Self-Defense Is A Constitutional Right

 

 

 

 

 

 

” So holds State v. Hull (Wash. Ct. App. Dec. 18, 2014) (nonprecedential), in an interesting and pretty detailed opinion.

  Generally speaking, courts rarely have to decide whether there is a constitutional right to self-defense, since all states generally recognize a statutory or common-law right to use force against another person in self-defense. And while there are constraints on this right — e.g., you can’t use deadly force against a relatively minor attack, some states bar deadly force when there is a completely safe avenue of retreat available, and so on — a constitutional right to self-defense is unlikely to be absolute. Traditionally accepted limitations on self-defense are likely to be seen as limiting any such constitutional right as well.

  But sometimes self-defense law contains substantial gaps (perhaps unintended by the legislature). One such gap is that many state penal codes — including, apparently, in Washington — expressly provide for self-defense only against people and not against animals. And in State v. Hullthe prosecution actually argued that “Self-defense is a defense to the use of force against a person, not an animal,” so Hull “was not entitled to a self-defense instruction.” “The language of the Washington Pattern Instruction 17.02,” the prosecution argued, “is … clearly limited to lawful ‘force upon or toward the person of another.’ Simply put, a dog is not a ‘person’ as contemplated by either the statute or the pattern instruction,” so when someone is tried for injuring a dog, the jury isn’t supposed to consider whether he acted in self-defense.

  That can’t be right, and the Washington Court of Appeals said it wasn’t right. Indeed, the court said, there is a constitutional right to self-defense, for three related reasons (reason 1 got the votes of all three judges, and reason 3 and possibly reason 2 got only two votes): “

 

Eugene Volokh has more