Ask Foghorn Asks Marina Medvin: Self Defense and the Defense of Others?

KYgunner writes:

I’ve done a lot of research into self defense situations and making sure that, God forbid, if I ever end up in a situation where SHTF, I have my legal bases covered and know that deadly force was justified (both for me and the court system). What I haven’t been able to find a clear answer to is whether or not deadly force can legally be used to protect someone else (outside of your own family) and what the criteria would have to be met in order for you not to land in jail for protecting someone and using force when you aren’t the main target of the attack. Any insight???

That’s a tricky question . . .

So tricky that I reached out to Marina Medvin, an attorney (and fellow Penn State grad) here in Virginia, for an answer. And while her reply applies mainly to Virginia the same general rules seem to apply to a number of other states. As with all situations where guns and the law collide you should contact a local lawyer for the best information and nothing on this site should EVER be considered legal advice, but Mariana does have some good information about the requirements for self defense and the defense of others here in my adoptive state.

The following is Marina Medvin’s reply to KYgunner’s question:

Life is the most basic right of them all. As such, all states have a law giving you the privilege to exercise reasonable force to protect your life. In many instances, the police and prosecutors will not charge someone defending his life in that way – but the facts and evidence have to be clearly lined up in favor of using any force against the assailant. This of course gets a bit complicated once a hero citizen gets charged with malicious wounding or murder when the evidence isn’t as clear.

In Virginia and many other states, self-defense is all about proportions. Your actions must be proportional to the assailants. The Virginia Court of Appeals has stated it as follows: “… the amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat.” Diffendal v. Commonwealth, 8 Va.App. 417, 421, 382 S.E.2d 24, 25 (1989). So you can’t shoot someone for punching you in the face and call it self-defense. Also, Virginia courts impose a duty on you to check out your other, less harmful, options before imposing force on the assailant – for example: what other things could you have done instead of shooting him? – but the details of that are a bit too in-depth for this discussion.

You must also be able to articulate to the court that the assailant acted in a manner as to threaten your safety or life – not just say that you feared him, you must describe his threatening conduct. Bare fear that a person intends to inflict serious bodily injury on you, however well-grounded, will not warrant killing such person if the fear is unaccompanied by any overt act indicating such intention. See Harper v. Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955). Compare: “I thought he would shoot me.” vs. “He was holding a gun in his right arm, pointing it at me, and I thought he was going to shoot me.”

Furthermore, a jury always has the ability to find your use of force to have been excessive or unreasonable. The jury may also find that you were “at fault” for the conflict with the alleged assailant and contributed to the conflict in such a way as to be responsible for it.

This is why self-defense is a sticky defense – it will be up to the jury to decide if you met all of the requirements if you invoke this defense. You won’t really know until after you are tried.

Finally we get to defending a third person who isn’t a family member. You first need to understand all of the ramifications above. In Virginia, whether the person you defended is a daughter or a stranger, that person had a right to life and you had the right to defend his or her life. (This doesn’t hold true for all states – many states only allow defense of a third person when that person is a family member.)

Legally, the right to defend another is “commensurate with self-defense” – you are put into the third person’s shoes and are judged from their perspective – did the person who you defended have a right to use force of that magnitude against the assailant? Additionally, the third person cannot have appeared to have been at fault for the conflict from your perspective in order for you to invoke this defense. “One may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray.” Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198 (1991).

A jury’s instruction would read something like this:
1) “If you believe that the defendant was without fault in provoking or bringing on the fight and if you further believe that the defendant reasonably inferred under the circumstances as they appeared to him that he was in danger of being killed or that he was in danger of great bodily harm, then the wounding was self-defense and you shall find the defendant not guilty.”
2) “If you believe that the defendant was injecting himself into a fight to assist [third person's name], who was in a fight with [assailant's name] because he reasonably believed that [third person's name] was in danger of great bodily harm, then the wounding was in defense of another.”

To sum this up, I will recall a classic quoted that I first learned from a NYC police officer when I was 9 years old: “I would rather be tried by 12 than carried by 6.”

Please visit http://medvinlaw.com for additional legal information on Virginia criminal laws.

– Marina Medvin, Esq. / Criminal Defense Attorney / MEDVINLAW / Alexandria, Fairfax, Arlington, Prince William / 1800 Diagonal Road, Suite 600, Alexandria VA 22314

If you have a topic you want to see covered in a future “Ask Foghorn” segment, email guntruth@me.com.

To browse previous Ask Foghorn segments visit http://www.thetruthaboutguns.com/category/askfoghorn/.

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About Nick Leghorn

Nick Leghorn is a gun nerd living and working in San Antonio, Texas. In his free time, he's a competition shooter (USPSA, 3-gun and NRA High Power), aspiring pilot, and enjoys mixing statistics and science with firearms. Now on sale: Getting Started with Firearms by yours truly!

36 Responses to Ask Foghorn Asks Marina Medvin: Self Defense and the Defense of Others?

  1. avatarTTACer says:

    Topical and sad question about this: “you are put into the third person’s shoes and are judged from their perspective.” Considering the disparity of size I would think that the child would be justified in shooting Sandusky, but the same could not be said of McQueary. How does that work with any child, including family members?

  2. avatarJoe nobody says:

    Great article, I live in a castle law state. Its called the make my day law here. Of course I dont think it would exactly make my day if I had to use a firearm in my defence. More like make the rest of my life possible.

  3. avatarEric S. says:

    This description seems to be exactly the same as Ohio’s self-defense and “necessary defense” (defense of a third-person) laws.

    • avatarLC Judas says:

      It basically is. When you get the Peace Officer training it is stated in pretty plain words by your instructor that you can only defend someone else who, if they had the ability, would have used the amount of force that you used (deadly force, quite likely) and that they did not have another recourse.

      Use of Force has to be

      Logical
      Reasonable (per situation proportionally)
      Necessary (you couldn’t avoid the situation or person

      Can only be used:

      In Self-Defense
      In Defense of another person (relationship in Ohio is not stipulated)

      Only is justified when the following criteria are met:

      Intent- Assailant made clear that he was going to commit serious bodily harm to you or the person you would defend.

      Opportunity- Assailant has a window of opportunity where he is close enough for his method of force to endanger your life. Essentially you can shoot someone across the street who has a gun pointed at you but not a knife unless he’s running at you. (not directly legal advice but pretty simple logic)

      Ability- Assailant possesses the physical and mental ability to harm you. If someone who can barely walk tries to hit you with a sword you probably shouldn’t shoot him.

      Jeopardy- Is sort of a sum up of the above criteria. Essentially saying that you would have been harmed had you performed any other action. That you could not have escaped to safety safely or done any other action to ensure your safety other than use force.

      The legal-ease that the laws of each state are written in are of course very different. I like to think that the Ohio guidelines are universal enough as they are pretty basic in their premise but if you really think you’re going to be in a DGU situation then read up on your state’s defense laws because nothing like misinformation to make your day bad when it comes time to defend yourself in court.

  4. avatarGS650G says:

    Defending others is a tricky affair, the images of scumbags preying on the weak holds a lot of power. If I had to face a jury for helping someone that resulted in planting a criminal but saved someone’s life, so be it. Prosecutors should think about trying someone when the defense is going to go with grateful victims of the deceased bad guys and the criminal records as well.

  5. avatarRabbi says:

    You have the same rights to protect others as you do yourself, but no obligation do to so. HOWEVER, there is more to consider than the legality of the situation. Lots of vital info in my article: Heroic Consequences. Its a MUST read.

    http://www.armedresponsetraining.com/magazine_articles.html

  6. avatarTim says:

    Marina Medvin is a vivacious trial attorney.

  7. avatarTexan says:

    Thanks Nick, for a great post, and for going the extra mile by getting Ms. Medvin’s input. Great comments, as well.

    One disturbing scenario is what would happen if one defended someone who is in a dysfunctional, abusive relationship during an abusive attack? Now that the assailant is killed, his/her “lover” is not all that appreciative of the defender – and in fact, is pretty pissed off.

    A third party (friend, coworker, boss, etc.) trying to “save,” reason with, talk to, etc, someone in an abusive relationship is pretty futile (from my observation – they keep going back), but probably not uncommon. I’m not aware of any cases where a third party friend (not a triangle lover) has killed an abuser. Not sure how that plays out in court with an unappreciative, hostile “savee.”

  8. avatarGS650G says:

    We are all aware of the rights criminals have, including apologists at all levels of government and media, which make a mockery of the legal system. A career criminal with a lengthy rap sheet accosts you and your required to follow every rule to a T which will be judged months later in court.

    • avatarRalph says:

      You’re correct, GSG50G, but you loaded the question. How about this scenario: a man with a record is shot by a man with no record, and the evidence is unclear what motivated the shooter. Or this: a man with a record accosts a man with no record who shoots the “bad” man but probably didn’t have to.

      The easy case is just that — easy — and never goes to trial because the facts are obvious.

      When the facts are not obvious, how else can the issue be decided? A trial by jury seems to be the most fair. In that case, the purpose of the trial isn’t to harm the shooter, it’s to figure out whether the shooter is one of us or one of them.

      Your argument seems to be that good guys don’t need to follow the rules of law. I think that following the rules is what separates us from the two-legged animals. And those “rights of criminals” you’re upset about will be exactly the rights that the defendant shooter will enjoy, whether he’s in the right or in the wrong.

      • avatarGS650G says:

        I was being far to general to make any sense. You’re right that law abiding people should not get a pass if they don’t abide by the law. I just get angry whenever I see the rights of vermin being so carefully considered when vermin could give a damn about anyone else but themselves.
        If I find myself on a jury and enough doubt exists I’m going to come down on the side of the person without the criminal record, and juries are able to do that still.

        • avatarParthenon says:

          If doubt exists you should be coming on the side of the accused.

        • avatarRalph says:

          As Parthenon noted, the law requires that if there’s reasonable doubt, the jury must acquit the accused.

          As far as a man’s criminal record is concerned, it’s likely to be inadmissible for exactly the reason you mentioned — a jury might tend to convict just because of the priors without criticlly examining the evidence in the present case.

  9. avatarKYgunner says:

    Thanks for answering my question. Hopefully I’ll never have to use the advice, but it’s good to hear an attorney’s take on the laws,

  10. I can see it now…

    You have 2.5 SECONDS to prevent a murder or great bodily harm.

    Ok… Now drag out the newsprint pad and markers, draw up the flowchart to evaluate all of the potential options, think about all the legal ramifications of each one, and come to a decision. I’m sure the criminal will be glad to wait – or come back later.

    No! When you are actually in fear of your life, or rationally expect another person to die or suffer great harm if you don’t intervene… that’s the time to shoot. And no OTHER time. That takes some real guts, training and the right tools.

    But being required to “prove” it is insane. The “courts” and system today don’t seem to take the old “innocent until proven guilty” thing very far anymore, and we all know that there are hot button biases in almost every place… so blindly trusting the jury to come to a rational decision seems naive at best.

    The burden of proof must be on those who accuse; to show, beyond a reasonable doubt, that the defender initiated the force, was plainly the aggressor. All of this futsing around with the multicolored “laws” and conditions with questionable or predictably bad outcomes actually makes it quite unlikely that someone will willingly endanger their own life and future to defend another person. That’s pathetic.

    The miracle is that some still do.

    • avatarfrankgon4 says:

      I use Visio for my Flow Charts.
      I agree, when did it change that the accused was guilty until proven innocent. I don’t know when it happened, but it sure feels as if it is that way now.

  11. avatarRyan Finn says:

    That’s why I’m glad I live in MT. State code makes it pretty easy to understand.

         49-1-103. Right to use force. Any necessary force may be used to protect from wrongful injury the person or property of one’s self, of a wife, husband, child, parent, or other relative or member of one’s family, or of a ward, servant, master, or guest.

         45-3-102. Use of force in defense of person. A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the conduct is necessary for self-defense or the defense of another against the other person’s imminent use of unlawful force. However, the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent imminent death or serious bodily harm to the person or another or to prevent the commission of a forcible felony.

    45-3-110. No duty to summon help or flee. Except as provided in 45-3-105, a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force. The provisions of this section apply to a person offering evidence of justifiable use of force under 45-3-102, 45-3-103, or 45-3-104.

  12. avatarSteve says:

    It’s much less muddy a picture her in Washington State:

    RCW 9A.16.050
    Homicide — By other person — When justifiable.

    Homicide is also justifiable when committed either:

    (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

    (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.

    • avatarRopingdown says:

      With different wording, the MT law you describe is similar in effect to that in Florida, PA, and many other states. That is, you may in many states use lethal force to stop the commission of a felony (typically an aggravated assault, rape, or kidnapping) of even an unrelated person. The difficulty, of course, is that you will be liable if you mistake the situation you are jumping into. There are few things an attorney can say about the use of lethal force in self-defense that apply in all states. Even when two states have a similar statute the case law interpreting that statute may be very different, as may be the jury instructions used in the two states. Nice to see the issue brought up and discussed, though, concluding with the true bottom line: If you really believe you or another person are about to be wrongfully seriously injured or killed, you need to either act to stop it, or be willing to accept on your conscience your failure to do so should you happen to live through the incident. I would add this, since many do not realize the danger: You will probably be correct in your perception if the threat is coming from an outsider and you know the other people involved. You are MUCH more likely to be wrong if you see a situation on the street or highway and you jump in. Be extremely cautious about situations you “happen upon” in neighborhoods or on streets which you do not normally travel.

      • avatarUtah Rob says:

        My (very-knowledgable) concealed carry instructor was emphatic about the importance of case law. That is, you may read your state laws and think you understand what they mean, but unless you understand how courts have interpreted those laws, you don’t know the whole story.

  13. avatarTom says:

    Self defense of yourself and others is a tricky legal entity as we have seen on many of the blogs on this website and others. I have a lawyer friend and I had a Business Law Class where we touched on these subjects.
    It seems as the best thing to do is not to shoot unless some innocent life is very much and fearfully threatened with lethal and deadly force by the Goblin. It probably should be a last resort type of action as well.
    I would advise not shooting people because they are stealing your Blue Ray Player which you bought at Walmart for seventy dollars.
    According to my Lawyer friend, LEOs shooting people unfounded can be a poor move for your career.

  14. As with everything else it varies from state to state.

    In AZ, for example, one may use deadly force to prevent any forcible felony. That includes a fairly long list of crimes, including rape, arson of an occupied structure, armed robbery…

  15. avatarParthenon says:

    “As such, all states have a law giving you the privilege to exercise reasonable force to protect your life.”

    So it’s a privilege now is it?

    • avatarRopingdown says:

      No, it is actually a right, though your conduct may have been privileged or granted immunity in regard to certain otherwise-mandatory legal proceedings by a provision in your Castle or Stand Your Ground statute. And you do not need to use “reasonable force” to defend your life. The need (in the states I’ve had to check) to use only reasonable force applies consequentially mainly to warding off aggressions or simple assaults short of life-threatening attacks. This is, for example, a key issue in FL law and the George Zimmerman matter. Was Martin’s violence that of simple assault or aggravated assault? If he’d upped it to aggravated assault (serious bodily injury or worse) then lethal force was sanctioned. If not, not, by the statutes and related FL cases. You can, of course, put it this way: “Lethal force is reasonable when the threat is death or grievous bodily harm.”

      • avatarfrankgon4 says:

        I will be following the Zimmerman case closely. So much mis-information was put out there in the beginning. Guilty until Innocent was implemented. Political Pressures versus Truth.

  16. avatarST says:

    Personally I’m of the mindset that legal advice on the topic of self defense is nigh useless unless its provided by a *local to you* attorney.

    Liberals live and vote among us all,even in so called “Red State” America.You may think state law in your gun rights friendly state protects you,but if your home and business are in a liberal district things can go to pot in a hurry.Think Denver in Colorado,or Austin in Texas for examples.One mans’s clear cut case of self defense can be anothers ‘opprortunity’ for a quick legal & political victory in court.

  17. avatarST says:

    Personally I’m of the mindset that legal advice on the topic of self defense is nigh useless unless its provided by a *local to you* attorney.

    Liberals live and vote among us all,even in so called “Red State” America.You may think state law in your gun rights friendly state protects you,but if your home and business are in a liberal district things can go to pot in a hurry.Think Denver in Colorado,or Austin in Texas.

  18. avatarChas says:

    I am not responsible for anyone’s safety but my own. However, I have an obligation to protect the ones I love from harm as well. As for anyone else, you have the choice to arm yourself or not. If you choose not to, then you are depending on someone else if the need arises. That’s stupid and irresponsible.

    But IF you benefit from someone else’s choice to carry, then it’s your lucky day.

    • avataruncommon_sense says:

      Chas,

      I lean in the same direction that you stated. Please consider young people who are not of legal age to have concealed carry licenses. They don’t really have a choice to carry and I would encourage all of us to consider helping out.

      As for adults who are old enough to have a concealed carry license and chose not to be armed, I am reluctant to stick my neck out for them. The down side to this way of thinking is that if we (armed citizens) do nothing, the criminal is able to strike again. And next time it could be me or one of my family members. What to do?

  19. avatarStacy says:

    Well, this attorney is local to me, so I appreciate the advice. In particular, I didn’t realize that the court would explicitly consider the issue of who started the fight, though that seems perfectly reasonable to me.

  20. avatarErik says:

    In Washington you may use force in defense of a stranger

    RCW 9A.16.050
    Homicide — By other person — When justifiable.

    Homicide is also justifiable when committed either:

    (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, OR OF ANY OTHER PERSON IN HIS OR HER PRESENCE OR COMPANY (emphasis added), when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

    (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.

  21. avatarRalph says:

    A recent decision from Florida holds that self-defense doesn’t apply in a drug shooting.

    http://www.actionnewsjax.com/content/topstories/story/Judge-Self-defense-doesnt-apply-in-drug-shooting/b5xmNIAXOkC4KcvmxS-mSg.cspx

    Keep in mind that each case has its own facts, and the next similar shooting could go the other way if the fact do not align.

  22. avatarbruce says:

    kind of irresponsible for “Tough Dad” to be shooting with that
    child in his arms with no eye/ ear protection (other than their
    hands over their ears)….just a thought

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