Defense of Others

Terms:

Defense of Another:
The right of a person to protect a third party with reasonable force against another person who is threatening to inflict force upon the third party.

"Alter Ego" Rule:
The primarily obsolete rule that a person coming to the aid of a third party has no more right to defend the third party than the third party would, himself, have had to defend himself.

Typically a defendant may use defense of others as a defense in a situation where he used force under the reasonable belief that it was necessary to defend another person. However, there is some disagreement as to whether or not the defendant must have had a relationship with the person he was protecting in order to be able to invoke defense of another. Some jurisdictions require that the defendant have a special relationship, like a parent-child or husband-wife relationship, to the person he is protecting in order to be able to raise defense of another. However, most jurisdictions do not require that the defendant have a relationship with the person he is defending. Thus, in most jurisdictions, the defendant may use reasonable force in defense of any third person. See Foster v. Commonwealth, 412 S.E.2d 198 (Va. 1991).

There is also a difference of opinion as to whether or not a defendant can use force to protect a third person in a situation where a third person did not have the right to use force himself. For example:

Fred is walking down the street when he sees what appears to be Barney getting beaten up. What Fred does not realize is that Barney is acting out a fight scene for a movie he is starring in and, although the fight is real and Barney is getting hit, he has no right to use force to protect himself because he has consented to being hit. In these situations, the question arises as to whether or not Fred can avoid liability for using force to protect Barney since, in this situation, Barney did not have the right to use force himself.

The old rule, called the "alter ego" rule, held that a defendant who came to the aid of a third person stood in that person’s shoes. Therefore, a person who came to the aid of a third person did so at his own risk and, if the third person turned out not to be entitled to use force to protect himself, the defendant was not entitled to use force to protect that third person either. Therefore, in a trial for criminal assault, the defendant would not be allowed to use defense of another even if it reasonably appeared to the defendant that he did have the right to use force to protect the third person. In our example, according to the alter ego rule, since Barney was not entitled to use force to protect himself, Fred was not entitled to use force to protect Barney either and, if Fred had used force to protect Barney, Fred could not use defense of another as a defense in a criminal trial even though it reasonably seemed to Fred that Barney was in need of assistance. See People v. Young, 11 N.Y.2d 274 (1962).

Today, most jurisdictions along with the Model Penal Code, allow a defendant to use force in defense of others as long as it reasonably appears that the person has the right to use self defense himself. Therefore, in our above example, since it reasonably appears to Fred that Barney is being attacked and therefore has the right to use force to defend himself, Fred also has the right to use force to protect Barney. Even though Barney did not, in fact, have the right to use force to defend himself, Fred will be able to use defense of another as a defense if he is tried criminally for using force to protect Barney. See State v. Beeley, 653 A.2d 722 (R. I. 1995).

Please note that in situations where the defendant comes to the aid of a third person, the defendant is not allowed to use any more force than reasonably seems necessary under the circumstances. Therefore, if non deadly force is all that reasonably appears necessary, the defendant may not use deadly force. If, however, deadly force reasonably seems necessary (to prevent the use of deadly force against the third person), then the defendant may use deadly force as well.

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