]); McKee v. Oklahoma 372 P.2d 243 (Okla. Crim. App. [1962]); West v. Oklahoma 617 P.2d 1362, 1366 (Okla. Crim. App. [1980]); Wis. Stat. § 939.48(1) [2023]. ↑
  17. See generally Mattox, 27 F4th at 676; Lalchan v. United States, 282 A.3d 555, 559-60 (D.C. [2022]); Jennings, 502 P.3d at 1265; Ariz. Rev. Stat. § 13-404(A) [2023]; GA Code § 16-3-21 [2023]; Minn. Stat. § 609.06, subd 1(3) [2023]; See also Susan F. Mandiberg, ‘Reasonable Officers vs. Reasonable Lay Persons in the Supreme Court’s Miranda and Fourth Amendment Cases’ [2010] 14 Lewis & Clark L Rev 1481, 1486. ↑
  18. That is, a reasonably or ordinarily prudent person in the defendant’s shoes would have believed both that the danger was imminent and that the defensive conduct was necessary. See generally Armajo, 38 F.4th at 83 (citing United States v. Toledo 739 F3d 562, 567 (10th Cir. [2014]); Brown 48 F.4th at 548-49; Missouri v. Whitaker 636 S.W.3d 569 (Mo. [2022]); Jennings 502 .P.3d at 1264; Missouri v. Isbell 524 S.W.3d 90, 94 (Mo. App. [2017]). ↑
  19. See generally Robert Leider, ‘The State’s Monopoly of Force and the Right to Bear Arms [2021] 116 NW. U. L. REV. 35, 61; Katryna Santa Cruz, ‘The Distraction That Is Stand Your Ground [2020] 14 FIU L. REV. 149, 155; Robert Leider, ‘Taming Self-Defense: Using Deadly Force to Prevent Escapes [2018] 70 FLA. L. REV. 971, 994; Justin F. Marceau, ‘Killing for Your Dog’ [2015] 83 GEO. Wash. L. REV. 943, 983. ↑
  20. See generally Dan M. Kahan & Donald Braman, ‘The Self-Defensive Cognition of Self-Defense’ [2008] 45 Am. Crim. L Rev 1, 10 (arguing that the “objective reasonableness” requirement subjects “defender’s perceptions to searching ex post review” and by doing so “remarkably, imposes a duty on the defender to take care not to extinguish the wrongful aggressor’s life needlessly. By refusing to make the admitted aggressor alone bear the risk of mistake, this feature of the doctrine expresses the message that even the lives of bad persons have “extreme value” in the eyes of the law.”). ↑
  21. See generally T. Markus Funk, ‘The Houston Restaurant Self-Defense Shooting: Neutralizing a Threat v. Killing a Criminal,’ Reason: The Volokh Conspiracy (11 January 2023) <https://reason.com/volokh/2023/01/11/the-houston-restaurant-self-defense-shooting-neutralizing-a-threat-v-killing-a-criminal/> accessed 15 March 2023. ↑
  22. The 1984 Court of Appeals ruling in Williams (Gladstone) incorrectly concluded that English common law is, and has always been, that a defendant relying on private defense is to be judged solely on his or her honest belief as to the necessity of the force, whether or not his or her belief was reasonable. R v. Williams (Gladstone) [1984] 78 Cr. App. R. 276. ↑
  23. See Criminal Justice and Immigration Act 2008, § 76(3) (Eng); See also In Re: The King [2023] EWCA (Admin) 81; R v. Magson [2022] EWCA (Crim) 1064; R v. Atkinson [2021] EWCA (Crim) 153; R v. Cheeseman [2019] EWCA (Crim) 149; R v. Ray [2017] EWCA (Crim) 1391. ↑
  24. Prosecutor Binger’s closing argument can be viewed here: COURT TV, Facebook (15 November 2021) <https://www.facebook.com/watch/?v=1727295760994634> accessed 15 March 2023; My critique of the prosecution team’s fatal failure to understand—or at least appropriately advise the jury of—Wisconsin’s law of provocation is available here: T. Markus Funk, ‘The Rittenhouse Case-Misunderstanding When Provocative Acts Bar Self-Defense,’ Bloomberg Law (14 January 2022) <https://news.bloomberglaw.com/white-collar-and-criminal-law/the-rittenhouse-case-misunderstanding-when-provocative-acts-bar-self-defense> accessed 15 March 2023. ↑
  25. See generally [2017] 1 BGHSt 588; [2016] 5 BGHSt 138; [2016]. ↑
  26. See, e.g., Alaska Stat. § 11.81.350 [2023]; Fl Stat § 776.012 & 776.08 [2023]; NY Penal Law § 35.15 [2023]. ↑
  27. See generally T. Markus Funk, ‘What U.S. Law Reformers Can Learn from Germany’s Value-Explicit Approach to Self-Defense’ [2021] 73 S C L Rev 195, 220-23. ↑
  28. See, e.g., [2018] 3 BGHSt 622 (noting that, because a person’s honor is a legally protected interest, defensive force can be used to protect it), citing [1952] 2 BGHSt 5; [1935] 69 RGSt 265, 268 (attack on soldier’s honor); [1890] 21 RGSt 168, 168-70 (attack on defender’s honor by priest during religious sermon). ↑
  29. See, e.g., [1993] 5 BGHSt 374, 378. ↑
  30. See, e.g., [2019] 2 BGHSt 363. ↑
  31. See, e.g., [1926] 60 RGSt 273, 277. ↑
  32. See, e.g., [1906] 35 RGSt 403, 407. ↑
  33. See generally Gerhard Erdsiek, ‘Umwelt und Recht’ [1962] NJW 2240. ↑
  34. See Theodor Lenckner, §32 Notwehr, in Adolf Schönke & Horst Schröder, Strafgesetzbuch 529 (C.H. Beck 25th ed 1997); Martin Linke, §32 Notwehr und Notstand, in Adolf Schönke & Horst Schröder, Strafgesetzbuch 571 (C.H. Beck 30th ed 2019). ↑
  35. [1994] OLG Düsseldorf NJW 1971; See also [1962] BayObLG NJW 1782, 1782-83. ↑
  36. See, e.g., [1992] OLG Karlsruhe NJW 1329. ↑
  37. See generally Schmidhäuser, Die Begründung der Notwehr [1991] GA 97, 101. ↑
  38. See generally Albert Berner, Die Notwehrtheorie [1848] Archiv des Criminalrechts 547, 557, 562; See also [2016] 2 BGHSt 523; Hans-Heinrich Jescheck & Thomas Weigend, Lehrbuch des Strafrechts, Allgemeiner Teil (Duncker & Humblot 5th ed 1996) 336-40. ↑
  39. See generally Robert Haas, Notwehr und Nothilfe: Zum Prinzip der Abwehr Rechtwidriger Angriffe (Lang 1978) 144. ↑
  40. Max Mayer, Der Allgemeine Teil des Deutschen Strafrechts 280 (C. Winter 1923) 280. ↑
  41. [1935] 69 RGSt 308, 310. ↑
  42. See generally K. Kühl, Die gebotene Verteidigung gegen provozierte Angriffe. Überlegungen aus Anlass der neusten Rechtsprechung des Bundesgerichtshofs zur Notwehrprovokation, in Joachim Schulz & Gunter Bemmann, Festschrift für Günter Bemmann 194 (Nomos-Verlag-Ges. 1997) 194; Claus Roxin, Die ‘Sozialethische Einschränkungen’ des Notwehrrechts [1981] 93 ZStW 68. ↑
  43. Claus Roxin, Strafrecht. Allgemeiner Teil I: Grundlagen. Der Aufbau der Verbrechenslehre (Beck München 2006) [page 590]; See also Jescheck, Hans-Heinrich & Thomas Weigend, Lehrbuch des Strafrechts, Allgemeiner Teil 348 N 49 (Duncker & Humblot 4th ed 1988) [page 348]. But see Luis Greco, ‘Notwehr und Proportionalität’ 165 GA 665, 671 (2018) (discussing minority position that even the threatened loss of 5.000 EUR is insufficient to justify deadly defensive force). ↑
  44. See generally Howitt v. State 521 P3d 314 (Wyo [2022]); State v. Straughter 643 SW3d 317, 321-22 (Mo [2022]); Ind Code § 35-41-3-2(d) [2023]; See also State v. Howell 53 P 314, 315 (Mont [1898]); Goshen v. People 44 P 503, 503-04 (Colo [1896]); State v. Dooley 26 SW 558, 560-61 (Mo [1894]); Townsend v. Briggs 34 P 116, 117 (Cal [1893]); Com. v. Donahue 20 NE 171, 172 (Mass [1889]); Rauck v. State 11 NE 450, 451 (Ind [1887]); Fosbinder v. Svitak 20 NW 866, 868-69 (Neb [1884]); Phillips v. Jamieson 16 NW 318 (Mich [1883]). ↑
  45. See generally Straughter 643 SW3d at 323 n10; Jones-Nelson v. State, 512 P3d 665, 684 (Alaska [2022]); Tex. Penal Code § 9.43(3)(A) [2023]; Wisc Stat § 939.49 [2022]; See also Wallace v. United States 162 US 466, 473-74 [1896]; Dryer v. State 53 P2d 700 (Okla Crim App [1936]); State v. Metcalfe 212 NW 382, 387 (Iowa [1927]); State v. Ciaccio 112 So 486, 489 (La [1927]); State v. Green 110 SE 145, 147-48 (SC [1921]); Bozeman v. State 104 SE 640 (Ga [1920]); Barkley v. State 213 SW 642, 644 (Tex. Crim. App. [1919]); Montgomery v. Com. 36 SE 371, 373 (Va [1900]); Fertig v. State 75 NW 960, 963-64 (Wis [1898]); Storey v. State 71 Ala 329 [1882]. ↑
  46. Tex. Pen. Code. § 9.42 (emphasis added). ↑
  47. Russell v. State 122 So 683, 685-86 (Ala [1929]); See also Storey 71 Ala at 340-41. ↑
  48. See generally New Mexico v. Baxendale 370 P.3d 813, 817 (N.M. App. [2016]); New Mexico v. McCracken 166 P. 1174, 1176 (N.M. [1917]); Driggers v. United States 95 P 612, 620 (Okla. [1908]); Carpenter v. Arkansas 36 S.W. 900 (Ark. [1896]); Montana v. Smith 30 P. 679, 682 (Mont. [1892]). ↑
  49. See, e.g., Bonilla v. Lee 35 FSupp3d 551, 565 (SDNY [2014]); State v. Magaraci 232 A3d 1220, 1225-26 (Con App Ct [2020]); New Jersey v. Sanders 252 A.3d 578, 589 (N.J. Super. App. Div. [2021]), cert. denied, 259 A.3d 287 (N.J. [2021]); People v. Russell 693 N.E.2d 193 (N.Y. [1998]); N.J. Stat. Ann. § 2C:3-4(b)(2)(b) (N.J. [2023]). ↑
  50. See, e.g., Andrew F. Branca, The Law of Self-Defense-Principles 127 (2017). ↑
  51. Note that the law’s purpose is not to protect the physical structure itself. Rather, the focus is on protecting those within the dwelling, and the rules relating to such situations are analogous to, and essentially co-extensive with, the right to defense of person. The primary difference between the cases involving defending oneself and defending one’s dwelling is that there is no duty to retreat in cases of defense of dwelling, and one may therefore engage in protective acts earlier than otherwise authorized. See generally Ann Marie Cavazos, ‘Unintended Lawlessness of Stand Your Ground: Justitia Fiat Coelum Ruat’ [2016] 61 Wayne L Rev 221. ↑
  52. See, e.g., Tex. Penal Code Ann. § 9.32. ↑
  53. See generally Robert F. Schopp, ‘Justification Defenses and Just Convictions’ 67 (Cambridge University Press 1998) [68]; For an early criticism of this approach, see T. Markus Funk, ‘Justifying Justifications’ [1999] 19 Oxford J. Legal Stud. 631; On the other side of this debate is the balance of prominent contemporary academics, including Ashworth, Fletcher, and Leverick, who call for a more “pacifist” and “humanitarian” account of self-defense; See, e.g., Fiona Leverick, ‘Killing In Self-Defence’ [2006] 4 (arguing that the right to life (or, more specifically, the attacker’s right to life) demands that only a deadly attack justifies deadly force, and that any other outcome threatens the criminal justice system’s moral authority; accordingly, non-deadly attacks, including intentional maiming and rape, therefore, should not be met with deadly force). ↑
  54. For a discussion of such misperceptions, see Robert Leider, ‘Understanding Stand Your Ground’ WALL ST. J. (18 April 2012) (“Many have asserted that in Florida anyone who believes he is in danger can use deadly force . . . . These perceptions of the law are wrong. . . . [A] person must also reasonably believe that the aggressor threatened him with death, great bodily injury, or intended to commit a forcible felony . . . .”) <https://www.wsj.com/articles/SB10001424052702304432704577350010609562008> accessed 15 March 2023]; See also Benjamin Levin, Note, ‘A Defensible Defense?: Reexamining Castle Doctrine Statutes’ [2010] 47 Harv. J. on Legis. 523 (arguing that it is “important to excavate the doctrine from the culture wars rhetoric in which it has been mired” and finding that “the current discourse has become too firmly rooted in the overly reductive, potentially fallacious dichotomy of American political partisanship”), <https://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1449&context=faculty-articles> accessed 15 March 2023. ↑
  55. See, e.g., Matthew S. Schwartz, ‘Lawyers Say Sheriff’s Remark About Shooting Home Intruders Was “Wildly Irresponsible,”’ NPR (27 April 2022) <https://www.npr.org/2022/04/27/1094953133/lawyers-call-sheriffs-remark-about-shooting-home-intruders-as-wildly-irresponsib> accessed 15 March 2023]; Robert J. Spitzer, ‘Stand Your Ground Makes No Sense,’ New York Times (New York City 4 May 2015) <https://www.nytimes.com/2015/05/04/opinion/stand-your-ground-makes-no-sense.html> accessed 15 March 2023; Benjamin Todd Jealous, ‘The Law of the Wild West: “Stand your ground” laws cause baseless killings and make no one safer’ US News & World Report (9 August 2013) <https://www.usnews.com/opinion/articles/2013/08/09/stand-your-ground-laws-lead-to-unjustified-killings-like-trayvon-martin> accessed 15 March 2023. ↑
  56. See, e.g., T. Markus Funk, ‘Cracking Self-Defense’s Intractable “Difficult Cases”’ [2021] 100 Neb L Rev 1, 50-51. ↑
  57. See generally R v. McInnes [1971] 3 All ER 295 (quoting J. C. Smith & Brian Hogan, Criminal Law 231 (Butterworths 2d ed 1969); England’s Crime and Courts Act 2013 (allowing “householders” to use disproportionate force up to, but not including, that which is “grossly disproportionate”), <https://www.legislation.gov.uk/ukpga/2013/22/section/43> accessed 15 March 2023. Note, however, that the Criminal Justice and Immigration Act 2008 reflected this approach, providing that the “possibility” of retreat is to be considered a “factor to be taken into account,” but does not “giv[e] rise to a duty to retreat.” See Criminal Justice and Immigration Act 2008, Section 76(6)(A). ↑
  58. See [2019] LG-Dortmund 39Ks 8/14 (requiring retreat only because the defender armed himself and knowingly entered into a group fight prior to stabbing the unarmed putative attacker). That said, retreat is sometimes required when the attacker is non-culpable or is a family member. ↑
  59. See T. Markus Funk & Eugene Volokh, ‘U.S. Self-Defense Law—“Harsh” By International Standards?,’ Bloomberg Law Insights (10 March 2022); see also Adamu Idris Tanimu, The Right of Self-Defence and Stand Your Ground in Criminal Trials in Nigeria (2020) 117. ↑
  60. See generally Dan Kahan, ‘The Secret Ambition of Deterrence’ [1999] 113 Harv L Rev 413, 414 <https://openyls.law.yale.edu/handle/20.500.13051/285> accessed 15 March 2023 (arguing that “[e]xpressive zealots have an incentive to frame controversial issues in culturally partisan terms, thereby forcing moderate citizens to defect from [their views] and declare their cultural allegiances as well”). ↑