Self Defense Deadly Force, Reasonable Person, Initial Aggressor - Criminal Law

3.04(1) Justified use if actor believes that its use is immediately necessary to protect himself against use of unlawful force by another

REASONABLENESS

Why objective common law standard

• Want to prevent harm to innocent people from behavior that is based on honest but unreasonable beliefs

What does the "reasonable person in the defendant's situation" incorporate?

• YES physical factors/anything observable

  • Physical size and appearance (because immutable)

• NOT subjective personality factors

  • Temperament/emotional/psychological traits (because controllable)

• UNCLEAR middle factors depend on how much control and utilitarian concerns (want to deter people prone to violence)

  • Romero: culture not part of reasonableness inquiry

  • Physical traits (concerns the brain) with a mental impulse component?

    • Ex. PTSD, traumatic brain injury, head injury

    • YES because this fundamentally changes how the brain is wired and how information and situations are processed

    • NO because still can control and manage, can seek help

  • Previously negative experiences?

    • Ex. Mugging or sexual assault or culture

    • YES because our brain is finely tuned to what happens to us; changes how the brain is wired and how information and situations are processed

    • YES/NO depending on how analogous the previous experience was

    • NO because line drawing problems - how much detail about the previous experiences to bring in (Race of the people involved?)

• Consider whether bringing information will aggravate jury biases

  • Ex. Racial/Gender biases (ex. Bring in previous muggings, lead jury to consider racial factors)

    • BUT can give instruction to jury not to decide based on implicit biases

      • Is this actually effective?

3.09(2) QUALIFICATION (def unavailable)

If the belief of defendant is reckless or negligent and the offense only requires a reckless/negligent MR > defense is not available

DIFFERENCES BETWEEN MPC AND COMMON LAW

1. Immediately: broader/longer timeframe (ex. Domestic violence)

2. Believes: honest belief

Threat to inflict great bodily harm

Sometimes list of offenses that allow you to use DF

1. Reasonably believe in necessity to use force

1. Honestly believe in necessity to use force (only defense in purposeful killings)

BUT if reckless/negligent in having the belief, then not a defense to a recklessness/negligence charge

3. No retreat required

Minority: retreat required (same as MPC)

3. Can avoid necessity of using force by retreating. Retreat required if he knows he can do so in complete safety (3.04(2)(b)(ii)), unless he is at home or at workplace (unless IA or unless confronted by the coworker) (3.04(2)(b)(ii)(1))

** never have to retreat if using non-deadly force, question of retreat only comes in when using deadly force

• Norman

  • Imminence = threats of immediate danger that must be instantly met and cannot be guarded against by calling for assistance or protection of law

  • NOT inevitable danger

  • Dissent: imminent should mean impending danger - based on past experiences, N was fearing her husband could wake up at any time and threaten or kill her

• Note: perfect self defense - reasonable and honest belief > acquittal / imperfect self defense - D provokes, V disproportionately escalates, D kills with honest and unreasonable belief that it is necessary due to imminent threat > murder mitigated to voluntary manslaughter

• Rationale:

  • Want people to wait or get help until it is absolutely necessary to kill > deters vigilante justice

  • Value human life

  • Decreases number of homicides/deaths

  • Focus on the precise moment of D's use of force, not the future

  • Easy standard to apply for prosecutors, let prosecutorial discretion sort who should be charged

• Criticism:

  • Overinclusive and penalizes domestic violence victims who we don’t want to impose liability on

  • Imminence is only a proxy for necessary, but necessity already in the standard

• Expands timeframe

• Argument: use...