CORE CRIMINAL LAW SUBJECTS: Defenses:Self-Defense
2023 (October Term)
United States v. Hasan, 84 M.J. 181 (in cases of homicide, an individual has a right to self-defense where they apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on that individual, and that the individual believed that the force the individual used was necessary for protection against death or grievous bodily harm).
2011 (September Term)
United States v. Behenna, 71 M.J. 228 (the standard for self-defense is set out in RCM 916(e)(1), which provides that if an individual apprehends on reasonable grounds that grievous bodily harm or death is about to be wrongfully inflicted to his or her person, then the individual may use such force as is appropriate for the circ*mstances, including deadly force).
(the right to act in self-defense is not absolute; initial aggressors and those involved in mutual combat lose the right to act in self-defense; however, an initial aggressor or a mutual combatant regains the right to act in self-defense if the other party escalates the degree of force, or if the initial aggressor or the mutual combatant withdraws in good faith and communicates that intent to withdraw).
(instruction on losing and regaining the right to act in self-defense was erroneous where (1) the military judge provided no guidance on how to evaluate an offer-type assault, which occurs, for instance, when an individual points a loaded pistol at another person without lawful justification or authorization, and (2) the military judge gave an inaccurate statement of the law when he linked the lawful use of force with the issue of escalation with the conjunction “and” (“However, if you have a reasonable doubt that the accused assaulted Ali Mansur, was provoked by Ali Mansur, or had some other legal justification or excuse, and you are not convinced beyond a reasonable doubt that Ali Mansur did not escalate the level of force, then you must conclude that the accused had the right to self-defense ....”; the statement of law was inaccurate because appellant would have had the right to self-defense if his original use of force had been lawful - it was provoked, justified, or otherwise excusable (i.e., appellant was not an initial aggressor) - or if Mansur had escalated the level of force).
(if appellant was the initial aggressor-i.e., the one that provoked or brought about the situation that resulted in the necessity to kill another, then he lost his right to self-defense, unless the deceased either escalated the level of force or appellant withdrew and communicated that withdrawal in good faith).
(appellant’s initial use of deadly force against a detainee, whom he had taken to remote location, stripped naked, and interrogated at gunpoint, was unauthorized and excessive; therefore, he had no right of self-defense, and he could not have later regained the right to act in self-defense because he did not withdraw; even if the detainee had thrown a piece of concrete at him, that would not have amounted to escalation in this situation where appellant had already introduced deadly force - that is, a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at an initial aggressor in full battle attire, armed with a loaded pistol, and lunges for the pistol - and this is especially so when the initial aggressor had every opportunity to withdraw from the confrontation and there was no evidence he either attempted or was unable to do so; even assuming that the detainee lunged for appellant’s pistol and appellant feared that the detainee would use the pistol if he was able to seize it, because appellant was the initial aggressor, and because there was no evidence to support a finding of escalation or withdrawal, a rational member could have come to no other conclusion than that appellant lost the right to act in self-defense and did not regain it).
United States v. Stanley, 71 M.J. 60 (self-defense is an affirmative defense for homicide or assault cases involving deadly force that consists of two elements: (1) that the accused apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on him; and (2) that the accused believed that the force he used was necessary for protection against death or grievous bodily harm).
(the theory of self-defense is protection and not aggression, and to keep the two in rough balance, the force to repel should approximate the violence threatened).
(even a person who starts an affray is entitled to use self-defense when the opposing party escalates the level of the conflict).
United States v. Schumacher, 70 M.J. 387 (to present a valid claim for self-defense to assault with a dangerous weapon or means likely to produce death or grievous bodily harm, the evidence must show that the accused (1) apprehended, on reasonable grounds, that bodily harm was about to be inflicted wrongfully on him, and (2) in order to deter the assailant, offered but did not actually apply or attempt to apply such means or force as would be likely to cause death or grievous bodily harm).
(MPs are allowed to use reasonable force in carrying out their official duties; to conclude that an MP’s use of force is wrongful for an instruction on self-defense, the evidence must show that the MP either used unreasonable force or was acting in something other than an official capacity).
(in this case, the evidence was insufficient to establish that appellant reasonably believed the MPs who arrived at his home during a domestic dispute with his wife were unknown intruders in order to warrant a self-defense instruction in an assault prosecution arising from appellant pointing a pistol at one of the MPs, where (1) appellant was present when his wife requested that her neighbor call the MPs, (2) the MPs arrived four minutes later, (3) during the interim period, appellant’s wife had tried to persuade him to put away his guns because the MPs were coming, (4) when the MPs arrived, they were dressed in full military police attire including badges, (5) while in the process of waving the pistol around, appellant stated that it would be nothing for him to kill a few MPs, and (6) appellant’s defense counsel explicitly denied that the evidence could warrant such an instruction; given the sequence of events, the physical appearance of the MPs, appellant’s statement indicating knowledge of who the people were, and defense counsel’s concessions at trial, the military judge did not err in determining that there was no evidence that appellant reasonably perceived the infliction of wrongful bodily harm).
2008 (SeptemberTerm)
UnitedStates v. Yanger, 67 M.J. 56 (the elements ofself-defense in a situation ofnon-aggravated assault require that the accused apprehended, uponreasonablegrounds, that bodily harm was about to be inflicted wrongfully on him,andbelieved that the force that he used was necessary for protectionagainstbodily harm, provided that the force used by him was less than forcereasonablylikely to produce death or grievous bodily harm).
2007
United States v. Lewis, 65 M.J. 85 (self-defense isconsidered a special defense, because although not denying that theaccused committed the objective acts constituting the offense charged,self-defense denies, wholly or partially, criminal responsibility forthose acts).
(under RCM 916(e)(4), theright to self-defense is lost if the accused was an aggressor, engagedin mutual combat, or provoked the attack which gave rise to anapprehension that the accused was about to suffer death or grievousbodily harm, unless the accused had withdrawn in good faith after theaggression, combat, or provocation and before the offense allegedoccurred; while RCM 916(e)(4) sets out a duty to withdraw under certaincirc*mstances in order to avail oneself of the defense of self-defense,it does not address either escalation in general or the specificsituation in which the original aggressor or someone engaged in mutualcombat is not able to withdraw in good faith; the Rule’s silenceregarding an inability to withdraw creates an ambiguity).
(under common lawself-defense principles, even a person who starts an affray is entitledto use self-defense when the opposing party escalates the level of theconflict).
(a mutual combatant canregain the right of self-defense when the opposing party escalates theconflict and when he is incapable of withdrawing in good faith, as longas he responds in a manner proportionate to the threat faced; RCM916(e)(4) does not require the absurd result of requiring a mutualcombatant or even an initial aggressor to withdraw when he isphysically incapable of doing so).
(in this case, theself-defense instruction given was incomplete where the military judgeerred in not instructing the members that a mutual combatant couldregain the right to self-defense when the opposing party escalated theconflict and when he was incapable of withdrawing in good faith).
(military judge’s failure togive complete and correct self-defense instruction created aconstitutional error).
2006
UnitedStates v. Dearing, 63 M.J. 478 (an initialaggressor is still entitled to usedeadly force in his own defense, just as he would be if he withdrewcompletelyfrom combat and was then attacked by his opponent, in instances wheretheadversary escalates the level of conflict).
UnitedStates v. Dobson, 63 M.J. 1 (it is a defenseto a homicide that the accused:(A) apprehended, on reasonable grounds, that death or grievous bodilyharm wasabout to be inflicted wrongfully on the accused; and (B) believed thattheforce the accused used was necessary for protection against death orgrievousbodily harm; the first element, under subparagraph (A), has anobjectivecomponent, involving the perception of a reasonable person under thecirc*mstances; the second element, under subparagraph (B), is whollysubjective, involving the personal belief of the accused, even if notobjectively reasonable; although mental health evaluations may berelevant toboth elements of self-defense, such evaluations may have particularimport withrespect to the second element, which involves the personal, subjectiveperceptions of the accused).
(the militaryjudge’s error in precludingappellant from introducing corroborating evidence when her credibilitywasattacked regarding the state-of-mind element of her claim ofself-defense topremeditated murder was not a constitutional error that was prejudicialunlessharmless beyond a reasonable doubt; appellant had an extensiveopportunity topresent a state-of-mind defense).
(the militaryjudge’s error in excluding theproposed testimony of witnesses that the victim threatened to killappellant ontwo occasions which was offered to corroborate appellant’s claim ofself-defenseafter an attack on her credibility during cross-examination was notprejudicialon the issue of self-defense in court-martial of appellant forpremeditatedmurder, considering that the prosecution’s case refuting theself-defense claimwas strong, the defense’s case was weak, and the quality andmateriality of theexcluded evidence was of diminished value on the issue of self-defense).
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