Chapter 18

SELF-DEFENSE

§ 18.01 GENERAL PRINCIPLES

[A] Overview Every state in the United States recognizes a defense for the use of force, including deadly force, in self-protection. Indeed, one court has observed: It is difficult to the point of impossibility to imagine a right in any state to abolish self defense altogether, thereby leaving one a Hobson's choice of almost certain death through violent attack now or statutorily mandated death [or life imprisonment] through trial and conviction of murder later.1 If a state legislature were to abolish the defense of self-defense, it might very well violate the United States Constitution. 2 Most issues regarding the application of defensive force arise in the context of homicide and attempted murder prosecutions. Therefore, this chapter primarily focuses on the question of when deadly force may be used in self-defense.

[B] Elements of the Defense At common law, a non-aggressor is justified in using force upon another if he reasonably believes such force is necessary to protect himself from imminent use of unlawful force by the other person.3 Specifically, however, deadly force is only justified in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor. 4

1 Griffin v. Martin, 785 F .2d 1172, 1186 n.37 (4th Cir. 1986), aff'd en bane and op. withdrawn, 795 F.2d 22 (4th Cir.1986). 2 See District of Columbia v. Heller, 554 U.S._, 128 S.Ct. 2783 (2008) (holding that the Second Amendment to the United States Constitution provides an individual the right to possess a firearm, and to use that weapon for traditional lawful purposes, including self-defense within the home); see also Eugene Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 TEx. REV. LAw & PoLITICs 399, 400 n2 (2007) (reporting that 44 of the 50 state constitutions "secure either a right to defend life or a right to bear arms in defense of self' and, therefore, concluding that "a constitutional right to self-defense is firmly established in American legal traditions"). 3 People v. Dunlap, 734 N.E.2d 973, 981 (Ill. App. 2000); State v. Gheen, 41 S.W.3d 598, 606 (Mo. Ct. App. 2001). 4 United States v. Peterson, 483 F.2d 1222, 1230--31 (D.C. Cir. 1973); State v. Smullen, 844 A.2d 429 (Md. 2004).

223 224 SELF-DEFENSE CH.18 § 18.02 DEADLY FORCE: CLARIFICATION 225

These principles are subject to substantial clarification, as discussed in the [E] The "Reasonable Belier' Component next chapter section. However, it should be noted at the outset that the defense of self-defense, as is the case with other justification defenses, A self-defense claim contains a subjective and an objective component. 10 contains: (1) a "necessity" component; (2) a "proportionality" requirement; and First, the jury must determine that the defendant subjectively believed that he needed to use deadly force to repel an imminent unlawful attack. Second, the (3) a reasonable-belief rule that overlays the defense. defendant's belief in this regard must be one that a reasonable person in the same situation would have possessed. Notice, however, the implication of the [C] The Necessity Component latter component: A defendant is justified in killing a supposed aggressor if the The necessity rule provides that force should not be used against another defendant's belief in this regard is objectively reasonable, even if appearances person unless, and only to the extent that, it is necessary. One aspect of this prove to be false, i.e., even if the decedent did not represent an imminent threat requirement-one which is increasingly controversial-is that self-defense is to the defendant. 11 limited at common law to imminent threats. 5 Moreover, a person may not use On the other hand, the defense is unavailable to one whose self-defense deadly force to combat an imminent deadly assault if some nondeadly response belief, although genuine, was unreasonable. In such circumstances, the will apparently suffice. For example, if V, an elderly or infirm aggressor, traditional rule is that the unreasonably mistaken actor loses his self-defense attempts to stab D, D may not kill V if D knows or should know that he could claim and, therefore, is guilty of murder. An increasing number of avoid death by disarming V, or by using nondeadly force. 6 And, in some jurisdictions, however, now permit an unreasonably mistaken actor to assert jurisdictions, a person may not use deadly force against an aggressor if he an "imperfect" or "incomplete" claim of self-defense, which mitigates the knows that he has a completely safe avenue of retreat.7 offense to manslaughter.12

[D] The Proportionality Component § 18.02 DEADLY FORCE: CLARIFICATION OF THE The proportionality rule provides that a person is not justified in using GENERAL PRINCIPLES force that is excessive in relation to the harm threatened. 8 Assuming all of the As stated in § 18.01, a person who is not an aggressor is justified in using other elements of the defense apply, a person may use nondeadly force to deadly force upon another if he reasonably believes that such force is necessary repel a nondeadly threat; he may also use nondeadly force against a deadly to protect himself from imminent use of unlawful deadly force by the other threat (and, in some circumstances may be required to do so, as noted above). party. This rule is examined here in detail. However, a person is never permitted to use deadly force to repel what he knows is a nondeadly attack, even if deadly force is the only way to prevent [A] "Deadly Force": Definition the battery. For example, if V threatens to strike D on a public road, and the only way D can avoid the battery is to push V into the street in front of a fast­ Statutes vary in their definition of the term "deadly force." However defined, it applies whether one is considering the force used by the aggressor moving car, D must abstain and seek compensation for the battery after the (decedent) or the innocent person threatened (defendant). fact. 9 As summarized by one court, 13 some states define the term on the basis of the likelihood of the force causing death or serious bodily injury.14 Thus, "deadly force" is, for example, force "likely" or "reasonably expected" to cause death or serious bodily injury; the actor's state of mind in regard to the likely outcome is irrelevant.15

5 See § 18.02[D][l], infra. 10 People v. Watie, 100 Cal. App. 4th 866, 877 (2002); State v. Clark, 826 A2d 128, 134-35 (Conn. 6 People v. Riddle, 649 N.W.2d 30, 34 (Mich. 2002); see State v. Garrison, 525 A2d 498 (Conn. 2003). 1987) (V, intoxicated, moved menacingly toward G with a gun in his waistband; G disarmed V; V then pulled out a knife; G shot V to death; G's conviction was upheld, in part on the ground that G 11 State v. Simon, 646 P.2d 1119, 1120--21 (Kan. 1982); People v. Goetz, 497 N.E.2d 41, 46-48 knew, or should have known, that he could have disarmed V again). (N.Y. 1986); Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415, 1421 (E.D. Cal. 1990). For more discussion of the "reasonable belief' topic, see § 17.04, supra. 7 See § 18.02[C], infra. 12 See § 18.03, infra. 8 State v. Warren, 794 A2d 790, 793 (N.H. 2002). But see Renee Lettow Lerner, The Worldwide Popular Revolt Against Proportionality in Self-Defense Law, 2 J. LAw, EcoN. & PoL'Y 331, 333 13 People v. Vasquez, 148 P.3d 326, 328-329 (Colo. App. 2006). (2006) ("A popular revolt against certain notions of proportionality has been underway for the past 14 Notice: The definition of "deadly force" usually is broadly defined to include serious bodily several decades in the United States, and for at least the past five years abroad."). injury (or, alternatively, "grievous bodily injury'' or "life-threatening injury"), and not just death. 9 For the definition of "deadly force," see § 18.02[A], infra. 15 E.g., if D stabs V, this constitutes deadly force, even if D only intended to wound V slightly, 226 SELF-DEFENSE CH.18 § 18.02 DEADLY FORCE: CLARIFICATION 227

Other jurisdictions include a mental-state element in the definition. Thus, the aggressor. 21 One who unlawfully brandishes a weapon in a threatening "deadly force" is, for example, force "intended" to cause death or serious manner, but who does not use it, is an aggressor; the person threatened, bodily injury, regardless of the likelihood of such a result occurring. Other although he is the first to use actual force, can still potentially claim self­ definitions, while including a mental-state element, tie it to the likelihood of a defense. Third, the issue of whether a defendant lost the right of self-defense result (e.g., the actor "knew" or "reasonably should have known" that the force in a conflict ordinarily is a matter for the jury to decide, based on a proper 22 used was likely to cause death or serious injury). instruction on the meaning of the term "aggressor."

[B] The "Non-Aggressor" Limitation [2] Removing the Status of "Aggressor" The initial ag~essor in a conflict may purge himself of that status and [1] Definition of "Aggressor" regain the right of self-defense. The issue always is: Who was the aggressor at the time the defensive-in this context, deadly-force was used? In this An aggressor "has no right to a claim of self-defense."16 Although there is regard, it is important to distinguish between "deadly" (or "felonious") and ~ no universally accepted definition of the term, an "aggressor" has been defined "nondeadly" aggressors. as one whose "affirmative unlawful act [is] reasonably calculated to produce an affray foreboding injurious or fatal consequences."17 Or, he is one who [a] Deadly Aggressor threatens unlawfully to commit a battery upon another or who provokes a 18 A "deadly" (or "felonious") aggressor is ,a person whose acts are reasonably physical conflict by words or actions calculated to bring about an assault. For calculated to produce fatal consequences. The only way such a person may example, if A unlawfully brandishes a knife and threatens to kill B, A is not regain the right of self-defense is by withdrawing in good faith from the justified in defending himself if B responds to A's threats by use of self­ conflict and fairly communicating this fact, expressly or impliedly, to his protective force. intended victim. 23 Courts frequently state that a person is not privileged to use force to resist This rule is strictly applied. For example, suppose that D initiates a deadly an attack unless he is "free from fault in the difficulty,"19 but that is an attack on V in the street, whereupon V responds with sufficient force that D is overstatement.2° For example, if D calls V, an acquaintance, "a jerk," to which now fearful for his own life. If D runs behind a parked car, and V pursues him, V take such umbrage that he pulls out a gun and menaces D with it, D is D is still not entitled to act in self-defense, unless by actions or words D puts justified in killing V (assuming that the other requirements of the defense are Von actual or reasonable notice that he no longer is a threat to V, i.e., that D's retreat is not simply a temporary strategic act of avoiding Vs resistance. In met), although D was not entirely free from fault in the conflict. D was not the the absence of fair notice to V of the termination of the conflict, D is guilty of aggressor: his mild insult was not an "affirmative unlawful act reasonably murder if he kills V in "self-defense." calculated to produce an affray foreboding injurious or fatal consequences." Three features of the concept of "aggression" merit brief attention here. [b] Non deadly Aggressor First, a person is an aggressor even if he merely starts a nondeadly conflict. Suppose that D wrongfully attempts to slap V. V improperly responds to the Second, it is incorrect to state that the first person who uses force is always threat by pulling out a knife and attempting to kill D. In this conflict, D was the initial aggressor. On the other hand, Vs response was disproportional to D's attack, as he wrongfully converted a minor altercation into a deadly one. Thus, and regardless of whether V dies from the wounds. On the other hand, applying this definition, a Vis also an aggressor, indeed, a worse one than D. May D, therefore, now kill minor battery does not ordinarily constitute deadly force, even if death unexpectedly results. E.g., V in self-defense? V throws a fist at D; D protects himself by lightly pushing V away; V falls and unexpectedly dies. D may successfully claim self-defense because he used force proportional to the threat-he used Although case law is not uniform, most courts provide that when the victim nondeadly force (force unlikely to cause death or serious bodily injury) to repel a nondeadly attack. of a nondeadly assault responds with deadly force, the original aggressor 16 Bellcourt v. State, 390 N.W.2d 269,272 (Minn. 1986); see Loesche v. State, 620 P .2d 646,651 immediately regains his right of self-defense.24 Thus, in the hypothetical, (Alaska 1980) (''The law of self-defense is designed to afford protection to one who is beset by an although D was the initial aggressor-and is subject to prosecution, therefore, aggressor and confronted by a necessity not of his own making.") (quoting Bangs v. State, 608 P.2d for the original assault-he may defend himself, including by use of deadly 1, 5 (Alaska 1980)). force if required. 17 United States v. Peterson, 483 F.2d 1222, 1233 (D.C. Cir. 1973). 18 State v. Brown, 450 S.E.2d 538, 541 (N.C. Ct. App. 1994); see also People v. Dunlap, 734 21 State v. Jones, 665 A.2d 910, 913-14 (Conn. App. Ct. 1995). N.E.2d 973 (Ill. App. Ct. 2000) (D beat on Vs apartment window and threatening V; the court noted that "[e]ven the mere utterance of words may be enough to qualify one as an initial aggressor"). 22 Swann v. United States, 648 A.2d 928, 933 (D.C. 1994). 19 United States v. Peterson, 483 F.2d 1222, 1231 (D.C. Cir. 1973). 23 People v. Gleghorn, 193 Cal. App. 3d 196, 200 (Ct. App. 1987); State v. Miller, 868 So.2d 239, 20 State v. Corchado, 453 A.2d 427,433 (Conn. 1982) (stating that "[i]t is not difficult to visualize 243 (La. Ct. App. 2004); State v. Morrow, 41 S.W.3d 56, 59 (Mo. Ct. App. 2001). self-defense situations where . . . there is some fault on both sides"). 24 E.g., Watkins v. State, 555 A.2d 1087, 1088 (Md. Ct. Spec. App. 1989). 228 SELF-DEFENSE CH.18 § 18.02 DEADLY FORCE: CLARIFICATION 229

The other approach, particularly followed in earlier law, is that D, the initial [2] Contrasting Approaches nondeadly aggressor, does not have an automatic right of self-defense.25 In these jurisdictions, D is not entitled to use deadly force against V unless he If a person can safely retreat and, therefore, avoid killing the aggressor, avails himself of an obviously safe retreat, if one exists. 26 If no safe place deadly force is, objectively speaking, unnecessary. Nonetheless, American exists or if D does retreat and V pursues him, then D may resort to deadly jurisdictions are split on the issue of whether an innocent person must retreat force.' If D does not retreat when he obviously could do so, he does not lose his if this can be done in complete safety. status as an aggressor, and is not justified in killing V. However, in such A majority of jurisdictions today apply a "no retreat" rule: a non­ circumstances, D may be convicted in some jurisdictions of manslaughter, 27 aggressorM is permitted to use deadly force to repel an unlawful deadly attack, rather than of murder. even if he is aware of a place to which he can retreat in complete safety. 35 The rationale for reducing the offense to manslaughter in such The no-retreat position has gained additional recent support as the result of circumstances is not always explained. Frequently, D's manslaughter verdict efforts, particularly by the National Rifle Association, to broaden self-defense can be explained on grounds unrelated to self-defense: V's deadly response to law. According to one review of state legislative efforts, between 2005 and D's nondeadly assault constitutes "adequate provocation," which brings D's 28 2007, "thirty states ... considered altering their laws on self-defense to conduct within the "sudden heat of passion" doctrine of homicide law. 36 Sometimes, however, a court will treat the nondeadly aggressor as possessing replace the retreat element with a right to 'stand your ground.' " Although an "imperfect" or ''incomplete" right of self-defense, which results in the not all of these states changed their law, by 2006, fifteen states "enacted laws manslaughter conviction. 29 that expand the right of self-defense, allowing crime victims to use deadly force in situations that might formerly have subjected them to prosecution for 37 [C] Necessity Requirement: The Special Issue of murder." Retreat30 The new statutes are, to differing degrees, modeled after "Stand Your Ground" legislation enacted in Florida in 2005, which provides in part: [1] Explanation of the Issue A person who is not engaged in an unlawful activity and who is attacked in any . . . place where he has a right to be has no duty to The general rule is that self-defense "is measured against necessity."31 32 retreat and has the right to stand his or her ground and meet force Thus, as explained earlier, a person under deadly attack should only respond with force, including deadly force if he or she reasonably believes it is with nondeadly force, if such lesser force will reasonably prevent the necessary to prevent death or great bodily harm to himself or another threatened harm. Likewise, one may ordinarily only use force when a threat or to prevent the commission of a forcible felony. 38 has become imminent, a controversial requirement considered later in the The rule that a person is not required to retreat is justified on various text.33 At issue in this subsection is the question of whether an actor, under grounds. First, it is claimed that the law "should not denounce conduct as attack, must retreat before using deadly force. In other words, if an innocent criminal when it accords with the behavior of reasonable men. . . . [T]he person is attacked, and if he has only two realistic options-use deadly force or manly thing is to hold one's ground, and hence society should not demand what retreat to a place of safety-must he choose the latter option? As discussed smacks of cowardice."39 Second, "Right" should never give way to ''Wrong," yet immediately below, the law in this area is in flux. this is what the retreat doctrine demands of those in the right. Third, the no-retreat rule sends a positive, utilitarian message to criminals that they threaten innocent persons at their own risk. As one legislator put it, "It's going

34 Aggressors who wish to defend themselves are required to retreat, even in no-retreat 25 See American Law Institute, Comment to § 3.04, at 50--51. jurisdictions. See § 18.02[B][2], supra. 35 26 Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1128-29 (3d ed. 1982). See State v. Anderson, 631 A.2d 1149, 1154, 1155 (Conn. 1993) (stating, but rejecting, what it characterized as the majority "no retreat" rule); Wayne R. LaFave, Criminal Law 547 (4th ed. 2003) 27 !d. (describing the no-retreat rule as the majority view, but also indicating there is a "strong minority" 28 See § 31.07[B][2], infra. position). 29 See § 18.03, infra. 36 P. Luevonda Ross, The Transmogrification of Self-Defense by National Rife Association­ 30 See generally Joseph H. Beale, Retreat from a Murderous Assault, 16 HARv. L. REV. 567 Inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground, 35 S.U. L. (1903); Catherine L. Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-Defense, 86 REV. 1, 2 (2007). MARQ. L. REv. 653 (2003). 37 Adam Liptak. 15 States Expand Victims' Rights on Self-Defense, New York Times, Aug. 7, 31 State v. Abbott, 174 A2d 881, 884 (N.J. 1961). 2006, at Al. 38 32 See § 18.01[C], supra. Fla. Stat. 776.013(3) (2008). 39 33 See § 18.02[D][1], infra. State v. Abbott, 174 A2d 881, 884 (N.J. 1961). 230 SELF-DEFENSE CH.18 § 18.02 DEADLY FORCE: CLARIFICATION 231 to give the crooks second thoughts about carjackings and things like that. even though he knows he could do so in complete safety, before using deadly They're going to get a face full of lead."40 force in self-defense. 49 A minority of jurisdictions reject these arguments and provide that an As one scholar has explained, 50 the castle doctrine is justified on two innocent person threatened by deadly force must retreat rather than use grounds. Sometimes courts view the rule, although used in self-defense cases, deadly force if he is aware that he can do so in complete safety.41 Defenders of as a form of "defense of habitation,"51 in that the home-dweller is permitted to the retreat rule state that the defense of self-protection-and especially the kill to protect the sanctity of his home, which has been intruded upon. Second, necessity doctrine-is based on the principle that all human life, even that of an the home, as castle, is viewed as a person's final sanctuary from external aggressor, should be preserved if possible. The retreat requirement properly attack. Therefore, "[h]aving retreated as far as possible, the actor should not places protection of human life above the supposedly "manly" response of be compelled to leave the sanctuary."52 standing up to aggression.42 May a person in his home stand his ground, even if the assailant is a co­ Moreover, defenders of the retreat requirement contend that the retreat dweller, with an otherwise equal right to be there? This is a matter of rule should not increase the risk of harm to innocent persons because retreat considerable significance, in view of the fact that "[i]n the great majority of is never demanded when it would imperil the would-be defender.43 Indeed, in homicides the killer and the victim are relatives or close acquaintances."53 retreat jurisdictions, the duty to retreat is not triggered unless there is a place More to the point, many in-the-home self-defense cases involve a female who of complete safety to which the non-aggressor can turn. 44 Furthermore, the needs to defend herself from an abusive domestic partner. As recent courts issue is not simply whether a place of such safety exists and that a reasonable have increasingly observed, "imposing a duty to retreat from the home may person would have been aware of its presence: The duty to retreat only exists adversely impact victims of domestic violence."54 Particularly in the case of a if the person under siege is subjectively aware of its existence. 45 The practical battered woman who has attempted to leave her abusive partner-she has effect of these conditions is that a person under attack rarely is compelled to tried to retreat permanently from the situation-but has been dragged back retreat, especially when the aggressor is armed with a gun: There is almost home, literally or figuratively, it seems especially unjust to deny her the right never a place of complete safety to which one can turn when confronted by a of self-defense because she did not retreat again from her home, when she gun; and even when a place of safety exists, the person is apt to be unaware of would have no such legal duty if her assailant was a stranger in the dwelling. 55 it because of the attendant excitement of the situation. 46 Most retreat jurisdictions, especially in recent years as courts have grown more sensitive to the plight of battered women, have adopted the rule that the [3] The "Castle" Exception to the Retreat Rule assailant's status as a co-dweller is irrelevant, i.e., the innocent person need Even in jurisdictions that ordinarily require a person to retreat to a known not retreat from the home, even if the aggressor also lives there. 56 The place of safety before using deadly force, a universally recognized exception-the so-called "castle doctrine"- exists. This doctrine provides that a non-aggressor is not ordinarily required to retreat from his47 dwelling,48 v. Brown, 467 S.E.2d 922, 924 (S.C. 1996) (extending the castle doctrine to an invitee) with State v. James, 867 So.2d 414, 417 (Fla. Dist. Ct. App. 2003) (holding that, given that "[h]uman life is precious," the castle doctrine should not be expanded). 48 40 Robert Tanner, States Signing on to Deadly Force Law, Associated Press, May 24, 2006. For purposes of the castle doctrine, the "dwelling" typically includes a porch physically 41 attached to the home, People v. Canales, 624 N.W.2d 439, 442 (Mich. Ct. App. 2000), but not the E.g., Sydnor v. State, 776 A2d 669,675 (Md. 2001); People v. Riddle, 649 N.W.2d 30,34 (Mich. lobby or common stairway in a person's apartment building, People v. Hernandez, 774 N.E.2d 198, 2002). 201-03 (N.Y. 2002). See also State v. Marsh, 593 N.E.2d 35, 38 (Ohio Ct. App. 1990) (Ms tent at a 42 See Beale, Note 30, supra, at 581 (in which the author states that a ''really honorable campground constituted a home, for purposes of the castle doctrine). man . . . would perhaps always regret the apparent cowardice of a retreat, but he would regret 49 State v. James, 867 So.2d 414, 416 (Fla. Dist. Ct. App. 2003). ten times more . . . the thought that he had the blood of a fellow-being on his hands."). Indeed, as 50 Susan Estrich has observed, this feature of self-defense law (a retreat requirement) is not subject Carpenter, Note 30, supra, at 667. to criticism on the ground that it is biased in favor of the "male" view of proper conduct. Susan 51 See generally § 20.03, infra. Estrich, Defending Women, 88 MicH. L. REv. 1430, 1431-32 (1990). 52 Carpenter, Note 30, supra, at 667; see also People v. Aiken, 828 N.E.2d 74, 77 (N.Y. 2005) 43 State v. Gardner, 104 N.W. 971, 975 (Minn. 1905) ("Self-defense has not, by statute nor by ("Our contemporary castle doctrine grew out of a turbulent era when retreat from one's home judicial opinion, been distorted, by an unreasonable requirement of the duty to retreat, into necessarily entailed increased peril and strife.... [O]ne should not be driven from the inviolate self-destruction."). place of refuge that is the home."). 44 State v. Anderson, 631 A.2d 1149, 1155 (Conn. 1993) (holding that a judge's "retreat" 53 State v. Shaw, 441 A.2d 561, 566 (Conn. 1981). instruction to the jury was erroneous because it failed to include the word "complete"). 54 Weiand v. State, 732 So.2d 1044, 1052 (Fla. 1999). 45 Redcross v. State, 708 A.2d 1154, 1158 (Md. Ct. Spec. App. 1998). 55 State v. Gartland, 694 A2d 564, 570-71 (N.J. 1997) (calling on the state legislature to 46 State v. Abbott, 174 A2d 881, 884-86 (N.J. 1961). reconsider its retreat rules in this context). 47 Should a social guest also be able to apply the "castle" no-retreat doctrine against an 56 State v. Glowacki, 630 N.W.2d 392, 400 (Minn. 2001) (characterizing the no-retreat rule among intruding aggressor, although the guest is not in his own dwelling? Case law is split. Compare State co-dwellers as the majority rule). 232 SELF-DEFENSE CH.l8 § 18.02 DEADLY FORCE: CLARIFICATION 233 contrary position is that, in the absence of express legislation, a court will not awareness of the plight of battered women, who are victims of repeated, conclude that a "legislature intended to sanction the reenactment of the seemingly inevitable, but not always imminent, beatings.66 climactic scene from 'High Noon' in the familial kitchens of this state."57 According to Professor Richard Rosen, because imminency "serves only to [D] Nature of the Threat: "Imminent, Unlawful Deadly further the necessity principle, if there is a conflict between imminence and 67 Force" necessity, necessity must prevail." Therefore, he reasons, if it is truly necessary for a person, such as a battered woman, to use deadly force before a threat is imminent, she should be justified in doing so, just as the law should 5 [1] "lmminent" s disallow the use of force, even if harm is imminent, if it is unnecessary. At common law, a person who wishes to use force in self-defense must Moreover, Professor Jane Moriarty argues, in the context of international law, reasonably fear that the threatened harm is imminent. 59 In the context of self­ "anticipatory self-defense" "may be legitimately invoked if a targeted country defense, force is said to be ''imminent" if it will occur "immediately,"60 or "at has been victimized by prior attacks and learns more attacks are planned. the moment of . . . danger."61 The danger must be "pressing and urgent."62 When a prior aggressor threatens to commit future violence, international law Force is not imminent if an aggressor threatens to harm another person at a treats the threat as real. So should domestic criminallaw."6a 63 later time: " 'later' and 'imminent' are opposites." Indeed, even if it seems There may be good reason to enlarge the defense of self-defense. The Model clear that harm at the hands of another is inevitable, use of force is premature Penal Code provides an alternative that narrowly expands on the common 6 until the threat is immediate. 4 law.69 Professor Stephen Morse would take the matter further, suggesting The imminency requirement is controversial. Some scholars advocate its that "[i]f death or serious bodily harm in the relatively near future is a virtual abolition on the ground that it is nothing more than "an imperfect proxy to certainty and the future attack cannot be adequately defended against when it ensure that the defendant's force is necessary."65 This argument has gathered is imminent and if there really are no reasonable alternatives, traditional self­ greater support and attention in recent years because of society's increased defense doctrine ought to justify the pre-emptive strike."70 Professor Morse's characterization of the use of deadly force as a "pre­ emptive strike"- what Professor Moriarty describes as "anticipatory self­ 57 State v. Shaw, 441 A.2d at 566. As Professor Carpenter has observed, these jurisdictions may defense"-is a valuable one. In some sense, all self-defense cases involve pre­ be especially influenced by the defense-of-habitation, rather than home-as-sanctuary self-defense, emptive strikes. 71 Seen this way, the issue becomes how prematurely or rationale of the castle doctrine: These courts "choose to emphasize the shared property interest of the deadly aggressor," rather than ''the defender's right of protection in the sanctuary." Carpenter, anticipatorily the perceived aggression may be pre-empted. The difficulty is Note 30, supra, at 671. that when one moves away from an imminency requirement to something 58 See generally Larry Alexander, A Unified Excuse of Preemptive Self-Protection, 74 NOTRE less-or to no temporal requirement of any kind-the risks of error in DAME L. REv. 1475 (1999); Joshua Dressler, Battered Women and Sleeping Abusers: Some predicting the future and in predicting whether options less extreme than Reflections, 3 OHIO ST. J. CRrM. L. 457 (2006); Kimberly Ferzan, Defending Imminence: from deadly force may be available are greatly enhanced. Weather forecasters Battered Women to Iraq, 46 ARiz. L. REv. 213 (2004); Whitley R.P. Kaufman, Self-Defense, predict the future, but "even funnel clouds sometimes turn around, and human Imminence, and the Battered Woman, 10 NEw CRrM. L. REv. 342 (2007); Jane Campbell Moriarty, beings sometimes defy predictions."72 Indeed, because humans have the ''While Dangers Gather"; The Bush Preemption Doctrine, Battered Women, Imminence, and Anticipatory Self-Defense, 30 N.Y.U. REv. Law & Soc. Change 1 (2005); Richard A. Rosen, On capacity for free choice, humans are far less predictable than funnel Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. REv. 371 (1993). clouds-there is very little ''virtual certainty" about human behavior. One 59 Ha v. State, 892 P.2d 184, 190 (Alaska Ct. App. 1995). 60 State v. Norman, 378 S.E.2d 8, 13 (N.C. 1989). According to Professor Holly Maguigan, the terms "imminent" and ''immediate" are not precisely interchangeable in the self-defense, particu­ 66 The subject of self-defense in the battered-woman context is considered in detail at larly battered-woman, context. Holly Maguigan, Battered Women and Self-Defense: Myths and § 18.05[B], infra. Misconceptions in Current Reform Proposals, 140 U. PA. L. REV. 379, 414-16 (1991). However, 67 Rosen, Note 58, supra, at 380. many courts and scholars, even in the latter context, use the terms interchangeably. E.g., State v. 68 Norman, supra; State v. Kelly, 478A.2d 364,385 n.23 (N.J.1984); Richard A. Rosen, Note 58, supra, Moriarty, Note 58, supra, at 25. But see Sanford H. Kadish, Respect for Life and Regard for at 373 n.4; Robert F. Schopp et al., Battered Woman Syndrome, Expert Testimony, and the Rights in the Criminal Law, 64 CAL. L. REv. 871, 880 (1976) (stating the traditional view of the law Distinction Between Justification and Excuse, 1994 U. ILL. L. REv. 45, ~5. that "[t]he life of the good man and the bad stand equal, because how a man has led his life may 61 not affect his claim to continued life."). Sydnor v. State, 776 A.2d 669, 675 (Md. Ct. App. 2001). 69 62 See § 18.06(A], infra. Ha v. State, 892 P.2d at 191. 70 63 Stephen J. Morse, The "New Syndrome Excuse Syndrome", 14 CRrM. JusT. ETHICS (Winter/ United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998). Spring 1995), at 3, 12. 64 Ha v. State, 892 P.2d at 191. 71 Alexander, Note 59, supra, at 1477. 65 Alafair Burke, Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, 72 Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing out of the Battered Woman, 81 N.C. L. REV. 211,271 (2002). Approaches to Due Process, 85 MrcH. L. REv. 510, 557 (1986). 234 SELF-DEFENSE CH.18 § 18.03 DEADLY FORCE: "IMPERFECT" SELF-DEFENSE CLAIMS 235 benefit of the imminency requirement, therefore, is that it reduces the risk of un:av~lila.ble to a defendant, 79 and the ae1~ndar1t may be unnecessary use of deadly force. states, however, now a so-called of self-defense to results in There are two other defenses of the imminency requirement, both of which understand imminence as more than a proxy for necessity. First, according to Professor Kim Ferzan, "[s]elf-defense is uniquely justified by the fact that the of imperfect some courts provide defender is responding to aggression. Imminence, far from simply establishing aggressor who is the response must retreat necessity, is conceptually tied to self-defense by staking out the type of threats place of complete using deadly force; if he fails to that constitute aggression."73 In short, in the absence of imminence there is no right of self-defense is imperfect. 80 7 aggression, and ''we blur the distinction between offense and defense." 4 many states now case lawB 1 or statute82 that one Second, the imminence requirement is defended on political theory grounds: another because he believes that factual l'l.l'l'1.1TYI~~t! "The basic idea is that the state claims a monopoly on force, under which no the killing, is guilty of , rather than murder. guilty individual or non-state group is permitted to resort to force without the state's of manslaughter if because: (1) D urureasoiltabJly that Vis authorization."75 This requirement of authorization, which controls the use of about to use although, in fact, V intends only violence in society, "rests on the venerable natural law principle . . . that no nondeadly V intends to use deadly to realize, as one should be a judge in his own case; the decision to use force against another that nondeadly n"'"'t~.r>t.i~u, suffice. In short, person must be made by an objective and disinterested authority."76 The !l!lt-I"IP.t·P.n!;;P. consists of the [as "perfect" self­ exception is when "danger is present and immediate, and there is no time to that the defendant need an objectively reasonable resort to a central authority." was in ... imminent death or serious bodily . . , requiring the use of [2] "Unlawful Force" It is unfortunate to this realm as involving "imper£ A person may not defend himself against the imposition of lawful, i.e., self-defense. It is a to say that a person has a "ri justified, force. For example, a robber may not assert self-defense if he shoots ''privilege") to use and yet convict an and kills his intended robbery victim when the latter responds with force to the for enforcing this the claim either shoul robbery attempt. 77 Likewise, reasonable force applied by a police officer in the failure-of-proof the ground that the defenda actions demon- performance of his duties is justified. Consequently, a citizen may not use strate he lacked a mens rea (at common law ce aforethought),85 deadly force to resist an officer's proper use of force against him.78 or as a partial excuse for the killing, on the ground he actor's culpability is mitigated by his honest, albeit mistaken, belief. 86 Conduct that would constitute a crime or a tort is "unlawful," even if the actor could escape conviction or liability by assertion of an excuse defense. For example, if V, an insane person or an infant, uses unjustifiable force upon another, this constitutes "unlawful force," notwithstanding V's potential excuse claim.

79 Ross v. State, 211 N.W.2d 827, 830 (Wis. 1973) (stating, but rejecting, the historical defense of esulting in ali-or-nothing rule). 80 ex