Self-Defense Exceptionalism and the Immunization of Private Violence

44 Pages Posted: 11 Apr 2022 Last revised: 30 May 2023

See all articles by Eric Ruben

Eric Ruben

Southern Methodist University - Dedman School of Law

Date Written: April 5, 2022

Abstract

After the high-profile trial of Kyle Rittenhouse, the parameters of lawful self-defense are a subject of intense public and scholarly attention. In recent years, most commentary about self-defense has focused on “Stand Your Ground” policies that remove the duty to retreat before using lethal force. But the reaction to Rittenhouse’s case reflects a different, more extreme way that the law governing defensive force is changing. In particular, advocates and legislators say that private citizens like Rittenhouse who exercise self-defense should be entitled to immunity—an exemption from prosecution—giving them an extraordinary procedural benefit not attaching to other defenses that are adjudicated at trial. As this Article reveals, this effort to transform self-defense into something exceptional within criminal law began more than a decade ago in the shadows of Stand Your Ground. One-quarter of U.S. states have already enacted laws providing for self-defense immunity.

This Article examines this fundamental yet understudied shift in self-defense law. It shows how the concept of immunizing defensive force is foreign to the Anglo-American legal tradition as well as settled principles of modern criminal law and procedure, including the exceedingly narrow role of immunities. It tells the story of how self-defense immunity arose not as part of the broader criminal justice reform movement, but rather at the behest of the movement to insulate defensive gun use from liability. And it demonstrates the costs of treating self-defense as an immunity, such as increasing violence, diminishing the institution of the jury, delegitimizing criminal law outcomes, and undermining judicial economy. After exposing the unreasoned rise and inevitable costs of self-defense immunity, this Article concludes that self-defense should remain an affirmative defense to criminal charges rather than immunize a defendant from being prosecuted at all. Self-defense reform should move in lockstep with other criminal law defenses so as to avoid the societal harms that result from immunizing defensive violence.

Keywords: self-defense, criminal law, criminal procedure, Rittenhouse, immunity, gun rights

Suggested Citation

Ruben, Eric, Self-Defense Exceptionalism and the Immunization of Private Violence (April 5, 2022). 96 S. Cal. L. Rev. 509 (2023), SMU Dedman School of Law Legal Studies Research Paper No. 545, Available at SSRN: https://ssrn.com/abstract=4076257 or http://dx.doi.org/10.2139/ssrn.4076257

Eric Ruben (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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