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Consider this scenario: you and a known enemy, with which you have had violent altercations in the past, have been in a fight and you have been badly wounded. The enemy tells you that once he leaves he is going to immediately go to your house and kill your young child who cannot defend their self. You, knowing this person has made threats to kill before and followed through, are certain that he is willing and capable of doing exactly that. In your current injured state, you are completely incapable of trying to stop them or contacting and getting help from anyone. After contemplating your situation you are certain that the only way to save your child is to kill him. As he walks away you pull out a concealed gun and shoot him in the back, killing him. Have you commited a crime, by killing in response to a threat?

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  • that's not a future threat. That's just a threat.
    – Trish
    Oct 10, 2023 at 19:00
  • @Trish By 'future threat' I meant that this person poses a 'future threat'. They were not pointing a gun at anyone in the moment.
    – Ethan
    Oct 10, 2023 at 19:06
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    There is no yes or no answer to this. These are the sort of things that DAs decide whether or not to prosecute, and if prosecuted, juries decide whether to convict or acquit based on evidence and testimony. Oct 10, 2023 at 19:10
  • @MichaelHall I understand that, but as with self defense, there are guidelines as to what constitutes an immediate threat snd therfore if it was a justified kill. Are there not similar guidelines regarding threats to kill?
    – Ethan
    Oct 10, 2023 at 19:24
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    Can you elaborate on "immediately going to find and kill your child"? Is it your defenseless baby sleeping in the next room? Or your adult child living in a distant foreign country? The proportionality of your response will vary greatly between the two. Oct 10, 2023 at 19:43

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Whilst it would seem that, at the final moment in this scenario, the force is justified, the judges are likely not to be unwilling to "unbundle" the situation and ignore the fact that you've been fighting (and even went equipped with firearms) with the very man you're now saying is an undoubted mortal threat to your children.

Rather than self-defense (or the defence of another's life), the shooting is likely to be considered a further escalation of unlawful offensive force between criminals.

The dangerousness and reputation which is adduced as evidence that only immediate stoppage of the "enemy" was justified, is exactly the same evidence that you should not have engaged, should have fled, or should have sought police action sooner. That you did not do so goes against whether the killing force which you ultimately used was "reasonable" force, even if it did in fact save your child's life.

Although the specifics of this scenario are uncommon, it's actually not uncommon at all that high-level gangsters murder or attempt to murder each other, often motivated by a real threat the other poses to each.

For reason of policy, it isn't reasonable for criminals to use force against each other as part of an escalatory spiral amongst themselves.

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  • In the scenario I was imagining, I was picturing the accused as an otherwise innocent person legally carrying a firearm so that the legality of killing in response to the threat was the only thing in question. Maybe a law a enforcement officer who, due to past interactions, was attacked and threatened by a past criminal suspect as revenge
    – Ethan
    Oct 10, 2023 at 21:28
  • @Ethan, if you were in a Cape Fear style situation, where an essentially upstanding officer of the law is the target of a serious grudge by a murderous criminal, and is ambushed, that's one thing. But that's not reflective of the language used in your question.
    – Steve
    Oct 11, 2023 at 3:57
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The provocation defence in the Criminal Code would not be available. Among other things, it requires the victim to have done something that "constitute[s] an indictable offence under this Act that is punishable by five or more years of imprisonment." Nothing in the facts you've described rises to that level.

For self defence or defence of another, there are three requirements:

  1. the accused must have believed on reasonable grounds that force was being used against them or another person or that a threat of force was being made against them or another person;
  2. the accused's response is taken for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
  3. the response is reasonable in the circumstances.

I take elements 1 and 2 as given, because you stiplated that the shooter was "certain" that the victim was willing and capable of following through with his threat. Of course, in a criminal trial, even this would be contested by the Crown. But taking the facts as given, this leaves element 3: reasonableness of the response.

The Criminal Code says:

In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Because of the facts of your scenario, I will highlight what the Supreme Court of Canada has said about factor (c), "the person's role in the incident." See R. v. Khill, 2021 SCC 37:

[74] ... “the person’s role in the incident” refers to the person’s conduct — such as actions, omissions and exercises of judgment — during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances. It calls for a review of the accused’s role, if any, in bringing about the conflict. The analytical purpose of considering this conduct is to assess whether the accused’s behaviour throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.

[82] ... the trier of fact should consider the accused’s conduct from the beginning to the end of the “incident” giving rise to the “act”, as long as that conduct is relevant to the ultimate assessment of whether the accused’s act was reasonable ...

[84] ... Thus “role in the incident” encompasses not only provocative or unlawful conduct, but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds.

[85] The analytical purpose of considering the person’s “role in the incident” is its relevance to the reasonableness assessment where there is something about what the accused did or did not do which led to a situation where they felt the need to resort to an otherwise unlawful act to defend themselves. Only a full review of the sequence of events can establish the role the accused has played to create, cause or contribute to the incident or crisis. Where self-defence is asserted, courts have always been interested in who did what. ...

The reasonableness of the response is an issue left for the trier of fact (the jury; or the judge, if there is no jury). We do not have all the information we would need to give an opinion on the reasonableness of the response. As this is a job left for a jury, you are in as good of a position as any of us to apply those factors to the circumstance and decide whether the response was reasonable. You can even read model jury instructions (see paragraph [5] and its subparagraphs) to better put yourself in the shoes of a juror. It lists the above factors and then says:

Consider all of the relevant factors as a whole in determining whether [the accused]’s act was reasonable. It is for you to decide how much weight to give to any one of these factors in your assessment of the reasonableness of [the accused]’s act.

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  • I have added some details and removed the contradiction, is it more answerable now?
    – Ethan
    Oct 10, 2023 at 19:46
  • So what your saying is you would need specific details of the relationship between the victim and the accused to determine if they would have reasonably believed the threat would be carried out?
    – Ethan
    Oct 10, 2023 at 19:55
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The fight is on the street somewhere

Alice was fighting with Bob. During the fight she might have had a valid case of self-defense to shoot Bob, as long as Bob initiated the fight.

However, the moment Bob stopped and turned around to leave, no matter what Bob said, she lost self-defense, as under German law the threat needs to be current at the time of the act of self-defense. Under §32 StGB, shooting might also not be geboten, if it did not satisfy all of the three prongs of Gebotenheit: Requirement for your chosen action to happen, Proportionality of the action taken, and Appropriateness to solve the situation.

At the moment that Alice shot, Bob was neither a danger to Alice, nor Alice children, thus lacking the concurrent factor, and on that technicality making the check for Gebotenheit irrelevant. Due to that, shooting Bob was not just overstepping self-defense, it automatically became at least a case of murder (Totschlag, StGB §212) or a lesser case of murder (minderschwerer Fall von Totschlag, StGB §213). However, the prosecutor might even manage to prove the required low motive to aggravated murder (Mord, StGB §211), and gain lifelong imprisonment. However, due to the total circumstances, §213 seems the most appropriate charge - for 1-10 years of imprisonment.

What if the kids are right next door?

The pattern shifts if the whole situation is somewhere else: let's assume that Alice and Bob fought in the living room. Again, Bob is the agressor, the children are right next door and Bob is moving to that specific door. Now, the moment Bob is performing an act that proves he's a current threat to the children we could be in defense-of-others territory under §32 StGB, and due to Alice's physical incapacity of taking other actions (due to injuries and availability of tools), requirement, proportionality, and appropriateness could be given.

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  • You might add, for comparison, what happens when Alice's children are next door and Bob is trying to enter that room. At what point does defense-of-others end?
    – o.m.
    Oct 11, 2023 at 4:33
  • @o.m. added. you misask the question: when does self-defense end and defense-of-others begin - because german law allows for those two situations to have a gap between them, in which there is no self-defense/defense of others..
    – Trish
    Oct 11, 2023 at 9:36

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