Learning Outcomes
After reading this article, you will be able to identify and apply the rules governing intentional tort defenses of self-defense, defense of others, and defense of property. You will understand the requirements for using force, the limits on deadly force, and the effect of mistake or provocation. You will be able to distinguish these defenses and recognize common exam pitfalls.
MBE Syllabus
For MBE, you are required to understand the circumstances in which a person may use force to protect themselves, others, or property. This includes:
- The elements and limits of self-defense.
- The rules for defense of others, including reasonable mistake.
- The requirements for defense of property and recapture of chattels.
- The use of deadly force in each context.
- The effect of provocation, retreat, and initial aggression.
- The privilege of arrest and shopkeeper’s privilege.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is required for a valid claim of self-defense?
- Actual necessity to use force
- Reasonable belief in imminent unlawful harm
- Use of deadly force to protect property
- Retaliation after the threat has ended
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A person uses reasonable force to protect a stranger from an attack, but is mistaken about who was the aggressor. Is the defense of others available?
- Yes, if the mistake was reasonable
- Yes, even if the mistake was unreasonable
- No, defense of others is never available for mistakes
- Only if the person being defended was a family member
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When may deadly force be used to defend property?
- Whenever a trespasser enters land
- Only if the property owner is also threatened with serious bodily harm
- To recapture chattels from an innocent third party
- To prevent a minor theft
Introduction
Intentional torts involving the protection of self and others are a core part of MBE Torts. These defenses allow a defendant to justify what would otherwise be a tortious act, such as battery or false imprisonment, if certain requirements are met. The MBE tests your ability to apply these defenses precisely, including their limits and the effect of mistake, provocation, or excessive force.
Self-Defense
A person is entitled to use reasonable force to protect themselves from imminent unlawful harm. The force used must be proportionate to the threat faced.
Key Term: Self-Defense
The privilege to use reasonable force to prevent imminent harm to oneself, available when the defendant reasonably believes such force is necessary.
Requirements
- The defendant must have a reasonable belief that force is necessary to prevent imminent harm.
- The threat must be of unlawful force.
- The amount of force used must be proportional to the threat.
Deadly Force
Deadly force may only be used if the defendant reasonably believes they are facing imminent death or serious bodily harm.
Key Term: Deadly Force
Force intended or likely to cause death or serious bodily injury.
Duty to Retreat
Most jurisdictions do not require retreat before using reasonable force, but some require retreat before using deadly force if it can be done safely, unless the defendant is in their own home.
Initial Aggressor
A person who starts a confrontation cannot claim self-defense unless the other party responds with deadly force or the aggressor withdraws and communicates withdrawal.
Provocation and Retaliation
Self-defense is not available for retaliation after the threat has ended or for provocation alone.
Defense of Others
A person may use reasonable force to protect another if they reasonably believe that the other person is facing imminent unlawful harm.
Key Term: Defense of Others
The privilege to use reasonable force to protect a third party from imminent unlawful harm, based on a reasonable belief that intervention is necessary.
Reasonable Mistake
If the intervener reasonably but mistakenly believes that intervention is necessary, the defense is still available.
Amount of Force
The intervener may use only as much force as the person being defended would be entitled to use.
Defense of Property
A person may use reasonable, non-deadly force to prevent or terminate an unlawful intrusion onto their property.
Key Term: Defense of Property
The privilege to use reasonable, non-deadly force to prevent or end an unlawful intrusion on land or chattels.
Deadly Force (Defense of Property)
Deadly force may never be used solely to protect property.
Request to Desist
A request to desist is usually required before using force, unless it would be dangerous or futile.
Recapture of Chattels
Reasonable force may be used to recapture chattels only if the dispossession was wrongful and the owner acts promptly ("hot pursuit").
Key Term: Recapture of Chattels
The privilege to use reasonable force to recover personal property wrongfully taken, if done promptly and from the wrongdoer.
Entry onto Land
Entry onto another’s land to recapture chattels is allowed only after a demand for return, and the owner is liable for any actual damage caused.
Privilege of Arrest
Private citizens and police may have a privilege to use reasonable force to arrest for certain crimes, subject to strict requirements.
Key Term: Privilege of Arrest
The privilege to use reasonable force to arrest for certain crimes, available to police and, in limited cases, private citizens.
Shopkeeper’s Privilege
A shopkeeper may detain a suspected shoplifter for a reasonable time and in a reasonable manner if they reasonably believe theft has occurred.
Key Term: Shopkeeper’s Privilege
The privilege of a merchant to detain a suspected shoplifter in a reasonable manner and for a reasonable time to investigate possible theft.
Worked Example 1.1
A homeowner is confronted by an intruder who threatens him with a knife. The homeowner grabs a nearby object and strikes the intruder, causing serious injury. The intruder sues for battery. Is the homeowner liable?
Answer:
No. The homeowner had a reasonable belief of imminent serious harm and used proportionate force. Deadly force was justified to prevent death or serious bodily injury.
Worked Example 1.2
A bystander sees two people fighting. Believing that one is being attacked, the bystander intervenes and uses reasonable force to protect the apparent victim. It turns out the apparent victim was actually the aggressor. Can the bystander claim defense of others?
Answer:
Yes, if the bystander’s mistake was reasonable. The defense of others is available when the intervener reasonably believes intervention is necessary, even if mistaken.
Worked Example 1.3
A landowner finds a trespasser picking fruit in his orchard. The landowner points a gun at the trespasser and threatens to shoot if the trespasser does not leave. The trespasser sues for assault. Is the defense of property available?
Answer:
No. Deadly force may not be used solely to protect property. The landowner could use reasonable, non-deadly force, but threatening deadly force is excessive unless the landowner reasonably believes he is threatened with serious bodily harm.
Exam Warning
The MBE often tests whether deadly force may be used to protect property alone. Remember: deadly force is never justified solely to protect property, even in cases of theft or trespass.
Revision Tip
Always distinguish between self-defense, defense of others, and defense of property. Focus on the amount of force permitted and the effect of mistake or provocation.
Key Point Checklist
This article has covered the following key knowledge points:
- Self-defense allows reasonable force to prevent imminent harm; deadly force only for threat of death or serious injury.
- No duty to retreat before using reasonable force, except sometimes before using deadly force.
- Initial aggressors cannot claim self-defense unless the other party escalates or the aggressor withdraws.
- Defense of others is available if the intervener reasonably believes intervention is necessary, even if mistaken.
- Defense of property allows only non-deadly force; deadly force is never justified solely to protect property.
- Recapture of chattels is allowed only with prompt action and reasonable force, and only against a wrongdoer.
- Privilege of arrest and shopkeeper’s privilege allow limited detention and use of force under strict conditions.
Key Terms and Concepts
- Self-Defense
- Deadly Force
- Defense of Others
- Defense of Property
- Recapture of Chattels
- Privilege of Arrest
- Shopkeeper’s Privilege
