This in-depth report was provided exclusively to the New York Analysis of Policy and Government by the distinguished jurist, Judge John H. Wilson (ret.)
In recent days, we have witnessed a series of incidents where private individuals and uniformed police officers have been arrested and incarcerated for what would appear to be acts of self defense. But were these persons actions legal, or are they guilty of the crimes with which they are charged?
To begin our examination of this topic, the legal definition of self defense is “the use of reasonable force to protect oneself or members of the family from bodily harm from the attack of an aggressor, if the defender has reason to believe he/she/they is/are in danger…The force used in self-defense may be sufficient for protection from apparent harm (not just an empty verbal threat) or to halt any danger from attack, but cannot be an excuse to continue the attack or use excessive force…(r)easonable force can also be used to protect property from theft or destruction. Self-defense cannot include killing or great bodily harm to defend property, unless personal danger is also involved.”
This general definition limits self defense to oneself, or a member of one’s own family, however, many statutes are broader. New York’s Penal Code describes the defense of justification as “conduct…necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor” and authorizes “(a) person (to) use physical force upon another person in self-defense or defense of a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property.”
When a defendant asserts self-defense, the prosecution has the burden to disprove the defense. This is different from an “affirmative defense,” such as acting under duress, or entrapment. In those cases, the defendant has the burden of proving his defense.
As described by the “New York Criminal Attorney Blog,” “self-defense claims may not be available if the defendant is the initial aggressor or provokes the other person into attacking them with the intent of inflicting harm in retaliation. Even if a defendant is found to have met both of these elements, there is also the requirement that the force used be reasonable. Essentially, this is a proportionality requirement.”
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Under these facts, the actions of Officer Rolfe should fit squarely within the definition of a justified homicide. The language of Georgia’s law is similar to New York’s – “(a) person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.” Georgia law even authorizes “Sheriffs and peace officers…may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others…”
Yet, Officer Rolfe has been arrested and charged with murder by Atlanta District Attorney Paul Howard.
The Report concludes tomorrow
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