Common-Law Backdrop

Common-Law Backdrop

Defense of others begins as a close cousin of self-defense and borrows its structure. The threatened harm must be imminent, the force must be necessary, the response must be proportionate, and the defender's belief in the need for force must be honest and reasonable.¹ The older common law added a premise that self-defense does not need: the rescuer's right is derivative of the protected person's right. A rescuer steps into the protected person's position and may use only the force that person could lawfully have used on his own behalf.² The reason follows from what a broader rule would allow. If a rescuer held a privilege independent of the protected person's, then arriving at a fight and announcing an intent to help would create a right to use force that no one in the fight possessed, and intervention would become a way to obtain force the protected person could never lawfully have used. In People v. Young the New York Court of Appeals reasoned along these lines, adopting the position of most jurisdictions that the right to defend another should ordinarily be no greater than the right to defend oneself.³

The street-corner scene from the introduction shows how the premise sorts cases. If the man who swung started the fight, the man he struck had every right to defend himself, and a passerby who shoves the swinger is borrowing a right that exists. If the swing was a defensive blow answering a drawn knife, the man the passerby would be protecting had no right to use force, so on the derivative view the passerby has none either, however much the scene looked like an assault when he rounded the corner. That result exposes the tension the rest of this chapter works through. A rescuer, like a person defending himself, decides in seconds and on appearances, so a rule that measures the rescuer against the facts as they later turn out penalizes a reasonable misreading.

From this starting point the older law departed from self-defense in two ways. The act-at-peril rule made the rescuer's justification depend on the protected person's actual right to use force, and the status-relationship limit confined the defense to rescuers connected to the protected person in particular ways. The next two subsections take each in turn. Most jurisdictions today have done away with both,⁴ and the Model Penal Code's belief-based drafting, developed in the next major section, is its answer to the problem of the mistaken rescuer that the derivative premise leaves behind.

Act-at-Peril Rule

The older majority approach to a rescuer who uses force for someone else is the act-at-peril rule: the rescuer is justified only if the person being protected could lawfully have used that same force on his own behalf.⁶ The rescuer therefore acts at his own peril. If the protected person turns out to have had no right to use force in self-defense, the rescuer has no defense, however sincere and sensible his reading of the scene was. Courts also call this the alter-ego rule or the shoe-stepping approach, since the rescuer steps into the shoes of the person aided and inherits that person's rights and limits.⁷ The rule is the derivative premise stated above applied to its hardest case, the rescuer who guessed wrong. It also allocates the cost of a mistake in a particular direction. A person who is actually in the right, such as someone lawfully defending himself or an officer making a lawful arrest, can be struck by a bystander who sincerely misread the situation, and the rule protects that person by refusing to treat the bystander's error as a license. It gives every would-be rescuer a reason to look before leaping, because the rescuer pays if the look was wrong.

In People v. Young the New York Court of Appeals confronted the rule in its sharpest form. The defendant aggressively joined a struggle between a stranger and a police officer in civilian dress who was making a lawful arrest, acting in good faith on the belief that the stranger was being unlawfully beaten, and the question was whether he could properly be convicted of third-degree assault.⁸ The Appellate Division majority had followed the minority rule that a mistaken but reasonable belief exonerates the intervenor. The Court of Appeals sided with the dissenters below, holding that one who goes to the aid of a third person does so at his own peril, because the right to defend another ordinarily should not be greater than that person's right to defend himself.⁹ On those facts the derivative premise did decisive work. A person being lawfully arrested has no right to resist, so the defendant, standing in that person's position, had no right to use force against the officer either. The case for the rule is strongest when the person struck is an officer, since it has been argued that excusing reasonable mistakes would hamper law enforcement when a plainclothes arrest looks to an onlooker like an assault.¹⁰

The dissent in Young challenged the outcome through the doctrine of mistake of fact, the idea that a person who acts on a reasonable misreading of the facts lacks the culpable state of mind the offense requires.¹¹ That objection is the strongest argument against the act-at-peril rule, because assault and homicide are crimes that require fault, and convicting a rescuer who reasonably believed the person aided was under unlawful attack imposes liability without fault.¹² The argument anticipates the belief-based drafting of the Model Penal Code, which the next major section takes up.

The competing approach lets the rescuer act on a reasonable perception of the scene. Its premise is parity: the person being protected could act on reasonable appearances even if he was wrong about being attacked, so a rescuer who sees the same appearances should have the same latitude.¹³ A tort-law illustration shows exactly where the two approaches part. Sir Galahad comes around a corner, sees Goliath swinging at David, and punches Goliath. If David was in fact an innocent victim, David held a real privilege to defend himself and Galahad shares it, so Galahad is justified under either approach.¹⁴ Change one fact: David had just reached into his pocket for a knife, and Goliath's swing was privileged self-defense. Galahad may reasonably read Goliath as the aggressor, but under the shoe-stepping approach he has no privilege, because David, the real aggressor, would have had none. Under the reasonable-perception approach Galahad may defend David so long as he reasonably believes David is about to be battered.¹⁵ Only the second version separates the rules. The fact that moves the answer is whether the person aided actually held a privilege, and that is the fact a rescuer arriving in an instant is least able to check.

Each rule carries a cost, which is why courts split. The strict rule protects the true self-defender and the arresting officer, but it deters well-meaning rescue, since a bystander who risks conviction for guessing wrong has reason to stay out. State v. Fair, a New Jersey decision, made that point by asking how bystanders could otherwise be encouraged to go to the aid of someone being assaulted.¹⁶ The looser rule encourages intervention and spares the blameless rescuer, but it can leave the person actually in the right without protection against a rescuer's mistaken blows. Courts accordingly remain divided on the effect of a mistake. Some hold that the intervenor assumes the risk and is privileged only if and to the extent the third person was, while other courts, together with Restatement (Second) of Torts § 76, hold that a reasonable mistake does not negate the privilege.¹⁷

In criminal law the act-at-peril rule is the older view, and most jurisdictions have abandoned it.¹⁸ In State v. Mayo the New Hampshire Supreme Court described the alter-ego rule as one under which a defendant who used deadly force to defend a person not entitled to use it was criminally liable, and it observed that many jurisdictions began rejecting that rule largely because of the position the Model Penal Code took in § 3.05.¹⁹ Most states now let a rescuer who acts on a reasonable belief claim the defense even though the person aided had no right of self-defense.²⁰ A minority of states still demand that the intervenor be factually accurate, so that even an honest and reasonable mistake fails.²¹ The Code's own text, in § 3.05(1)(b), asks whether the person to be protected would be justified in using force "under the circumstances as the actor believes them to be," which ties the rescuer's justification to the rescuer's view of the scene.²²

On an exam, a stem in which a bystander joins a struggle that turns out to involve a plainclothes officer or a genuine self-defender raises this issue. The analysis starts by identifying which rule the jurisdiction follows. Under act-at-peril, the inquiry ends once the person aided is found to have had no privilege; under reasonable perception, it continues to whether the rescuer's belief about the scene was reasonable. Candidates lose this issue when they ask only whether the rescuer's belief was reasonable without first determining whether the jurisdiction lets belief substitute for the protected person's actual right.

Status Relationship Limit

The second older limit on defense of others concerned who the rescuer was in relation to the person aided. Under the older common law approach, the defense was available only if the defendant stood in a particular status relationship with the person being protected, so the person aided had to be a close relative or, in some cases, the rescuer's servant or employee.²⁴ Early English cases suggested the requirement, and some American statutes still on the books purport to confine the defense to those who bear a designated tie to the defender, such as a spouse, child, parent, other relative, employer, or employee.²⁵ This limit is separate from the act-at-peril rule covered above. That rule asked whether the person aided actually held a right to use force, while the status limit asked whether the rescuer had a tie to that person, so a rescuer could satisfy one and fail the other.

The pair of scenes isolates the variable. The danger, the attacker, and the force are the same in both, and the outcome moves only because of a fact about the rescuer's connection to the victim, a fact that has nothing to do with whether anyone needed protecting. That mismatch is the case against the rule. The justification for protective force rests on the unlawful harm that is threatened and the need to stop it, and neither depends on kinship, since a stranger facing a deadly attack is exposed to exactly the harm a relative would face. A status requirement therefore withholds the defense from rescuers whose force is just as necessary, and it asks a bystander to establish a relationship in the middle of an emergency, in the few seconds that the street-corner scene gave the passerby. It also gives a stranger who would otherwise step in a reason to stay out, which runs against the policy of encouraging volunteers to help.²⁶

For that reason the limit has largely disappeared. The majority rule today is that no special relationship is required, so a person may use force in defense of any other person when the remaining requirements of the defense are met, and only a few jurisdictions still demand that the person aided be a member of the defendant's family or the defendant's employer or employee. The modern codes rather consistently take the same view, which means a friend, an acquaintance, or a stranger may be protected.²⁷ Tort law has followed the same path. Courts once generally allowed the privilege only when the person in jeopardy belonged to the defendant's family, and that is no longer necessary.²⁸ The modern tort view is that one is privileged to come to the defense of any third person.²⁹

The Model Penal Code sits with the modern view, and its text shows it. Section 3.05(1) makes force justifiable "to protect a third person," and the words say nothing about kinship, service, or employment.³⁰ Applied to the scene above, the passerby who steps in for a stranger is within the provision, and the one who steps in for a brother is within it on the same footing. The three conditions that follow in § 3.05(1) ask about justification and necessity, so whether the passerby can use force depends on what the passerby believes about the danger and the other conditions, not on who the victim is.³¹ The older status requirement belongs to the history of the doctrine, and the reader should not treat it as part of the Code.

On an exam, two errors cluster here. The first is to search for a relationship between rescuer and victim in a jurisdiction that follows § 3.05 or the majority rule, and to conclude that a stranger rescue fails for want of one. The second is to assume that kinship, where it exists, supplies the justification, when a relative who cannot satisfy the Code's conditions is in the same position as a stranger who cannot. The one exception is a stem that quotes a statute limiting the defense to family members or employees, in which case the statute governs as written.