In Michigan, there are certain circumstances in which a person may use deadly force in self-defense against another person. If someone uses lethal power outside of the boundaries of the law, then he or she could be charged with murder or manslaughter. Many people possess CPLs to carry firearms on their person or keep guns in their home, so there is a responsibility to know when they can or cannot use a weapon to protect themselves without exceeding their legal mandate.
The Michigan Legislature passed the Self-Defense Act (Public Act 309 of 2006) to codify the state’s “stand your ground” deadly force laws into statute. Effective October 1, 2006, anyone has the right to the following:
- “An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:”
- “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.” MCL 780.972(1)(a).
- “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.” MCL 780.972(1)(b).
- “An individual who uses deadly force or force other than deadly force in compliance with… the self-defense act and who has not or is not engaged in the commission of a crime at the time he or she uses that deadly force or force other than deadly force commits no crime in using that deadly force or force other than deadly force.” MCL 780.961(1).
- “If a prosecutor believes that an individual used deadly force or force other than deadly force that is unjustified under… the self-defense act, the prosecutor may charge the individual with a crime arising from that use of deadly force or force other than deadly force and shall present evidence to the judge or magistrate at the time of warrant issuance, at the time of any preliminary examination, and at the time of any trial establishing that the individual’s actions were not justified under… the self-defense act.” MCL 780.961(2).
The Self-Defense Act creates a new substantive right to stand one’s ground and not retreat before using deadly force in certain circumstances where a duty to retreat would have existed at common law. People v Conyer, 281 Mich App 526, 762 NW2d 198 (2008). However, the Self-Defense Act also does not diminish the right to use deadly force in self-defense or defense of others as allowed by Michigan’s common law before October 1, 2006. MCL 780.974.
A person can use deadly force in self-defense or defense of others when ALL of the following conditions are satisfied:
- “NOT ENGAGED IN THE COMMISSION OF A CRIME” – A person cannot claim they are using justified deadly force in self-defense if they are currently engaged in a crime when using it. For example, an intruder committing a home invasion cannot claim self-defense if he kills the homeowner when the homeowner was prepared to use a gun and open fire while still inside the dwelling. However, the crime must relate somehow to assault where someone was killed.
- “The general doctrine doubtedly is that one who has taken the life of an assailant, but who was himself in the wrong, cannot avail himself of the plea of self-defense. But the wrong which will preclude him from making that defense must relate to the assault in resistance of which the assailant was killed. If at the time the assault is made upon him, he is engaged in the commission of an act which is wrongful, but which is independent of the assault he may lawfully defend himself against it, to the extent even of slaying the assailant, if it is felonious, unless, indeed, his act is of such a character to justify the assault.” People v Townes, 391 Mich 578, 593; 218 NW2d 136 (1974).
- The Michigan Supreme Court found that self-defense was still applicable where the defendant was a convicted felon not allowed to possess a gun (contrary to felon in possession of firearm crime at MCL 750.224f) but wrestled a gun away from an assailant and fired to protect himself. People v Dupree, 486 Mich 693; 788 NW2d 399 (2010).
- Likewise, a defendant’s act of felony-firearm in violation of MCL 750.227b also does not necessarily prevent asserting using a gun in justified self-defense. People v Goree, 296 Mich App 293; 819 NW2d 82 (2012).
- “HONESTLY AND REASONABLY BELIEVES” – Not only must a person believe himself or herself to be in great danger and that the response was necessary to save himself or herself therefrom, but the belief must also be reasonable under the circumstances. People v Doss, 406 Mich 90, 102-103; 276 NW2d 9 (1979). However, an act committed in self-defense but with excessive force or in which the defendant was the initial aggressor does not meet the elements of lawful self-defense. People v Heflin, 434 Mich 482; 502-502; 456 NW2d 10 (1990). “If the defendant’s belief was honest and reasonable, he or she could act immediately to defend himself or herself even if it turned out later that he or she was wrong about how much danger he of she was in,… [considering] all of the circumstances as they appeared to the defendant at the time.” M Crim JI 7.15(3).
- “IMMINENT DEATH/GREAT BODILY HARM/SEXUAL ASSAULT” – A person cannot use deadly force to protect against what seems like a threat of minor injury, but must honestly and reasonably believe there would be imminent death, serious injury or sexual assault. The trier of fact has to consider all of the circumstances to decide if the defendant was honestly and reasonably afraid of one or more of these, including: “the condition of the people involved, including their relative strength, whether the other person was armed with a dangerous weapon or had some other means of injuring the defendant, the nature of the other person’s attack or threat, [or] whether the defendant knew about any previous violent acts or threats made by the other person. M Crim JI 7.15(4).
- “DEADLY FORCE WAS NECESSARY” – The necessity element of self-defense normally requires that the actor try to avoid the use of deadly force if he can safely and reasonably do so, for example by applying nondeadly force or by utilizing an obvious and safe avenue of retreat. People v Doe, 1 Mich 451, 456-457 (1850). Just because a person “may” use deadly force doesn’t mean he “should” use deadly force, for a person is only entitled to use as much force as he or she thinks is necessary at the time to protect oneself. For the trier of fact to decide whether the amount of force used seemed to be necessary, they should “consider whether the defendant knew about any other ways of protecting himself or herself”, but should “also consider how the excitement of the moment affected the choice the defendant made.” M Crim JI 7.15(5).
- “NO DUTY TO RETREAT” – The Self-Defense Act does not modify situations under Michigan’s common law where someone has a duty to retreat before using deadly force in self-defense or defense of others. MCL 780.973. The Michigan Supreme Court, in People v Riddle, 467 Mich 116; 649 NW2d 30 (2002), clarified the common-law principles that apply to the duty of retreat before using justified deadly force in self-defense:
- “First, a person is never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat from an attacker who he reasonably believes is about to use a deadly weapon. In these circumstances, as long as he honestly and reasonably believes that it is necessary to exercise deadly force in self-defense, the actor’s failure to retreat is never a consideration when determining if the necessity element of self-defense is satisfied; instead, he may stand his ground and meet force with force.” Id at 119.
- “Second, Michigan law imposes an affirmative obligation to retreat upon a nonaggressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible. One who is involved in a physical altercation in which he is a willing participant-referred to at common law as a “sudden affray” or a “chance medley”-is required to take advantage of any reasonable and safe avenue of retreat before using deadly force against his adversary, should the altercation escalate into a deadly encounter.” Id at 120.
- “Third, regardless of the circumstances, one who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense. When a person is in his “castle,” there is no safer place to retreat; the obligation to retreat that would otherwise exist in such circumstances is no longer present, and the homicide will be deemed justifiable.” Id at 120-121. This is Michigan’s so-called “Castle Doctrine” which has been codified in statute to create “a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under… the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual” when the aggressor is committing a home invasion.” MCL 780.951(1).
A person who is attacked by more than one person (or by one person and others helping and encouraging the attacker) has a right to act in self-defense against all of them acting in concert. However, before using deadly force against one of the attackers, the person asserting self-defense must still honestly and reasonably believe that he or she was in imminent danger of death, great bodily harm, or sexual assault by the particular person that was killed. People v Johnson, 112 Mich App 483, 316 NW2d 247 (1982).
Typically, the aggressor that started the conflict is precluded from claiming self-defense later. However, there is an exception in Michigan’s common law that the aggressor can claim the right to self-defense in cases where he or she clearly communicated withdrawal in good faith from the encounter with the other person.
- “It is generally said that one who is the aggressor in an encounter with another — e.g., one who brings about the difficulty with the other — may not avail himself of the defense of self-defense. Ordinarily, this is certainly a correct statement, since the aggressor’s victim, defending himself against the aggressor, is using lawful, not unlawful, force; and the force defended against must be unlawful force, for self-defense. Nevertheless, there are two situations in which an aggressor may justifiably defend himself. So too, an aggressor who in good faith effectively withdraws from any further encounter with his victim (and to make an effective withdrawal he must notify the victim, or at least take reasonable steps to notify him) is restored to his right of self-defense. People v Peoples, 75 Mich App 616, 621; 255 NW2d 707 (1977).
However, the defendant may not be entitled to use self-defense in situations where it is not clear from the testimony that he or she was withdrawing from the conflict or told the same to his adversary. “The doctrine of communicated withdrawal may not be invoked unless the aggressor’s intent to withdraw is clearly made known to his victim.” People v Kerley, 95 Mich App 74, 83; 289 NW2d 883 (1980).
The use of self-defense is a common claim raised against homicide and assaultive charges in Michigan, but it is not absolute. The defendant does not have to prove that he or she acted in self-defense (in fact, the prosecutor has to prove beyond a reasonable doubt that the defendant did not act in self-defense), but a jury will not be instructed on this self-defense unless there is adequate evidence presented at trial to justify it. It is critical to have a skilled criminal defense lawyer in your corner that understands the nuances of self-defense law, can effectively present evidence to the court, and will aggressively argue the justification of self-defense in your case to the jury. The stakes are too high to settle for anything less!
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.