Trial of Kyle Rittenhouse in Kenosha, Wisconsin

Kyle Rittenhouse was acquitted of multiple homicide charges last month after claiming self-defense in shooting and killing two men and injuring a third during racial unrest in Kenosha, Wis., in 2020.

A man enters a riot-torn downtown area to protect property. Armed with a semi-automatic rifle, his presence provokes threats and eventual assaults. He eventually shoots three rioters, two fatally.

Three men decide to make a citizen’s arrest of a jogger they suspect of burglarizing a construction site. They chase him down, and when he resists, they shoot and kill him, saying they feared their unarmed victim would harm them.

Two recent high-profile cases — the murder trial of Kyle Rittenhouse in Wisconsin and the trial of three men who murdered Ahmaud Arbery in Georgia — hinged on the legal principle of self-defense.

Each state has different laws governing self-defense. Here’s a rundown of some of New Hampshire’s provisions.

Stand your ground. For all intents and purposes, New Hampshire has a “stand your ground” law, though lawyers interviewed for this article avoided the terminology.

New Hampshire used to have the “castle doctrine,” which permitted you to use deadly force in self-defense in your home and surrounding property. Otherwise, you can only kill in self-defense if unable to safely retreat from the threat.

In 2011, the Legislature added the “stand your ground” provision, expanding the use of deadly force to “anywhere else he or she has the right to be.”

That encompasses many places — but not all, such as a city park after curfew. Homicide prosecutor and Associate Attorney General Jeffery Strelzin stressed that neither the statutes nor case law have so far elaborated on where someone “has the right to be.”

Bullies beware. Bullies don’t get the upper hand in New Hampshire’s self-defense laws. The same provision of state law that includes the “castle doctrine” and “stand your ground” limits those protections to someone who “was not the initial aggressor.”

Similar language is contained in another provision dealing with non-deadly force. If you start a fight, you may use non-deadly force only if you withdraw from the fight and communicate that intent but your adversary continues an attack. The law also states you can’t provoke an attack and then use deadly force.

Fight matchsticks with matchsticks, fire with fire. New Hampshire’s self-defense laws are not limited to deadly force, and lawyers frequently use self-defense laws in misdemeanor and felony assault cases.

But whether deadly or non-deadly, the law expects any use of force to be proportional.

“If someone’s 20 feet away and shouts ‘I’m going to kick your ass,’ you’ve got to measure your response to that,” said Richard Guerriero, a veteran defense attorney in Keene. “You can only use deadly force to respond to deadly force.”

Judgment calls. A lot of the New Hampshire Criminal Code that lays out the self-defense laws — Chapter 627, Justification — relies on making judgment calls. The phrase “reasonably believes” appears in the chapter 28 times. That leaves a lot to interpretation.

So how does that work?

“The Supreme Court has said that a person must have a reasonable and honest belief under all the circumstances that he has no reasonable alternative other than violence,” Guerriero said.

In 1980, the Supreme Court allowed for error, ruling that a person only needed to reasonably believe he faced deadly peril, even if not actually confronted with it. Confusing the matter, the court ruled 13 years later that the word reasonable had to be determined by an objective standard.

Also, you have to reasonably believe that deadly force was necessary, Strelzin said.

Finally, juries are told they have to consider the circumstances that the defendant faced at the time of the confrontation, not as they appear on “detached reflection” in a courtroom or jury deliberation room.

Citizen’s arrest. The Arbery killers claimed they were making a citizen’s arrest, prompting the Georgia legislature to remove citizen’s arrest laws from its books.

New Hampshire self-defense law includes a provision for “a private person acting on his own” who wants to make an arrest. That citizen can use non-deadly force to arrest a person he “reasonably believes” committed a felony. He can use deadly force only if he faces the imminent use of deadly force.

Special provisions. The law includes special provisions for use of varying degrees of force, including:

• By parents or guardians (“to prevent or punish” a minor’s conduct); teachers (the minor creates a disturbance and won’t leave the premises) or “when it is necessary for the maintenance of discipline;” security guards in hospitals, vessels, aircraft or trains (to maintain decorum or safety; deadly force to avoid death or serious injury); merchants (non-deadly force to detain a shoplifter); movie theater owners (non-deadly force to detain someone illegally recording) and county fair security guards (to detain any lawbreaker).

• Against those who are incompetent (to safeguard their welfare) and those who are institutionalized (to maintain reasonable discipline).

• Many separate provisions for law enforcement.

Common sense. Were you where you were supposed to be? Was your life really in danger? Could you have gotten away from the threat? All those questions and others come into play in self-defense cases.

When a defendant raises a self-defense claim, prosecutors must disprove it beyond a reasonable doubt, Strelzin said.

Some social media postings say they hope “Kyle’s Law” legislation will be proposed next year in New Hampshire, making prosecutors and police financially responsible if they don’t disprove a self-defense claim.

Sometimes, prosecutors decide they can’t reach that burden and either don’t bring charges or drop charges. When they don’t, a jury sorts it out, as they did in the Rittenhouse and the Arbery cases.

“Jurors make a considerable effort to follow the law,” Guerriero said. “But in reality, most people have a sense of what they think is reasonable self-defense.”