This blog post is meant to shed some light on Maryland self defense law. By self defense, I mean a person’s use of physical force to repel an attack by another person. This post deals with the concept of self defense law broadly. Please understand that no blog post can take the place of legal advice. If you are charged with Assault in the Second Degree, Assault in the First Degree, or with a related crime, you should speak to a lawyer right away.
First, a few words about Assault in the Second Degree (Assault Second Degree) under Maryland law
As a general rule, it is a crime to hit, kick, push, slap, trip, spit on, lay hands on, or throw something at another person. In Maryland, a person who does one of these things to someone else either without his or her permission or in a way that is harmful or offensive can be charged with Assault in the Second Degree. Every day in Maryland Assault in the Second Degree is charged in a wide variety of situations. It is not legally necessary that the victim of the assault be injured in order for the person who did the did the prohibited act to be charged with Assault in the Second Degree. Despite the fact that Assault in the Second Degree is the least serious type of assault that can be charged under Maryland law, it carries a possible penalty of up to 10 years in prison.
The basic legal concept of self defense
As a society we have recognized for a long time, if not forever, that there are times when it is justifiable for a person to use physical force to repel an attack by another person. The law of self defense adds legal force to the notion that it’s OK for us to fight back when we’re attacked. Under Maryland law, someone charged with Assault in the Second Degree or a related crime will be found not guilty if he is found to have acted in self defense. Self defense provides the legal justification for committing an act that is otherwise illegal.
Q: Where does Maryland self defense law come from?
A: Maryland self defense law is not found in the Maryland Code. The closest thing that Maryland statutory law gives us is that “a person charged with a crime under § 3-202, § 3-203, § 3-204, or § 3-205 of [SUBTITLE 2. ASSAULT, RECKLESS ENDANGERMENT, AND RELATED CRIMES] may assert any judicially recognized defense.” Self defense is a “judicially recognized defense.” This means that it has been created by trial courts and appeals courts over time. Despite the fact that self defense does not appear in the Maryland Code, it is the law of the land.
Q: Who gets to decide if it was or wasn’t self defense?
A: Sometimes clear-cut self defense cases don’t go all the way to trial. The police and the state’s attorney’s office have the power to decide not to file or pursue criminal charges against someone they believe properly used self defense. It doesn’t always work this way, however. Given that fights are often very difficult to make sense of, many times someone who uses self defense is charged with a crime and then must present his defense in court.
Q: What is Maryland legal test for self defense?
The Court of Appeals of Maryland, the highest court in the State of Maryland, has established, through a long series of decisions, a test for trial courts to use in determining whether or not a defendant accused of some kind of assault acted in self defense. In plain English the current legal test for self defense is as follows:
- Did the defendant have reasonable basis to believe he was in immediate danger of being hurt by the attacker?
- Did the defendant actually believe that he was in danger of being attacked?
- Was the defendant NOT the attacker or the person who started the fight?
- Did the defendant use nothing more than a reasonable amount of force in order to repel the attacker?
Provided the answer to all of the above questions are “yes,” the defendant should be found to have acted in self defense and therefore found not guilty of assault. If, however, the answer to any of the questions above is “no” then the fact finder should not decide that the defendant acted purely self defense. Please note that the language above is not pulled directly from any Court of Appeals decision and should not be cited as the law.
Q: When is fighting back not self defense?
A: In very general terms, someone charged with Assault in the Second Degree or a related crime will not be found to have acted in self defense in a situation where he took on the role of the aggressor. This means that if you start a fight, then you probably won’t be successful in claiming that what you did was justified under Maryland self defense law. Acting out of a desire for revenge is also not self defense. Similarly, retaliating against someone for something he did in the past is not justifiable as self defense. Neither is attacking someone in response to their saying mean, hurtful, or untrue things. Furthermore, using an extreme amount of force to fight back against a small amount of force is also not justifiable as self defense. It’s worth mentioning here that the right of self defense ends when the danger posed by the attacker has been neutralized. A defendant accused of pounding on an attacker who had already given up likely won’t be successful in his self defense claim. These are just some handy rules of thumb. There are dozens and dozens of appeals court cases that provide the applicable rules of law for the State of Maryland. Knowing exactly what legal language applies to any given self defense situation is the job of a lawyers and judges.
Q: How can a criminal defense lawyer help me if I’ve been charged with Assault in the Second Degree and I want to claim that I did it in self defense?
A: A skilled defense lawyer knows what facts need to be brought out from state’s witnesses as well as defense witnesses in order to support a Maryland self defense law claim. Perhaps more importantly, a skilled defense lawyer knows when there are other defenses that could be made that may have a greater likelihood of success than self defense. Claiming self defense is something that should be done only after careful consideration. It is not as simple as telling the court “what I did was right” or “he deserved what he got from me.” While I do not have any figures to back up my hunch, I believe that, in general, defendants give up their right to remain silent and choose to testify in self defense cases more often than than they do in other assault cases. Any time a defendant is going to testify in court it’s essential that he is carefully prepared.
Matthew Baum is a defense lawyer with offices in Baltimore, Catonsville, and Columbia, Maryland. If you or someone you care about has been charged with assault that may have been justified as self defense, you are invited to call (410) 929-3435 for a free consultation.