Use of Force in Self-Protection: Know Your Statutes

Disclaimer: I am not a lawyer, and none of the following should be construed to represent legal advice.

The use of force in defending oneself is arguably among the most important rights citizens possess. Without it, we would live in a society that exalts state-mediated public order to the detriment of the lives of our loved ones. Even though we have this right, martial arts “experts” and defense buffs are apt to neglect divulging to their students the many legal caveats and stipulations which may apply to the use of force.

When a self-defense instructor demonstrates the execution of devastating throw, for instance, which has been crafted to turn one’s assailant on his head to snap the neck, it is seldom the case that the instructor makes a point to his students that the legal ramifications of using such a throw may include prison time for homicide. Because our criminal justice system is perpetually engaged in perpetuating a balance of public order with individual rights, even criminal assailants (or their families) are granted charge options should you act in self-defense beyond legal justification.

In short, it is unwise to ‘shoot first and ask (legal) questions later’, or even to advance into a hand-to-hand altercation without knowledge of self-protection laws in your state. This isn’t the wild west. What you do could cost you your freedom. For this reason it is extremely important that any self-protection training you participate in include a legal component. Get to know your statutes.

Laws will vary from state to state, so do not extrapolate what is legal in your territory to others that you visit.

Nebraska

In Nebraska self-protection statutes are presented in Chapter 28, Sections 1406-1416  of the state code. These sections are:

28-1406: Terms, defined. This section provides the definitions of the words used within the following sections to provide for more precise interpretation of the law.

28-1407: Justification; choice of evils. This section gives a terse run-down of when use of force may be justified in court.

28-1408: Public duty; execution. This section also provides indicators of when use of force conduct may be justified.

28-1409: Use of force in self-protection. This section is particularly important for the self-defense oriented individual as it details various justifications for the use of force. For example, “the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” But note there are, of course, stipulations. For instance, you will not be justified in using force to “resist and arrest” even if it is an unlawful arrest. Also, you may not be justified in using force against someone who is attempting to remove you from his/her property. For example, if you are on another individual’s property who begins using force to expel you from the premises, you probably;y should not retaliate. Other caveats include: “deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat…”, but even in these instances, if you had the ability to retreat from your assailant and fail to do so, the use of deadly force may count against you. The statute reads justification is sullied if, “The actor”, (the person using force in self-defense), “knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take…” There is more to this section, so it is good sense to read it in its entirety.

28-1410: Use of force for the protection of other persons. This section basically says you may be justified in using force to protect others if you can provide the same reasonable basis for the use of force as you would if you were the one being assailed.

28-1411: Use of force for the protection of property. This section is loaded with important information, such as justifications in using force against thieves, arsonists, and trespassers. This is a must read. Here is one example of the sections content.  “The use of force is justifiable under this section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor believes that: (a) Such request would be useless; (b) It would be dangerous to himself or another person to make the request; or (c) Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.”

28-1412: Use of force by person with special responsibility for care, discipline, or safety of others.

28-1413: Mistake of Law, reckless or negligent use of force.

Bottom Line

If you studiously integrate the use of force statutes of your state into your self-protection method, you may gain the following advantages:

  1. Less hesitation to use force against someone in the wrong, as you will be somewhat informed on what is or is not justified.
  2. Better discretion pertaining to what altercations you should or shouldn’t engage in. For example, Nebraska statutes hold that use of force will not be justified against an aggressor if you were the one who originally provoked the aggression (i.e. giving the middle finger to someone, verbal assaults, etc.)..

Once again, we do not live in the wild west so before you decide to throw down with someone, question who is in the right and never treat defensive techniques as toys to be used liberally.

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s