Self Defense Based on Apparent Danger In Washington
In State v. Carter, 15 Wash. 121, 123-24, 45 P. 745 (1896), the Court approved a trial court self-defense instruction based on apparent danger:
We think there was no impropriety in the court's explaining to the jury the nature and legal effect of defendant's plea; and the latter portion of the instruction must be considered in the light of the entire charge, and when so considered it is plain that the jury were given to understand that it was the right of the defendant to act upon the "apparent," as distinguished from the "actual" danger. In fact, the court expressly charged that--
"A person need not be in actual imminent peril of his life or great bodily harm before he may defend himself. It is sufficient if in good faith he has a reasonable belief from the facts, as they appear to him at the time, that he is in imminent danger; if he honestly believes such to be the case then he had a right to act in self-defense."
"The term 'apparent danger' is to be understood as meaning not apparent danger in fact, but apparent danger as to defendant's comprehension; that is, did the defendant believe there was an apparent danger of being killed or of great bodily harm being inflicted upon his person at the time of the alleged stabbing." Accord State v. LeFaber, 128 Wn.2d 896, 899-900, 913 P.2d 369 (1996).
Thus, the general rule in Washington is that reasonable force in self-defense is justified if there is an appearance of imminent danger, not actual danger itself.
A different rule applies, however, if one seeks to justify use of force in self-defense against an arresting law enforcement officer.
Numerous cases have held a person may use force to resist arrest only if the arrestee actually, as opposed to apparently, faces imminent danger of serious injury or death.
The Court of Appeals in State v. Westlund, 13 Wn. App. 460, 467, 536 P.2d 20, 77 A.L.R.3d 270 (1975), first articulated the policy rationale for this rule:
The arrestee's right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom.
However, in the vast majority of cases, as illustrated by the one at bar, resistance and intervention make matters worse, not better.
They create violence where none would have otherwise existed or encourage further violence, resulting in a situation of arrest by combat. Police today are sometimes required to use lethal weapons for self-protection.
If there is resistance on behalf of the person lawfully arrested and others go to his aid, the situation can degenerate to the point that what should have been a simple lawful arrest leads to serious injury or death to the arrestee, the police or innocent bystanders.