Right to defense

[Jonathan Buhacoff]

The proposed right:

No government shall prosecute a person for acts in defense of people or property against harm or the threat of imminent harm.

Intent:

The right to defense protects a person from being prosecuted for defending themselves, or others, or their property, or others’ property. If someone was injured or property was damaged during an altercation, it is the attacker who should be liable for damages, not the defender. This assumes the status of attacker and defender can be determined by a judge or jury. In cases where both parties were belligerent, the right to defense does not apply and both would be considered attackers and be liable for damages, regardless of who threatened or committed an act of violence first.

The right to defense also protects people from liability when they are trying to save others from harm. This assumes the status of a good faith act of defense can be determined by a judge or jury. The defender does not require the consent of the person or people being defended. The defender does not require the consent of the owner or owners of the property being defended.

The right to defense also protects licensed doctors from liability if a person suffers complications or death as a result of, or coincident with, a medical procedure to save a person’s life, which includes a life-saving procedure initiated during complications from another medical procedure which itself was optional, such as a cosmetic surgery.

It is important to note that a judge or jury may determine that some acts were not necessary for the defense and therefore are not protected by the right to defense. Defenders are liable for harming or killing people and damaging or destroying property when such acts were not necessary for the defense and were a direct consequence of the defender’s actions rather than the attacker’s actions.

Discussion:

A person has a right to defend themselves and others against violence or threat of imminent violence. A person does not need to wait until the attack is happening — if potential attackers make threats or act aggressively or appear to be preparing for an attack, the right to defend allows a pre-emptive attack to improve the chances of survival.

The right to defense means that if a person attacks or threatens violence against another person, and is subsequently injured in when the other person defends themselves or is defended by a third party, neither the attacker nor any person with interest in the attacker has any claim against the target of the violence or any defender for damages. A thief or robber cannot file suit against a homeowner or storekeeper for being injured during a theft or robbery. A bully or a bully’s parent cannot file suit against a victim or victim’s parents when the victim hits back.

This has some implications for how to behave around others:

When approaching another person’s house, land, or vehicle, be proactive in signaling your peaceful intent. Sneaking into property or a vehicle, or surrounding another person or their possible escape routes, are reasonably considered preludes to acts of violence.

Wherever possible, keep a distance from other people. In situations where people are crowded, people have to accept that they have less personal space and that people can be naturally closer to them without it being an act of aggression.

Travel in groups to be able to defend each other and bear witness to any attack that happens.

Martial arts schools require students to behave in accordance with rules that ensure respectful and safe conduct. Students must comply with these rules to create an environment where training is possible. However, students never waive their right to defense — if they perceive that they are being attacked in a way that is not part of legitimate training and with the intent to harm them, they may defend themselves without the constraints of any rules. It is important for instructors in such schools to ensure that all students understand the safety rules and obtain consent before engaging in practice with another student.

Verbally abusing someone, especially with threats of violence, may result in that person or another person striking first in defense. The right to defense, combined with the right to peaceful and honest speech (actually with the lack of a right to violent and dishonest speech), means bullies who verbally abuse someone and threaten them cannot claim self defense for themselves when they get into an altercation with the victim or someone defending the victim. The victim, or the victim’s defender, may strike first in pre-emptive defense. Since the bully’s behavior demonstrates the bully desired violence anyway, it does not matter who strikes first and if the victim or victim’s defender perceives their chances for survival are better with a pre-emptive strike, the right to self defense means the bully or any other party with interest in the bully such as parents or significant other cannot file suit against the victim or victim’s defenders.

The right to defense also applies if a person is illegally attacked or threatened by law enforcement officers. For example, if a corrupt police officer threatens someone with the intent to take a bribe or “protection” money or favors, the victim may defend themselves. For example, if a police officer is maliciously hitting or otherwise hurting a person who has already been arrested, that person or others nearby may defend.

A lawful arrest is not considered violence and a person claiming the right to defense against a lawful arrest would be expected to both lose in court and be charged with resisting arrest. A person running away from police officers attempting a lawful arrest should remember that police officers have a lawful official duty of law enforcement and some use of force and violence is authorized such as to push or pull someone who is running away, and also officers have their own personal right of defense so if the person who is being legitimately arrested fights against that arrest they cannot claim the right of defense in that action.

• This topic was modified 9 months, 4 weeks ago by Jonathan Buhacoff.

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