§ 18.05 Self-Defense: Special Issues

§ 18.05 Self-Defense: Special Issues

[A] The Reasonable-Belief Standard: More Reflections about the "Reasonable Person"106

[1] Issue Overview

The legal right of self-defense is not based on objective reality, but on reasonable appearances. That is, the law permits a person to act in "self-defense," and to be acquitted for killing in "self-defense," even if the person killed did not in fact represent a deadly threat (or any threat at all) to the defender, if the defender subjectively believed that deadly force was required and if a reasonable person would also have believed that it was appropriate under the circumstances. The crux of the issue, then, is this: who is this "reasonable person" to whom the defendant is compared? And, in answering this question, to what extent should courts permit juries, as factfinders, to incorporate the defendant's own physical and/or mental characteristics, as well as the defendant's life experiences and beliefs, into the "reasonable person" standard? And to what extent should we assume a "reasonable person" considers characteristics of the supposed aggressor, such as the latter's race, gender, age, and clothing, in evaluating the level of threat?107

Consider in this regard two well-known self-defense cases. In People v. Goetz,108 G shot and wounded four African-American youths on a New York City subway after one or two of them approached him and requested five dollars. G, a prior mugging victim, claimed that he shot the youths because he believed that their request for money was a precursor to an armed robbery. At his trial,109 G claimed that a reasonable person would have believed, as he did, that deadly force was necessary to repel impending use of deadly force by the youths. Among the questions that one may pose about the "reasonable person" in this case are: (1) Is the "reasonable person," like G, a prior mugging victim? (2) Is the "reasonable person" an experienced New York subway user? and (3) To what extent would a "reasonable person" in evaluating the situation consider that the persons who accosted G were African-American, young, and (let us assume) not wearing suits and ties?

In the second case, State v. Wanrow,110 W, a 5'4" woman with a broken leg and using crutches, killed V, a large and visibly intoxicated man, in her home. Although V did not menace W at the moment of the shooting, W suspected V of a prior attempted sexual molestation of her son. Furthermore, a neighbor girl had identified V as the man who had molested her, and W had previously been told that V was a former inmate of a mental institution. At trial, the court instructed the jury on self-defense, but it used the male pronoun "he" in describing the circumstances under which deadly force could properly be used. Among the questions that one may pose in this case are: (1) Is the "reasonable person" male or female, or should gender be ignored entirely?; (2) Is the reasonable person diminutive and on crutches, because this was W's physical characteristics?; and (3) Would a reasonable person take into consideration what W was told, but had not been confirmed, regarding V's background?

These cases pose difficult problems for the law. For example, the traditional description of the "reasonable person" is in male—"reasonable man"—terms.111 Yet, such an approach to self-defense is unfair when the defender is a small woman and the aggressor is a large man, as in Wanrow. The effect of a "reasonable man" instruction, if taken literally by a jury, is that a woman in W's situation would be held to the standard of a person whose size, weight, strength, and experience in combat exceeds her own. A strong male, for example, might be able to repel an attack with nondeadly force under circumstances in which a woman might be unable to protect herself except by use of a deadly weapon.112 Therefore, at first (and, perhaps, later) glance, it seems fairer to test a woman's conduct by the standards of a "reasonable woman." On the other hand, some women are taller, stronger, and better able to defend themselves than some men. Is it fair to hold a diminutive and weak man who lacks self-defense skills to the standard of a "reasonable man," if the latter standard assumes that males are tall, strong, and experienced in combat?

On rare occasions, a court has permitted nearly total subjectivization of the "reasonable person." For example, according to one court, the "accused's actions are to be viewed from the standpoint of a person whose mental and physical characteristics are like the accused's and who sees what the accused sees and knows what the accused knows."113 Another court has stated that since "guilt is personal, . . . the conduct of an individual is to be measured by that individual's equipment mentally and physically. He may act in self-defense, not only when a reasonable person would so act, but when one with the particular qualities that the individual himself has would so do."114 Under such a standard, a timid, diminutive male would be judged by the standard of a reasonable timid, diminutive male; and a "strong, courageous and capable female" would be judged by the latter standard.115

Subjectivization of the "reasonable person" standard sometimes is facially attractive. For example, in State v. Hampton,116 the defendant, out of fear for his life, preemptively used deadly force in a confrontation. He sought to introduce evidence of his "psychosocial history," including the fact that as a six-year-old boy he had witnessed his mother shoot another person on the way to a bar, later observed her kill his father, and was once strung up by his neck by his godfather. Essentially, his argument was that anyone who had seen and experienced as much trauma and violence as he had in growing up would respond differently than the ordinary "reasonable person." Therefore, he argued, he should be measured by a standard of a "reasonable person" with his life experiences and, thus, he should be permitted to introduce evidence of his life history so that the jury could take his background into consideration.

Although the Hampton case might seem like a sympathetic one for subjectivizing the "reasonable person," the question then is where such a comparatively subjective standard will leave the law? Consider now State v. Simon:117 S, an elderly man, fired a weapon at V, a young Asian-American male, although V was not acting aggressively. According to trial testimony, S was a "psychological invalid" who feared persons of Asian ancestry, and who believed that by virtue of V's racial heritage the young man was an expert in martial arts. If a court were to instruct the jury to incorporate S's beliefs and mental characteristics into the "reasonable person," it would be inviting the jury to measure him by the standard of a "reasonable psychological invalid who fears Asian-Americans and believes that they are all experts in the martial arts." Is this not the equivalent of the oxymoronic standard of the "reasonable unreasonable person," "reasonable racist," or "reasonable mentally ill person"?

There is a related problem. Simon involved a defendant with what might be characterized as a bizarre belief. But what if many people possess a false belief? There is substantial empirical evidence, for example, that people, particularly white people, are more likely to think they see weapons in the hands of unarmed African-American males than in the hands of unarmed white males.118 Given this evidence, should we incorporate this common misperception into the "reasonable person" in cases involving African-American victims of erroneous acts of "self-defense"?

It is submitted here that it is easier to defend the law taking into consideration an actor's physical characteristics in determining how a reasonable person would respond to a believed threat than it is to incorporate the actor's unusual mental or emotional characteristics into the objective standard. The more subjective the standard becomes, the greater the risk that the normative message of the criminal law will be lost. At some point, a defendant's real claim seemingly is not that he is acting justifiably, but rather that he should be excused because he has done the best he can given his unusual mental or emotional characteristics. Self-defense, however, is a justification defense; it is submitted that we need to avoid subjectivization if it has the effect of converting the defense into an excuse.

[2] The Law

The law is undergoing uneven change in this area. In general, the law provides that, in determining whether the defendant's self-protective acts were reasonable, the factfinder should hold the accused to the standard of the "reasonable person in the actor's situation." This language derives from the Model Penal Code definitions of the terms "recklessness" and "negligence."119 As the Commentary to the Code concedes, however, the word "situation" in this context is ambiguous—inevitably and designedly so.120 Thus, the standard is subject to judicial shaping and reshaping.

Most courts have rejected the wholesale subjectivization of the "reasonable person" standard.121 Nonetheless, in the self-defense context, in determining what a reasonable person in the actor's situation or circumstances would believe or do—that is, in comparing the defendant's conduct and beliefs to that of the "reasonable person"—modern juries typically are entitled to consider

more than the physical movements of the potential assailant. . . . [The] terms ["situation" and "circumstances"] include any relevant knowledge the defendant had about that person [the supposed aggressor]. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant's circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person's intentions were to [harm] . . . him or that the use of deadly force was necessary under the

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