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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.


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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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Thursday, March 4, 2010

9 - Criminal Law - Death Crimes – Defenses (Defense of Others)

9 - Murder – Defenses (Defense of Others)

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.
Last time in crimes, we talked about self-defense. Now we talk about defense of others.

The basic premise underlying the doctrine of defense of another (also called “defense of others”) is that a person is justified in using force to protect a third party from unlawful force by an aggressor, if the third party would be, himself or herself, so justified.

There are 4 elements:

1. Burden of Proof. Since this is an affirmative defense, the defendant has the burden to introduce sufficient evidence to shift the burden to the state to prove beyond a reasonable doubt that the defendant did not act in defense of another.

2. Amount of Force. Based upon what is called the “proportionality” rule, the defendant has the burden to show that the force that was used was reasonable.

3. Reasonable Belief that the Intervention was Lawful. This is both a subjective and an objective standard. The actor must actually believe the intervention is lawful AND that belief must be a reasonable one.

4. Level of Danger. One who intervenes can only use deadly force when the third party is in imminent danger of death or serious bodily injury.

What about the “law enforcement privileges?” The deal is that you can use deadly force to apprehend a criminal suspect or stop a crime from being committed under some circumstances.

What kinds of crimes or suspects? Persons who have committed dangerous felonies, or suspects who present a danger to human life.

What about police officers – when can they use deadly force to make an arrest? Police officers can use deadly force to make an arrest when a suspect threatens to use a weapon or the officer has probable cause to believe the suspect has caused or will cause serious physical harm. If a warning is feasible, the officer must give one before using deadly force.

What if the officer is mistaken? He is OK if he made a reasonable mistake as to the dangerousness of the felon.

What about mistakes of private citizens? Unlike police officers, private citizens are not entitled to make a reasonable mistake as to identity of the felon, or whether the felony has in fact been committed.

We’ll talk about insanity and related defenses when we return to crimes.

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

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