Protection of Property.
Use of non-deadly force. Reasonable, non-deadly force may be used to protect personal property from trespass or theft. In the case of the United States v. Regalado, 33 C.M.R. 12 (C.M.A. 1963) (one lawfully in charge of premises may use reasonable force to eject another if the other has refused an oral request to leave and a reasonable time to depart has been allowed); In the case of the United States v. Hines, 21 C.M.R. 201 (C.M.A. 1956) (concerning on-post quarters, commander on military business is not a trespasser subject to accused’s right to eject).
In the case of the United States v. Gordon, 33 C.M.R. 489 (A.B.R. 1963) (the necessity to use force in defense of personal property need not be real, but only reasonably apparent); In the case of the United States v. Wilson, 7 M.J. 997 (A.C.M.R. 1979) (accused had no right to resist the execution of a search warrant, even though warrant subsequently held to be invalid);
In the case of the United States v. Adams, 18 C.M.R. 187 (C.M.A. 1955) (generally, a military person’s place of abode is where he bunks and keeps his private possessions. His home is the particular place where the necessities of the service force him to live. This may be a barracks, a tent, or even a fox hole. Whatever the name of his place of abode, it is his sanctuary from unlawful intrusion, and he is entitled to stand his ground against a trespasser, to the same extent that a civilian is entitled to stand fast in his civilian home); see also In the case of the United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967). See generally Peck, The Use of Force to Protect Government Property, 26 Mil. L. Rev. 81 (1964); Benchbook paragraph 5-7.
Use of deadly force. Deadly force may be employed to protect property only if (1) the crime is of a forceful, serious, or aggravated nature, and (2) the accused honestly believes the use of deadly force is necessary to prevent property loss, for example, in the United States v. Lee, 13 C.M.R. 57 (C.M.A. 1953).
Reasonable force. While it is well established that a service member has a legal right to eject a trespasser from her military bedroom and a legal right to protect her personal property, the soldier has no legal right to do so unreasonably. For example, in the United States v. Marbury, 56 M.J. 12 (C.A.A.F. 2001) (the accused’s immediate return to her bedroom brandishing a knife to eject her assailant was an excessive or unreasonable force unlawful conduct).
Prevention of Crime.
Under military law, a private person may use force essential to prevent the commission of a felony in his presence. However, the degree of force should not exceed that demanded by the circumstances, in the United States v. Hamilton, 27 C.M.R. 204 (C.M.A. 1959). See generally Peck, The Use of Force to Protect Government Property, 26 Mil. L. Rev. 81 (1964). While felony is not defined in the 2008 Manual for Courts-Martial, 18 U.S.C. § 1 (1) (1982) defines it as an offense punishable by death or imprisonment for a term exceeding one year.
Use of deadly force. In the case of the United States v. Person, 7 C.M.R. 298 (A.B.R. 1953) (soldier on combat patrol justified in killing unknown attacker of another patrol member where (1) victim was committing a felony in the accused’s presence, and (2) the accused attempted to inflict less than deadly force).
Performance of Duty.
A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful. R.C.M. 916(c).
Justification is raised only if the accused was performing a legal duty at the time of the offense. For example, in the case of the United States v. Rockwood, 52 M.J. 98, 112 (1999) (holding that neither international law nor television speech by the President imposed on accused a duty to inspect Haitian penitentiary for possible human rights violations); In the case of the United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (killing civilian may be justified by a mistake of fact as to victim’s identity, although not the facts of this case).
In the United States v. Little, 43 M.J. 88 (C.A.A.F. 1995) (the accused’s statements in providence inquiry about his authorization for possession of a work knife were substantially inconsistent with the guilty plea for unauthorized possession of a dangerous weapon on a naval vessel).
In the case of the United States v. Reap, 43 M.J. 61 (C.A.A.F. 1995) (naval custom whereby goods are bartered or traded from department to department to avoid delays, red tape, and technicalities incident to acquisition through regular supply channels, is not a defense to the wrongful disposition of government property unless it rises to the level of a claim of authority or honest and reasonable mistaken belief of authority).
In the case of the United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999) (the accused’s interpretation of the President’s command intent did not create a legal duty to inspect penitentiary in Haiti accused could not base a special defense of justification on the ground. The commander, not the subordinate, assesses competing concerns and develops command mission priorities).
Obedience to Orders.
Orders of military superiors are inferred to be legal. MCM, pt. IV, paragraph 14c(2)(a); In the case of the United States v. Cherry, 22 M.J. 284 (C.M.A. 1986). The accused is entitled to the defense where he committed the act under an order which (a) appeared legal and which (b) the accused did not know to be illegal. R.C.M. 916(d); In the case of the United States v. Calley, 46 C.M.R. 1131, 1183 (A.C.M.R. 1973).
Accused’s actual knowledge of illegality required. In the case of the United States v. Whatley, 20 C.M.R. 614 (A.F.B.R. 1955) (where the superior ordered accused to violate a general regulation, the defense of obedience to orders will prevail unless the evidence shows that the accused had actual knowledge that the order was contrary to the regulation and that he could not have reasonably believed that the superior’s order may have been valid).
Defense is unavailable if a man of ordinary sense and understanding would know the order to be unlawful. In the case of the United States v. Griffen, 39 C.M.R. 586 (A.B.R. 1968) (no error to refuse a request for an instruction on defense where accused shot P.W. under a superior’s order); see In the case of the United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973) (instruction on obedience to orders given).
The processing of a conscientious objector application does not afford an accused a defense against his obligation to deploy, even if the orders violate service regulations concerning conscientious objections, in the United States v. Johnson, 45 M.J. 88 (C.A.A.F. 1996).
The Right to Resist Restraint.
Illegal confinement. “Escape” is from lawful confinement only; if the confinement itself was illegal, then no escape. MCM, pt. IV, paragraph 19c(1)(e); In the case of the United States v. Gray, 20 C.M.R. 331 (C.M.A. 1956) (no crime to escape from confinement where accused’s incarceration was contrary to orders of a superior commander).
Illegal apprehension/arrest. An individual is not guilty of resisting apprehension (UCMJ art. 95) if that apprehension was illegal. For example, in the case of the United States v. Clark, 37 C.M.R. 621 (A.B.R. 1967) (accused physically detained by private citizen for satisfaction of a debt may, under the standards of self-defense, forcefully resist and seek to escape); In the case of the United States v. Rozier, 1 M.J. 469 (C.M.A. 1976) (by forcibly detaining accused immediately following his illegal apprehension, N.C.O.s involved acted beyond scope of their offices); In the case of the United States v. Lewis, 7 M.J. 348 (C.M.A. 1979) (accused cannot assert illegality of apprehension as defense to assault charge when apprehending official acted within the scope of his office); In the case of the United States v. Noble, 2 M.J. 672 (A.F.C.M.R. 1976) (accused may resist apprehension if he has no “reason to believe” the person apprehending him is empowered to do so); In the case of the United States v. Braloski, 50 C.M.R. 310 (A.C.M.R. 1975) (resisting apprehension by a German policeman is not an offense cognizable under UCMJ art. 95, but must be charged under UCMJ art. 134).
The UCMJ has recognized the right of a parent to discipline a minor child utilizing moderate punishment, for example, in the United States v. Scofield, 33 M.J. 857 (A.C.M.R. 1991).
The use of force by parents or guardians is justifiable if: the force is used to safeguard or promote the welfare of the minor, including the prevention or punishment of his misconduct; and the force is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation in the case of the United States v. Brown, 26 M.J. 148 (C.M.A. 1988).
A parent who spanks a child with a leather belt using reasonable force and thereby unintentionally leaves welts or bruises nevertheless acts lawfully so long as the parent acted with a bona fide parental purpose. In the case of the United States v. Scofield, 33 M.J. 857 (A.C.M.R. 1991). One acting in the capacity of a parent is justified in spanking a child. Still, the disciplining must be done in good faith to correct the child motivated by educational purpose and not for some evil motive. In the case of the United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1991), aff’d, 37 M.J. 330 (C.M.A. 1993); In the case of the United States v. Ward, 39 M.J. 1085 (A.C.M.R. 1994) (not a license to abuse the child).
Tying a stepson’s hands and legs and placing a plastic bag over his head went beyond the use of reasonable or moderate force allowed in the parental discipline. In the case of the United States v. Gowadia, 34 M.J. 714 (A.C.M.R. 1992).
The accused, who admitted striking his child out of frustration and as means of punishment and who made no claim that he honestly believed that force used was not such as would cause extreme pain, disfigurement, or serious bodily injury, was not entitled to an instruction on parental discipline defense, in the case of the United States v. Gooden, 37 M.J. 1055 (N.M.C.M.R. 1993).
Evidence of one closed-fist punch, without evidence of actual physical harm, was legally sufficient to overcome the affirmative defense of parental discipline where the punch was hard enough to knock down the accused’s 13-year old son, in the case of the United States v. Rivera, 54 M.J. 489 (C.A.A.F. 2001).
Not an Affirmative Defense.
Notice Required. R.C.M. 701(b)(2). Exclusion of alibi evidence because of lack of notice is a drastic remedy to be employed only after considering the disadvantage to opposing counsel and the reason for failing to provide notice in the case of the United States v. Townsend, 23 M.J. 848 (A.F.C.M.R. 1987). The military judge abused his discretion when excluding defense testimony because R.C.M. 701(b)(1) notice requirements were not met. In the case of the United States v. Preuss, 34 M.J. 688 (N.M.C.M.R. 1991).
They were raised by Evidence. Alibi raised when some evidence shows that the accused was elsewhere at the time of the commission of a crime. A military judge is under no sua sponte obligation to instruct on this theory of defense. R.C.M. 920(e)(3); In the case of the United States v. Boyd, 17 M.J. 562 (A.F.C.M.R. 1983); In the case of the United States v. Bigger, 8 C.M.R. 97 (C.M.A. 1953); In the case of the United States v. Wright, 48 C.M.R. 295, 297 (A.F.C.M.R. 1974).
When a defense is raised by the evidence and the accused requests an instruction, failure to instruct is an error. In the case of the United States v. Moore, 35 C.M.R. 317 (C.M.A. 1965), in the United States v. Jones, 7 M.J. 441 (C.M.A. 1979).
Sufficiency – If an alibi raises a reasonable doubt as to guilt, the accused is entitled to an acquittal. In the case of the United States v. Stafford, 22 M.J. 825 (N.M.C.M.R. 1986) (finding error to require the defense to prove alibi beyond a reasonable doubt). A rebuttal is not required. In the case of the United States v. Rath, 27 M.J. 600 (A.C.M.R. 1988) (holding alibi defense can be rejected by the trier of fact even absent rebuttal by the government).