Use of Deadly Force

Several years ago, I was driving my son home from a basketball practice. We pulled off an exit ramp and passed a couple women attempting to change a tire. Something struck me, and I pulled over to help. My preteen son’s response: “what are you doing? don’t you know how it ends?”

Now, I’m no hero. Over the years, I have driven past plenty of people stopped on the side of the road. It’s easy to rationalize: “I’m late, help is on the way, stopping isn’t safe, or everyone has a cell phone.” Those reasons are valid much of the time.

That night, though, it took me fifteen minutes to replace the damaged tire with a spare. Whatever my motivation, it had more to do with impulse than any well-considered altruism.

Over the last few months, I have had a number of reasons to consider how we respond to people in crisis or facing real or imagined danger.

The issues are relevant following the deaths of Ahmaud Arbery and George Floyd. I wonder about the thoughts of people, civilian and professional, who witnessed these events live. What influenced their decisions? Why did they act or fail to act? How would I defend them?

In February, I tried a first-degree murder case that raised similar questions. My client was accused of killing his sister’s boyfriend. She testified that he killed her boyfriend without any justification. My client testified that he saw the boyfriend choking his sister.

The sister conceded, however, that her boyfriend did not want her to leave the house and took steps to stop her. While reviewing John Rubin’s book, The Law of Self-Defense in North Carolina, we decided that testimony could justify an instruction on the crime prevention privilege. Although rarely applied, the defense is supported by good law.

With some reservations, our judge submitted an instruction he drafted. I am including portions of the instructions in the attached practice guide. I hope the information is helpful to you. I certainly believe the instruction on the privilege played a part in my client’s acquittal.

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