Copyright 1965, American Law Institute
RULES AND PRINCIPLES
Division One - Intentional Harms to Persons, Land, and Chattels
Chapter 4 - Defenses of Person, Land, and Chattels -- Recaption
Topic 1 - Self-defense and Defense of Third Persons
§ 63 SELF-DEFENSE BY FORCE NOT THREATENING DEATH OR SERIOUS BODILY HARM
(1) An actor is privileged to use reasonable force, not
intended or likely to cause death or serious bodily harm, to defend himself
against unprivileged harmful or offensive contact or other bodily harm
which he reasonably believes that another is about to inflict intentionally
(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
(a) by retreating or otherwise giving up a right or privilege, or
(b) by complying with a command with which the actor is under
no duty to comply or which the other is not privileged to enforce by the
COMMENTS & ILLUSTRATIONS: Comment:
a. This Section states only the conditions which create the privilege to use force against another for the purpose of protecting the actor from an offensive contact or bodily harm, whether trivial or serious, which the actor believes will result from conduct of the other, and which the actor believes is intended to cause an offensive contact or bodily harm or to put him in apprehension of such contact or harm. The privilege to use force against another for the purpose of protecting the actor from bodily harm threatened by the conduct of the other, which is and is recognized by the actor to be negligent or innocent, is stated in § 64.
Comment on Subsection (1):
b. Meaning of "serious bodily harm." The phrase "serious bodily harm" is used to describe a bodily harm the consequence of which is so grave or serious that it is regarded as differing in kind, and not merely in degree, from other bodily harm. A harm which creates a substantial risk of fatal consequences is a "serious bodily harm," as is a harm the infliction of which constitutes the crime of mayhem. The permanent or protracted loss of the function of any important member or organ is also a "serious bodily harm."
c. The important fact in determining whether the employment of a particular means of self-defense is privileged under the rule stated in this Section is the harm which the actor intends to inflict, or which a reasonable man in his position would realize that it is likely to cause, and not that which it actually causes. That a means neither intended nor likely to cause serious harm unexpectedly causes such consequences is immaterial.
d. In determining whether a particular means is "intended or likely to cause death or serious bodily harm," the amount of force applied, the means or weapons by which it is applied, the method of applying it, and the circumstances under which it is applied are factors to be considered. Whether a particular means threatens serious bodily harm or death does not depend entirely upon the nature of the weapon with which it is inflicted. A weapon which as ordinarily used threatens death or serious bodily harm, and which is therefore generally described as a "deadly" weapon, may be used so as to threaten only a lesser harm; on the other hand, a weapon which as ordinarily used threatens only a trifling harm may be so used as to threaten serious harm or death. Nor does the question depend solely upon the amount of force exerted. The other's physical condition may be known to the actor to be such that he should realize that a slight blow which would do only a trivial harm to a normal person may well be fatal to the other. So too, the surrounding circumstances may be such that the actor should realize that the use of a force which would normally do little harm is likely to result in serious harm or death. Thus, although knocking another down is usually unlikely to cause serious bodily harm, it is obviously likely to do so if the other is known to be suffering from advanced heart disease or is standing on the running board of a rapidly driven automobile.
e. Purpose of actor. The intentional infliction of bodily harm upon another is privileged under the rule stated in this Section only if it is inflicted for the purpose of preventing the other from inflicting a harmful or offensive contact upon the actor or for the purpose of preventing the continuance of harmful or offensive contacts which the other has already inflicted upon the actor, and which the other threatens to continue to inflict. In the one case, it is inflicted for the purpose of preventing the actor from being harmed or insulted. In the other, it is inflicted for the purpose of preventing the additional harm or insult which is involved in the continuance of the contact. The use of a means of self-defense intended or likely to cause death or serious bodily harm is not privileged for the purpose of preventing the infliction of a lesser harm upon the actor. If the actor adopts such a means to protect himself against the lesser bodily harm, he is subject to liability although the harm which he actually inflicts is one which he would have been privileged to inflict by a less dangerous means.
In order that this privilege may exist it is not necessary that the actor's sole motive be his desire to protect himself. If the actor's infliction of bodily harm upon the other is for the purpose of defending himself from bodily harm actually or apparently threatened by the other's conduct, it is privileged although the actor's decision to defend himself is influenced, no matter how greatly, by personal dislike or hostility to the other. Thus, the actor is privileged to use force to protect himself against an offensive contact threatened by a particular person whom he dislikes, although he would tolerate such a contact without resistance if threatened by a friend. On the other hand, the actor is not privileged if he uses the other's attempt to inflict a harmful or offensive contact as a mere excuse for applying force to the other's person. Whether the one or the other situation exists may present a difficult question of fact.
1. A attempts to play a rough practical joke upon B. B is privileged to defend himself against A's attempt, although he has tolerated similar jokes played on him by others and objects to A's conduct because of personal dislike of A.
f. Ignorance of actor of his danger. The infliction of bodily harm is not privileged although in fact its infliction is necessary to prevent the other from inflicting bodily harm upon the actor, if he is ignorant of the other's intent to inflict bodily harm upon him and, therefore, does not act for the purpose of preventing its infliction.
2. A points what appears to be a cane at B and addresses a gross insult to him. B to avenge the insult knocks A down. B is not privileged to do so, although the supposed cane is a disguised shotgun and A was attempting to shoot B and would have done so, had B not knocked him down.
g. Retaliation. The privilege stated in this Section extends only to acts which are done for the purpose of protecting the actor from a presently threatened aggression. Therefore, it does not extend to acts done as a punishment or in retaliation for a past aggression or attempt at aggression or as a warning against the repetition thereof. If the actor believes that the other's attempt to inflict bodily harm or an offensive contact upon him has been frustrated or abandoned, he is not privileged to inflict any bodily harm or offensive contact upon the other. But the fact that the other has committed or attempted to commit an aggression upon the actor is a circumstance to be considered in determining whether the other's subsequent conduct gives the actor reason to believe that he intends to renew his aggression.
3. A strikes B with a whip. B by reasonable force disarms A. B is not privileged thereafter to inflict a similar beating upon A.
4. A, a small boy, throws a snowball at B, hitting B in the eye and causing him severe pain. B is not privileged to inflict a beating upon A either as a punishment or as a warning against similar misconduct in the future.
h. The privilege stated in this Section exists if the actor reasonably believes that the other intends to inflict a harmful or offensive contact upon him, even though the other has in fact no such intention.
5. A, as a joke, and intending not to strike but only to frighten B, draws back his hand as if to strike B, while within striking distance of B. B, reasonably believing that A is about to strike him, seizes A's arm and in so doing accidentally scratches his hand severely. B is not liable to A.
6. A puts his hand into his hip pocket to take out a handkerchief. B, who is abnormally timid and has conceived an unreasonable belief that A is his mortal enemy, unreasonably believes that A is about to pull out a revolver and shoot him. B is not privileged to knock A down.
7. A, a notorious desperado, has threatened to shoot B on sight. B sees A approaching him with his hand in his hip pocket. A does not see B and is putting his hand in his pocket to draw out a handkerchief. B mistakenly but reasonably believes that A is about to shoot him. B is privileged to knock A down.
8. A, who is known to be a desperate character and to be in the habit of shooting through his pocket, has threatened to shoot B on sight. B comes into a room where A is standing with his hand in his pocket. B, mistakenly but reasonably believing that A has seen him and is about to shoot him, knocks A down. B is not liable to A.
i. Reasonableness of actor's belief. In determining whether the actor's apprehension of the intentional infliction of bodily harm or an offensive contact is reasonable, the circumstances which are known, or should be known, to the actor must be such as would lead a reasonable man to entertain such an apprehension. In this connection, the qualities which primarily characterize a "reasonable man" are ordinary firmness and courage. The other's conduct may put the actor in a reasonable apprehension of bodily harm or an offensive contact, although it is not the sole cause of such apprehension. The acts or statements of third persons may give to the other's conduct so threatening an appearance as to make it capable of causing such an apprehension, though standing by itself, the conduct would not be capable of so doing.
The privilege stated in this Section is conditioned upon the actor's reasonable belief that the other's conduct is both intended and likely to inflict an offensive contact or bodily harm upon him. But it is not necessary that the contact or harm which he apprehends shall be the same as that intended by the other. The actor may know, or reasonably believe in the existence of facts which are unknown to the other, which lead him reasonably to apprehend consequences from the other's threatened conduct not realized by the other. Thus, the actor may be privileged to use force to prevent the other from continuing a course of conduct which is obviously intended only to inflict an offensive contact, but which the actor reasonably believes, because of circumstances unknown to the other, to be likely to go beyond the other's intention and to cause serious bodily harm to the actor.
j. Reasonableness of means employed in self-defense. The contact or other bodily harm which the actor is privileged to inflict in self-defense must be reasonable; that is, it must not be disproportionate in extent to the harm from which the actor is seeking to protect himself. A degree of force may be privileged to ward off a blow which threatens substantial harm, where the same degree of force would not be privileged merely to prevent touching in an insulting manner.
Since the means used must be proportionate to the danger threatened, it is obvious that one is not privileged to protect one's self even from a blow which is likely to cause some fairly substantial injury by means which are intended or likely to cause death or serious bodily harm. (See § 65.) The reasonable character of the means which the actor uses is determined by what a reasonable man, under the circumstances which the actor knows or has reason to know to exist at the time, would regard as permissible in view of the danger threatening him. In determining this, account must be taken of the fact that the other's conduct has put the actor in a position in which he must make a rapid decision. The test is what a reasonable man in such an emergency would believe permissible and not that which, after the event and when the emergency is past, a reasonable man would so recognize as having been sufficient.
k. Necessity of self-defensive action. The privilege stated in this Section exists only if the actor reasonably believes that the apprehended offensive contact or bodily harm can be safely prevented only by the immediate infliction of such offensive contact or bodily harm upon the other, or by the means stated in Subsection (2).
Except as stated in Subsection (2), the actor is privileged to use force in his own defense only as a last resort. He is not privileged to use such force so long as there is a reasonable likelihood that the other will abandon his aggressive purpose or that the actor will have a later opportunity to protect himself. Therefore, he is privileged to defend himself only when the other actually or apparently threatens an immediate attack upon him, unless the other's conduct puts the actor in reasonable apprehension of an attack in the near future and the circumstances are such that it reasonably appears to the actor that the other's purpose is fixed and that there will be no later opportunity of preventing the attack. Save in this situation, there is no privilege to disarm another who threatens a future attack upon the actor or otherwise to disable him from carrying his purpose into effect, since there is always the chance that the other may abandon his purpose, and if he does not, that the actor will have an opportunity of repelling the attack when it becomes imminent.
9. A threatens to knock B down and raises his hand to strike him. B is privileged to knock A down to prevent A from carrying out his threat.
10. A draws his sword from his scabbard and says, "If it were not an assize time, I would run you through, but God help you when the court rises." B immediately grapples with A and takes his sword from him, wounding him, but not severely. B is subject to liability to A.
11. A and B and a number of B's friends are in a room at night. A quarrels with B and produces a pistol apparently loaded and says: "I won't attack you here, but I shall wait outside for you and shoot you as you come out." As A is leaving the room, B and his friends overpower A and take his revolver from him. B and his friends are not liable to A.
l. Actor's duty to avoid force. The actor cannot reasonably believe that the use of force is necessary until he has exhausted all other reasonably safe means of preventing the other from inflicting bodily harm upon him. Thus, if the actor knows that the other's intention to attack him is inspired by a mistake as to the actor's identity or by a misinterpretation of his conduct, the actor is not privileged to await the other's attack and use force to defend himself against it if he has time to correct the mistake and so prevent the attack, and the other's attack is not so imminent as to leave the actor in reasonable doubt as to his ability to defend himself against it if the other does not accept his correction. So too, the actor must warn the other of his purpose to defend himself if he has reason to believe that such a warning will be sufficient to deter the other from continuing his attack, and the actor has no reason to doubt that he will have sufficient time effectively to defend himself if the other does not heed his warning.
12. A knows that B mistakenly believes that A is about to draw a revolver and shoot B. B reaches for his coat in which there is a revolver. If A has an opportunity to correct B's mistake before B can put him in imminent peril, A is not privileged to permit B to remain in error and to knock B down if B points the revolver at A.
13. A in the dusk mistakes B for C. A approaches B with his cane raised as if to strike and says: "Now, C, I have my chance to punish you." B has ample time to disclose his idntity before A can get within striking distance. He does not do so but awaits A's attack and knocks him down. B is subject to liability to A.
Comment on Subsection (2):
m. Actor's duty to retreat. The actor, if he reasonably believes that he is threatened with the intentional imposition of bodily harm, or even of an offensive contact, may stand his ground and repel the attack by the use of reasonable force, which does not threaten serious harm or death, even though he might with absolute certainty of safety avoid the threatened bodily harm or offensive contact by retreating. If one so threatened is privileged to use force in self-defense, although the necessity of so doing can be avoided by relinquishing his privilege to choose his own location, it follows that reasonable force may be used to repel a threatened attack, although the necessity of so doing can be avoided by relinquishing the exercise of any other right or privilege. It also follows that there is a privilege to use force to repel such an attack although the threat to make it is conditioned upon noncompliance with a demand with which the actor is under no legal duty to comply, or which the other is not privileged to enforce by the means which he threatens to employ for that purpose.
On the other hand, if the threatened attack is conditioned upon the actor's non-compliance with the demand made upon him, the actor is not privileged to use force to protect himself against the attack so threatened, if the demand is one with which the actor knows or should know that he is under a legal duty to comply, and the force which the other threatens to apply to him is no greater than the other is privileged to apply for the purpose of securing compliance with his demand.
14. A is standing on a public highway. B, who is some distance away, runs toward A, brandishing a cane and threatening to beat him. A may stand his ground, await B's attack and defend himself against it by knocking B down, although A knows that B is lame and that he can with perfect safety avoid the threatened beating by retreat.
15. A threatens to strike B if he does not give up the possession of a book which A in good faith claims as his own, but which is the property of B. B refuses to do so, and upon A's attempting to carry out his threat, knocks A down. B is not liable to A.
16. A, a salesman, gains admittance to B's office. B repeatedly tells
him to leave, but A refuses to do so. B approaches A and threatens to eject
him forcibly if he will not leave, and gives every indication that he will
carry out his threat. A stands his ground and, to prevent himself from
being forcibly ejected, hits B in the face and knocks out some of B's teeth.
A is subject to liability to B.
REPORTERS NOTES: This Section has been changed from the first Restatement by condensing Subsection (1) in accordance with the briefer style of later Sections. No change in substance is intended.
There are only a few tort cases which consider the privilege to use force against another for the purpose of protecting the actor from an attack which the actor erroneously, but reasonably, believes that the other is about to make upon him. With one exception, these cases recognize the existence of such a privilege. Leavitt's Case, (circa 1639), cited in Cook's Case, Cro. Car. 538; Courvoisier v. Raymond, 23 Colo. 113, 47 P. 284 (1896); Paxton v. Boyer, 67 Ill. 132, 16 Am. Rep. 615 (1873); Crabtree v. Dawson, 119 Ky. 148, 83 S.W. 557, 67 L.R.A. 565, 115 Am. St. Rep. 243 (1904); Keep v. Quallman, 68 Wis. 451, 32 N.W. 233 (1887); Pearson v. Taylor, 116 So. 2d 833 (La. App. 1959); Laffin v. Apalucci, 130 Conn. 153, 32 A.2d 648 (1943). Cf. Hughes v. State, 212 Ind. 577, 10 N.E.2d 629 (1937), effect of a threat. Contra, Chapman v. Hargrove, 204 S.W. 379 (Tex. Civ. App. 1918).
These tort cases adopt the view which is universally applied when a similar problem arises in the criminal law. It might be argued that since the purpose of a tort action is not to punish a guilty defendant, but merely to adjust a loss which his conduct has caused to another, the actor should bear the burden of his mistake, no matter how reasonable. Under the influence of the criminal law, however, the interest in self-preservation, "the first law of nature," has been given an importance which justifies the privilege to act under a mistake. Compare the rule as to the defense of a third person stated in § 76, and Comment c to that Section.
Illustration 2 is based on Trogdon v. State, 133 Ind. 1, 32 N.E. 725 (1892).
Illustration 3 is taken from Germolus v. Sausser, 83 Minn. 141, 85 N.W. 946 (1901). Cf. Monize v. Begaso, 190 Mass. 87, 76 N.E. 460 (1906); Hetrick v. Crouch, 141 Mich. 649, 105 N.W. 131 (1905); Custer v. Kroeger, 209 Mo. App. 450, 240 S.W. 241 (1922); McCombs v. Hegarty, 205 Misc. 937, 130 N.Y.S.2d 547 (1954), kicking man when he is down.
Illustration 6 is based on State v. Bryson, 60 N.C. (2 Winst. L.) 86 (1864); Higgins v. Minaghan, 78 Wis. 602, 47 N.W. 941, 11 L.R.A. 138, 23 Am. St. Rep. 428 (1891); Fixico v. State, 39 Okla. Cr. 95, 263 P. 171 (1928).
Illustration 7 is based on Keep v. Quallman, 68 Wis. 451, 32 N.W. 233 (1887). See also Godwin v. Collins, 67 Fla. 197, 64 So. 752 (1914); Landry v. Hill, 94 So. 2d 308 (La. App. 1957).
Illustration 8 is based on Hulse v. Tollman, 49 Ill. App. 490 (1893).
Illustration 10 is based on Tuberville v. Savage, 1 Mod. Rep. 3, 86 Eng. Rep. 684 (1669).
Illustration 11 is based on People v. Lombard, 17 Cal. 316 (1861), overruled, People v. Stewart, 28 Cal. 395 (1865), and State v. Schroeder, 103 Kan. 770, 176 P. 659 (1918).
Illustration 14 is based on State v. Gough, 187 Iowa 363, 174 N.W. 279 (1919); State v. Evenson, 122 Iowa 88, 97 N.W. 979, 64 L.R.A. 77 (1904); People v. Katz, 263 App. Div. 883, 32 N.Y.S.2d 157 (1942); State v. Sherman, 16 R.I. 631, 18 A. 1040 (1889); State v. Abbott, 36 N.J. 63, 174 A.2d 881 (1961); Beyer v. Birmingham R. L. & P. Co., 186 Ala. 56, 64 So. 609 (1914).
See, in general as to self-defense, Perkins, Self-Defense Re-examined, 1 U.C.L.A. L. Rev. 133 (1954).