Degree of force is a key element of a self-defense claim

| Apr 16, 2021 | Criminal Law |

Self-defense is often necessary when someone is under attack. However, a judge may rule against a self-defense claim under certain circumstances, even if there clearly was a violent attack.

According to the Montana Code, people have the right to defend themselves and others from violence, but they must not go too far in their actions. How far is too far?

Degree of force

One of the elements of proof for the self-defense claim is the degree of force that both the aggressor and the defendant use, according to the University of Minnesota Libraries. If the defendant resorts to actions that reasonable people would agree are likely to cause serious or fatal injuries to the aggressor, then it should also be clear that the aggressor was threatening or seeking to cause that same level of injury.

It would also probably be defensible to use that level of force to prevent the aggressor from committing a forcible felony crime.

Examples of excessive force

If the aggressor does not have a weapon but threatens to go home and get one, the defendant probably could not reasonably attack him or her. It would probably be more appropriate to call law enforcement.

In most cases, a judge or jury may find it excessive for the defendant to use a deadly weapon to get an aggressor to stop hitting or punching with fists. In fact, if the aggressor punches the defendant and the defendant pulls a knife or other weapon, he or she becomes the aggressor and the other combatant may be able to justifiably employ a weapon in self-defense.

Examples of reasonable force

The court is likely to consider a self-defense claim if the defendant uses deadly force against an aggressor who is threatening harm with a deadly weapon. In the forcible felony scenario, for example, a person may use deadly force if an armed robber breaks into his or her home in the middle of the night and threatens violence.

Ultimately, the court examines the degree of force on a case-by-case basis. One key to a self-defense strategy is illustrating that the circumstances warranted the defendant’s response. Even if the court determines that the defendant used excessive force, it may still lower the charges based on the level of threat in the situation.