Markus Funk

The February 2020 murder of Ahmaud Arbery, the November 2021 Wisconsin trial of Kyle Rittenhouse, and the January 2023 shooting of a masked robber in a Houston taqueria predictably ignited media firestorms.[1]

Second-degree murder and aggravated assault charges brought in February against 73-year-old Arizona rancher George Alan Kelly, after his Jan. 30 "warning shots" allegedly killed 48-year-old Mexican trespassing migrant Gabriel Cuen-Buitimea near the U.S.-Mexico border, have further fanned these flames.[2]

As these cases graphically remind us, laws governing self-preservation continue to be among the criminal law's most intuitive, controversial and enduring topics for debate, in the public square and halls of academia alike. Pundits, journalists and other members of the media — with legal training and without — have examined virtually all facets of the ancient right of self-defense.

That said, the most concerning aspect of the legal commentariat's steady drumbeat of analysis is that even they — the purportedly most authoritative observers on matters of law — almost always get it wrong.

Media Myths About U.S. Self-Defense

Those most suspicious of the authorization to use defensive force regularly claim that U.S. state self-defense laws reflect an exceptional harshness and disregard for life. In contrast, those favoring greater leeway assert with equal confidence that self-defense is getting diluted to the point that it is disappearing.

First, let us examine the claims made by those concerned with self-defense law's perceived relative inattention to the value of life and to violence prevention. The New York Times, for instance, offers that, over "time in the United States, the tendency has been to expand the right to claim self-defense rather than protect those who may be harmed by misjudgments and mistakes."[3]

Bloomberg observes that U.S. self-defense law uniquely encourages "citizens ... to go on the offense,"[4] while Vox speculates that the "prevalence of the self-defense narrative is part of what sets apart the gun rights movement in the U.S."[5] And New York Magazine denounces the "anarchy latent in America's ... expansive self-defense rights" that creates a "vast zone of permissible killing."[6]

Even the American Public Health Association opines that "most U.S. states have expanded civilian rights to use deadly force in self-defense outside the home," and contends that U.S. self-defense laws are rapidly changing.[7]

The clear picture being painted by these media and public health outlets is of a law uniquely infused with a dangerous Wild West mindset, unconcerned with protecting life and reducing violence, and driven by a near obsession with extreme individualism.[8]

On the other hand, we have commentators on outlets, including Fox News, declaring that "self-defense is becoming illegal."[9] According to the National Rifle Association, creeping limits on gun ownership foreshadow a ban on self-defense.[10]

This perspective is shared by New York state Sen. George Borrello, R-Jamestown, who in 2022 introduced legislation assertedly aimed at avoiding situations in which existing law forces law-abiding citizens to "allow themselves to be shot or stabbed before they can take action to defend their lives."[11]

These anxious observers join prominent scholars like Nebraska College of Law professor Robert Schopp, who favors the authorization of deadly force to defend property and opposes safe retreat requirements.[12]

The upshot of these rather stark polarities in perspective is that significant parts of the population now worry about callous lawmakers and courts who favor what amounts to vigilante justice and who have announced open season on real and suspected lawbreakers.[13] Their ideological opposites, in turn, fear that the right to self-defense is being so watered down by creeping authoritarianism that it risks extinction.[14]

The Truth About U.S. Self-Defense Law

As often happens with politicized discussions about matters of law, both sides miss the mark — and, in this case, they do so by a surprisingly wide margin.

U.S. Self-Defense Law — Summarized

By way of a brief primer, U.S. state laws generally provide that, once a defendant has introduced sufficient evidence to support a self-defense claim, the prosecutor must disprove self-defense beyond a reasonable doubt.

Turning to the core substantive elements, U.S. self-defense laws, allowing for some variability among states, permit defensive force when the following elements are met:

• Attack: The defendant subjectively believed they were facing an actual unlawful attack;

• Necessity of defensive force: The defendant subjectively believed the amount of force used or threatened was necessary to prevent or terminate the threatened or ongoing interference;

• Objective reasonableness: The defendant's beliefs in attack and necessity, even if mistaken, were objectively reasonable; and

• Imminence of threat: The attack was occurring or was imminent.

Special Rules for Deadly Force

In the U.S., deadly force is limited to situations where the defendant reasonably believed the force was necessary to prevent imminent (1) death; (2) great bodily harm, such as serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or other serious bodily injury; or (3) certain serious offenses and forcible felonies, such as kidnapping, arson, rape, burglary and robbery.

U.S. Self-Defense Law by International Comparison

To help evaluate claims about U.S. self-defense law's asserted exceptionalism, let us examine the self-defense laws of England and Germany — two countries often highlighted as having particularly enlightened approaches to criminal justice.[15]

To the likely surprise of many readers, when compared to the laws of Germany and England, U.S. self-defense law is — and historically always has been — far more focused on overall violence prevention and the protection of even criminal attackers than most members of the media give it credit for.

Consider, for example, that Germany permits deadly force to defend, say, a laptop or bicycle.[16] Such authorization is unthinkable in the U.S., where the use of deadly force to defend mere property is not, and has never been, lawful.

This is so notwithstanding mistaken claims, made in support of rancher Kelly's actions, that Arizona law "allows residents to shoot trespassers on their property"; neither the law in Arizona nor the law anywhere else in the U.S. permits deadly force to prevent a simple trespass.[17]

But don't take my word for it. Providing an early insight into the humanitarian motivation behind outlawing deadly force in defense of mere property, a 1929 Alabama Supreme Court case, Russell v. State, put it this way: 


In the U.S., the person with no option but the use of deadly force to protect mere property, therefore, always has to suffer the harm, even at the hands of a fully culpable attacker, and is left to seek redress at law.[19]

Contrast that approach with the German court and commentators' contemporaneous perspectives on the issue. One influential 1923 German textbook, for example, declared: "One can shoot down an attacker to defend one's ownership of a match."[20] Echoing this hard-edged view, consider also a 1935 court ruling providing that the defense of a few pennies would justify deadly force.[21]

Although the use of deadly force in defense of property today is more limited in Germany due to the imposition of socio-ethical limitations, the authorization to use deadly force in defense of property continues to be firmly in place.

In England, even grossly mistaken persons can cloak themselves in self-defense, provided their belief in the necessity of defensive force was honestly held.[22]

So even an excessively timid defender, or someone perhaps operating on the basis of a racist mindset, can claim that they acted in self-defense if they can persuade the fact finders that they honestly, albeit entirely mistakenly, believed that a person, say, innocently walking toward them, was going to attack and kill or seriously injure them.

Juxtapose this largely untethered approach to what we have in the U.S. Here, as laid out above, a defender's defensive actions and related beliefs must always be objectively reasonable. This important restriction serves as a critical violence-reduction mechanism.

In this context, it is worth noting the highly influential 1962 Model Penal Code. The MPC is taught in most introductory criminal law classes, and in Section 3.04 has long advocated for an England-style subjective belief standard.[23] The states, however, have steadfastly rejected the suggestion.

In fact, though the MPC's focus on the subjective beliefs of the defender and rejection of an objective reasonableness standard may have influenced the thinking of some judges and commentators, the MPC's self-defense provisions are aimed at innovating the law, rather than restating.[24] It is possible, therefore, that some of the misperceptions of U.S. self-defense law were developed early in law school.

Unlike in England, where the only question is whether the putative defender honestly — even if entirely unreasonably — believed they were being attacked, in the U.S., the requirement that the belief also be objectively reasonable functions as the key limit to the scope of deadly force.

U.S. self-defense law's endorsement of objective reasonableness as the operative benchmark, therefore, renders it comparatively compassionate and humanitarian when it comes to the presumptive attacker, and also places it entirely within mainstream self-defense law around the world.

Stand Your Ground and Castle Doctrine Limitations on Retreat Not Unusual 

U.S. self-defense law is also within the global mainstream when it comes to hot-button, highly controversial self-defense provisions like the stand-your-ground laws — and their cousin, the castle doctrine, which, generally speaking, relaxes the duty to retreat when one is assaulted in one's home.[25]

These legal provisos primarily limit the traditional duty to retreat prior to being authorized to use deadly self-preferential force. They do not, however, as many have erroneously claimed, somehow authorize deadly force to ward off nonserious threats.[26]

As even a cursory cross-border examination reveals, moreover, that exceptions to the duty to retreat before using deadly force are far from unique to the U.S. In fact, analogs to these laws are found in legally, politically and culturally diverse countries, ranging from Argentina, Botswana, Canada, France and Nigeria to Ghana, Indonesia, Japan, Spain and Sweden.

Indeed, in each of these countries, there simply is no duty to retreat in the first place, rendering exceptions superfluous.

What we find, then, is that persistent claims that U.S. self-defense law provides outsized or exceptional leeway to violent impulses have little objective support.

U.S. Self-Defense Law Is Not Disappearing

Conversely, assertions that U.S. self-defense laws are so diluted that they are disappearing, or that they now prevent law-abiding citizens from defending themselves against violent attack, or force them to outrun a bullet, also do not square with reality.[27]

Judges and prosecutors apply the facts of a case to a state's self-defense laws. Put another way, U.S. jurors evaluate whether, based on their assessment of the facts, the elements of a particular self-defense law are met.

In this context, the core elements of self-defense laws in the U.S. are very similar among states. Even more to the point, U.S. self-defense laws have stood largely unchanged since the country's founding.[28] Identifying instances where prosecutors and courts might have gotten it wrong, then, does not signal the end of self-defense.

Parting Observations

At the root of media misapprehensions, there appears to be an unfortunately common overreliance on ideological priors.[29] Those skeptical of self-defense erroneously conflate the law of self-defense with the means to exercise that right — namely, the proliferation of firearms due to what they commonly consider to be lax gun laws. Those favoring fewer restrictions on the authorization of deadly force, for their part, tend to confuse the law with the application of the law to particular cases.

But whatever the reason for the media's flawed understandings, common claims about U.S. self-defense law's exceptionalism and inhumanity on the one hand, and erosion and weakening on the other, equally crumble under closer scrutiny.

Let me here also add my view that what we need is greater attention to the underlying values driving self-defense laws and decisions. Specifically, our lawmakers, judges and members of the commentariat rarely ask what weights we should give to the different values potentially implicated in each instance of claimed self-defense.

More specifically, these values include protecting the state's collective monopoly on force, protecting the attacker's presumptive individual right to life, maintaining the equal standing between people, protecting the defender's autonomy, ensuring the primacy of the legal process, maintaining the legitimacy of the legal order and deterring potential attackers.

These issues, despite their centrality and self-evident importance, are almost always ignored in the breathless debates about the role of self-defense in our society.[30]

Ultimately, the inaccurate caricatures of self-defense in the U.S. that flood the airwaves distract us from engaging in a more fully informed debate about the appropriate role of, and justification for, self-defense in a modern, pluralistic society like ours. We need to get these basics right before we can engage in a meaningful dialogue over whether our laws governing the use of self-preferential force need to be reformed.

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T. Markus Funk, Ph.D., is a partner at Perkins Coie LLP. He is also a lecturer in law at the University of Colorado. He previously served as an assistant U.S. attorney in Chicago. He is the author of "Rethinking Self-Defence: The 'Ancient Right's' Rationale Disentangled."

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] For a more in-depth discussion of the Ahmaud Arbury case, see my article "Understanding the Role Values Play (And Should Play) In Self-Defense Law," published in the American Criminal Law Review and available at https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2021/04/58-2-Funk-Understanding-the-Roles-Values-Play.pdf. I outline my concerns with the Rittenhouse prosecution's missteps (and, in particular, with their failure to understand and properly explain to the jury how provocative conduct bars a self-defense claim under Wisconsin law) in a Bloomberg Law article available at https://news.bloomberglaw.com/white-collar-and-criminal-law/the-rittenhouse-case-misunderstanding-when-provocative-acts-bar-self-defense. For a close examination of where the Houston restaurant shooter's defensive conduct may cross the line, see my discussion at https://reason.com/volokh/2023/01/11/the-houston-restaurant-self-defense-shooting-neutralizing-a-threat-v-killing-a-criminal/?comments=true.

[2] See generally https://apnews.com/article/mexico-arizona-crime-2f19aa60f39df28071039237af6cbc5d.

[3] See https://urldefense.com/v3/__https:/www.nytimes.com/2021/11/13/us/rittenhouse-arbery-self-defense.html__;!!K_R5ZAeIjLw!CRcBRw_Q2bH58wOjZp6GogqC_AF9MPCK1Ru7xLaupmT_Wb8DzaHtKWmAq_pCKJBlzap9DajaDm5A49ZiaW2-5Hc$.

[4] See https://urldefense.com/v3/__https:/www.bloomberg.com/news/articles/2021-11-19/rittenhouse-s-winning-strategy-rested-on-tear-filled-testimony__;!!K_R5ZAeIjLw!CRcBRw_Q2bH58wOjZp6GogqC_AF9MPCK1Ru7xLaupmT_Wb8DzaHtKWmAq_pCKJBlzap9DajaDm5A49ZiSL24tX4$.

[5] See https://www.vox.com/23142734/michigan-state-university-campus-mass-shootings.

[6] See https://urldefense.com/v3/__https:/nymag.com/intelligencer/2021/11/rittenhouse-jury-verdict-self-defense-legal-analysis.html__;!!K_R5ZAeIjLw!CRcBRw_Q2bH58wOjZp6GogqC_AF9MPCK1Ru7xLaupmT_Wb8DzaHtKWmAq_pCKJBlzap9DajaDm5A49ZivBPLUE8$.

[7] https://ajph.aphapublications.org/doi/10.2105/AJPH.2020.306101.

[8] See generally Claire Boine, et al., What is Gun Culture? Cultural Variations and Trends Across the United States, (Humanities & Social Sciences Communications (July 8, 2020) (contending that "the self-defense subculture has been rising ..."), available at https://www.nature.com/articles/s41599-020-0520-6; Katarzyna Celinska, Individualism and Collectivism in America: The Case of Gun. Ownership and Attitudes Toward Gun Control, 50 SOCIO. PERSP., no. 2, 233-34. (2007) (surveying the scholarship and concluding that a "recreational subculture" of gun ownership, associated with "both Southern residence and defensive gun ownership," is plausibly "so closely related to the 'frontier heritage,' is also strongly associated with the values of utilitarian individualism: self-determination and self-reliance"); Samuel Bazzi, et al., Frontier Culture: The Roots and Persistence of "Rugged Individualism" in the United States 2 ("Republican Party positions on these issues can be linked to salient aspects of frontier culture described in the historical literature, including [the] necessity of self-defense, and notions of 'manifest destiny'"), available at https://www.bu.edu/econ/files/2018/08/BFG_Frontier.pdf.

[9] See https://www.foxnews.com/opinion/tucker-carlson-self-defense-becoming-illegal.

[10] See https://urldefense.com/v3/__https:/www.nrapvf.org/articles/20080403/self-defense-is-a-basic-human-right__;!!K_R5ZAeIjLw!CRcBRw_Q2bH58wOjZp6GogqC_AF9MPCK1Ru7xLaupmT_Wb8DzaHtKWmAq_pCKJBlzap9DajaDm5A49ZiWHWj8cE$.

[11] See https://www.nysenate.gov/newsroom/press-releases/george-m-borrello/senator-borrello-introduces-legislation-strengthen-right.

[12]See, e.g., https://urldefense.com/v3/__https:/books.google.com/books/about/Justification_Defenses_and_Just_Convicti.html?id=5XnD0xXfPmQC__;!!K_R5ZAeIjLw!CRcBRw_Q2bH58wOjZp6GogqC_AF9MPCK1Ru7xLaupmT_Wb8DzaHtKWmAq_pCKJBlzap9DajaDm5A49Zi_S6QmNY$.

[13] See generally https://www.valleynewslive.com/2021/04/20/nd-gov-signs-bill-modifying-stand-your-ground-law/.

[14] See generally https://www.foxnews.com/opinion/tucker-carlson-self-defense-becoming-illegal.

[15] See generally Franklin Stockdale, Withdrawing the License to Kill: Why American Law Should Jettison "Stand Your Ground" and Adopt the English Approach to Retreat, 39 B.C. Int'l & Compar. L.R. 453 (2016). See also Joyce Lee Malcolm, Self-Defence in England: Not Quite Dead, 23 J. Firearms & Pub. Pol'y 60 (2011) (contending that "modern England only grudgingly tolerates self-defence, even in extremis"); Floyd Feeney, German and American Prosecutions: An Approach to Statistical Comparison, U.S. Dep't of Just., Bureau of Justice Statistics, (1998) ("Germany imposes sentences much shorter than those imposed in the United States."), https://www.ojp.gov/ncjrs/virtual-library/abstracts/german-and-american-prosecutions-approach-statistical-comparison.

[16] See generally Claus Roxin, Strafrecht. Allgemeiner Teil I: Grundlagen. Der Aufbau der Verbrechenslehre 590 (2006). See also Jescheck, Hans-Heinrich & Thomas Weigend, Lehbuch des Strafrechts, Algemeiner Teil 348 N. 49 (4th ed. 1988).

[17] See https://www.foxnews.com/opinion/tucker-carlson-self-defense-becoming-illegal. See Arizona Revised Statute § 13-405 (permitting deadly force to ward off "the other's use or attempted use of unlawful deadly force") (emphasis added).

[18] Russell v. State , 122 So. 683, 685–86 (Ala. 1929).

[19] See generally State v. Baxendale , 370 P.3d 813, 817 (N.M. Ct. App. 2016); State v. McCracken , 166 P. 1174, 1176 (N.M. 1917); Driggers v. United States , 95 P. 612, 620 (Okla. 1908); Carpenter v. State , 36 S.W. 900 (Ark. 1896); State v. Smith , 30 P. 679, 682 (Mont. 1892).

[20] Max Mayer, Der Allgemeine Teil des Deutschen Strafrechts 280 (1923).

[21] [1935] 69 RGSt 308, 310.

[22] See Criminal Justice and Immigration Act 2008, § 76(3) (Eng.). See also In Re: The King, [2023] EWCA (Admin) 81; R v. Magson, [2022] EWCA (Crim) 1064; R v. Atkinson [2021] EWCA (Crim) 153; R v. Cheeseman [2019] EWCA (Crim) 149; R v. Ray [2017] EWCA (Crim) 1391.

[23] http://individual.utoronto.ca/dubber/web/website/genjust/Model_Penal_Code.htm.

[24] See https://ora.ox.ac.uk/objects/uuid:f794ea71-baf3-46fd-bf78-8533ba84e230/download_file?file_format=application%2Fpdf&safe_filename=Self-Defense%2BDPhil%2BThesis%2BSubmission_TMFunk_2020_FINAL.pdf&type_of_work=Thesis.

[25] See generally https://rutgerspolicyjournal.org/stand-your-ground-florida%E2%80%99s-castle-doctrine-twenty-first-century. See generally https://www.law.cornell.edu/wex/castle_doctrine. Though the numbers fluctuate, largely for definitional reasons, some 35 states have enacted stand your ground/castle doctrine provisions, whereas some 15 require safe retreat.  See generally https://wisevoter.com/state-rankings/castle-doctrine-states/; https://reason.com/volokh/2020/12/21/duty-to-retreat-35-states-vs-stand-your-ground-15-states/; https://en.wikipedia.org/wiki/Stand-your-ground_law.

[26] For a discussion of such misperceptions, see Robert Leider, Understanding Stand Your Ground, WALL ST. J. ("Many have asserted that in Florida anyone who believes he is in danger can use deadly force. ... These perceptions of the law are wrong. . . . [A] person must also reasonably believe that the aggressor threatened him with death, great bodily injury, or intended to commit a forcible felony . . . ."), available at https://www.wsj.com/articles/SB10001424052702304432704577350010609562008.  See also Benjamin Levin, Note, A Defensible Defense?: Reexamining Castle Doctrine. Statutes, 47 Harv. J. on Legis. 523 (2010) (arguing that it is "important to excavate the doctrine from the culture wars rhetoric in which it has been mired" and finding that "the current discourse has become too firmly rooted in the overly reductive, potentially fallacious dichotomy of American political partisanship"), available at https://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1449&context=faculty-articles. 

[27] https://www.foxnews.com/opinion/tucker-carlson-self-defense-becoming-illegal. https://www.nysenate.gov/newsroom/press-releases/george-m-borrello/senator-borrello-introduces-legislation-strengthen-right.

[28] See Funk, Rethinking, at 185.

[29] See generally Dan Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413 (1999), available at https://openyls.law.yale.edu/handle/20.500.13051/285 (arguing that "[e]xpressive zealots have an incentive to frame controversial issues in culturally partisan terms, thereby forcing moderate citizens to defect from [their views] and declare their cultural allegiances as well.").

[30] For my attempt at answering these challenging questions, see https://www.law.georgetown.edu/american-criminal-law-review/in-print/volume-58-number-2-spring-2021/understanding-the-role-values-play-and-should-play-in-self-defense-law/.