SELF DEFENSE AND DEADLY FORCE IN THE DISTRICT OF COLUMBIA

Self-defense is a complete defense to assault-related crimes, including murder. This article will discuss when self-defense applies, and when the use of self-defense can include deadly force in the District of Columbia.

When can self-defense and/or deadly force be used?

A person has the right to use reasonable force to defend themselves if they believe they are in imminent danger of bodily harm and there are reasonable grounds for their belief. The focus is on whether the defendant/accused actually believed that they were in imminent danger of bodily harm at the time of the incident and under the circumstances as they appeared to the defendant/accused at that time. A person may use reasonable force, which is that force necessary to protect themselves at the time of the incident.

In some cases, it may be necessary for a person to use deadly force to defend themselves. Under DC law, “deadly force” is “force that is likely to cause death or serious bodily harm.”[1] If a person actually and reasonably believes that they are in imminent danger of death or serious bodily injury and the only way to save themselves is to use deadly force, then they are legally entitled to use deadly force. Use of a firearm is the most common type of deadly force, but deadly force does not necessarily require the use of a weapon. For example, if a person is kicked repeatedly in the head by a grown man, this could be deadly force.

“Serious bodily harm” and “serious bodily injury” are defined as “bodily injury that involves substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss of impairment of the function of a bodily member, organ, or mental faculty.”[2]

What if the Defendant’s belief of imminent harm was false?

Since the focus of self-defense is what the defendant reasonably believed based on how the situation appeared to the defendant at the time, a person has a right to use self-defense even if it later turns out that the perceived threat was false. For example, many BB guns appear like a regular handgun. If an intruder breaks into your home and points a BB gun at you that you believe is a real handgun, then you could use deadly force even though the “firearm” turned out to be a BB gun. However, once the threat has been dispelled, you may no longer use deadly force. Thus, if the intruder pointed a gun at you and then ran out of the house, you would not be entitled to self-defense if you shot him in the back as he was running away, regardless of whether you believed that the gun was real or not.

Is there a duty to retreat?

DC law uses the “middle ground” standard between the right to stand and kill and the duty to retreat. Though there is no absolute duty to retreat in DC, the jury may consider whether the defendant could have retreated to safety when assessing whether the defendant “was actually or apparently in imminent danger of [death or serious] bodily harm.”[3] The idea behind this standard is that the jury can consider whether the defendant could have avoided using deadly force by escaping or walking away at the moment that s/he used deadly force. DC has not squarely adopted the “Castile Doctrine”, which is when the law does not require a duty to retreat when a person is within their own home. DC courts have held, however, that the castle doctrine does not apply in the situation where one co-occupant uses deadly force against their roommate or another occupant of the same home.

Does it matter who was the initial aggressor?

The short answer is “yes”. A person cannot generally place themselves in harm’s way or provoke another person and then rely on self-defense to justify the use of force. However, if the initial aggressor withdraws from the fight/situation in good faith and makes their withdrawal clear to the other party, then they regain the right to use reasonable force to prevent imminent bodily harm.

Example 1:

Mark shoves Andy towards the door of a bar and shouts: “Let’s go! I’m ready to beat your ass in the parking lot.” Andy turns around and shoves Mark, who then punches Andy in the face. Mark cannot claim self-defense because he initiated the fight.

 Example 2:

Mark and Andy go out to the parking lot after Mark challenges Andy to a fight. Both men are actively engaged in a fight and Andy gains the upper hand and has Mark in a chokehold. Mark shouts out: “Ok – I’m out. Please no more.” If Andy does not release Mark, then Mark has the right to use whatever force necessary to prevent further harm to himself.

 Example 3:

Let’s take Example 2 a step further. Mark is armed with a handgun in his waistband. Andy has Mark in a chokehold and will not let go despite Mark’s desperate plea that he is choking and will not engage in further fighting. Mark is having difficulty breathing and starting to feel lightheaded. Mark, fearing that he will choke to death, may use deadly force to save himself.

Can I use force to protect another person?

A person has the same right to use reasonable force to prevent imminent harm to another person as long as s/he believes that the other person is in imminent danger of bodily harm and there are reasonable grounds for that belief. The amount of force used must be proportional to the harm. The same principles of self-defense and deadly force that apply to oneself may be applied to a third person.

The right to use self-defense can change from one minute to the next depending on the facts of each case. If you find yourself or someone that you know facing assault charges, then you should not delay in consulting with an experienced criminal defense attorney about your right to claim self-defense. Contact our office at 240-396-4373 to schedule a consultation today.

 
[1] 1 Criminal Jury Instructions for DC Instruction 9.501(B).

[2] Nixon v. United States, 730 A.2d 145, 149 (D.C. 1999).

[3] Gillis v. U.S., 400 A.2d 311, 313 (D.C. 1979).

About the Author

Morgan E. Leigh has 12 years of experience defending assault-related crimes and prosecuting protective orders against domestic violence aggressors. She has also represented a number of police officers in shooting investigations and excessive force cases. Her experience on both sides of the isle gives her a well-rounded perspective when assessing self-defense claims.