The use of force to protect yourself or someone else from imminent harm is widely recognized as a fundamental right and is protected in every state. However, how this right applies varies widely between states.
Kentucky has provided more robust protections for those who use force in self-defense than many states. Instead of relying on an objective standard which considers what would a ‘reasonable’ person have done under similar circumstances, Kentucky has adopted the subjective approach. The use of force in self-protection is permitted when “the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.” KRS 503.050.
The use of the subjective standard means that a criminal defendant no longer has to assert that their actions were consistent with how others under such circumstances would have acted. Rather, the subjective standard implicitly acknowledges that people react differently to threatening situations, and it is unfair to judge a person against a theoretical ‘reasonable person’. Kentucky also does not have a duty to retreat, including before the use of deadly force, so individuals do not have to further endanger themselves by attempting to leave a dangerous situation.
The adoptions of the subjective standard does not mean that all claims of self-defense must be accepted. The finder of fact must still find that a defendant’s subjective belief that force was necessary is genuine. And if deadly force is used, the harm it seeks to prevent must be serious enough to justify the use of deadly force. But a defendant who has claimed self-defense has much stronger protections than in many other states.
The reasonableness of a defendant’s actions may still be relevant to determining whether a defendant’s actions constituted imperfect self-defense. If a defendant’s actions vary too much from the actions of a reasonable person, the conduct could be construed as wanton or reckless. Self-protection is full defense to intentional conduct, but does not apply to unintentional acts. This means that a criminal defendant who presents a self-protection defense can still be convicted of lesser crimes under a theory of imperfect self-defense.
There are limitations to who may use physical force in self-protection. A person may not claim self-protection against a recognized peace officer. They may also not intentionally provoke the use of physical force for the purpose of causing death or serious physical injury to another. And an initial aggressor is not allowed to use force in self-protection. But if the facts are contested as to whether provocation occurred or who was the initial aggressor, it should be up to the finder of fact–usually the jury–to make that determination.
A criminal defendant who has alleged that their use of force was lawful can elect to seek immunity from criminal prosecution. In practice, that means litigating much of the underlying claim at an earlier juncture and hoping that a judge precludes further prosecution. Unfortunately, a criminal defendant who is found immune from prosecution is not entitled to any fees or costs as is a civil defendant who is found immune under the same statute. If immunity is not granted, a criminal defendant can still vindicate their self-defense claim at trial.
A knowledgeable and experienced attorney is necessary to guide a criminal defendant through a self-defense case. Because this area of the law is not intuitive and often differs from common misconceptions, a skilled attorney is needed to present a self-defense claim. Call Levinson Law LLC to speak further about your self-defense case.