The New Self Defense Act: Defensible or Dangerous?

Written by Carmen Moyer
Res Ipsa Loquitur
January/February 2007 issue (Volume 37, Number 1)

I know what you're thinking, punk. You're thinking, "Did he fire six shots or only five?" And to tell you the truth, I've forgotten myself in all this excitement. But being this is a .44 Magnum — the most powerful handgun in the world and will blow your head clean off — you've got to ask yourself a question: "Do I feel lucky?" Well, do ya, punk?!

-- Clint Eastwood in Dirty Harry

Overview

This October, our legislature enacted the Self Defense Act, which allows an individual, under certain conditions, to use deadly force against another individual, anywhere she has a legal right to be, with no duty to retreat. The new law deviates from the common law duty to retreat before using deadly force, unless a person is inside his home. The Act also provides significant protection against individuals using defensive force from both criminal and civil immunity when acting in accordance with the Self Defense Act.

Some people believe that the new laws will inspire vigilantism of the sort Dirty Harry wanna-be's could have only dreamed; others believe it to be a natural and necessary development of the common law of self-defense that comports with similar laws in other jurisdictions.

Background

The ability to defend oneself against physical attack is a fundamental right recognized by Article I, Section 6 of the Michigan Constitution.1 This right is not absolute, however, and the circumstances under which one may use force (and how much force) to protect oneself, others, or one's property, has been determined by case law.

The litmus test for determining when the use of deadly force is justified is whether a person "honestly and reasonably" believed he was in danger of imminent death or serious bodily harm.2 Nevertheless, deadly force is not permissible without a showing that the defendant had done "all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe."3 There are three major exceptions to this rule: 1) when one is suddenly, fiercely, and violently attacked;4 2) when one believes the attacker is about to use a deadly weapon;5 and 3) when a person is assaulted in her own dwelling.6 7 The latter exception has been referred to as the "castle doctrine." It is this doctrine, and our Supreme Court's treatment of it in People v Riddle,8 that inspired the creating and enactment of the Self Defense Act which became effective on October 1, 2006.

In Riddle, the defendant was convicted of second-degree murder in Wayne County but appealed on the ground that the jury was not given an instruction that a person has no duty to retreat from the threat of force while in his own dwelling. Since the shooting occurred in the backyard outside the defendant's house, and not in the dwelling itself, the trial court refused to give the jury that instruction. The Court of Appeals affirmed, holding that the defendant had a duty to retreat if safely possible before exercising deadly force unless he was inside his dwelling or an inhabited outbuilding within the curtilage.9 The Michigan Supreme Court affirmed the conviction (vacating the appellate decision in part), reaffirming the castle doctrine that a person need not retreat when in her dwelling. But the court unequivocally declined to extend the doctrine to outlying areas within the curtilage of the home. The court specifically limited the doctrine's application to the home and its attached appurtenances such as a garage, porch or deck.10 Our legislature overruled this limitation when it enacted the new Self Defense Act. It also all but eliminated the duty to retreat element of the common law of self defense.

The Self Defense Act

The Self-Defense Act codified the common law right of a person to defend himself with deadly force as outlined in Riddle. But the new Act went even further than Riddle by providing that a person is allowed to use deadly force, without the duty to retreat from any place she has the legal right to be if she honestly and reasonably believes that death, great bodily harm or sexual assault to herself or others, may be imminent.11 In addition, MCL 768.21c was enacted to expand the castle doctrine described in Riddle to include "a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter."12 This would include not only a porch or garage, but fenced-in grounds and buildings immediately surrounding a house or dwelling.

Rebuttable Presumption of Self-Defense

People acting in self-defense now have substantial immunity from both criminal and civil liability under the new laws. When using defensive force against someone, a person is now automatically presumed to have held a reasonable fear of imminent peril of death, great bodily harm or sexual assault, as long as both the following apply:

(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.

(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).13

This legal presumption must be overcome by the prosecutor, who is required to present evidence at each stage of the criminal proceedings, to rebut the presumption that the individual did not act within the constraints of the Self-Defense Act. Only if the prosecutor has presented enough evidence to rebut the presumption that defensive force was justified under the Act, will the individual using such force be subject to prosecution.

There are, however, exceptions to the presumption cited above. These include the following:

  • The person against whom force is used has a legal right to be present in the dwelling or vehicle (such as an owner, lessee or titleholder);
  • the person being removed is a child or grandchild or in lawful custody of the person against whom the defensive force was used;
  • the person against whom defensive force is used is a police officer engaged in performing official duties; or
  • the person using defensive force was engaged in an unlawful activity or using the dwelling or vehicle to further an unlawful activity.14

If none of these exceptions apply, then the person is essentially immune from criminal prosecution.

Similarly, an individual using force in self-defense or defense of another in compliance with the Self-Defense Act would not be civilly liable for damages caused to the person against whom the force was authorized or to anyone claiming damages arising out of the incident.15 Additionally, the court is required to award payment of actual attorney fees and costs to an individual sued for civil damages if that person is immune from civil liability under the Act.16 The rationale behind such a provision is that people who act in self-defense should not have to spend the time or money to go to court to justify their actions in protecting themselves or others.17

Conclusion

The new laws expand the protection of individuals acting in self-defense against civil or criminal liability. But opponents of the Self Defense Act are wondering if the legislature has gone too far. Are we teaching our children to "just shoot" and ask questions later? Does the broad language of MCL 780.951 (the presumption statute) give an individual permission to use deadly force against an individual who is stealing a tent or a bicycle? Our Supreme Court has given us some insight to at least the answer to one of these questions when it invited the legislature to clarify the rights and duties of those acting in self-defense:

We leave it to the Legislature to decide whether there are other places in which a defendant's failure to retreat cannot be considered as a factor in determining whether it was necessary for him to exercise deadly force in self-defense.18

Thus, even an overly broad challenge to this newly enacted statute is likely to pass constitutional muster with our Supreme Court. But then you've got to ask yourself a question: "Do I feel lucky?" Well, do ya punk?


1 Defense of self a part of declaration of the right to keep and bear arms.

2 People v Heflin, 434 Mich 482;456 NW2d 10 (1990).

3 Pond v. People, 8 Mich. 150, 176 (1860).

4 People v Doe, 1 Mich 451, 455-456 (1850); CJI2d7.16(2).

5 Id.

6 People v Lenkevich, 394 Mich 117 (1975)(wife attacked by her husband, who also lived in the home, not obligated to "retreat to the wall" before using deadly force); CJI2d7.17.

7 Please note that this is the "Reader's Digest" version of a very long history of case law and does not purport to cover all, or even most, aspects of the common law on this subject.

8 467 Mich 116, 469 NW2d 30 (2002).

9 People v Riddle, Unpublished opinion, October 13, 2000, WL 33405938.

10 People v Riddle, 467 Mich at 139-140.

11 MCL 780.972

12 Presumably this could include a tent.

13 MCL 780.951

14 MCL 780.951(2).

15 MCL 600.2922b.

16 MCL 600.2922c.

17 Enrolled Legislative Analysis, July 17, 2006.

18 People v. Riddle 467 Mich. 116, 135, fn26, 649 N.W.2d 30 (2002).