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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Monday, March 1, 2010

8 - Criminal Law - Death Crimes – Defenses (Self-Defense)

8 - Criminal Law - Death Crimes – Defenses (Self-Defense)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

There are two elements for self-defense. First, the Defendant was threatened (or reasonably believes he is threatened) with imminent, deadly attack by the victim and second, the Defendant reasonably believes that deadly force is reasonably necessary to prevent the imminent deadly attack.

Some commentators state it this way:

Reasonable Belief: Defendant must reasonably believe he is about to be attacked with deadly force.

Reasonable Force: Defendant must reasonably believe that Defendant must use deadly force to avoid the attack.

Victim not Privileged: Victim’s attack must be unlawful. The defendant must not be the initial user of deadly force.

Retreat: Defendant has no duty to retreat – except under the minority rule and even then there is no duty to retreat if Defendant is in his "castle".

Note that the deadly force being threatened by the victim must be unlawful. One cannot claim self-defense against someone who is privileged to use deadly force. In addition, self-defense is not available to an initial aggressor who threatens deadly force, though one who is an initial aggressor, can acquire the right to use deadly force if the initial aggressor makes a good faith effective withdrawal. As one case put it, the initial aggressor must step back, put the gun down and say “I am not going to shoot you.” If this is the case, then Defendant’s killing is a justified homicide?

Students often ask whether or not a Defendant who claims self-defense must utilize a safe retreat? The answer, under the majority rule is that he does not have to retreat. A minority of jurisdictions follow the rule that says you must retreat if a safe retreat is available – unless you are in your home (castle). There is no duty to retreat in your home (castle). This rule is called the castle doctrine. Note that the castle doctrine only applies in a minority jurisdiction since in a majority jurisdiction, there is simply no duty to retreat.

There is also a mitigating factor that reduces murder to manslaughter. The concept of imperfect self-defense is that a good faith, but an unreasonable mistake of fact as to self-defense, can reduce murder to manslaughter.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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