Network members often ask what restrictions apply if they use force in defense of third parties. Generally, the scenario they suggest is seeing a fight out in public and, fearing death or serious injury to the victim, they may decide to intervene. Fortunately, we knew just whom to ask! This month, we asked our Affiliated Attorneys about their state’s laws bearing on defense of others.
Does your state have statutes or caselaw which distinguish the defense of another person from defense of oneself or close family?
Appropriately, the attorney who proposed the question gives the first answer.
Steven M. Harris
14260 W. Newberry Road - #320
Newberry, Florida 32669-2765
Under Florida law (Fla. Stat. § 776.012), justification for force threatened or used in self defense and defense of “another” are treated similarly. Both for non-deadly and deadly force. There is no limitation to just family members. That is contrasted with defense of another’s property which by statute is limited (for non-deadly force) to property of a “member of immediate family or household or of a person whose property he or she has a legal duty to protect.” Fla. Stat. § 776.031(1).
There are however some interesting considerations. First is whether there should ever be a duty to retreat imposed on a person threatening or using force in lawful defense of another. One appellate judge has observed that would gut the defense of justification in such cases. Fletcher v. State, 273 So.3d 1187 (Fla. 1st DCA 2019). Also, Florida’s statute on unlawful firearm display (Fla. Stat. § 790.10) contains language making it inapplicable to “necessary self defense.” There is no settled caselaw that includes defense of another. Finally, the Florida statute on unlawful discharge of a firearm (Fla. Stat. § 790.15) uses different language; it provides it does not apply to a person “defending life or property.” Hence, the exception does apply to defense of another, and to defense of animals, as well.
As is the case in almost all states now, defense of another under Florida law can be justifiable by the reasonable belief of the defender; the right of the person defended to lawfully threaten or use defensive force isn’t relevant. This is because the “alter ego” doctrine has not existed in Florida since 1890. See Grant v. State, 266 So.3d 203 (Fla. 4th DCA 2019), and Montanez v. State, 24 So.3d 799 (Fla. 2d DCA 2010).
Kelly & Chapman
P.O. Box 168, Portland, ME 04101
Defense of self or another from unlawful force is similar for each. The standard is “reasonable belief.” The “no deadly force if safe retreat” and provocation limits are similar. See 17-A MRSA 108.
Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003
Yes—Arizona has two different statutes, A.R.S. 13-405 (self defense) and A.R.S. 13-406 (defense of a third party), which cover these two different scenarios. They are really both the same, exact concept. “Are you reasonably in fear for the imminent loss of (your/another person’s) life?” If so, lethal force is justified. The incredibly important difference between the two scenarios is that when you are defending yourself, you are far less likely to be mistaken — you were involved since the beginning of the incident. You are also far less likely to be accused of “vigilante-ism” than if you were defending only yourself (lest we forget the recent plight of former Marine Daniel Penny in a New York subway car).
Imagine that you walk around a corner and see a man, in civilian clothes, very graphically (sounds of the blade punching through ribs, steaming arterial blood, etc.) stabbing a young woman kneeling at his feet who is clutching at his pants leg, screaming in agony. You draw, shout a demand to “drop the weapon,” and seeing the attack continue unabated, you fire at the man and stop the attack on the young lady. Both perish from their wounds. Later, following some investigation, it is determined that the man was actually an off-duty cop who had been attacked by a resentful former girlfriend, who had stabbed HIM, six times, with the same knife, before you arrived on scene. Also, just before you showed up, he was able to take the knife away from her (after being severely stabbed himself) and was trying to exit the scene for medical assistance when she made a grab for his ankle gun (thus her observed fuss with his pants leg). She was about to get it out of his holster when he was forced to defend himself from his own gun with the only weapon then immediately available to him—the knife, covered in his own blood, that he had just taken away from her. And THEN, you rounded the corner. So much for your provision of assistance to the “fair maiden.” Likely a “reasonable” error, and I would hope that such a reasonable error would be treated as such by our system of jurisprudence. But I wouldn’t bet the house on it.
I think the moral of the story is when you choose to intervene in the plight of another, ask yourself how well you would have understood the end of the movie The Sixth Sense if you missed the first hour of the movie.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
In Georgia, it is the exact same statute that covers defense of self and defense of others, so there is no differentiation. That said, I would caution Georgians to consider all the circumstances before getting involved in a third party altercation. Things are not always as they seem. A robbery at a convenience store is probably more cut and dried than a quarrel in a parking lot. For the latter, it may not be obvious who is the aggressor.
If you happen upon a confrontation that already has become physical, you could end up using force (deadly or otherwise) against someone who appeared to be gaining the upper hand (from your perspective) but who was merely defending herself against an attack.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.