Self-Defense Law: Justification, Use of Force, and Key Cases

[00:00:02]today we'll be talking about self-defense and when it justifies the use of deadly force hello and welcome to talks on law i'm joel cohen today we have the pleasure of being joined remotely by a criminal law expert professor kimberly ferzan of the university of pennsylvania school of law kim welcome to talks on law thanks so much for having me joel kim let's jump right in we all think we know what self-defense is but what's the definition i suppose under the law self-defense is what's called an affirmative defense when someone has done something wrong they've assaulted someone they've killed someone they can come forward with a defense where they say even though i've committed the crime you shouldn't punish me and defenses can be divided into justifications where the person said i did the right or permissible thing or excuses where they say i did the wrong thing but i'm not blameworthy and you shouldn't punish me for it so do i have it right that self-def it's it's self-defense whether or not you are actually in danger it's still self-defense if i was wrongly under the impression that i was in danger yes but it depends a little bit so we can divide that into whether or not your belief is reasonable or unreasonable so if you reasonably believe that you're being uh threatened even if you get it wrong you won't have committed a crime and we may think that's right right that we want ethically well-disposed people to not only act on their beliefs but when their beliefs are the same beliefs anyone else should have then we shouldn't be punishing them on the other hand if you have a belief and your belief is unreasonable then jurisdictions are going to treat you differently so some are going to say you have no defense whatsoever and others are going to say that you have a defense but it just mitigates your punishment so for example instead of going to jail for murder you might go to jail for manslaughter which is a lesser offense because you really did believe you were threatened but your belief was unreasonable at the time if you jump to the conclusion that you need to use deadly force so quickly perhaps you are a danger right and and so we may think if you're unreasonable it's kind of the equivalent of being a negligent or a reckless killer uh but you're not quite as bad as someone who is purposefully or knowingly killing someone without any good reason whatsoever here we're talking about criminal law which generally speaking is state law what kind of variance are we seeing state by state you alluded to a bit so they're going to be some treatments that will be different state by state for example when you get it wrong but the rough and ready formulation of self-defense is pretty consistent across states which is that we are going to be looking for instances where the defendant reasonably believes that he is being threatened with imminent unlawful force and his response is necessary and proportionate to that force professor was that four prongs in a sense imminent necessary reasonable and proportionate are those all four required for self-defense yes so we might start by thinking about the necessity requirement you aren't allowed to use force if you don't have to right so if in fact you're threatening me with a gun and i know that i can stop you either by punching you or by stabbing you i am not allowed to use more force than i have to so i have to punch you instead of stabbing you the second requirement which seems quite similar to it is that i have to use proportionate force so if you're going to punch me i'm never allowed to use deadly force against you because the kind of force you're threatening me with is just non-deadly force and it would be disproportionate to respond with deadly force now you can think about how in real life that could be really nuanced and fine-grained but jurisdictions are just generally going to split this into deadly force and non-deadly force when somebody's threatening you with non-deadly you can only respond with non-deadly when they're threatening you with deadly force which could be they're really going to kill you threats of serious bodily injury threats of very serious crimes then and only then are you allowed to respond with uh deadly force if someone's threatening you with a gun that's always going to be justification for deadly force typically if you see someone who's pointing a gun at you it is going to be reasonable for you to believe that you are facing a threat of deadly force things can get actually a little bit tricky because sometimes we are authorized to use deadly force so you're you're coming up and you're about to punch me and i opt to pull out a gun and point it at you now the question is have i now used deadly force or non-deadly force and the answer is tell me what jurisdiction we're in and tell me what's in my head because in some jurisdictions they what the courts would say is well if the only thing kim is trying to do is to deter joel and say look you know leave me alone uh i'll escalate this if i need to if you keep threatening me i will escalate proportionately then i'm actually only using non-deadly force and in other jurisdictions they say this is a gun of course it's a threat the threats of deadly force are themselves deadly force and so it can be very confusing to someone who's looking down the barrel of a gun whether they are actually facing deadly or non-deadly force in those situations well i'd like to go through this you know perhaps in in in a bit more detail because i find it fascinating i'm sure we've all thought about the scenario where you're attacked or the scenario where someone perhaps breaks into your home what one would do what one should do and what one could do may may all be different but but let's talk about it in terms of what could be permitted under the self-defense doctrine first off let's talk about imminent when we when we say imminent is there a legal definition so imminence really means what you would think it means which is absolutely at the second there is an attack so the idea is not in 10 minutes not retaliatory but i absolutely need to use this force because force is coming at me at this second and one thing that has happened in the law is that there's been some pushback against the imminence requirement in cases such as when battered women kill their sleeping abusers and they say well i can't wait until that moment when he is about to kill me because i'm going to lose then so instead i should be able to attack or to defend myself when it is in fact immediately necessary and it may be necessary for me to defend before the attack has actually crossed that line to basically being imminent so the model penal code which was drafted by the american law institute actually uses an immediately necessary standard instead of an imminent standard and some jurisdictions have followed suit to broaden the imminence requirement so that it's a little bit more fair for defenders who can't wait till that last moment that's quite a powerful example and i imagine under those cases they would have to show that not only was the only way that they could defend themselves but the sleeping person also didn't present an opportunity for them to to run away and leave the home that's absolutely right that the cases where someone says i was i reasonably believed i was about to be attacked by someone who's sleeping right those are exactly some of those cases where they're gonna they're gonna lose it was unreasonable and you'll sometimes see then the move from murder to manslaughter to take into account that the person actually had unreasonable beliefs but in some situations uh it may be that the defender just cannot wait till that very last moment and has to act proactively and really and truly has no other outs right so if we know that in some situations there's a greater opportunity for violence or greater propensity for violence when a woman tries to separate from her husband who's abusive then in fact she may realistically and correctly assess that she cannot wait until it's imminent one of the requirements is that the belief must be reasonable is this is this something where you know it when you see it what qualifies as a reasonable assessment of deadly of deadly force so this is the kind of thing that we're going to give to juries to ask in this situation would you likewise potentially come to the conclusion that uh you needed to use force at that moment to defend yourself right and actually the trickiest thing is what to instruct juries about sort of who the reasonable person is right so the reasonable person seems to be this incredibly abstract construct how much of the sort of characteristics of the defendant should you clothe the reasonable person with so here's an easy case if the if the defendant's blind then of course we shouldn't ask the defendant to act as a sighted person would act because what kind of opportunities they have to assess proportionality or necessity may be different than somebody who can see everything so when we're talking about the reasonable standard it's sometimes referred to as the reasonable man standard there's been in certain cases a push for when the defendant is a woman in the case a reasonable woman standard what is that and and what are they trying to get at so the idea is that this reasonable person standard right can't just be an abstract construct the jury's going to say something about who is this person and and what would this person have done right and and they're going to think a little bit about what they would have done and what they sort of generally expect people to do in the world and the concern is that if you have this reasonable person and that person's nothing like the defendant you can potentially hold the defendant to an unfair standard so i'm five one and a half and i'm very slow when it comes to running and so the idea of the question of whether the reasonable man could retreat or the reasonable man could only use his best is a very different question than the question about whether it would be reasonable to expect the same things of me and so in meeting the defendant where he or she is we may think it's only fair to clothe this reasonable person with some of the characteristics of the defendant the tricky question for law is exactly how many characteristics of the defendant do you clothe the the reasonable person with and when do you draw a line and say well that's actually not something that we want to attribute to the reasonable person a sort of outlier example of that would be someone who's a paranoid schizophrenic you wouldn't have a reasonable paranoid schizophrenic standard or you would lose your content to reasonableness altogether i don't imagine the reasonable paranoid schizophrenic standard as being something definable either right and in many places in law exactly these kinds of things come up and it's exactly those kinds of jury instructions where the jury is glaze over and commentators say we can't be doing this we've got to fix it one of the things you mentioned the proportionality requirement i find personally very complex or difficult to get my head wrapped around because does it suggest if someone's coming at you and says hey joel i'm going to beat you up i and the only way i could defend myself would be using deadly force well according to the law i need to just take the beating so that's right that according to the law you just need to take the beating uh the the theorist in me would say well look uh when someone aggresses they're going to forfeit rights against certain uses of force and the question is how many rights do you forfeit if i go up to you and say i'm going to give you a paper cut and the only way you're going to stop me is to shoot me it seems as though given the teeny amount that i'm going to harm you that it would be disproportionate for you to push back and and shoot me in that case in the same way that we think proportionality is really important for criminal law right so if in fact shoplifting is uh an incredibly pervasive crime and the only way we could stop shoplifting is to incarcerate shoplifters for 10 years we're still going to think it's incredibly unfair to do that because shoplifters just don't deserve that much punishment right and so there's just this worry here that whatever you've even if you're a little bit bad right for having threatened something small that why should you give up all of your rights entirely but it's you're absolutely right that we're then asking the innocent victim in some sense to bear the cost of the sort of small attack because there is nothing but disproportionate force to respond with and we'll talk through this a bit more when we look at some of the examples but i can certainly imagine how you described yourself as i believe 5 2 and not particularly fast yes i could imagine no disrespect professor but if you were attacking me my reaction would be very different from you know let's say a very large man who maybe had the same intent to to cause minimal damage or or simply to to let off some steam with with a verbal abuse um but i might i might then be more justified to use uh force against the bigger person sure so i mean let's let's be careful so if it's only gonna be verbal abuse the whole time then you're not allowed to use force against the person because it's there's no unlawful force for you to respond to so the fact that somebody is consistently insulting you right so really what they're then doing is issuing you a threat and then the question is you're trying to assess what the actual degree of that threat is and you're gonna have to take into account what that person potentially has the capacity to do and so yes you're gonna be less frightened uh of me doing those kinds of things than somebody who is you know bigger taller and stronger than i am where that person might have greater uh capability and ability to therefore harm you you just mentioned verbal threats and a lot of times these may not actually lead to violence if someone says i'm going to beat you to a pulp how much weight can i give those words ask yourself really what would you have to do to decide whether or not you should be afraid at that moment right so if i say that to you right now you would say gosh she's not even in the same state i'm in she has no capacity to do this right so so it's never just gonna be the words we're gonna have an entire set of you know contacts to know is this actually something that is going to lead remember to an imminent use of unlawful force so even if someone calls you on the phone and says this no matter how big and strong they are not an imminent use of unlawful force but if in fact the person's in the same room they seem very serious there's a background that would lead you to believe that they actually mean it then it may be reasonable for you to believe that at that moment they are threatening you with imminent unlawful force whether non-deadly force or deadly force you know i'm imagining this scenario um where you say that to me and perhaps then i should be maybe i'd be waiting until you took a step towards me before i actually um was was starting to be scared imminence is just super tricky right because to the extent that we want threats to be imminent you really don't want even i'm gonna kill you right we want somebody who's who's like going to kill you but it's hard to to give that any more content than the you would know the difference between i'm about to be killed and there is a threat that will eventually progress to that particular moment where i have to act to prevent it in these cases the the state has to prove beyond a reasonable doubt how does that apply to the affirmative defense that yeah maybe i did use maybe i did fire my gun to protect myself but i was scared does the state also need to prove the self-defense was not there beyond a reasonable doubt they do so it's not constitutionally mandated affirmative defenses uh can have the burden shifted to the defendant so in many many jurisdictions a defendant claiming insanity has to prove he was insane by clear and convincing evidence it's his job to convince the jury he was insane it is constitutionally permissible it's been decided by the supreme court to shift the burden to the defendant on self-defense to prove it by a preponderance of the evidence that was the case but every state now says the government has to prove disprove self-defense beyond a reasonable out so once the defendant comes forward with evidence that demonstrates self-defense might be you know at work here then the burden of persuasion shifts to the government now initially you might think well do i like this but if you take a step back what we're talking about is the awesome power of the state to take one of its citizens and subject him or her to punishment subjecting him or her to punishment is incarcerating that person particularly when we're talking about deadly force which is hard treatment suffering stigma censure all of these implications come from punishment and so when you ask when should the state be able to do this to a citizen we sh we shouldn't just want it to apply when the state has said well you've maybe done something bad because you've hit someone or you've killed someone but when the state has fully proven that what you did was wrongful and in cases where what someone does is not wrongful because they were really acting in self-defense the state shouldn't be able to lock them away so a proof beyond a reasonable dalek standard protects all of us it just so happens that some of the cases that tend to be the ones that uh capture uh the media or the popular imagination are cases where we're much more skeptical of the self-defense claim and so we're wondering why it is that the state would bear this enormous burden but it it really does bottom out in what we think the state should have to prove before it gets to harm us and we'll be discussing some of those contentious cases a little later in the conversation when we're talking about self-defense you you said imminent threat that imminent threat has to be to a person so it has to be to a person unless it is the sort of crime that could justify the use of force under the statute those are typically going to be to people right so it's going to be sexual assault it's going to be kidnapping burglary is the one that probably gets trickiest because somebody could commit burglary in order to harm a person or they could commit burglary in order to steal your things right and so if you're allowed to use deadly force against burglary you're in some sense allowed to use deadly force to protect your things now one reason to do that is because we may just want to create laws that are rules that are going to be over and under inclusive in certain ways and instead of have having juries in each case do a fact by fact determination of whether or not the defendant could have reasonably believed that in fact she was being threatened with force the argument is well at the time that someone breaks into your home that's going to be good enough reason as a sort of rule of thumb to justify the use of deadly force it's not a clear-cut line that it has to be a threat against a person right and even your money or your life will typically justify the use of deadly force even though in some sense you could hand over your money ooh explain that so that is a tricky pocket that looks a little bit like stand your ground right this idea that if i can't defend with non-deadly force why can't i why am i not allowed to defend at all that there are times we say you know what if there you don't have to surrender this thing to which you have a claim of right and so jurisdictions that recognize that are doing something quite similar in a way to the stand your ground of uh you don't have to always opt for the light for the lesser interest or or to surrender something that is valuable to you so in some states if a criminal says give me your wallet or i'll or i'll kill you uh give me your wallet and i'll i'll leave peacefully and you can go about your day in some states i could still use deadly force that's right how about self-defense when it's a threat to another person is that is that still does that still justify the affirmative defense so defense of others is a widely recognized affirmative defense as well the trickiest thing that happens here is the question about whether or not when you're assessing the belief you want to stand in the shoes of the person you're protecting or the defendant's own shoes and those can come apart in certain cases so the famous case is a case called people versus young in new york where two plainclothes police officers were attempting to effectuate an arrest and the person they were trying to arrest was fighting back and the defendant came upon this and thought i'm seeing two people beat up one person and intervened in favor of the person who was being arrested so if you use a your you know the defendant's own shoes test then the defendant reasonably believed that he was helping someone else but if you ask the question was he really allowed to given that the perspective of the person he was protecting then in fact he wouldn't be permitted and so jurisdictions actually divide on that where i think the typical view is we should we should take the defendant's own shoes should be the the appropriate standard because that's when we want to ask should are you reasonably believing that you should intervene to protect someone else let's talk about self-defense when perhaps you started the fight or perhaps you were equally responsible for things coming to blows can you still use it as an affirmative defense the law's going to be very nuanced about this the short answer is no but it's going to depend a little bit so the the important thing here is to break up two different kinds of ways that you could potentially forfeit your defensive rights one is you're the initial aggressor and the second is you provoked it you're the provocateur so initial aggressors right obviously can't use self-defense if i go to punch you and you go to stop me then i'm the bad guy you're the good guy i can't then say wait i'm the i'm being threatened with unlawful force right my force was unlawful and your force was lawful now there are going to be a couple tricks to this right so if i then retreat and i communicate i'm no longer threatening you then i can regain my defensive rights if i threaten you with non-deadly force and you escalate to deadly force then in some jurisdictions i regain my defensive rights that's interesting professor so in that case i say professor i'm really upset with my grade i'm gonna come over there and give you a paper cut and you pull out a gun and say well you just stepped to me now you're gonna meet your maker perhaps i can then have a real claim for for self-defense depending on the state yes because i have now done something wrong by so completely escalating i'm not using the right kind of self-defense that's necessary and proportionate instead i'm using disproportionate defense to what you threatened that was initial aggressor provocateur i suppose what does it mean to be provoking the the violence so you can provoke the violence without starting the fight by getting someone right really riled up or giving them reason to want to attack you so if i go into a bar and i call your mother a whole bunch of names and continually insult you then i have in some ways picked the fight now notice that in that case you're still not allowed to attack me you would still be acting impermissibly because i'm not actually threatening unlawful force however because i'm the one who got you riled up i actually lose my right to defend against you professor could you give me an example where self-defense was not permitted because the the person was seen as being provocative one thing that's really interesting about this is that courts get very confused about the difference between initial aggressors and provocateurs so sometimes the kinds of things that they start looking for with provocation is actually initial aggress aggression so some courts will say things like mere words can never be enough but of course mere words can never be enough to be an initial aggressor but there's a totally separate question whether mere words could be enough to count as being a provocateur so there was one case that helped that near words weren't enough and the dissent said well wait a minute what if there was a civil rights leader who had recently died and at his funeral someone showed up and started shouting uh racial epithets at the crowd can't you imagine a case where the person intentionally and even with words got everyone so riled up that they then decided to use force against this person and if the person does that should they then have the right to self-defense but it turns out to be uh very tricky for courts to figure out what this category is how it relates to initial aggressors and then how it relates to the entirely separate question of when the person who's the respondent should get a reduction from murder to manslaughter because of legally adequate provocation yeah that does seem like a horrible hypothetical where you know someone basically tricks someone into justifying their their deadly force so in the hypothetical you're giving it sounds like you're envisioning someone saying hey i'd like to kill a civil rights leader why don't i trick them into attempting to beat me up and that's exactly how many statutes are framed in terms of i am intentionally uh poking at you in order for you to react so that i may defend against you right so it is this in some ways creating your own defense and then courts are saying well no or actually statutes are saying you are not permitted to defend in those cases professor i'd love to talk quickly about duty to retreat i'm sure we could have a whole sit down for a whole hour on this topic but what is the duty to retreat and and perhaps we could give a couple of different examples of of states responses to it the first thing to recognize is that there is not a duty to retreat before using non-deadly force no jurisdiction says if somebody is threatening to punch you that you need to run away instead of stopping them by using force against them now that traces back to what's been called the true man doctrine uh which theorists are often critical of because it sounds like this very testosterone-laden manly men stand up for themselves uh kind of you but other scholars say this actually traces to the view from uh sir matthew hale that it's about innocent men so the idea of a true man is an innocent man and the idea that right should not give way to wrong so if in fact you're lawfully where you're entitled to be you shouldn't have to leave that place rather than use at least non-deadly force so there's no duty to retreat for non-deadly force and there's also no duty to retreat within your home so within your castle the castle doctrine if somebody attacks you you do not have to run out of your house you get to stay uh and defend yourself and so that just leaves the question whether or not you need to retreat before using deadly force outside of your home there still you only have this duty if you can do so with complete safety so if turning and running away is going to actually make you more vulnerable to attack you are not required to retreat but you may not use deadly force if in fact you can retreat with complete safety and then the the thing that of course amends that is stand your ground laws so there's no duty to retreat for non-deadly force there's no duty to retreat in your home the only place where you have to retreat is before you escalate to deadly force outside the home right that's correct assuming that your jurisdiction does not have a stand your ground law because what the effect of stand your ground is to say you also don't have a duty to retreat uh before using deadly force the stand your ground rules seem to have a very strong emotional response whether you're for or against them maybe you could quickly explain what do they actually permit that other states don't what's important about stand your ground laws is that sometimes we think that it's a complete abandonment of proportionality and necessity and i think it's important to recognize that that's wrong so it is still true that if someone comes at me with a knife and i have the opportunity to either punch them uh or shoot them that stand your ground jurisdictions will require me to punch them i'm not allowed to use force that isn't necessary i'm also not allowed to use force that is disproportionate so if someone comes at me to punch me i am not allowed to stand my ground and use deadly force so we still have proportionality and necessity at work except for the fact that we remove the requirement that defendants are required to run away if they can retreat with complete safety and one thing that i pursued in my work is that in many ways that makes citizens quite like law enforcement because law enforcement is also governed by proportionality and necessity requirements but law enforcement does not have to retreat and although we now value de-escalation and in many different ways in policing you can also understand why you wouldn't want police to run away uh when faced with culpable assailants that you would want them to be able to stand their ground and that's effectively what we're doing is we're turning citizens into law enforcement with our stand your ground provisions yeah and i imagine people would have varying opinions of whether or not that is wise or appropriate i think that's exactly right one thing that we're starting to recognize that we haven't recognized before is that every state has citizens arrest laws and the impact of citizens arrest laws are extremely broad compared to stand your ground so stand your ground is actually more rhetorical because it's practically redundant with many of the ways that citizens are already entitled to use force in many jurisdictions they are already allowed to go out in the name of the state and use force against their fellow citizens in some jurisdictions that's going to include deadly force and they can use force in response to everything from felonies to misdemeanors to in some jurisdictions breaching the peace one case held that breaching the peace was when the person who was ultimately arrested uh cursed at the defendant and the argument was that when you curse at someone that is breaching the peace and therefore the defendant acted appropriately in executing a citizen's arrest so we actually have these incredibly broad laws on our books that are allowing citizens not just to stand their ground when they're defending themselves but to actually go on the offense and arrest and and use force in the name of the state and i actually think we should be more focused on that this seems incredibly difficult for you know running the math in your head if you have a right to defend yourself someone else has some perceived or real right to use force against you as a temporary officer i can imagine those coming into tension especially if someone is is confused or overly vigilant this is a nightmare on the ground right because you're going to have the possibility for so many mistakes one person thinks that what they're doing is a completely legitimate citizen's watch the other person thinks that what they're doing is being stalked and attacked uh where where we go with this when we're authorizing citizens to do more than say you're attacking me with unlawful force but i'm actually allowed to proactively come to the problem proactively seek it out because i'm allowed to then enforce the law in the state's name it's going to create tremendous ambiguity for for the average citizen to figure out what they're permitted to do what they're not permitted to do and what they're actually responding to and a case that shows this that has captivated the the country in recent times is the ahmed aubry case perhaps we could use that as a as an example to talk through self-defense in the face of citizen's arrest absolutely so when uh travis michael uh and uh his father and neighbor see someone and they then decide right they see ahmad arbury running and they then decide that they are going to execute a citizen's arrest now their account was that there had been previous felonies in the neighborhood although that was disputed by the prosecution because uh many of these alleged crimes had never been reported but their claim of course is we're going to act in the name of the state we were going to arrest him and therefore we were using lawful force so that when arbory sees these men pointing guns at him uh it's not they say unlawful force they're not the initial aggressors is their claim because they are legitimately entitled to engage in this behavior now it turns out the judge ruled that that's not what georgia law says uh that in fact they were not engaged in a legitimate citizen's arrest of course this went to the jury to decide but it ultimately turned on the question of what the citizens arrest provision permitted and the judge said that it had to be a felony that was committed uh within their presence or their knowledge so it couldn't be something where they suspected someone had committed a crime where they had probable cause to believe that which would have been its own jury question they actually had to witness a crime and the the victim committing it in order for them to be executing an appropriate citizen's arrest and that was because they used deadly force or or in general for a citizen's arrest under the georgia law for any use of force it had to be within the pres their presence uh before under then existing georgia law and you point out then existing after the aubury case georgia went the georgia legislature repealed that law that's exactly right so now in georgia the uh police officers who are outside their jurisdiction can sometimes use uh force despite the fact that they're technically not police officers at that moment they're not acting as lawful police officers and in very limited situations private citizens can use force when it's uh a target or a walmart and they see somebody committing theft or a restaurant and somebody's running out without having paid the bill they're allowed to use non-deadly force essentially to stop the person and detain the person but they have to call the cops and they're only allowed to keep them for an hour so there still is a limited uh citizens arrest provision under georgia law but not the law that was in place at the time of the killing of ahmed aubry that's exactly right and and citizens arrest laws can be just extraordinarily broad because we're talking about the question of whether somebody is entitled to a criminal defense and we're not talking about the constitution citizens can use more force than is constitutionally permissible so in florida you can shoot a fleeing felon in the back if it's necessary under a citizen's arrest law even though you're not allowed to do that as a matter of uh policing and uh constitutional law if if i see someone in florida break into my house and steal a 20 portable speaker and they're running away i could be justified or i could be i wouldn't be prosecuted for killing them so potentially depending on exactly how they're going to construe the burglary uh statute and whether that's going to count as the kind of felony absolutely when you use not when you use deadly force and you say stop i'm arresting you and the person keeps running you are executing a citizen's arrest and therefore you would not be guilty wow the the way that the common law had been trying to rein this in the way that states had been trying to rein this in is exactly what happened in the mcmichael case which is they said citizens we may be authorizing you to do this but you do this at your peril in that it actually has to have been a crime that you saw and in many jurisdictions you have to have gotten the right person so unlike police officers who have probable cause if you get it wrong you lose the defense so in georgia the question wasn't uh whether or not arbory actually had committed a crime and there didn't seem to be evidence that he had committed the kind of felony that would have justified the use of force but if in fact you're wrong on that whether he committed the crime whether there was a crime or whether he committed it then you then uh in georgia you absolutely lose the defense let's talk about another controversial self-defense case and that's the case involving kyle rittenhouse in this case there was some outcry that he was not found guilty because was he uh playing part of the problem by showing up at a a crowded and emotionally charged rally with a very large weapon right so you start with the sort of traditional question did he reasonably believe uh that he was facing an imminent threat of death or serious bodily injury and then you ask well should i modify this because in some sense he's a provocateur right he has come to the problem he has seemed completely reckless as to the problem is he in some ways you know starting it so wisconsin has two provisions in terms of deadly force you only forfeit your right to deadly force off the bat if you have intentionally provoked the use of deadly force against you so that you'd have a reason to use deadly force against the person attacking you and it doesn't seem as though there's a lot of evidence that he was absolutely looking to shoot someone that day and was intentionally provoking rosenbaum in an effort therefore to be able to kill him so then you look at how the sort of non-deadly force structure works which is you can forfeit the right to non-deadly force if you more generally in a get know that you're provoking people which you could argue he did but if the person responds to deadly with deadly force you regain your defensive right if you retreat so even though generally in wisconsin there may be stand your ground laws the way that this functioned was well their self-defense well he loses it because he's the provocateur he doesn't lose it as the provocateur because you only lose it as to non-deadly force and he retreated to the utmost and therefore he's allowed to use deadly force and where that then leaves you is with that same initial jury question which is did he reasonably believe he was facing an imminent threat of unlawful force and one thing that's crucial here is to recognize that every state in the united states places the burden on the state to disprove self-defense beyond a reasonable doubt so he didn't have to convince the jury by preponderance of the evidence that he reasonably believed it instead the state had to convince the jury beyond a reasonable doubt that the elements of self-defense were not met you also mentioned earlier that the provocateur uh provision i suppose is actually quite difficult to show and i imagine it would be even more difficult now with state's robust gun protection laws or gun carrying laws it may be in fact difficult to show that carrying a gun would be provocation under any circumstance so that's absolutely right so one thing that i would love to see states do and that one thing i've written on is that provocation should be broadened so that it's a recklessness standard so instead of asking the question did you intentionally provoke deadly force against you it should be did you consciously disregard the substantial and unjustifiable risk that you are provoking force against you so you'd lose non-deadly for provoking non-deadly you'd lose deadly force the right to use deadly force for provoking deadly force but even that test is going to have the question about well when are you behaving unjustifiably and that's going to lead us to questions like well what are you allowed to do are you allowed to carry a gun are you allowed to engage in citizens arrest because if you're allowed to do those things then it doesn't count as impermissible provocation certainly carrying a weapon of the power and capability that we're talking about in this case certainly escalates things quickly both in terms of a perceived threat to others and the perceived threat to the individual as well because the fact that he's carrying a gun may make him a target that's absolutely right other people are going to see it they're going to be nervous and then you get claims like written houses that rosenbaum was reaching for my gun and so you brought the very weapon that you are now claiming you needed to use to prevent it from being used against you and that's ultimately going to turn on how we think when we think people are allowed to carry weapons in public uh and given the risk that in fact they can be used against their owners whether or not you you think the law should be updated in wisconsin or whether or not he kyle rittenhouse may have broken certain rules or laws in in transporting the gun do you think the jury got the self-defense question correct i think it's very hard to say whether the jury got the self-defense question right or wrong i think that it was absolutely a jury question and i think given the burden of proof i i don't think that we can condemn this uh jury verdict as wholly outside the facts right crucially the state has to disprove self-defense beyond a reasonable doubt so the jury has the question did kyle rittenhouse reasonably believe that rosenbaum was going to kill him he he was running he was reaching in that direction and so if you stop thinking about how much sort of kyle rittenhouse created this situation and imagine just some wholly innocent person plot down in that situation and what would have been in his head at that moment and then again remember the state has to disprove self-defense beyond a reasonable doubt then there's got to be space for jury verdicts on each side i think that if the jury had convicted there would have been room for them to do that and and there was room for them to acquit here let's look at another perhaps notorious at least controversial example of self-defense what happened in the case involving george zimmerman so in the zimmerman case uh ziberman was part of a citizen's watch and he uh noticed trayvon martin uh walking around and decided that in the wake of uh previous crimes in the neighborhood that he was going to decide that martin was suspicious right and there was nothing that martin did there was there was no crime committed by trayvon martin he was walking home with a bag of skittles or something like that with a hoodie on that's exactly right uh and uh zimmerman did call the police and the police specifically told zimmerman to stop pursuing martin and to leave it that the police were on their way nevertheless he continued uh to pursue martin and at some point according to zimmerman and of course zimmerman's story is the only one we have right trayvon martin uh decided to turn on him and uh there was a physical altercation and at some point in time zimmerman claims that he feared for his life that trayvon martin was on top of him punching him pushing his head into the concrete putting his hand over his mouth and potentially going to kill him and it was therefore that zimmerman reached for his gun uh and uh killed trayvon martin and there are some really important takeaways to this case i mean the first is that it was often spoken of as a stand your round case and it's not a stand your ground case because at the moment that zimmerman used deadly force there was no question that on his theory or on his argument he couldn't safely retreat so this isn't a case where he could have used something else or not or run away that's not the problem the problem is again that someone seems to be picking a fight and the and the question then becomes uh should there have been a provocation instruction a provocateur initial aggressor instruction that zimmerman lost his right to self-defense because he essentially started this fight by stalking trayvon martin now the way that the defense presented florida law uh to the judge was look this is going to be a reversible error under our jurisprudence there has to be a threat of uh force or or there has to be force or a threat of force so really an initial aggressor kind of question not a provocateur question and the judge said you're right just walking behind someone isn't a threat of force now one thing to say is the judge maybe gets that wrong because the question is did trayvon martin perceive that to be a threat of force but the other thing to recognize again is that separate apart from being an initial aggressor you can provoke the fight without being the first to attack so the question is what business did zimmerman have engaging in this behavior where he was uh essentially stalking uh trayvon martin chasing him down at that time and if he's the one who provoked it then he should lose defensive rights now of course the one wrinkle to that is if we adopted the ferzan view that let's look at this as recklessness did zimmerman consciously disregard the substantial and unjustifiable risk right that he was starting the fight that he was starting in a fray or a deadly afraid zimmerman would then respond well i'm part of a neighborhood watch i'm engaging in the same kind of citizens arrest behavior that we're seeing all over the place and that's why it's so crucial that we limit citizens arrest because for so long as citizens are allowed to go on the offense then they no longer are forfeiting their defensive rights when they behave the way zimmerman did now zimmerman was told stay in the car so he should have lost his defensive rights he shouldn't have thought he could continue to go after martin but we are creating tremendous ambiguity here when we have stopped telling citizens to act in self-defense and told citizens that they're allowed to proactively uh search out criminals and before we leave that case what what did the jury determine or how was it resolved so he was found not guilty and partly because there was no there was no alternative side to the story because trayvon martin wasn't there so so that is certainly a problem with any uh use of deadly force that force that results uh in a death is that we're only going to get one side of the story i mean interestingly if we reformed our laws in particular ways we might think even just looking at george zimmerman's confession uh or or his statement to the police officers you could get everything you needed about how he actually forfeited his rights by uh by following trayvon martin in the way that he did and pursuing him even after having been told not to uh of course if the laws were to change defendants might likewise uh wise up to what they should and shouldn't uh confess to uh originally well professor to play devil's advocate there's a difference between following prudent advice you know go home stop following this person and doing something that's perhaps uh imprudent but not illegal in public i can walk around and and and follow someone to make sure they're not committing a crime so it's always going to be a factual question right at what point in time do you recognize that you are potentially uh getting someone very upset in ways that would cause them uh to to respond defensively so it's one thing for you to keep a reasonable distance and be curious uh what what is that person with the uh with the funky briefcase doing i you know i want to see uh and quite another to be actively pursuing someone else and really then uh potentially causing them fear uh potentially getting them very upset we're not permitted uh to do those kinds of things with other people and if we do that recognizing those kinds of impacts why shouldn't we then lose our defensive rights when we when we get the very risk we're aware we're creating and i'm not saying you should you should lose rights when you're unaware of it i wouldn't even have people forfeit rights when they're unreasonably unaware of it when you recognize this is exactly uh the kind of risk i'm creating then you should lose your rights in the same way that you don't poke bears or hit beehives with baseball bats right i'm j in my mind you could do something silly or you could do something risky where you end up getting someone else killed where it still wouldn't be murder but it would be some type of a crime perhaps uh negligent homicide or or manslaughter so a lot of work gets done with the what's the risk that the person is aware they're creating right so so that's the first thing which is you actually have to recognize i'm consciously disregarding this risk that i am going to provoke someone to use force against me and then the second part of it is that that behavior has to be unjustified so there there may be times when you think i really want to hold a surprise party for my best friend and gosh there's some chance that he's gonna completely panic uh over the you know when the lights go on and everybody screams uh but it's potentially justified by the fact that look we're good friends and uh actually he would want this kind of party uh even though there's some risk that he'll you know react with force right so so there's room to to make sure that we're not uh having people forfeit rights unless they're really aware of the risks they create and the risk they create is absolutely unjustified right otherwise this view would say things like if you walk through central park in the middle of the night you know you're running the risk of being attacked i'm absolutely not saying that right because of course you are justified your strong liberty interest and being able to go where you want to go allows you to walk through the park at night but i think it's a very different question uh when you're actively pursuing someone whether or not you have that right to actively pursue when you're claiming that your right to do that is in the name of the state and the state has already told you stay in your car kimberly ferzan is a professor of law at the university of pennsylvania kim it has been a real pleasure thanks for the time today thanks so much joel it's been great to talk to you about this [Music] you