Self-Defense: Defense of Others

Fight with Cudgels (1820-1823), oil on canvas, Francisco de Goya, Public domain, via Wikimedia Commons (faithful reproduction of two-dimensional public domain works of art are public domain; public domain in country of origin)

In early 2021, the Wyoming Supreme Court considered when you can use force to defend another from harm or threatened harm. This is commonly called “defense of another” or “defense of others.” Imagine your child or your spouse is being threatened or attacked by a strange man in the park. What force or actions can you legally take to defend that family member even when you yourself are not in harm’s way?

The Wyoming Supreme Court revisited this issue in Smith v. State, 2021 WY 28, 480 P.3d 532 (Wyo. 2021). The full decision is provided here:

The Court examined how, historically, “defense of others” was governed by the alter ego rule, or a rule that provided that you could use force to defend another person only if you reasonably believed the person defended was in immediate danger of bodily harm and that force was reasonable and necessary to prevent the threat. See Smith, ¶ 31.

The alter ego rule stated that a person coming to the aid of another “stepped into the shoes” of the person they were defending and could only use force if the defended person was legally permitted to do so herself. In short, the law “imputed” knowledge of any fault, wrongdoing, or initial aggression by the person to be defended to the defender so the defender could not raise a “defense of others” defense if the defended person could not legally use force to defend herself. That’s pretty clunky. So, here’s an example:

Sarah is walking down the street when she runs into her ex-boyfriend, Paul. The two had a toxic relationship and immediately start screaming at each other. Eventually, Sarah punches Paul in the face. Paul shoves Sarah in return.

Just as Paul shoves Sarah, John walks out of a corner store and sees the push. He runs to Sarah’s aid and punches Paul several times until he is knocked unconscious on the ground. John did not see nor does he know that Sarah punched Paul first.

In this example, John tried to do the right thing and defend Sarah against Paul. However, Sarah was in reality the initial aggressor. She could not use force to “defend herself” against Paul so John, when he steps into Sarah’s shoes under the alter ego rule, would also not have a right to defend Sarah against Paul using force. So, John would be in trouble.

The Wyoming Supreme Court, borrowing by a 1995 law review article by Marco F. Bendinelli and James T. Edsall, wrote, “Under the alter ego rule, ‘anyone venturing to render assistance in the defense of a third person [would do] so at his own peril.'” Smith, ¶ 33. Because this rule imputed criminal knowledge or criminal intent from the defended party to the otherwise innocent defending party when the American criminal justice system demands that the State prove the Defendant had a guilty intent (or mens rea), many scholars had previously criticized the alter ego rule and “nearly all jurisdictions” had abandoned the rule in favor of “standards that ‘allow exculpation based upon the intervenor’s reasonable belief that his defensive action was required.'” Smith, ¶ 33.

The Wyoming Supreme Court followed this line of reasoning and formally abandoned the alter ego rule once and for all in Smith. It wrote that, while it agreed with these policy reasons against the alter ego rule, it further determined and primarily concluded that the alter ego rule conflicted with the Wyoming Criminal Code’s abolition of non-codified, common law crimes. “None of our code’s crimes against persons purports to criminalize conduct based on imputed knowledge, but the alter ego rule is a common law rule that effectively does just that.” Smith, ¶ 34.

The Wyoming Supreme Court also concluded that the alter ego rule conflicts with Wyoming’s self-defense statute, Wyo. Stat. Ann. § 6-2-602(a). Because Wyoming’s self-defense statute looks to what a reasonable person in similar circumstances would determine is necessary to prevent injury or loss and whether the person using force possessed an honest belief that a danger existed, real or apparent, the alter ego rule’s imputation of knowledge ran entirely against the grain of black letter Wyoming law.

Still, the Wyoming Supreme Court was surgical in excising the alter ego rule. It specifically concluded that it was not “abandoning . . . common law guidance on defense of another.” Smith, ¶ 36. Consequently, it reiterated that the big question is whether the defender reasonably believed the person in need of defense was in immediate danger and force was necessary to prevent the threat. If the party in need of defense was the initial aggressor, was a trespasser, or was otherwise ineligible to use force herself, the defender might not be able to assert a “defense of others” type of defense. It would all come down to what the defender knew or should have known that the person in need of defense was the initial aggressor, provoker, or otherwise at-fault party.

Given that the question of whether the defended party was an “initial aggressor” or not is so paramount in “defense of others” cases (as well as in self-defense cases), it is useful to revisit the general rules and definitions for “initial aggressor.” Here’s what the Wyoming Supreme Court explained in Smith:

In defining the term “initial aggressor,” we have said that some sort of physical aggression or a threat of imminent use of deadly force is required before a person will be considered an aggressor. Verbal provocation without more is generally insufficient.

Additionally, it is not always the case that the first person in a conflict to use physical force is necessarily the initial aggressor. As [another] court explained:

[A] person may respond with physical force to a reasonably perceived threat of physical force without becoming the initial aggressor and forfeiting the defense of self-defense. Otherwise, in order to avoid being labeled the aggressor, a person would have to stand by meekly and wait until an assailant struck the first blow before responding.

Smith v. State, 2021 WY 28, ¶ 52, 480 P.3d 532, 544 (Wyo. 2021)

Not every overt act or use of force will make a person the “initial aggressor.” The “initial aggressor” determination depends on the “character of the act” and the “intent of the actor.” As always, the justification or lack thereof in using force depends on what took place, why it took place, and the actual purpose of the use of force in the mind of the person who used force.

So, going back to the beginning. You are in the park with your child or spouse. Your child or spouse wanders off away from you. You see a strange man approach and raise an iron pipe or pull a knife out towards your loved one. What can you do? The answer depends not simply on what took place between the stranger and your loved one — information you may not have. The answer will depend on what you reasonably believe and what a reasonable person would do under the circumstances.

Ask yourself the following essential question:

  1. Do you have any reason to believe that the person you plan on defending “started it” or provoked the attack unnecessarily or with some wrongful intent? If yes, you cannot use any force. If no or you have no information about this, you may be able to use force.

If you have no reason to believe the person you plan on defending started the fight or you have no information one way or another, then ask yourself the following questions:

  1. Do you truly believe that your loved one will suffer injury or loss if you do nothing?
  2. Do you truly believe that using force will stop the threat and prevent any injury or loss/further injury or loss?
  3. Is the force you plan on using reasonable under the circumstances? That is, the force you plan on using fits the situation, matches and does not exceed the threat, and is calculated to resolve the problem without undue or unnecessary harm to anyone. (You are not planning on hurling a grenade near children playing at the park or causing completely unnecessary collateral damage, etc.)
  4. Would you stand by your actions entirely if questioned by law enforcement, a judge, or a jury? You have no reservations that your actions in defending this other person were fair, just, necessary, and aimed at protecting the other person, not causing pain or damage to the attacking stranger.

Your answers to the initial question above and, if you get to the next step, the series of questions that follow will determine if you can use legally defend another person. The inquiry is complex when you break it down like this. But your north star will always be: do what is reasonable.

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