Posted by Double Naught Spy: I do believe that self defense statutes are still in place in OK that state one may act in the defense of others.
So do I.
There is apparently one common jury instruction
for use in cases involving justification of the use of deadly force for self defense, but it seems to encompass more than self defense per se. It does address shooting at a felon, but not the defense of a third person. It is OUJI-CR 8-46, DEFENSE OF SELF-DEFENSE -JUSTIFIABLE USE OF DEADLY FORCE. It says this:
A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger of death or great bodily harm.
The committee notes refer to the relevant statute and discuss various justifications, including self defense, defense of a third person, prevention of a felony, preventing escape of a felon, suppressing a riot, or disturbing the peace. The notes go on to discuss appellate cases and to conclude that the deadly force in pursuing a felon
, preventing a felony
, suppressing a riot
, or preserving the peace
justified when the situation presents imminent danger of death or great bodily harm
to the defendant
There is no specific conclusion on defending a third person in that
instruction, but there is more: This
one, OUJI-CR 8-2, DEFENSE OF ANOTHER - JUSTIFIABLE USE OF DEADLY FORCE says this:
A person is justified in using deadly force in defense of his/her husband/wife/ parent/child/master/mistress/servant if that person reasonably believed that use of deadly force was necessary to protect his/her/husband/wife/ parent/child/master/ mistress/servant from imminent danger of death or great bodily harm. Defense of another is a defense although the danger to the life or personal security of his/her husband/ wife/parent/child/master/ mistress/servant may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that his/her husband/ wife/ parent/child/master mistress/ servant was in imminent danger of death or great bodily harm.
Other instructions address deadly force in the case of an intruder, battered women, situations that start out with the actor being the aggressor, and so on.
This should all teach us two things: (1) relying on a single statute without knowing the case law is a dangerous proposition; and (2) one should only rely on a practicing criminal attorney in the jurisdiction at hand.
Is the DA wrong? I do not know. Can one properly employ deadly force to defend a third person if one's own life is not in imminent danger? Yes, but whom? Perhaps a practicing criminal attorney from Oklahoma can help us here.
I do know this: shooting a handgun at a fleeing felon in an urban setting is a recipe for disaster, whether one is charged or not, in large part because of the risk to others.
As I mentioned before, some DAs have said that they thought that getting convictions would be difficult, and the DA in Oklahoma may have been trying to paint a simpler and more clear case for potential jurors and the public; Ersland had a lot of sympathizers after the shooing. I have not been one of them.
Also as I mentioned before, I do think that the DA would have had a different opinion had Ersland's actions led to the death or serious injury of a third person through his reckless disregard of the safety of others.