刘龙珠律师法律评论：不能防卫过当，各州正当防卫法大比较

刘龙珠律师法律评论：不能防卫过当，各州正当防卫法大比较

说到正当防卫的事例，近几年引起广泛争议的莫过于特雷沃恩·马丁(Trayvon Martin)命案。案件发生于2012年2月26日，在佛罗里达州的桑德福，社区看守人乔治·齐默曼 (George Zimmerman) 报警称看到一名行踪可疑的黑人男孩（即马丁），尽管警察说不需要跟踪，但是齐默曼还是继续跟踪马丁，随后两人发生了口角，马丁用拳头打齐默曼的头，齐默曼出于自卫开枪击毙了马丁。齐默曼被以二级谋杀罪起诉，2013年7月13日，法院依陪审团决议宣布齐默曼无罪，因为其开枪行为属正当防卫。

今年还有一则华裔女子勇敢击退劫匪的事例。2016年9月23日凌晨，在乔治亚州格威内特郡，三名劫匪闯入一民宅，屋主一华裔女子被惊醒后持枪与劫匪展开了激烈的枪战，并将其中一人击毙，其余两名劫匪潜逃。警方称这位女士的行为属于正当防卫，因此并未对这名女子提出指控。

这两个案件中，齐默曼和华裔女子都以正当防卫为由开枪捍卫自己的生命安全，虽然造成了他人的死亡，但并没有受到法律的制裁。那么问题就来了，是不是在美国所有的州都可以以正当防卫为由开枪给他人带来致命伤害？如果不是，那么那些对正当防卫权利有限制的州法是如何规定的？

2005年，佛罗里达州率先在其法律中规定了绝不退让法 (Stand Your Ground Laws)，允许个人在遭受自己认为能够导致严重后果的人身攻击之前运用致命武器来对自身或者他人进行防卫，无需退让，且此法律适用于包括住宅和公共场所在内的任何场所。随后，其他的州也相继制定了类似的正当防卫法，但并不是所有州的正当防卫法都相同，总体来说，美国的正当防卫法可以分为三类：绝不退让法、城堡法 (Castle Doctrine)、有义务退让法 (Duty to Retreat)。以下将分别讲述这三类正当防卫法以及相应的州。

（一）任何场所都没有义务退让——绝不退让法 (Stand Your Ground Laws)

绝不退让法规定，在任何场所，受害人都有权运用致命武器来对抗来自加害人的致死或者重伤的攻击，无需退让。

采用绝不退让法的州有：

1、华裔聚集州

加利福尼亚州

关于加州是采取绝不退让法还是城堡法，在不同资源上可能有不同说法，但根据加州刑事诉讼法第505条对自卫杀人的规定——当受害人感到自己或他人的生命安全受到了即刻的威胁时，即使本可以逃跑，却仍然可以选择留在犯罪现场运用适当的武力来进行自卫，甚至可以在必要的时候追击罪犯直至危险解除，受害人无需退让——因为这条法律明确规定了受害人无需退让，且并未作出场所限制，因此，加州采纳的应当是绝不退让法，即在任何场所都没有义务退让。

法律原文如下：

CALCRIM 505 – Justifiable Homicide: Self-Defense or Defense of Another. (“[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury/ {insert forcible and atrocious crime}) has passed. This is so even if safety could have been achieved by retreating.]”)

佛罗里达州

法律原文如下：

Florida Statutes Section 776.012 

Use or threatened use of force in defense of person

(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

宾夕法尼亚州

法律原文如下：

§          Pennsylvania Code Section 505

       (2.3)  An actor who is not engaged in a criminal activity, who is not in illegal possession of a firearm and who is attacked in any place where the actor would have a duty to retreat under paragraph (2)(ii) has no duty to retreat and has the right to stand his ground and use force, including deadly force, if:

(i)  the actor has a right to be in the place where he was attacked;

(ii)  the actor believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping or sexual intercourse by force or threat; and

(iii)  the person against whom the force is used displays or otherwise uses:

(A)  a firearm or replica of a firearm as defined in 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms); or

(B)  any other weapon readily or apparently capable of lethal use.

(2.4)  The exception to the duty to retreat set forth under paragraph (2.3) does not apply if the person against whom the force is used is a peace officer acting in the performance of his official duties and the actor using force knew or reasonably should have known that the person was a peace officer.

德克萨斯州

法律原文如下：

Texas Penal Code § 9.31. Self-Defense

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

2、其他州

阿拉巴马州、阿拉斯加州、亚利桑那州、乔治亚州、爱达荷州、印第安纳州、堪萨斯州、肯塔基州、路易斯安那州、密歇根州、密西西比州、蒙塔纳州、内华达州、新罕布什尔州、北卡罗来纳州、奥克拉荷马州、南卡罗来纳州、南达科塔州、田纳西州、犹他州、西弗吉尼亚州

一些州的立法并没有规定绝不退让法，但司法解释中采纳了与绝不退让法相似的司法原则，在此不作列举。

（二）特定场所才可以不退让——城堡法 (Castle Doctrine)

城堡法，又称个人住所防卫权 (Defense of Habitation)，也同样认可了受害人的正当防卫权利，但做出了一定限制，即受害人只有在特定场所（譬如家中或者办公场所）才可以不退让。

采用城堡法的州有：

1、华裔聚集州

伊利诺伊州

法律原文如下：

Illinois Criminal Code 720 ILCS 5/7-2

Section 7-2. Use of force in defense of dwelling

(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:

(1) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or

(2) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.

华盛顿州

法律原文如下：

RCW 9A.16.050

Homicide—By other person—When justifiable.

Homicide is also justifiable when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.

2、其他州

爱荷华州、俄勒冈州

（三）任何场所都有义务退让 (Duty to Retreat)

在任何场合都有义务退让也就是说，如果可以通过逃跑等方式来避免伤害或者死亡，那么受害人就不能在正当防卫中使用致命武器。只有在别无选择的情况下，譬如受害人被困在死角处或者行动受到了限制，并且有生命危险，受害人才可以用致命武器来自卫。

规定了在任何场所都有义务退让的州有：

1、华裔聚集州

纽约州

法律原文如下：

New York Penal Law § 35.15 Justification; use of physical force in defense of a person  

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person;  or

(b) The actor was the initial aggressor;  except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force;  or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly physical force.  Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating;  except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor;  or

(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30;  or

(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery;  or

(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

新泽西州

法律原文如下：

New Jersey Statutes 2C-3-4(a)

The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the unlawful force by such other person on the present occasion.

马里兰州

法律原文如下：

Self-defense (MPJI-Cr 5:07)

Self-defense is a defense, and the defendant must be found not guilty if all of the following three factors are present:

The defendant actually believed that <he> <she> was in immediate and imminent danger of bodily harm.

The defendant's belief was reasonable.

The defendant used no more force than was reasonably necessary to defend <himself> <herself> in light of the threatened or actual harm.

"Deadly-force is that amount of force reasonably calculated to cause death or serious bodily harm. If the defendant is found to have used deadly-force, it must be decided whether the use of deadly-force was reasonable. Deadly-force is reasonable if the defendant actually had a reasonable belief that the aggressor's force was or would be deadly and that the defendant needed a deadly-force response."

"In addition, before using deadly-force, the defendant is required to make all reasonable effort to retreat. The defendant does not have to retreat if the defendant was in <his> <her> home, retreat was unsafe, the avenue of retreat was unknown to the defendant, the defendant was being robbed, the defendant was lawfully arresting the victim. If the defendant was found to have not used deadly-force, then the defendant had no duty to retreat."

马萨诸塞州

法律原文如下：

Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.

2、其他州

阿肯色州、康涅狄格州、特拉华州、夏威夷州、缅因州、密苏里州、明尼苏达州、内布拉斯加州、北达科塔州、俄亥俄州、罗德岛、威斯康辛州、怀俄明州