Beyond Individual Self-Defense

Beyond Individual Self-Defense

The doctrine taught so far concerns a defendant who kills an attacker to protect the defendant's own life and who misses the complete defense because the belief in necessity was honest but unreasonable, or because the defendant bore fault for starting the encounter. Two settings press on that framework from its edges, and each receives a short treatment below. In the first, the defendant protects someone else, or invokes a justification other than self-defense, and the question is whether the same mitigation follows. In the second, a battered defendant kills outside any direct confrontation, and the question is whether the doctrine's central elements can be met at all. Both are extensions to recognize, and the core rule from the earlier sections still carries most of the weight on an exam.

The first extension follows from the reason the doctrine exists. Voluntary manslaughter is the category for intentional killings that deserve less than a murder conviction yet more than acquittal, and nothing in the logic of that category confines it to passion induced by provocation, although a narrowly drawn statute that defines the offense solely in terms of heat of passion can make expansion difficult.¹ Imperfect self-defense places a killing in that middle category because the defendant acted from a defensive purpose resting on a flawed premise, either an unreasonable belief or fault in starting the encounter, and that mixture lacks the malice that makes an ordinary killing murder. Because the reduced culpability comes from the structure of the defendant's belief, and the identity of the person protected does not enter into it, the same rule should apply on principle to a killing done under an imperfect right to defend others, and the manslaughter provisions of some modern comprehensive codes recognize this.² The justification for preventing a felony has the same shape, since the defendant need not be correct that a felony is underway and reasonable belief is enough, so an imperfect version of that right can be described in the same terms.³ Whether a given jurisdiction takes these steps is a question of its own law, which is why the recognition question from the earlier sections returns with each extension.

The second extension tests the doctrine where its elements are hardest to prove. The complete defense requires a reasonable belief that the adversary will immediately inflict fatal or serious bodily injury and that deadly force is needed to prevent it, and the imperfect version relaxes the reasonableness requirement while still presupposing an honest belief held when the defendant fires.⁴ A defendant who has suffered long abuse and kills the abuser during a lull, as in Norman, where the husband was asleep, therefore meets an immediate problem: imminence and actual belief are the elements on which both the complete and the partial claim depend, and the facts seem to exclude them from the start. That leaves two unattractive outcomes under an all-or-nothing structure, acquittal on a complete defense the facts do not appear to support, or a murder conviction that some regard as too severe for a defendant with that history. The live question is whether an intermediate verdict fits these killings better than either end, and it is contested rather than settled. The next subsection takes defense of others and related justifications, which follow the core rule most closely, and battered defendants come after it.

Defense of Others and Related Claims

Defense of others is the extension that follows the core rule most closely, so it comes first, with related claims after it. The complete defense of others runs parallel to self-defense. If A aims deadly force at B and B would be justified in killing A in response, a bystander C who watches the attack has a virtually identical justification in killing A to save B, and in most states C needs no special relationship with B.⁵ A minority of states are stricter and require the defender to be factually right that deadly force was necessary, so that even an honest and reasonable mistake defeats the justification.⁶ Where the defender's mistake is honest but unreasonable, the complete defense fails on its reasonableness element, and the question becomes the one the earlier sections posed for self-defense: is the killing murder, or does it fall into the in-between category of manslaughter?

Some courts and codes answer that question for defense of others exactly as they answer it for self-defense. On principle, the rule governing a killing under an imperfect right of self-defense should govern a killing under an imperfect right to defend others, and the manslaughter provisions of some modern comprehensive criminal codes recognize this variety of voluntary manslaughter.⁷ The reason is visible in the structure of the claim. A defender who kills out of an honest belief that another person faces death or grievous injury acts with a protective purpose, so the fault lies in a careless judgment about the facts, and that fault differs in kind from the purpose to kill without justification that makes an ordinary intentional killing murder. Because the reduced culpability comes from the content of the defender's belief, substituting a stranger for the defendant as the person protected leaves that reasoning untouched. The doctrine remains jurisdiction-dependent, so a state that refuses mitigation for self-defense will refuse it here as well, and any extension elsewhere rests on that state's own cases or code.

The two versions differ in a single variable, which is whether the record contains evidence that the defendant actually believed another person faced deadly danger when the shot was fired. The first version gives the jury a belief to classify as honest but unreasonable, and the second gives it none. The exam trap is treating a protective motive announced after the fact as proof of that belief, because the mitigation depends on the defendant's state of mind at the moment of the killing, the same requirement that governs the self-defense version of the claim.

The justification for preventing a felony follows the same pattern. A person may in some circumstances intentionally kill to prevent or end a felony, or to stop a fleeing felon from escaping or to arrest one, and the modern tendency is to confine that justification to dangerous or violent felonies.⁸ As with self-defense, the actor need not be correct that a felony was underway, because a reasonable belief is enough. A defendant who honestly but unreasonably believed that a dangerous felony was in progress therefore fails the complete justification on the same reasonableness element. Where a jurisdiction opens voluntary manslaughter to extenuating circumstances other than provocation, the reasoning that supports an intermediate verdict for the unreasonable self-defender supports one for this defendant too, since the fault is again a careless judgment about the facts and not a purpose to kill with no claim of justification.⁹

Resisting an unlawful arrest resembles these claims on the surface but rests on a different theory, which is why it belongs here only as a related claim. In some jurisdictions an arrested person may use nondeadly force against an unlawful arrest but not deadly force, and one who intentionally kills the arresting person may, on one view, have the crime mitigated from murder to voluntary manslaughter, on the theory that an unlawful arrest is the kind of provocation that causes reasonable people to lose self-control.¹⁰ The harm threatened by an arrest is indignity and detention, not death or serious injury, so there is no belief in the need to prevent a fatal attack for imperfect self-defense to work on, and the mitigation has to come from provocation. Because those harms are relatively minor and remedies for release exist, the Model Penal Code and many modern codes bar force against a person the arrestee knows to be a police officer even when the arrest is unlawful, though that bar does not take away self-defense against an officer's excessive force.¹¹

A further family of claims shares the pattern of a justification that comes close. Necessity says the defendant made the correct choice among evils, which makes it a justification, while duress says threats overwhelmed the defendant's will, which makes it an excuse. In United States v. Lopez, a federal district court treated an escaping prisoner's claim that she fled to avoid being killed in prison as necessity rather than duress, because her claim was that she had made the correct choice and not that her will had been overborne.¹² Whether a near-miss version of necessity or coercion earns the same intermediate verdict is the least settled extension in this area, and an answer should rely on it only when the jurisdiction's own law supplies it.

One last point concerns who may use the reduction. The decision in People v. McCoy shows that imperfect self-defense belongs to the person whose belief it was. McCoy and Lakey both fired from their car at perceived enemies, one person died from a bullet fired by McCoy, and McCoy won reversal of his murder conviction because the jury had not been properly instructed on imperfect self-defense. The court nevertheless held that Lakey's murder conviction could stand if he had no plausible claim of imperfect self-defense of his own.¹³ The court explained that defenses and extenuating circumstances may be personal to the actual perpetrator, and that an aider and abettor's mental state, outside the natural and probable consequences doctrine, must be at least that required of the direct perpetrator.¹⁴ The mechanism explains the contrast with complete justification, which does carry over: in State v. Montanez, an accomplice to a killing was entitled to an instruction that he was not guilty if the killer reasonably believed the victims posed a fatal threat, because a justified act is no wrongful offense for anyone to share.¹⁵ Imperfect self-defense, by contrast, negates malice in one particular mind, so an accomplice needs a belief of his own to claim it.

Battered Defendants

The leading illustration of the difficulty is State v. Norman, and its facts show why an intermediate verdict for these defendants is contested. The defendant had endured about twenty-five years of beatings, burnings, humiliation, and forced prostitution at her husband's hands. In the day before the killing he beat her badly, threatened to cut her throat, and dragged her out of a social services office and back home.¹⁷ She then returned with a pistol and shot him in the back of the head as he lay asleep, and when she saw that he was still moving she fired two more shots.¹⁸ Charged with first-degree murder, she was convicted of voluntary manslaughter. The intermediate appellate court ordered a new trial because the jury had not been allowed to consider acquittal on perfect self-defense, and the North Carolina Supreme Court reversed that order.¹⁹

The ruling on the complete defense turned on its elements. In that state the jury may consider perfect self-defense only when the evidence, viewed favorably to the defendant, shows that at the time of the killing she believed it necessary to kill to save herself from imminent death or great bodily harm, and that the belief was reasonable to a person of ordinary firmness.²⁰ A sleeping husband was making no attack, and the court declined to treat a prediction of future assaults as imminence, because doing so would tend to make opportune homicide lawful on the strength of speculative forecasts. It added that the record did not show abuse approaching life-threatening injury, and that deadly force used to prevent lesser harm is excessive as a matter of law.²¹ Imminence is the element that separates a defensive killing from a planned one. If a forecast of the next beating could satisfy it, any defendant with an abusive history could describe a killing at any moment as defensive.

The court then turned to the partial route taught earlier in this chapter. It held that the defendant was not entitled to an imperfect self-defense instruction either, because the evidence did not show that she actually believed deadly force against her was imminent.²² That ruling marks the limit of the intermediate verdict. Imperfect self-defense forgives an unreasonable belief, and it reduces the killing to voluntary manslaughter on the theory that malice is missing, but the belief it forgives must still exist.²³ A history of abuse is evidence of what happened before, while the element asks what the defendant believed at the moment of firing. The court also observed that any error was harmless, since imperfect self-defense in that state produces voluntary manslaughter and the jury had already convicted of that offense.²⁴ The dissent framed the question differently. It would have asked whether the defendant's belief in the impending nature of the threat, given the circumstances as she saw them, was reasonable to a person of ordinary firmness, and it reasoned that for a battered spouse who sees no escape and no window of relief, the next attack, which could be the fatal one, is imminent.²⁵

The two versions differ in one variable, which is whether the record contains evidence that the defendant actually believed deadly force was immediately necessary when firing. The kitchen version supplies a belief for the jury to grade, and the sleeping-abuser version, like the facts in Norman, supplies none. The exam trap is treating a history of abuse as if it were evidence of the belief itself, when the history can only help a jury decide whether a belief held at the moment of the killing was genuine and reasonable.

The debate over how the law should treat these defendants begins with a point on which little disagreement exists, which is that evidence of battering and its psychological effects can support a traditional claim. It can correct the inference jurors might otherwise draw, that a person truly in danger would have left the relationship. It can also show that a defendant who has lived with an abuser reads cues of coming violence that a stranger would miss, so that a belief that looks unwarranted to an outsider is reasonable by an objective standard.²⁶ In both uses the evidence serves the unchanged justification by supporting the honesty and reasonableness of the belief, and it creates no new defense.

The contest begins when the belief is objectively unreasonable. One proposal asks what a reasonable person with the syndrome would have believed, which stretches the justification to fit the defendant. A critical response holds that if the syndrome impairs rationality or volition, so that the defendant honestly but wrongly sees no way out or cannot act on available alternatives, the claim is an excuse and not a justification, because killing the abuser when reasonable alternatives existed was not the right thing to do.²⁷ The label matters because, in one common formulation, a defendant whose belief in necessity was correct is justified, while a defendant whose belief was reasonable but incorrect is excused.²⁸ Justification declares the act right, and excuse concedes the act was wrongful while withholding blame from the actor.

Beyond that point the views diverge, and each should be stated without treating any as settled. Some argue that the traditional rules foreclose justification and that excuse is the better analysis, which is why early cases often invoked diminished capacity or insanity. Others answer that excuse requires a disability and so treats the defendant as someone whose mental ability is suspect, and they argue instead that the abuser's death is a social gain or that the defendant's choice was reasonable under all the circumstances. A further proposal is a distinct theory of the active survivor, and one suggestion is that a defendant who kills a sleeping spouse might invoke duress under the Model Penal Code's wording. Many who doubt that a complete defense is available accept that the killing is imperfect self-defense, which reduces liability to manslaughter.²⁹ The intermediate verdict appeals to those uneasy with both ends of an all-or-nothing structure, because it recognizes reduced blameworthiness without declaring the killing justified, and that answers the worry in Norman that a justification would make opportune killings lawful.

England's 2009 reform shows what such a middle path looks like when a legislature adopts it. Alongside its changes to provocation, England provided that a killing caused by loss of control spurred by fear, as opposed to anger, establishes a partial defense reducing the killing to manslaughter, and the provision was expressly intended to give some mitigation to battered defendants who kill in nonconfrontational settings.³⁰ The competing explanations above are often offered in support of a shared goal, that these defendants should not face ordinary criminal punishment, and the dispute concerns which doctrinal route reaches it.³¹

In an essay answer, the elements the facts decide, imminence and actual belief, should be resolved first. The justification, excuse, and partial-defense views then belong in the answer as the competing accounts of what should follow when those elements fail, presented without choosing one as the governing law.