31

Alice has been severely injured or is otherwise in danger. Eve wants to help Alice, but Bob is somehow preventing her from getting to Alice. Assume that Bob is not threatening to harm Eve; he is only preventing her from helping Alice. Perhaps Eve needs to walk down a narrow hallway and Bob is blocking it and refusing to move; there is no alternative way to rescue Alice.

Is it legal for Eve to use physical force against Bob in order to rescue Alice? Does it matter whether or not Bob is responsible for Alice's injury or endangerment?

5
  • 26
    A potentially complicating factor (that may or may not be subsumable under the same question): is Bob preventing Eve from helping Alice in order to avoid injury or danger to Eve? For example: Alice has fallen off a cliff and is lying injured at the bottom; Eve wants to attempt to climb down and rescue her, but Bob holds her back because he’s afraid Eve too will fall and injure herself. Mar 25, 2023 at 15:05
  • 7
    @JanusBahsJacquet Good point. Anybody trying to help first needs to assess the danger to himself. It's no use trying to help and getting injured (or worse) oneself.
    – PMF
    Mar 25, 2023 at 15:34
  • 14
    @JanusBahsJacquet Another potential complication is if Bob tries to prevent further harm to Alice (e.g. Bob might deem Eve not competent to help Alice and might think her intervention might cause more harm than just waiting for the medics - like people with neck injuries should not be moved around or some such). Mar 27, 2023 at 4:48
  • 2
    @JanusBahsJacquet, running into a burning building to save someone and stopping someone from doing so seems to be common movie tropes of that type of thing. Mar 27, 2023 at 20:12
  • Depending on the optics of the situation, Alice might reasonably infer that Bob's actions are part of a plot to murder Alice, and that Bob might murder Eve as well for trying to prevent it. That would change the force calculus considerably. Mar 28, 2023 at 4:48

5 Answers 5

27

Bob through his actions is harming Alice. Thus Eve may use the minimum necessary force to help Alice as Nothilfe, which is defined as using §32 StGB (Self protection/Notwehr) and §34 StGB (justifying state of emergency/Rechtfertigender Notstand). As a result, it is allowed to harm someone to the degree of self protection for the benefit of someone else that can't protect themselves - such as Alice. However, the amount of force allowed must be proportional to the harm done to Alice - so Eve may use the least needed amount of force to get Bob from stopping Eve from helping Alice.

As an example, Eve might shove Bob out of the way, hit him, or use the threat of serious harm (which is usually illegal!) to deter Bob from getting in the way, but unless Alice is actually at risk of dying from Bob keeping her from applying pressure on a lacerated artery this very moment, she can't shoot at Bob - that would overstep the Notwehr, but might not be punished if the overstepping is for the right reasons defined in §33 StGB.

Bob also is liable for not rendering aid, §323c StGB unterlassene Hilfeleistung/Behinderung von hilfeleistenden Personen (Failure to provide assistance/hindering persons providing assistance).

11
  • 2
    So Eve can threaten to shoot at Bob but she can't actually shoot?
    – Someone
    Mar 25, 2023 at 11:33
  • 2
    @Someone unless Bob actively is doing something that makes Eve believe that Alice will die if she does let Bob live, she can't kill Bob. Or in other words: if she could use Notwher to kill Bob herself would he do the same to her, she can use Nothilfe to kill Bob for Alice.
    – Trish
    Mar 25, 2023 at 11:39
  • 1
    Isn't it actually the least amount of available force? At least in interpretation? Meaning if there was say a baseball bat and a gun, you'd have to go for the baseball bat. But if there was only a gun, I think it could be justified as no other available option. Mar 25, 2023 at 14:03
  • 3
    @infinitezero the least amount of "available" force is always zero. The least "needed", like in the answer, seems more reasonable, and is what §32 StGB says.
    – wimi
    Mar 25, 2023 at 18:44
  • 4
    @wimi sigh. The least amount of available force to succeed. Mar 25, 2023 at 19:40
14

There are dozens of jurisdictions in the U.S. with different criminal laws, but most have adopted the “justification of necessity” from the Model Penal Code of 1967. This created a general defense (§ 3.02(1)(a)) that:

Conduct which the actor believes to be necessary to avoid harm or evil…is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.

This is not actual law, but some sections of it have had great influence, and most states have passed a provision close to this.

6
  • Thank you! So use of deadly force would never be okay if only one person was in danger (unless Bob is responsible for Alice's endangerment), but if Alice will certainly die without assistance, it is okay for Eve to use anything less than deadly force against Bob?
    – Someone
    Mar 25, 2023 at 20:30
  • 4
    The force has to be necessary. Or at least she has to be able to plausibly claim she thought it was.
    – Davislor
    Mar 25, 2023 at 20:42
  • 1
    "Conduct which the actor believes to be necessary to avoid harm or evil" - that's pretty general. Couldn't this be used to assassinate a president (or local official) who the attacker believed was doing evil? Maybe I misunderstood. Mar 25, 2023 at 23:08
  • 5
    @chasly-supportsMonica There was a list of examples in the official commentary to the 1967 proposal. I would look for cas law in a particular jurisdiction. A layperson shouldn’t try to interpret a (model) statute by reading the words and forming an opinion on what they think it technically means. Look at the precedents.
    – Davislor
    Mar 25, 2023 at 23:25
  • 2
    @chasly-supportsMonica But, no, no judge would accept that as a pretext for assassination.
    – Davislor
    Mar 26, 2023 at 2:27
13

The necessity defence may be available to Eve. In Canada there are three elements to this defence (R. v. Latimer, 2001 SCC 1 at paras. 28-31):

  1. there must be an urgent situation of “clear and imminent peril”;
  2. there must be no reasonable legal alternative to disobeying the law;
  3. there must be proportionality between the harm inflicted and the harm avoided.

And if Eve believes on reasonable grounds that there is a threat of force against Alice, then the defence called "defence of another" comes into play as well. It is codified at s. 34 of the Criminal Code:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

The Supreme Court noted:

what is relevant is reasonably apprehended “force” of any kind, including force that is the product of negligence. The accused’s response under the new law is also no longer limited to a defensive use of force. It can apply to other classes of offences, including acts that tread upon the rights of innocent third parties... (R. v. Khill, at para. 40).

3
  • Does the threat of force have to be from Bob? Can Eve use force against Bob to protect Alice against a threat from Mallory about which Bob is unaware?
    – Someone
    Mar 25, 2023 at 4:24
  • 2
    @Someone Read the definition at the linked question. It makes no such requirement.
    – Barmar
    Mar 25, 2023 at 14:42
  • 2
    @Someone Eve could do so if she has "no reasonable legal alternative". To the extent that explaining the situation to Bob is a reasonable alternative, she should exhaust it first before resorting to force.
    – Cadence
    Mar 26, 2023 at 8:54
8

Self-defence

s418 of the Crimes Act (my emphasis):

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

8

In , if you are in a position to help someone who is in danger, and you decided not to even though there is no immediate danger for yourself, you can be prosecuted. This is defined in article 223-6 du code pénal and is often referred as "non-assistance à personne en danger"; also called "duty to rescue" in English.

Original text and DeepL translation below:

Quiconque pouvant empêcher par son action immédiate, sans risque pour lui ou pour les tiers, soit un crime, soit un délit contre l'intégrité corporelle de la personne s'abstient volontairement de le faire est puni de cinq ans d'emprisonnement et de 75 000 euros d'amende.

Sera puni des mêmes peines quiconque s'abstient volontairement de porter à une personne en péril l'assistance que, sans risque pour lui ou pour les tiers, il pouvait lui prêter soit par son action personnelle, soit en provoquant un secours.

Les peines sont portées à sept ans d'emprisonnement et 100 000 euros d'amende lorsque le crime ou le délit contre l'intégrité corporelle de la personne mentionnée au premier alinéa est commis sur un mineur de quinze ans ou lorsque la personne en péril mentionnée au deuxième alinéa est un mineur de quinze ans.

DeepL translation:

Any person who can prevent by his immediate action, without risk to himself or to third parties, either a crime or an offence against the physical integrity of the person, voluntarily refrains from doing so is punished by five years' imprisonment and a fine of 75,000 euros.

Will be punished with the same penalties whoever voluntarily refrains from giving to a person in danger the assistance that, without risk for him or for the thirds, he could give him either by his personal action, or by provoking a help.

The penalties are increased to seven years' imprisonment and a fine of 100,000 euros when the crime or offence against the physical integrity of the person mentioned in the first paragraph is committed against a minor of fifteen years of age or when the person in danger mentioned in the second paragraph is a minor of fifteen years of age.

Although it does not directly answer the question as to whether or not it is legal to use force against a person who is trying to stop you from rescuing another person, it does say that you are expected to do what you can to attempt to provide assistance.

3
  • 2
    I want to point to Code pénal Art.122-5 and Art.122-7, regarding légitime défense and causing harm while acting to save someone. There might be a case for use of force against Bob here. Mar 27, 2023 at 9:30
  • @AmiralPatate Good point. I didn't consider the possibility of légitime défense in the case of saving someone from a danger beside protecting yourself against an assailant.
    – Clockwork
    Mar 27, 2023 at 10:01
  • 1
    Practice is that as long as you call an emergency number, you'll never be accused of non-assistance à personne en danger (unless you are a medical or first-aid professional). Also, if the only way to get to Alice involves getting in a fight with Bob, then no one is going to claim that there was no danger for yourself. So, the law certainly does not force you to fight Bob to save Alice. However, that does not answer the question as to whether the law allows you to fight Bob to save Alice.
    – Stef
    Mar 28, 2023 at 10:34

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .