In self-defense regarding self-defense: a rejoinder to professor Corrado.

• Author: Fontaine, Reid Griffith
• Position: Response to article by Michael Louis Corrado in this issue, p. 91 - A Symposium on Self-Defense

INTRODUCTION

I very much appreciate Professor Corrado's thoughtful, insightful Reply (1) to my Article, An Attack on Self-Defense. (2) In this Rejoinder, I clarify and defend my thesis in light of Corrado's observations. I also recognize where Corrado's comments are helpful toward strengthening my thesis and sharpening my proposed framework of legitimate (justification) and mistaken (excuse) self-defense subtypes.

Professor Corrado focused on two topics raised by my paper, and then presented a brief proposal of his own regarding how the law should treat legitimate--or what Corrado may prefer to term "actual"--and mistaken self-defense. First, Corrado takes issue with the second and third prongs of my proposed three-requirement framework of legitimate self-defense. Specifically, he questions whether prong 2, having to do with the temporal precedence of valid belief to action, is necessary (and "too strong") and sufficient, and whether the accuracy of prong 3, requiring that the reactive force's objective effect is to defend against wrongful death, may be improved by making two changes in its language. Second, Corrado questions the extent to which the distinction between justification and excuse is useful; or, rather, whether its usefulness to understanding differential cases of defensive and defense-like force is equal to distinguishing traditional justification defenses, such as self-defense and necessity to traditional excuse cases, such as insanity and duress. In doing so, he questions the distinction's foundation in moral acceptability and argues in favor of treating reasonably mistaken self-defense as a justification, consistent with the traditional American common law framing. Finally, Corrado proposes that, as in cases of necessity in which the defendant who has caused damages to another must compensate the latter, the defendant who "injures" another in mistaken self-defense should likewise pay civil damages to his victim.

1. THE THREE-REQUIREMENT FRAMEWORK OF LEGITIMATE SELF-DEFENSE

   In "An Attack on Self-Defense," I proposed the following three-requirement framework:

   1. The defender need be faced with a real, imminent threat of grievous bodily harm or death. As is typically accepted, the defender should not be expected to discern between non-mortal threats of grievous bodily harm and mortal threats;

   2. The defender need act with the genuine, valid belief that it is necessary to kill the perceived source of the threat in order to prevent himself from suffering grievous bodily harm or death. (3) Said genuine, valid belief must arise prior to the actor's initiation of defensive force;

   3. The defender's act need prevent his life from being wrongfully taken by his victim. (4)

   Professor Corrado questions requirements 2 and 3. Regarding requirement 2, he asks if it is necessary and sufficient. He suggests that this requirement may be "too strong" and offers the following fact pattern for illustration:

   Suppose, for example, that Jones believes that she is being hunted by Smith. It is not true that Smith is hunting Jones, but she has in fact sworn to kill her if she spots her. In a dark wood where she is hiding Jones spots Smith, but cannot tell whether Smith has spotted her. Rather than wait until it is too late, Jones launches a deadly missile of some sort toward Smith, a missile which she can disarm if it proves that Smith is not in fact intent upon attacking her. Smith, alerted by the sound of the missile, turns and sees Jones, and decides to take this opportunity to kill her. She aims a weapon toward Jones, who allows the missile to complete its lethal mission and destroy Smith. (5) I agree with Corrado that in this scenario Smith has surely engaged in legitimate (justified) self-defense. (6) However, Corrado believes that this example undermines my framework--or, more specifically, requirement 2--in that Jones' action of firing the missile is initiated prior to her having a valid belief that she is about to be wrongfully (7) killed. But this is not so. Here, the action is the omission of disarming the deadly missile. Jones' valid belief that she is about to be wrongfully killed precedes her act by omission of not disarming the missile. As such, this scenario neatly fits with my framework.

   Another word, though, about requirement 2 should be said, having to do with the natural cognitive-behavioral sequence of social action. (8) The effect of social stimuli on one's social action is mediated by her cognitive processing. There is considerable empirical evidence that supports this claim from various research programs in the psychological and behavioral sciences. (9) To require that a belief take place prior to action is simply to recognize this natural causal chain. The requirement that the belief be valid represents a normative position consistent with Fletcher's hybrid theory (10)...