Force Against Confederates

Force Against Confederates

The three conditions of § 3.05(1) and the retreat adjustments in subsection (2) have so far been applied to the classic three-person pattern, in which an assailant attacks a victim and a rescuer steps in against the assailant. Attacks are often carried out by more than one person, which raises the question whether the defense reaches a rescuer who uses force on someone other than the person delivering the blow. The text points toward yes. The lead-in to subsection (1) makes force justifiable when it is used "upon or toward the person of another" to protect a third person.¹ Those words name the target only as another person, and they say nothing about an assailant, an aggressor, or anyone who is attacking.

In Duckett v. State the State argued the opposite. Its position was that §§ 3.04 and 3.05 refer to no one but the assailant, so the Code must implicitly confine defense of others to the three-person pattern.² The State also pointed to § 3.09(3), the provision on injury to innocent persons, which the last section of this chapter takes up on its own terms.³ The Wyoming Supreme Court rejected the argument in steps. It first found no limitation of the kind the State described, because nothing in § 3.05 refers to an assailant, and even if one were implied, nothing suggests that the aggressor must be the person directly threatening harm.⁴ It then accepted that earlier decisions outside the three-person pattern involved an additional assailant who was also directly threatening the victim, but it saw no reasoned distinction between force against someone approaching the fray and force against someone knowingly standing guard to prevent rescue.⁵ In either case the assailant's purpose, and the danger to the victim, is furthered by the confederate's acts, and that danger may be alleviated only by force against those acting in concert with the actual assailant.⁶

The reasoning follows from the necessity that underlies every protective-force rule. If the justification stopped at the person delivering the blow, a lookout posted at the only way in would be untouchable, and the victim and rescuer would have no lawful means of dealing with the one obstacle between them. Such a rule would also create an incentive problem. An assailant could assign a confederate to block the rescue and thereby turn the division of labor into a legal shield, with the confederate protected by the very role that makes the attack more dangerous. Because the justification asks what is needed to end the danger, it reaches whoever is carrying out the threat, and the ordinary conditions of § 3.05(1) sort legitimate targets from illegitimate ones.

The pole on which the defense applies is the one Duckett itself addressed. A rescuer who finds a person knowingly standing guard to keep anyone from reaching a victim under attack, and who uses force on the guard to get through, is not shut out of § 3.05 because the guard is not the assailant. The force can be justified if the three conditions are met.⁷

The two situations differ in one fact, whether the person is acting in concert with the assailant. The guard's conduct furthers the attack, so force against the guard can be necessary to protect the victim, while the passerby's presence does nothing to the victim, so force against the passerby cannot be.⁸

This explains why extending the defense to confederates does not make everyone near the assailant a fair target. All three conditions still apply to the confederate. The first two ask whether the actor would be justified under § 3.04 in using the force to protect himself against the injury he believes threatens the victim, and whether the victim, on the facts as the actor believes them, would be justified in using it.⁹ The third requires that the actor believe his intervention is necessary for the protection of the victim.¹⁰ For a confederate, condition (c) does the most work, since the actor must believe that force against this particular person is needed to protect the victim. The opinion acknowledges that it may be harder to show necessity against a more distant source of the aggression, though the threat that person poses can still support some justified response.¹¹

On an exam, the usual error is to read an assailant-only limit into § 3.05 because the Code speaks of protecting a third person and the stem describes a fourth person. Duckett rejects that reading, and the text of subsection (1) does not support it. The opposite slip is to treat the extension as a license to use force on anyone near the attack, when the necessity condition still has to be satisfied as to the person actually targeted.¹²