DEFENSE OF A THIRD PERSON

Torts:Intentional Torts: Defenses:Defense of Self & Others

A defendant is entitled to use force or deadly force against another person in order to protect a third person from the other person. The defendant must show that he or she reasonably believed that the use of force was necessary to protect the third person.

In order to justify the use of force on behalf of a third person, a defendant must reasonably believe that the third person was being subjected to an actual or an apparent danger or threat by another person. The defendant's use of force must be immediately necessary for the protection of the third person. The third person must be near the other person. He or she cannot be removed from the other person.

In order to justify the use of force on behalf of a third person, a defendant must also show that his or her use of force was reasonable. Whether the use of force was reasonable depends upon the perspective of the defendant.

A defendant most often claims the defense of a third person when he or she is attempting to protect the third person from becoming a victim of a violent crime. The defendant is entitled to use deadly force against another person if he or she was justified in using non-deadly force against the other person, if a reasonable person would not have retreated, and if the deadly force was reasonably and immediately necessary to prevent the third person from becoming a victim of an aggravated kidnapping, a murder, a sexual assault, an aggravated sexual assault, a robbery, or an aggravated robbery. The issue regarding retreat concerns the third person's duty to retreat. It does not concern the defendant's duty to retreat. In other words, if the third person would not have retreated before using deadly force, the defendant is not required to retreat.

In some states, a defendant's use of force in order to protect a third person does not apply to criminal trespass cases involving abortion clinics. In those states, the defendant cannot claim that he or she is protecting an unborn fetus. The unborn fetus is not considered to be a person for purposes of the defense.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.