Defense of Others

People v. Kurr

654 N.W.2d 651 (Mich. App. 2002).

Convicted of voluntary manslaughter.


Whether a nonviable fetus is considered an “other” in the defense of others instruction.


Deadly force for the defense of others is justified under Michigan law.


A fetus is considered an other for the necessity of the statute. Reversed and Remanded for new trial.


Mother was carrying quadruplets. She was punched by her boyfriend twice in the stomach. She warned her boyfriend not to hit her again because she was carrying his babies. When he approached her again, she stabbed him and and he died.

During trial, she was initially granted a defense of others instruction but after hearing testimony, that instruction was denied because the fetus was too young and not viable.


The trial court erred in saying that a fetus needs to be a living human independent of the defendant to be considered an “other.” The reason for this is that the Fetal Protection Act, made a lot of efforts to protect fetuses from harm.

The court emphasized that this applies only for mothers who are being assaulted by unlawful activities while the fetus is in the womb.

Additional Notes

What needs to be shown to demonstrate self-defense in Michigan

  1. Honestly and reasonably believes imminent danger to life.

What needs to be shown to demonstrate defense of others in Michigan?

  1. Originally, there was a limit to where one could only use defense of others for special relationships (i.e. spouse). However, that rule no longer exists.

The Michigan Fetal Protection Act extended several protections to fetuses. So the court determined to apply this defense to fetuses as well.

However, there are limits. First, the defense must be against unlawful conduct. Second, this only applies to mothers, and more specifically within the mother’s womb.


Cannot use force to defend a person against lawful use of force by another (i.e. police arrests)

Can apply to fetuses within the mother depending on the jurisdiction.

The “Alter Ego Rule”. The traditional rule allowed a defense of others if the person who is being aggressed was able to defend themselves. The modern rule allows someone to defend others for a “reasonable belief”.

MPC § 3.05

The MPC follows the modern approach to the Alter Ego Rule. If he sees an injury against another and feels like they would be threatened using that force, looks at the circumstances as he believes them to be, and the actor believed his action was necessary to protect the other person. It is all dependent on a subjective “belief”.

However, the MPC limits this to a person who is born alive.

Defense of Habitation/Property

State v. Boyett

185 P.3d 355 (N.M. 2008).

Convicted with First Degree Murder.


Was the defendant entitled to an instruction on defense of habitation? Was there evidence that the victim was trying to enter?


Defense of habitation is applicable if the victim is attempting to enter the habitation with the intent to commit a violent crime. In other words, the defense is always available if the individual is inside the home but can also be applied to those who are attempting to enter the home.


Did not attempt to enter, no defense of habitation allowed.


There is an awkward love triangle here that has caused a lot of hard feelings between all the parties involved. Facts necessary to our analysis is that the victim approached the home, angry, knocked, stepped back waiting for an answer, and the defendant answered. At some point during the conversation (it was brief), the victim attempted to draw a weapon so the defendant shot her.

The defendant claimed defense of property, others, and habitation. The defense of habitation was refused by the trial court.


The prosecution wanted a line to be drawn that says that a victim needs to cross the threshold for the defense of habitation to apply. The courts disagreed by citing several cases where the defense can be made by those who were outside the home. However, the person who is entering the home needs to be preparing to commit a violent crime. Mere theft won’t suffice.

So, the defendant is entitled if there is evidence that the victim was attempting to enter to commit a violent crime. Here, there was no evidence of the victim attempting to enter. This is because the victim had knocked and stepped back waiting for an answer. So, the defendant is not entitled to the defense.


This is a case of defense of habitation. Note that there is a difference between defense of habitation and defense of property. Defense of habitation can allow for the use of deadly force. However, the defense of property never allows deadly force to be used.

Defense of habitation by use of deadly force can only occur if the victim intended to enter with the intent to cause a violent felony.

Additional Notes

The defense of habitation can be invoked if an intruder is outside and trying to make it to the interior of the house to commit a violent felony.

The following is the modern common law approach:

The test is that the defendant can use lethal force against an intruder when the defendant reasonably believes such force is necessary to prevent the immediate commission of a felony in the home. This includes when a defendant reasonably believes that the person is outside but has the intent to come inside. However, this must be done to prevent a violent felony inside the home.

Because the person knocked and backed away (did not try to enter), then the defense of habitation is not necessary.

The traditional approach is to use “all the force apparently necessary to repel any invasion of the home.”

MPC 3.06(3)(d)

The intruder needs to try and enter by the home to dispossess the homeowner or the person is going there to attend to commit a certain crime including

You cannot use deadly force at all for personal property.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.