Wednesday, September 1, 2010

Michigan Self Defense Law

By Matthew Schafer
Copyright 2010, All Rights Reserved

Disclaimer: This paper was written to inform people about Michigan self defense law as it stands at the time of this writing, August 31, 2010. It covers the law that pertains to the State of Michigan and not any other state.

It is for educational purposes and should not constitute legal advice. If you’re in any situation where legal advice becomes necessary you should consult an attorney.

The Current Self Defense Law in Michigan as of August 31, 2010

In July of 2006, Governor Jennifer Granholm signed into law the “Self Defense Act”. This act became state law in October of 2007.

What this law states is that people are allowed to use non-lethal force and/or lethal force against another person if they reasonably believe they face imminent great bodily harm, sexual assault, or death.

This law gives people in the state of Michigan to right to use non-lethal force and/or lethal force both in their homes and anywhere else in the state that they have the legal right to be.

The current law removes a “duty to retreat”. A “duty to retreat” means that if a person faces a violent situation they have a legal duty to retreat and remove themselves from the situation or they could be charged with a crime. With this “duty to retreat” no longer in effect in the State of Michigan, citizens may use force to defend themselves or others instead of being expected to retreat from the threat.

The legislation not only protects people from criminal charges but from civil lawsuits also. For example, if you believe you are facing imminent bodily harm and break the aggressor’s arm, you cannot be charged criminally for your actions and the aggressor, or the aggressor’s family, cannot sue you in civil court for damages.

This also includes bystanders who may have gotten injured in the process. For example, if you face imminent danger and you pull a gun and shoot your attacker and one of those bullets misses and hits an innocent bystander that is walking down the street; that innocent bystander, nor their family, can sue you civilly for damages.

Additionally, if you do use force in defending yourself and it is ruled that you were in compliance with Michigan Self Defense Law and you do get sued in civil court by your attacker, their family, or an innocent bystander who was injured in the incident the court is REQUIRED to award you payment of your attorney and court fees. The rational is that anyone who acts in self defense should not be have to spend time and money to go to court to justify their actions in protecting themselves and others.

The law also creates a "rebuttable presumption" which is a legal advantage that assumes, unless there's strong proof to the otherwise, that people honestly and reasonably believe they face death, rape or great bodily harm. What this means is that if you use force to defend yourself the court has to assume from the start that you had a justifiable and reasonable belief that you faced bodily harm or death. This assumption can be refuted by evidence, but the court is required to start with this assumption.

The Self Defense Act, and the “rebuttable presumption”, will not automatically apply in these instances:

1.) Domestic violence situations. Any time one person uses force against someone they have a prior relationship with (spouse, child, friend, co-worker, neighbor, etc.) they will not automatically get protection under this law until an investigation has been completed. This is to protect one spouse from using force against the other, or someone committing murder, and then trying to pass their crime off as self defense.

2.) Disputes involving the police. If a police officer is engaged in carrying out their lawful duty and you use force against them you cannot automatically get protection under this law. It is assumed that a police officer, as long as they are not outright breaking the law, is upholding the law in whatever interaction they have with you during the incident when you used force against them.

3.) If you are committing a crime. If you are in the middle of robbing a bank and one of the tellers tries to wrestle the gun away from you and you shoot him, you will not be given protection under this law. This law assumes that the incident in which you used force began with you being a law abiding citizen, and if you are not being a law abiding citizen when the force is used then you will most likely give up protection under this law.

Was using force justified?

The litmus test for determining when the use of deadly force is justified is whether a person "honestly and reasonably" believed he was in danger of imminent death or serious bodily harm. Nevertheless, deadly force is not permissible without a showing that the defendant had done "all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe".
What this means is that you are in a situation where the occurrence of violence was reasonably foreseeable and you had the ability to remove yourself before the violence began and you CHOSE not to then you may not receive protection under this law.

For example, if you are in an argument with someone and it is turning heated and you walk over to them to confront them and then you have to use force to defend yourself, you may not receive protection under this law. If you are in room where a fight breaks out and you CHOSE to stay in that room and you ended up having to use force against someone then you may not receive protection under this law because you having to use force was foreseeable and you chose to stay.

In both above examples I put the word “CHOSE” in capital letters because a chose is assumed. If you can provide evidence that you had no other reasonable alternative but to walk over and confront the person you were arguing with (maybe you were forced to at gunpoint) or that you were not reasonably able to leave the room where the fight was (maybe you tried to but the fight itself was blocking the exit) then you may be able to receive protection under this law.

There are three situations where it is assumed that you cannot remove yourself from the situation before the violence began.

1) If you are suddenly, fiercely, and violently attacked. In other words, if you are minding your own business and someone comes up to you and just attacks you.

2) If you believe the attacker is about to use a deadly weapon.

3) If you are assaulted in your own dwelling (home).

Excerpt from the self defense bill

This is an excerpt from the bill itself so you can clearly see the language.

"Michigan law regarding a person's right to use deadly force in self-defense is not expressed in statute, but is embodied in the common law as interpreted by case law.

According to a 2002 Michigan Supreme Court case (People v Riddle, 467 Mich 116), a person has the right to use deadly force in self-defense if he or she honestly and reasonably believes that using such force is necessary because he or she is in danger of imminent death or great bodily harm. Generally, a person acting in self-defense has a duty to retreat from the attack if he or she can do so safely, but retreat is never required in the person's own home, nor is retreat required in the case of a sudden and fierce violent attack or if the person honestly and reasonably believes that the attacker is about to use a deadly weapon. Some people believe that the right to defend against an attack, and the circumstances under which force is justified in self-defense or the defense of others, should be codified and that a person defending himself, herself, or another should not have to retreat when he or she is anywhere he or she has a legal right to be."

Illegal weapons

In Michigan:

(1) A person shall not manufacture, sell, offer for sale, or possess any of the following:

(a) A machine gun or firearm that shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger.

(b) A muffler or silencer.

(c) A bomb or bombshell.

(d) A blackjack, slungshot, billy, metallic knuckles, sand club, sand bag, or bludgeon.

(e) A device, weapon, cartridge, container, or contrivance designed to render a person temporarily or permanently disabled by the ejection, release, or emission of a gas or other substance.

(2) A person who violates subsection (1) is guilty of a felony, punishable by imprisonment for not more than 5 years, or a fine of not more than $2,500.00, or both.

Being held to a higher standard

The question frequently arises that if a person is trained in self-defense techniques or martial arts if they will be held to a higher standard by the court since they are “trained”.

While even some “experts” will say that anyone who has martial arts, military, or law enforcement training will be held to a higher standard than the average citizen if they use force this simply isn’t true.

Firstly, under the Michigan Self Defense Act training isn’t taken into consideration when determining if the level of force used was reasonable, only the circumstances of the incident are.

While it is true that members of the military or law enforcement community are held to a higher standard it is because they have an obligation to use force in the defense of the public instead of retreat. Since they have the duty to use force, their use of force is looked at more closely.

“The ‘higher standard’ [applied to members of the military and law enforcement] is meant to keep that grant of power in check. Civilians are not obligated to use force but the level of force used is guided by what the jury determines is ‘objectively reasonable’. If the District Attorney does not believe your use of force has been reasonable, then a judge or jury will decide whether your response was appropriate for the situation. Further, YOU will have to prove (convince the jury) that your actions were reasonable in light of your honest belief that imminent harm facing you required a violent response.”
-Matthew Suitor, Attorney.

It should be mentioned that while it was stated above that you wouldn’t be held to a higher standard by being trained in self-defense or martial arts, if it is decided that you are brought to trail the judge or a jury could be swayed by that fact. While legally it should not come into play in their decision they are still people.

Again, it should be stated that this article is meant for informational purposes only, and while lawyers were consulted in the writing of this document laws do change over time. In any event where legal advice becomes necessary an attorney should be consulted.