Self-Defense

In Massachusetts the law lets you defend yourself from an aggressor using reasonable force, based on the circumstances. In one case, Commonwealth v. Clemente, 452 Mass. 295, the court said that a defendant can highlight an aggressor’s history of violence or quarrelsome behavior as part of their defense.

On this page, you will find answers to the following legal questions about self-defense

Is a person in Massachusetts allowed to act in self-defense?

YES, under Commonwealth law a person in Massachusetts is allowed to act in self-defense. It is the burden of the Commonwealth to prove beyond a reasonable doubt that the defendant did NOT act in self-defense.

Note that the offense of an unlawful self-defense is different from the offenses of an unlawful defense of another or an unlawful defense of property.

What does the government need to show to prove a person did NOT act in self-defense?

To prove that the defendant did NOT act in self-defense with the use of non-deadly force, the Commonwealth must prove one of the following things beyond a reasonable doubt:

  1. That the defendant did NOT reasonably believe:
  • He or she was being attacked or immediately about to be attacked
  • His or her safety was in immediate danger

2. That the defendant did NOT do everything reasonable in the circumstances to avoid physical combat before resorting to force

3. That the defendant used more force to defend himself or herself than was reasonably necessary in the circumstances

What is deadly force?

Deadly force is force intended or likely to cause death or great bodily harm or applied using a dangerous weapon likely to cause death or serious injury. It is the level of force used, not to the degree of injury caused, if any, that determines whether it is deadly force.

To determine if a defendant used deadly force, the Commonwealth must prove ONE of the following three things beyond a reasonable doubt:

  1. That the defendant did NOT reasonably and actually believe that he or she was in immediate danger of great bodily harm or death

2. That the defendant did NOT do everything reasonable in the circumstances to avoid physical combat before resorting to force

3. That the defendant used more force to defend himself or herself than was reasonably necessary in the circumstances

What is reasonable apprehension?

A person cannot lawfully act in self-defense unless he or she is attacked or immediately about to be attacked.

The Commonwealth may prove that the defendant did not act in self-defense by proving beyond a reasonable doubt that there was no overt act—either words, a gesture, or some other action—that gave rise to a reasonable belief of attack or immediate danger(called “reasonable apprehension”).

Where use of deadly force is at issue, a reasonable belief of attack or immediate danger of great bodily harm or death would arise.

What is duty to retreat?

A person cannot lawfully act in self-defense unless he or she has exhausted all other reasonable alternatives before resorting to force.

A person may use physical force in self-defense only if he or she could not get out of the situation in some other way that was available and reasonable at the time. This concept is known as the “duty to retreat”.

The Commonwealth may prove the defendant did not act in self- defense by proving beyond a reasonable doubt that the defendant resorted to force without using avenues of escape that BOTH:

  1. Were reasonably available
  1. Which would NOT have exposed the defendant to further danger.

What are some examples of evidence of duty to retreat?

In court, ANY of the following evidence may be considered regarding “duty to retreat”:

  • Where the incident took place
  • Whether the defendant might have been able to escape by doing one or more of the following (ONE OR MORE):
    • Walking away
    • Otherwise getting to safety
    • Summoning help, if that could be done in time
    • Holding the attacker at bay, if the means were available
    • Some other method
  • The use of force reasonably seemed to be the only means of protection in the circumstances
  • A person who is attacked may have to decide what to do quickly and while under emotional strain

Can a person acting in self-defense use excessive force?

A person cannot lawfully act in self-defense if he or she uses more force than necessary in the circumstances to defend him or herself. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant used clearly excessive and unreasonable force.

How is it determined if excessive force was used in self-defense?

A judge or jury may consider ANY of the following in determining if a defendant used excessive force:

  • Whether the defendant had to decide how to respond quickly under pressure
  • Any evidence about the relative size or strength of the persons involved
  • Any evidence about where the incident took place
  • What kind of weapons, if any, were used

Is it lawful to use retaliatory force in self-defense?

A person cannot lawfully act in self-defense when he or she uses force in retaliation, because the right to self-defense arises from necessity and ends when the necessity ends.

The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that defendant:

  1. Was no longer in any immediate danger
  1. Was pursuing his or her attacker for revenge or to ward off any possibility of attack in the indefinite future

What is the castle rule?

The “castle rule” is the legal idea that a person lawfully occupying a house, apartment, or other dwelling is not required to retreat from or use other means to avoid combat with an unlawful intruder, if two circumstances exist:

  1. The occupant reasonably believes that the intruder is about to inflict great bodily injury or death on him or her or on another person lawfully in the dwelling
  1. The occupant uses only reasonable means to defend himself or herself or the other person lawfully in the dwelling.

What is a dwelling?

Under Commonwealth law, a “dwelling” is a place where a person lives. It is a place where one is temporarily or permanently residing and which is in one’s exclusive possession.

The term includes all buildings or parts of buildings used as dwellings, which can include:

  • Apartment houses
  • Tenement houses
  • Hotels
  • Boarding houses
  • Dormitories
  • Hospitals
  • Institutions
  • Sanatoriums
  • Any other buildings where people reside

Note that the term “dwelling” does not extend to common areas such as common hallways in an apartment building. In multi-unit housing, the “dwelling” only extends to areas over which the person has a right of exclusive control.

What does the government have to show to prove someone did not act in self-defense in a dwelling?

The Commonwealth may prove the defendant did not act in self-defense in a dwelling by proving both of the following:

  1. At least one of the following:
  • The premises were not a dwelling
  • The defendant was not a lawful occupant of the premises
  • The alleged victim was not an unlawful intruder
  • The defendant did not reasonably believe that the alleged victim was about to inflict great bodily injury or death on him or her or on another person lawfully in the dwelling
  • The defendant used clearly excessive force to defend himself or herself or the other person lawfully in the dwelling
  1. That the defendant resorted to force without using avenues of escape that were reasonably available and which would not have exposed the defendant to further danger

Note that if the alleged victim was an unlawful intruder, this brings up an additional legal issue called “trespass.”

Does an aggressor have a right to self-defense?

Generally, the original aggressor has no right of self-defense unless he or she withdraws from the conflict in good faith and announces his or her intention of abandoning the fight.

How does a victim’s prior threats or violence against the accused factor into a case?

In considering who is being attacked by whom, jurors or a judge may take into account either of the following:

  • Any threats of violence made by the alleged victim against the defendant.
  • Whether the alleged victim was trying to carry out such threats during the incident in question.

A judge or juror may additionally consider either of the following:

  • If the defendant was aware, at the time of the incident, that such threats had been made, in determining whether the defendant was reasonably afraid for his or her own safety
  • Specific, recent acts of violence that were committed by the alleged victim against the defendant and that were known to the defendant, on the issue of whether the defendant was reasonably afraid for his or her own safety

How does a victim’s reputation for violence factor into a case?

A judge or jurors may consider whether the alleged victim had a reputation for violence or quarreling that was known to the defendant on the issue of whether the defendant was reasonably (and actually) afraid for his or her own safety.

A jury may also consider whether the victim had a reputation for violence or being quarrelsome that was known to the defendant prior to the alleged incident.

In a criminal proceeding, in support of a claim of self-defense, the accused may offer evidence known to the accused prior to the incident in question on ANY of the following:

  • The victim’s reputation for violence
  • Specific instances of the victim’s violent conduct
  • Statements made to the victim that caused reasonable apprehension of violence on the part of the accused

If two people mutually agree to a fistfight, does anyone have a right to self-defense?

When two people engage in a fistfight by agreement, generally neither of them is acting in self-defense, because they have not used all reasonable means to avoid combat.

However, a person regains the right of self-defense if during the fight he or she reasonably concludes that the other person, contrary to their mutual understanding, has escalated the fight by introducing deadly force.

Can I act in self-defense against someone who is injury prone?

If a person has exhausted all proper means to avoid physical combat, he or she may use appropriate non-deadly force in self-defense if he or she reasonably believes that his or her personal safety is in danger, even against someone known to be susceptible to injury.

Can I ever lawfully resist arrest from a police officer?

Because of the nature of the job, a police officer is permitted to use force in carrying out his or her official duties if such force is:

  1. Necessary
  2. Reasonable

Even if the arrest is unlawful, a person who is arrested by someone who he or she knows is a police officer is not allowed to resist that arrest with force. In the case of an unlawful arrest, the person being arrested must resort to the legal system to restore his or her liberty.

However, if a police officer uses excessive or unnecessary force to make an arrest—whether the arrest is legal or illegal—the person who is being arrested may defend himself or herself with as much force as reasonably appears to be necessary.

The person arrested is required to stop resisting once he or she knows or should know that if he or she stops resisting, the officer will also stop using excessive or unnecessary force.

The burden is on the Commonwealth to prove beyond a reasonable doubt that the police officer did not use excessive or unnecessary force in making the arrest.

Note that a police officer who makes a warrantless arrest outside of his or her jurisdiction acts as a private citizen. The officer must have probable cause to believe that a felony (i.e. a crime that was committed that may be punished by a state prison sentence) and that this person committed the crime.

Can I use deadly force during a citizen’s arrest?

A person may use deadly force to make a citizen’s arrest only if ALL of the following conditions are met:

  1. He or she believes such force is necessary to make a lawful arrest

2. The arrest is for a felony

3. Either he or she:

  • Announces the purpose of the arrest
  • Believes the arrest is already known to the person being arrested
  • Believes it cannot reasonably be made known to the person being arrested

4. Either he or she:

  • Is assisting a person whom he or she believes is a peace officer
  • He or she is a peace officer

5. He or she believes there is no substantial risk of injury to innocent persons

6. He or she believes that the person being arrested used or threatened to use force in committing the felony

7. He or she believes that there is a substantial risk that the person being arrested will cause death or serious bodily harm to someone if he or she is not immediately arrested

8. (Only when a warrant is obtained): That the warrant was valid or was believed by the citizen to be valid

Can I use non-deadly force during a citizen’s arrest?

A person may use reasonable, non-deadly force to make a citizen’s arrest only if all of the following conditions are met:

  1. He or she believes that such force is immediately necessary to make a lawful arrest

2. He or she:

  • Announces the purpose of the arrest
  • Believes that it is already known to the person being arrested
  • Believes that it cannot be reasonably made known to the person being arrested (If the arrest was made pursuant to a warrant):

3. (If the arrest was made WITH a warrant): The arrest was pursuant to a valid warrant or the citizen making the arrest believed it was valid.

3. (If the arrest was made without a warrant): The arrest without a warrant was for a felony and not a misdemeanor (i.e. a non-felony crime committed)

3. (If a warrantless arrest was made by a police officer outside his or her jurisdiction): The police officer made a warrantless arrest outside of his or her jurisdiction and had probable cause to believe this person committed a felony.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH UNLAWFUL SELF-DEFENSE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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