#17109 - 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 of force was immediately necessary or else D would be killed

• Argument applied to Norman: it was immediately necessary because if she did not kill him, she would lose her chance and he would kill her

• Rationale: helps domestic violence victims

• Policy

  • People less likely to start altercations and engage in crime if know the target can use deadly force against them (If retreat requirements, abuser is emboldened to start altercations)

  • People should not be required to leave a place they have the right to be in

  • Should not require retreat because people in situation of high threat cannot rationally weigh if retreat can be done in complete safety to decide what to do

• Criticism

  • In situations of conflict, encourages people to engage in more conflict

• Required only if he knows that he can do so in complete safety (MPC 3.02(2)(b)(ii))

  • Subjective standard, favors D

• EXCEPTION: no need to retreat if in own home or in workplace (unless confronted by co-worker)

  • No need to retreat even if threat is from the co-occupant (minority says if co-occupant is threatening, must retreat)

• Gov argues: D can retreat safety in his house

• Def argues: no guarantee of complete safety (could trip and fall in the course of retreat)

• Policy

  • Protection of life is important, this prevents unnecessary loss of life

  • Harm based

  • Encourages D to exercise extra care in self defense and not overreact, but assess whether retreat is appropriate and required

    • Criticism: people cannot rationally weigh when in high pressure situation

• Abbott

  • Abbott could have retreated

• Peterson: IA is actor whose does an affirmative unlawful act reasonable calculated to produce an affray forboding injurious and fatal consequences

  • Peterson: D was initial aggressor when he came out of the house with a gun (defense argues: K is actually the initial aggressor starting with the stealing with the wipers and continued to be one; or K was again the aggressor when advancing with the wrench)

• Other: IA is someone not free from fault

• Effect:

  • Provoking act can be minor force, nondeadly force (slap), or no force at all (words; following someone knowing it would upset them - Allen). But if situation escalates and the IA uses deadly force or kills, do not get self defense and faces criminal liability

• Rationale:

  • Deter people from being initial aggressor and provoking others

  • Focus on harm caused

  • Decreases homicides/deaths

• Criticism:

  • Holds defendant responsible for the disproportionate response of the provoked

• *** if you are initial aggressor, other party escalates to deadly force and you respond with deadly force with honest but unreasonable belief that force is necessary to prevent imminent threat, could claim imperfect self defense for reduction to voluntary manslaughter

• 3.04(2)(b)(i) IA is actor, with the purpose of causing death or serious bodily harm, provoked the use of force against him in same encounter

• Effect:

  • First person who uses deadly force with the intention is IA

  • If you provoke with nondeadly force/minor...