Stand your ground

[Toxn]

Today's lesson drawn directly from studies: The principles of self defence (known as private defence) in South African law

 

Private defence may be raised where the following requirements are met:

 

The attack:

- Must be unlawful

- Must be against interests that ought to be protected

- Must be threatening but not yet completed

 

The defensive action:

- must only be directed against the attacker

- must be necessary

- must be in reasonable relationship to the attack

- must be taken while the defender is aware that he/she is acting private defence.

 

Detail

 

Regarding the unlawful nature of the attack, it is obviously not possible to raise private defence where the attack is lawful (ie: attacking a policeman trying to lawfully arrest you). It is further not possible to raise private defence in cases where you are defending against an attack which was, itself, in defence of an attack you unlawfully carried out (Jansen). One can act in private defence even where the attacker lacks criminal capacity by virtue of minority, isanity, lack of intent and so on.

Animals cannot, of course, act unlawfully, and so defense against an animal attack falls outside of the scope of private defence.

 

Regarding the interests protected, the attack need not be directed at the defending party. Accordingly, a person may intervene to defend another against attack to protect their interests even where there is no other connection between them (Patel). Further, the interests themselves need not be limited to life or bodily integrity. Indeed, our law has recognised valid cases of private defence in service of protecting property (Ex parte die Minister van Justicie: in re S v Van Wyk), dignity (Van Vuuren) and preventing unlawful arrest (Mfuseni). The case of Van Wyk is very interesting in this regard, because it involved a bunch of issues which tested the abovementioned requirements in interesting ways - it will crop up again. Van Vuuren is also interesting, because it involved a case where a man successfully argued against a charge of assault based on the fact that the other party had insulted his wife.

 

Turning to the threatening nature of the attack, it should be pretty obvious that one cannot attack someone pre-emptively because they expect to be attacked in the future. However, this does not mean that you need to wait until the first blow has landed - Patel (supra) established that one may attack first in service of defending against an impending blow. In the case of Van Wyk (supra) the defendant (a shopkeeper) had set up an automatic mechanism designed to wound a would-be thief. This was held not to invalidate the requirment of immenant attack, as the device was only triggered when the 'attack' occured (IE: when the thief broke in). In another case; Mogohlwane; the defendant had his possessions stolen at axe-point, ran home, fetched a weapon, and killed his attacker when he was again threatened. This was held to form one continuous act of resistance and therefore also complied with the requirement.

 

Turning to the requirments for defensive action, it is pretty obvious that one cannot claim private defence in cases where your acts are directed at somoeone other than your attacker. Equally; the requirment of necessity simply states that the defensive action must have been the only remaining option at the time (Attwood). Here our law is perhaps too strict, as present precedent requires that a person has a duty to flee unless no other option presents itself. Here Snyman (Snyman; Criminal Law 5th Edition; pg 107-109) has the following to say (emphasis mine): 

 

"...our courts recognise the principle that if it is dangerous for X to flee in the sense that she would expose herself... she need not flee, but may act pro-actively and put her attacker out of action... It is the attacker, who unlawfully and intentionally launches the attack, who carries the risk of injury and death, and not the attacked party."

 

"...the law does not expect X to flee from her own house if she is attacked there. Her house or place of residence is her last refuge - her castle - where she may protect herself against an unlawful attack."

 

"It is submitted that there is not duty on the attacked party to flee. To recognise a duty to flee is to deny the very essence of the present defence. Private defence deals with the defence of the legal order, that is, the upholding of justice. Fleeing is no defence; it is the capitulation to injustice. Why must justice yeild to injustice?"

 

Turning to the requirment for a reasonable relationship between the attack and defensive act; this may be interpreted as suggesting that no more force be used than is needed to ward off the attack (Trainor). This is obvious if you contemplate the idea of, say, warding off the office sandwich thief by placing a mine under your lunchbox. However, there is equally also no requirment that the defender 'play fair' by limiting himself/herself to whatever the attacker is using. Equally, there is no requirement that the damage sustained by both sides must be equal. Finally, there need not be any particular relationship between the nature of the interest threatened and the nature of the interest impaired in the course of defence. Here the case of Steyn provides some useful guidelines on the definition of 'reasonable' for this requirement.

 

Finally, the defender must be aware that they are acting in private defence. This is sort of non-intuitive, but makes sense if one considers an example where one person kills another for their own reasons, and thus inadvertently prevents them from attacking a third party.

 

I hope that the above is interesting and useful in comparison to your own self defence/private defence law. Feel free to comment about any aspects which are similar or differ, and about the concept of self defence in general.

[Donward]

Thanks Toxn. That's interesting to read how SA does things. Roughly speaking, we have various interpretations based on how laws have been implemented in legislatures and adjudicated in the court system in each of the 50 States. Federalism, yo! So a citizen or a police officer involved in a shooting faces different legal requirements depending on where they live or work. 

 

Most states have adopted a "castle doctrine" or eliminated legislation that a citizen needs to attempt to retreat if attacked. I'm not going to try to break down what is what because that requires a legal background and I'm not a lawyer. Not even on TV.

 

The thumbnail sketch, however, is that even in the most left-wing, Blue states, it is quite a popular idea that citizens are allowed to protect themselves with a firearm if they are attacked and politicians have reacted to this sentiment by implementing more liberal gun laws (I'm using liberal in the traditional sense here).

[Toxn]

Is the any equivalent to the requirement for proportionality?

[CrashbotUS]

Here is the Texas version. We have no duty to retreat and can, if need be, use deadly force in the defense of another person. That being stated in the law and being a concealed carry permit holder, I have a lawyer on retainer. 

http://www.statutes.legis.state.tx.us/SOTWDocs/PE/htm/PE.9.htm

[Sturgeon]

Regarding the interests protected, the attack need not be directed at the defending party. Accordingly, a person may intervene to defend another against attack to protect their interests even where there is no other connection between them (Patel). Further, the interests themselves need not be limited to life or bodily integrity. Indeed, our law has recognised valid cases of private defence in service of protecting property (Ex parte die Minister van Justicie: in re S v Van Wyk), dignity (Van Vuuren) and preventing unlawful arrest (Mfuseni). The case of Van Wyk is very interesting in this regard, because it involved a bunch of issues which tested the abovementioned requirements in interesting ways - it will crop up again. Van Vuuren is also interesting, because it involved a case where a man successfully argued against a charge of assault based on the fact that the other party had insulted his wife.

 

Turning to the threatening nature of the attack, it should be pretty obvious that one cannot attack someone pre-emptively because they expect to be attacked in the future. However, this does not mean that you need to wait until the first blow has landed - Patel (supra) established that one may attack first in service of defending against an impending blow. In the case of Van Wyk (supra) the defendant (a shopkeeper) had set up an automatic mechanism designed to wound a would-be thief. This was held not to invalidate the requirment of immenant attack, as the device was only triggered when the 'attack' occured (IE: when the thief broke in). In another case; Mogohlwane; the defendant had his possessions stolen at axe-point, ran home, fetched a weapon, and killed his attacker when he was again threatened. This was held to form one continuous act of resistance and therefore also complied with the requirement.

 

Dude, your self-defense laws are off the fucking wall.

[Toxn]

Van Wyk is rightly famous/infamous, but the principle that one can, under certain circumstances, kill to protect your property is pretty well established.

I argue that the defence team in Van Vuuren has also not been heard from since because people keep trying to steal their silver tongues.

[Donward]

More than the laws themselves, a great deal of how a self defense case in the United States is prosecuted stems entirely from the mores of your local district attorney/prosecutor's office. Whether a person is in the right or wrong stems less from the actual merit of the case and more on whether the DA feels they can obtain a conviction. Politics and public opinion has also brought pressure on whether a legal case is brought into the court systems.

 

Even if a law is written one way, you also have prosecutors/DAs who'll interpret a law in ways that the original legislation wasn't intended. The example I'm giving isn't a self defense case, but a group of white Confederate sympathizers outside of Atlanta Georgia who allegedly drove by a birthday party attended by blacks while yelling epithets, waving flags and brandishing firearms is being prosecuted under Georgia's "Street Gang and Terrorism Prevention" act. I'm not sympathizing with these guys nor am I saying that they shouldn't be charged with something. But having the local DA indict these guys for "Street Gang" activity or "Terrorism" seems a bit of a stretch legally.

 

I don't want to get bogged down on the Confederate battle flag and that particular case. But I hope it is an analogy that serves as an example of how the law can be interpreted in ways not originally foreseen.

 

We also have a grand jury process over here which - if you've been paying attention to the news - is also determiner of whether a case warrants prosecution.

[Toxn]

We tried the jury system for a while, then dropped it completely.

The general consensus seems to be that the idea is retarded, as I have yet to hear anyone here agitating for a return. Which is astounding given the sheer number of things people agitate for over here.