There are certain circumstances under which the defendant can use force in order to protect himself from the plaintiff. The issue becomes what level of force he may use.
The defendant may use non-deadly force if the plaintiff is about to inflict an imminent harmful or offensive touching upon the defendant, and the defendant had no duty to retreat. If both of these elements are met, the defendant may use force to protect himself. However, he is only allowed to use force that is reasonable under the circumstances to protect himself from the immediate threat.
There are two cases in which the defendant has a duty to retreat and they are:
- Where the defendant knows that the plaintiff is not intentionally creating a risk to him, and;
- Where the defendant knows that the plaintiff has mistaken his identity.
The defendant may use deadly force if he reasonably believes the plaintiff is about to inflict an imminent harmful or offensive touching on him which would cause death or serious bodily harm.
There is an open debate as to whether or not the defendant has a duty to retreat before using deadly force. The majority view holds that the defendant does not have a duty to retreat before using deadly force. See
However, both the majority and minority views agree that the defendant has no duty to retreat if:
- He is inside his own home.
- The retreat would endanger a third party.
- He is in the process of legally arresting the plaintiff.
The following diagram will aid you in understanding these concepts.
Like all defenses, the privileged use of force in self-defense has several limitations:
1. The privilege is terminated once the threat is terminated. That is to say, once the threat to the defendant has been defused, the defendant has no right to use force in self-defense.
2. The defendant is not entitled to use excessive force to defuse the plaintiff’s threat. In fact, if the defendant does use excessive force to diffuse the plaintiff’s threat, the defendant will be held liable for the injuries he causes as a result of the excessive force.
3. The defendant cannot use force against the plaintiff where the plaintiff is conducting a privileged action against the defendant. A privileged action is an action which is specifically allowed by law. For example:
Paul is in the process of making a lawful arrest of Dave. Dave does not have the right to use force against Paul because Paul’s actions are privileged.
4. The defendant cannot intentionally harm a third person under the privilege of self-defense. For example:
While Paul is attacking Dave, Dave grabs Paul’s wife and uses her as a shield. Dave can be held liable for his actions against Paul’s wife because Dave’s privilege of self-defense does not allow him to intentionally harm a third person.
In addition to having the right to defend himself, there are also times where the defendant is allowed to use force to defend a third person. However, the defendant is only allowed to use the level of force that the third person himself would have been allowed to use. See
The question that arises is what happens if the defendant uses force to defend a third person who does not actually need, or is not entitled to use, force to defend himself?
The law, as is often the case, is split on this question. The older view holds that the defendant must “stand in the shoes” of the third person so that the defendant is entitled to do only what the third person himself is entitled to do. In other words, the defendant is permitted to use force to protect a third person only if the third person is entitled to use force himself. That being the case, if the defendant uses force to protect a third person who is not entitled to use force to protect himself, the defendant is liable for the use of force, no matter how innocent or reasonable his mistake was.
The modern view is more tolerant of reasonable mistakes. Therefore, under the modern view, a defendant who uses force to protect a third person who is not entitled to use force to protect himself will not be held liable as long as he reasonably believed that the third party was privileged to use force himself and that his intervention was necessary to protect the third person. For example:
Dave comes to the aid of Tom, who is being attacked by Paul. Paul is an undercover police officer who is lawfully arresting Tom. Dave, not knowing that Paul is a police officer and believing that Paul is trying to rob Tom, comes to Tom’s aid by using force against Paul.
Old View: Dave must stand in Tom’s shoes. Therefore, since Tom was not entitled to use force to protect himself, Dave is not allowed to use force to protect Tom. Therefore, Dave is liable.
New View: If Dave reasonably believed that Tom was entitled to use force and that Dave’s intervention was necessary to protect Tom, Dave will not be held liable.
Please remember that, according to all views, where the defendant has the right to use force to protect a third person, he is only entitled to use the same level of force that the third person himself would have been allowed to use.
The laws are somewhat different when it comes to using force to defend property. One is never allowed to use deadly force to protect property, real or otherwise.
The defendant may use non-deadly force to protect property as long as:
- The plaintiff’s invasion or unauthorized use of the defendant’s property is not privileged;
- The defendant reasonably believes that force is necessary to protect his property; and
- Before using force, the defendant asks the plaintiff to halt the intrusive activity and that request is ignored.
It is permitted to use mechanical traps to protect property so long as the traps are necessary, reasonable, the use of them is customary in the area where the defendant lives and adequate warning as to the presence of the trap is given.
Deadly traps are allowed only if the intrusion actually poses a threat of death or serious bodily harm to the defendant or his family. See
Sweeney installs a deadly trap door in front of his bedroom which he only keeps open while he is sleeping there.
The next question is whether a defendant has the right to use force to reclaim property that is being wrongfully withheld from him. The answer to this question will depend on whether the defendant is seeking to reclaim real property or chattels.
The Courts are split as to the question of force to reclaim real property. According to the majority view, there is no privilege to use force to reclaim real property and the defendant will be held liable for any force he uses. The minority view allows the defendant to use force to reclaim real property as long as he was “tortuously dispossessed” of the property. Tortuous dispossession is where the plaintiff took the defendant’s property through force, duress or fraud. If there was no tortuous dispossession, the defendant is not privileged to use any kind to force to regain the real property.
According to all views, the defendant may use force to regain possession of chattels so long as he was tortuously dispossessed, and:
- He is actually entitled to immediate possession of the property.
- He demands that the plaintiff return his property.
- He is in “fresh pursuit” of his property. That is to say, he is trying to reclaim it immediately after he realizes it was taken and not after a period of time.
- He retakes the property from the person who took it from him. Please note that the defendant cannot use force to retake the property from a third party that bought or received it from the plaintiff.
If any of these four elements are missing, or if there was no tortuous dispossession, the defendant has no privilege to use force. Here are some examples:
EXAMPLE (1): Thinking that Steven stole a book from him, William uses force to reclaim the book. Actually, Steven borrowed a book identical to the one that William is missing, from Edgar. William is liable because he was not entitled to immediate possession of the book.
EXAMPLE (2): Steven actually does steal a book from William. William discovers the theft and, two weeks later, punches Steven in the face and takes the book back. William is liable because there was no fresh pursuit.
EXAMPLE (3): Steven steals a book from William and sells the book to Edgar. William discovers the theft and, upon seeing Edgar, punches him in the face while attempting to regain the book. William is liable because Edgar is not the one who dispossessed William of the book in the first place.
The “shopkeepers privilege” represents a slight variation on these rules and it allows shopkeepers to temporarily detain suspected shoplifters. Four guidelines must be followed when exercising this privilege
- The detention must either be in, or in the immediate vicinity of, the store.
- There must be reasonable grounds to suspect the detainee.
- Only reasonable and non-deadly force can be used to detain the suspect, and
- The detention itself must only last as long as is necessary to conduct a reasonable investigation.
So long as these conditions are followed, the shop owner is immune from any liability, even if it turns out that the suspect is innocent.
The final defense to an intentional tort that we will discuss is the privilege of arrest. Here, the law is divided into four parts; arrests by police officers, arrests by private citizens, arrests for felonies and arrests for misdemeanors.
A police officer is allowed to make an arrest for a felony without a warrant so long as he reasonably suspects that a felony was committed and that it was committed by the person he is arresting. A private citizen is privileged to make an arrest for a felony without a warrant only if the felony has actually been committed and he reasonably suspects that it was committed by the person he has arrested.
Please note the difference between the police and private citizens. The police can arrest on the reasonable suspicion that a felony has been committed and there will be no liability if the police turn out to be wrong. A private citizen can arrest only if a felony actually has been committed and there is liability if the private citizen is wrong.
As far as arresting for misdemeanors, the general rule is that both police officers and private citizens can make arrests without warrants so long as three elements are present:
- The misdemeanor involves a breach of the peace. As we mentioned previously, an example of this would be a street fight.
- The arresting officer or citizen actually saw the misdemeanor being committed.
- The arrest is made in fresh pursuit.
Any arrest made with a warrant is privileged, even if the warrant was improperly issued and the person arrested was innocent of any wrongdoing.
As far as the amount of force that can be used, any force that is necessary – short of deadly force – may be used to make an arrest for a misdemeanor.
There are two prevailing opinions on this issue as far as felonies are concerned. The traditional view allows police officers and private citizens to use any kind of force – even deadly force – to make an arrest for any felony as long as the force is reasonably necessary to make the arrest. However, some jurisdictions now allow the use of deadly force only when making an arrest for a serious felony (murder, kidnapping, rape, etc.) but not when making an arrest for a non-violent felony.