What is self defense?December 28, 2021 9:17 am 1 Comment
What Is Self-Defense and How Does It Work?
Self-defense is the right to use a reasonable amount of counter-force to defend one’s self or a third party from a forceful attack. On the surface, this concept is simple enough, but when applied to real-life situations, it raises various concerns.
For example, what is a reasonable degree of force or violence when defending oneself? What happens after that? What if the intended victim initiated the attack? Is it necessary for victims to flee the violence if at all possible? What happens when victims have a reasonable fear of a threat, even if the danger isn’t real? What happens if the victim’s fear is subjectively sincere but objectively irrational?
As you can see, self-defense law is more nuanced than it appears. States have devised standards to define whether self-defense is permissible and how much force a victim can use to protect oneself in order to deal with the numerous situations when self-defense emerges. As previously stated, the specific requirements vary in each state, but the concerns are the same.
Self Defense Laws in New Hampshire & The Statute
The New Hampshire self-defense law is found at RSA 627:4. This law says that when a person is faced with what he “reasonably believes to be the imminent use of unlawful, non-deadly force” then he may use non-deadly force to defend himself or a third-party. However, it does not count as self-defense if the person claiming self-defense was the initial aggressor, provoked the violence, or was engaging in a voluntary fight.
When it comes to deadly force, as you can imagine, the rules are more strict. A person who uses deadly force can only claim self-defense in a few different situations. First, he can use deadly force when he “reasonably believes” that another person is “about to use unlawful, deadly force against the actor or a third person.” Second, he can use deadly force when another person is in the middle of committing burglary, kidnapping, or a forcible sex offense. Third, he can use deadly force to defend against any felony being committed in the person’s own home.
A person cannot use deadly force if they can reasonably avoid the use of it by retreating from the situation, surrendering property, or abstaining from some act. However, New Hampshire has adopted the “castle doctrine” to the extent that a person is not obligated to retreat from his home or some other place that he “has the right to be.”
A person’s genuine fear of imminent physical harm might sometimes be objectively irrational. The condition is described as “imperfect self-defense.” Self-defense that isn’t flawless does not absolve a person of the crime of using violence, although a jury may consider whether the person had a true intent to commit the crime. This may result in an acquittal depending on the charge and the necessary mental state (also known as the “mens rea”). Furthermore, even if found guilty, the judge may consider the defendant’s genuine fear in determing the setnence.
For example, in a coffee shop, a person is waiting for a friend. When the friend arrives, he approaches the other person with his hand out in greeting. However, the individual who had been waiting has a genuine worry that his friend is planning an attack on him, even though this fear is entirely unfounded. Therefore, the person hits his pal in the face to avert the perceived threat. While the person’s claim of self-defense will not exonerate him from criminal charges due to the irrationality of his perspective, it may lessen the severity of the charges or the eventual sentence.
It is not self-defense if the person claiming self-defense provoked the attack. For example, if a person instigates a violent dispute and then mistakenly kills the other party in self-defense, claiming self-defense will not work.
Was there a Reasonable Fear of Harm?
Even if the alleged aggressor did not intend to hurt the alleged victim, self-defense is sometimes justified. In these cases, what matters is whether a “reasonable person” in the identical situation would have sensed a direct threat of physical harm. Of course, the concept of a “reasonable person” is a legal construct that can be interpreted differently in practice. Still, it is the best tool the legal system has for determining whether a person’s belief of imminent danger warranted the use of defensive action.
Consider two strangers passing each other in a city park as an example. A bee is buzzing about one’s head, unbeknownst to him. When the other person notices this, he or she reaches out to swat the bee away in an attempt to be pleasant. When a stranger’s hand darts towards his face, the guy with the bee by his head fiercely hits the other person’s hand away.
While this would generally be considered an assault, a court could easily determine that the sudden movement of a stranger’s hand towards a person’s face would lead a reasonable person to believe that he was at imminent risk of physical injury, making the use of force a justifiable exercise of the right to self-defense. This is so even though the alleged assailant had no intention of harming anyone; in fact, he was attempting to assist!
Stand Your Ground vs. Duty to Retreat Laws
Some states follow “duty to retreat” laws while others follow “stand your ground” laws. As discussed above, New Hampshire does not require a duty to retreat from one’s home or another place he has a legal right to be.
As a practical matter, to legitimately claim self-defense, persons must first strive to avoid violence (i.e., retreat) before using force. Before before employing force to protect oneself, in most situations one must attempt to flee the possibly harmful circumstance.
If you are facing criminal charges or need help and have questions on self defense laws in New Hampshire, contact our experienced New Hampshire criminal defense attorneys.
This post was written by Cohen and Winters