Aloha Everyone, Self-defense has been all in the news recently, especially with the Kyle Rittenhouse trial and the trial for the killers of Ahmaud Arbery. I figured this would be a good opportunity to discuss the different elements of self-defense and some other basic principles to think about, such as provocation and the use of a gun. As always, this isn’t meant to be legal advice, but just general legal information. Think of it as a cursory overview to get a basic understanding, but by no means is it exhaustive. Hopefully, some of these principles will allow all of us to discuss the use of self-defense in a more intelligent manner.
Self Defense Has a Three-Part Test
Self-defense has a three-part test. Part of the Hawaii Jury Instruction for Self Defense includes the language:
the use of force toward another person is justified if the defendant reasonably believes that force is immediately necessary to protect himself or herself on the present occasion against the use of unlawful force by the other person, the reasonableness of the defendant's belief that the use of protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant's position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be.
The three parts of the Self defense test are as follows:
- The subjective test.
- The objective test.
The subjective test is what a person believes at the moment. Are they fearful that they are going to be the target of unlawful physical force? Do they personally believe they need to use some sort of force to counteract the force that is coming at them? Did they think, ”I was scared someone was going to hurt me and I had to stop them from hurting me?”
The objective test, though, is if a reasonable person in the same shoes would feel the same way with the information as it was known to the person at the time. So it is not enough that the user of self-defense is scared, but would a reasonable person in the same situation feel the same way. This stops people from using self-defense unreasonably.
the last branch is the test of proportionality. You can only use a proportional amount of force in defense of yourself or in defense of others. You can only use the amount of force immediately necessary to stop the unlawful force, and if you use too much force in response, self-defense does not protect your actions. For example, if someone is going to push you very softly, you're not allowed to hit them as hard as you can. On the other hand, you would be allowed to hit with that force, if your punch is the amount of force necessary to stop the unlawful force coming at you.
Other Self- Defense Principles
In the video above, I discuss other principles you may want to check out. We talk about who has the burden of proof in a Hawaii self-defense claim. We take about how and when the use of a firearm affects a self-defense claim. And finally, we also discuss when “deadly force” comes into play, and the higher burden necessary when you claim the right of “deadly force, with some examples from the news. We also discuss when provocation comes into play.
Obviously, if you’re being accused of assault, assault with a deadly weapon, terroristic threatening, or some type of homicide/murder/manslaughter charge, you need immediate help from an attorney and much more than this general overview. Contact us immediately and let us discuss if there is something we can do to help you with your case, even before you are charged in possible.