Self-defense and The Other

Self-defense is a legal defense to certain criminal charges in Minnesota.  A defendant can plead self-defense when facing charges of: assault, murder, and disorderly conduct, among others.

It is not a bright-line sort of law.  If there were, the law would be easier to apply but justice and fairness would be sacrificed.  Instead, the law asks the finder-of-fact (the jury in the case of a jury trial) to look at the totality of circumstances to determine whether the accused person acted in self-defense.

A totality-of-the-circumstances test is more difficult to apply than a bright-line test, but can be more fair, more just.  But when a person judges another and their past choices under that test; that person must use their discretion.  And in doing they so will apply their own life experiences, biases, and point of view.

Who is The Other?

gran-torino-posterIn the popular Clint Eastwood film Gran Torino, character Walt Kowalski leads a lonely existence.   But he takes great pride in his lawn.  Gangbangers arrive to kidnap the young man next door, character Thao Vang Lor.  During a scuffle on his lawn, Walt appears with a rifle to defend the kid and his Hmong family.  He warns the gang members: “Get off my lawn!”

His use of racial slurs reveals his view of the kid he is defending and his family as The Other.

But by the end of the film, protagonist Walt Kowalski fully connects with young Thao.   Thao is then like a son to him.  And he feels part of Thao’s family and Hmong culture.  Thao is no longer The Other, nor is his family or the Hmong culture.  Walt identifies with them completely.  This is one of the story arcs of the film, the movement from The Other to One of Us.

What difference does it make?

Will we view another as The Other, or as One of Us?  When it comes to self-defense, that makes a big difference.

If another person is One of Us, then we are naturally empathetic.  We see each situation through their eyes, from their point-of-view.  But, if someone is The Other, they are not like us.  And we are naturally suspicious of their motives and behavior.

This may be part of our genetic nature as humans.  Throughout human existence, until relatively recently, humans lived in small groups of ten to fifty people.  Each group member needed to cooperate with other group members to survive.  But we viewed a person from outside the group suspiciously, as a threat; at least until some reason came to light to assure otherwise.

You start out as The Other

Imagine this scenario:  You have just left a bar downtown at closing time.  A few dozen people are standing around in the warm summer night.  They’re chatting in small groups, before leaving for their next stop.

Facing east, you notice three young men walking down the street towards the crowd that fills most of the sidewalk.  You’ve had self-defense training.  You’re situationally aware.

You see one pull back his arm, and make a fist.  He strikes a heavy blow into the side of a man’s head ten feet from you.  The man doesn’t see it coming.  And he drops to the ground.  Your jaw slackens in shock.  The man who was hit is on the ground, shaking it off, trying to comprehend what just happened.  The lone attacker squares off and goes after the man again, as he regains his feet.

The victim of the attack tries to defend himself, blocking and striking back with fists.   Then, you see other people in the crowd turning to look to see what the fuss is about.  They back away, to form a circle around the pair.  You overhear several people in different groups say: “why are those two guys fighting?” and “What the hell is wrong with them!”

Now, instead of being the bystander, imagine you are the target of the attack.  But 95% of the witnesses in the crowd did not see how it began or why.  They turned and noticed after that, to see “two guys fighting” – The Other.

Point-of-View matters

Minnesota’s general self-defense statute is Section 609.06.  It includes the language:

“reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist: (3) when used by any person in resisting or aiding another to resist an offense against the person… .”

Notice these two phrases in the self-defense statute:

  • “reasonable force” and
  • “circumstances exist or the actor reasonably believes them to exist.
Self-defense law: Point-of-view makes all the difference

Self-defense law: Point-of-view makes all the difference

Whenever we see the word “reasonable” in the law, we have a totality-of-circumstances test, not a bright-line test.

All real crimes require proof of the element of criminal intent of the actor (the accused person).

This requires the jury to evaluate the evidence from the point-of-view of the accused.  So, the jury should not consider the point-of-view of anyone else, even a victim.

The statute emphasizes this point.   It says that the fact-finder must consider the circumstances that the defendant reasonably believed to exist at the time. 

The law is curative – meaning that the law tries to fix a recognized bias endemic to our culture.  If that bias did not exist, we would not need legal language attempting to remedy it.

From this we can see some of the basic types of factors in the totality-of-circumstances for self-defense.  Was the force used:

  1. reasonable under either the circumstances that actually existed, or,
  2. under the circumstances that the actor (defendant) reasonably believed existed?
  3. proportionate to the circumstances, whether actual or reasonably believed to exist?

Cultural bias in the post hoc observer

When people in our culture see two people fighting they’ll generally view them both as The Other, with suspicion.  Similarly, people hearing about people fighting they will tend to presume that both must be guilty of something.  This – despite their personal experience that most “fights” involve an aggressor attacking an unwilling, eventual participant, forced to defend herself.

See our related articles:

Disparity of Force and Self-Defense

Self-defense: Dominance, Escalation and Deception

The Duty to Retreat – shifting the burden of proof

This cultural bias takes form in the current Duty to Retreat in Minnesota.  In certain cases, the prosecuting attorney can try to reverse the burden of proof.   The prosecutor forces the defendant to show some evidence that she met “the duty to retreat.”

The Duty to Retreat jury instruction gives the prosecutor a second bite at the apple.

After all, what juror would find the use of force reasonable, if the defendant could have retreated before the altercation?

The Minnesota duty to retreat manifests the cultural bias of viewing the abstract self-defender as “The Other,” with initial suspicion.

Implications for the future, and for the past

Self-defense training EBMAS

Self-defense training

We should think about how we will defend against a future attack, should it occur.  Ideally that will include self-defense training, whether it is one class or life-long learning and training practice.

Consider: “How can I help others perceive me as a good guy (one of us) rather than The Other?”

Our appearance can play a part in this, as can our words and conduct.

The Other as a core issue in a self-defense case

Are you a lawyer or a defendant in a criminal case where the defendant acted in self-defense?  If so, you recognize that one of the core issues will be “good guy vs. The Other.

Here, the self-defender’s appearance, words and conduct will matter.   But the point-of view adopted by the fact-finder (jury) will also be key.

The law asks the fact-finder to look at what was happening at the time, from the point-of-view of the defendant.  Hindsight is a trap.

Moving from The Other to one of us

So, the defense lawyer, judge and other jurors need to help the jurors overcome our initial bias against The Other.  The defense lawyer helps jurors get to know that the accused is a good guy, and acted reasonably.

Liberty-Lawyer.com logo sm wideThomas Gallagher is a Minneapolis criminal lawyer.  His practice includes cases where the accused person acted in self-defense.

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