I thought I had taught my last class in basic criminal law some time ago. But public tolerance of the ongoing practice of police killing unarmed black men with impunity suggests that an explanation of self-defense in lay terms is badly needed.  Self-defense is an important component of how civilized societies respond to violent deaths. The police killing trials and the gun loving culture threaten to make it instead more license than limitation.

The killing of Michael Brown in Ferguson, Missouri three years ago fades from memory more quickly because there have been so many since then to keep track of.



Most recently, the trial of police officers in Minnesota (victim Philando Castle), Ohio (victim Samuel Dubose), and Wisconsin (victim Sylvelle Smith) resulted in two acquittals and a mistrial.  Of the three states, we probably have to give the weekly prize to Missouri where, in another case, a white officer, now claiming, “I feared for my safety”, shot and wounded a black man who was trying to help the officer make an arrest. The victim was an off duty cop.

In these cases and many, many more we always hear  “I feared for my life”, or “I feared for my safety”.  That mantra has been repeated so often and has been so successful there is little doubt most members of the public believe that it is a complete defense to a charge of murder or manslaughter.  It is not. Let’s see why.

English common law is the basic source of self-defense rules in the U.S., Canada, and beyond. Legislatures have, of course, modified and tinkered with the basics.  The English took a back seat to no one when it came to creative brutality and violence. Just ask the Irish, or those who found themselves in the religious minority at any given time.  But the same folks who gave us drawing and quartering and the pitch cap (look it up) developed a law of homicide that was a gift to the world. How it came about is a fascinating story, and not just for law profs.

The requirements to establish the defense of self-defence developed over a period of more than 500 years.  The defense has always been a limited one, circumscribed with rules designed to deter its abuse. Importantly, it was an excuse not a justification. Reflecting the importance of all human life, the early law provided that even slayers who acted in self-defense were fined or forfeited goods.

An example of how limited the defense was initially is that the slayer must have used every reasonable means to retreat before resorting to deadly force. It soon became apparent, however, that this restriction was a bit too much for jurors, who had no intermediate non-capital degree of homicide to fall back upon for those they saw as guilty but did not want executed.   Exactly the opposite from today’s juries who are not supposed to know anything about the case, the early English juries were self-informing. They provided the facts of the case.  And it came to pass that juries who did not think the accused should executed invented numerous walls and hedges that prevented him from retreating. Even so, however, the law never reflected the bizarre macho notion that the accused could “stand his ground”.



But I digress. The complete elimination of any requirement to retreat to avoid bloodshed is primarily a boon to vigilante killers of black teens–slayers who express fear that their safety is imperiled by a bag of skittles.   We certainly don’t want police to retreat.   We want them to stand their ground. But we don’t want to give them a license to kill.  That’s where the self–defense story continues.

Eventually, rules developed about what it took to establish the defense of self-defense. Among them were that the slayer not be the initial aggressor and that the force used not be disproportionate.  There is no reason these requirements should not apply to cops.

But the real abuse today strikes at the heart of the self-defense requirements.  Deadly force may not be used unless the slayer, at the time he acted, actually and reasonably feared that he or another was in imminent danger of death or grievous bodily harm.

The first basic requirement, actual fear, is the first part of the reason “I feared for my life” is not automatically a defense. The circumstances of the slaying invite the jury to consider whether this is even true. It is open to the jury, for example, to find that a police officer 50 feet removed from a fleeing black man when he shot him in the back had no actual fear.


But the most egregious element of the current perversion of self-defense lies in the second requirement. Even if the officer is in fear, the fear must be reasonable.  The circumstances in most of the police killings of black men cast real doubt on whether this could be true. For example, if the Cleveland cop who shot the black kid on a playground two seconds after exiting his patrol car somehow was in fear, how could that fear be reasonable?  What is reasonable and what is not is an imprecise concept, purposely left to jurors to apply based on their common sense and daily life experience.  When the suspected perpetrator of the offense of no front license plate is going in the opposite direction, or the unlawful seller of cigarettes is in a chokehold, it should be fairly simple to determine what is reasonable and what is not, as well as what is disproportionate.

It is also important to remember that the reasonableness of the slayer’s fear, if it exists at all, is determined based on what he saw and knew at the time he acted.  If the victim robbed a convenience store an hour earlier; hell, if he killed his grandmother an hour earlier, but the cop had no information about that, those facts are entirely irrelevant to whether the cop acted in self-defense.  Nevertheless, do not expect police departments to cease trashing victims. Do not expect media to question the practice.

Finally, there is also the question of burden of proof. The common public understanding is that the prosecution has the burden of proving the guilt of the accused beyond a reasonable doubt and this is a very difficult burden. In reality, like the “assumption of innocence”, all this means is that somebody has to go first at a trial and these rules mean that it is the prosecution.  The legal barriers to successful prosecution definitely do not cause the rarity of conviction in police shooting cases.

Who has the burden of proof, however, can be important in a few close cases.  It means that if a juror really isn’t sure, she should decide against the party with the burden of proof.  In those rare instances, the answer to these questions can matter:  Does the accused police officer have to prove that he met all the requirements of self-defense?  Or does the prosecution have to prove that he did not?  For either party, by what standard of proof?  Beyond a reasonable doubt?  By a “preponderance of the evidence”?

The rule on that varies from state to state but it may interest you to know that the U.S. Supreme Court long ago decided that it is OK to make the accused prove that he acted in self-defense rather than the other way round.

Whether the public can be persuaded to pay attention to the very sensible 500 year old basic limitations on the self-defense excuse remains to be seen.  It will take a willingness, yet to be demonstrated, for people to go beyond superficiality and look at the reasons for the rules and why they are important.

That will not be easy. Self-defense was by far the most popular and effective defense long before some cops got the word that black lives don’t particularly matter and this issue got some press. Further, even though the presence or absence of self-defense is supposed to be a question for the jury, academic research reveals that self-defense evidence is far and away the number one reason prosecutors elect not bring murder charges in the first place.

And victim bashing has often made a contribution to the success of self-defense evidence. Full disclosure, I have defended murder cases.  When I got a case where the identity of my client as the slayer was not at issue, I considered that my principal task was to figure out how it was self-defense and then undertake an investigation to uncover evidence and circumstances pointing that way. And even though the law, of course, does not modify the self-defense limitations based on the perceived worth of the victim, in reality that has always been a factor.  I will never forget years ago speaking with a member of a rural jury that had —much to my surprise—acquitted my client. I had presented what I thought was a very weak defense. Always wanting to learn something that would help in the next case, I questioned him about what had been important to the verdict. The answer:  “The victim needed a good dose of killin’.”

Another nuance of this focus on the victim is probably important in the police shooting cases. It is racism, but just putting that tag on the jury is superficial.  To be sure, there may be a few jurors infected with the overtly racist notion that black lives don’t matter.

I suspect, however, that much more important is the fact that  this provides an avenue to tap into the pervasive, hidden, irrational fear of black males.  Every good defense attorney strives to find a way to have jurors relate to the accused— to be able to imagine themselves in his position.  In police shootings of blacks, that innate fear makes this relatively easy to do. Throw in the public adulation of police, and all the misleading rhetoric about “putting their life on the line” every day, and one can sympathize with prosecutors— at least with those not infected with the same fear and bias that influences jurors.

The public is certainly not getting any help from right wing political and media figures with respect to the scandal that has brought attention to the law of self-defense.  An example is the hostility toward the Black Lives Matter movement.  Before the backlash reached its current level, the lame attempt at diverting attention took the form of their pious pronouncements that “all lives matter”.  Intoning that truth in response to a cry for attention to a real problem is like responding to assertions that humans are responsible for adverse climate effects on the planet with:  “Yes, so let’s all remember to use sunscreen and bring our raincoats when appropriate”



Now, of course, platitudes are no longer necessary. Under the leadership of Attorney General Jefferson Beauregard Sessions, Americans can resume the process of stacking black people in prison in even greater numbers, allowing the police open season on them, and generally carrying on as if race is not an issue at all— for awhile.  But there are costs to all of this and one cost is the damage to the rule of law, of which the law of self-defense is a small but important part. Without its sensible limitations, life is more dangerous for everyone.

Law professionals can’t fix this.  Political parties can’t fix this.  Pundits of the left or right can’t fix this. Violent retaliation can’t fix this.  It will be fixed only when ordinary Americans put aside all that USA! USA! nonsense, look into their souls, and decide that they can be better than this.




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