Self Defense – Preventive Self-Defense

Self-defense in the Military

Preventative self-defense occurs when the defendant reasonably believes that the victim is about to commit a battery on him or her. R.C.M. 916(e)(2).   Thus, an accused may offer an aggravated assault to deter a simple battery.

In United States Acosta-Vargas, 32 C.M.R. 388 (C.M.A. 1962), the Court held that the defendant was entitled to defend himself in a manner proportionate to the threat faced, even if he was the original aggressor or was engaged in mutual combat.

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In United States v. Johnson, 25 C.M.R. 554 (A.C.M.R. 1958), the Court found that the defense of preventative self-defense was available where the defendant fired a gun to deter a simple assault.

In United States v. Lett, 9 M.J. 602 (A.F.C.M.R. 1980), the Court found that the defense of preventative self-defense was available where the defendant pulled a knife out to deter a battery.

Injured Victim

Charge of homicide or aggravated assault

A person may justifiably inflict death or grievous bodily harm upon another if the person reasonably believes that death or grievous bodily harm was about to be inflicted on him or her and believes that the force used was necessary to prevent death or grievous bodily harm. In United States v. Clayborne, 7 M.J. 528 (A.C.M.R. 1979), the Court held that use of a knife by the defendant constituted self-defense because the defendant knew that the victim was an experienced boxer, had a reputation for fighting anyone, and may have once thrown a person out of a window. However, in United States v.Ratliff, 49 C.M.R. 775 (A.C.M.R. 1975), the Court reached a conclusion opposite to Clayborne.

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Charge of simple assault or battery

A person may justifiably inflict injury short of death or grievous bodily harm if he or she apprehended, upon reasonable grounds, that bodily harm was about to be inflicted on him or her, and he or she believed that the force used was necessary to avoid that harm, but that the force actually used was not reasonably likely to result in death or grievous bodily harm. In United States v. Jones, 3 M.J. 279 (C.M.A. 1977) the Court held that the defendant could respond to a simple fistic assault with similar force. See also United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).

No Self-Defense for Aggressor or Mutual Combatant

A provoker, aggressor, or one who voluntarily engages in a mutual affray is not entitled to act in self-defense unless he first withdraws in good faith and indicates his desire for peace. R.C.M. 916(e)(4).   In United States v. Marbury, 50 M.J. 526 (Army Ct. Crim. App. 1999) aff’d 56 M.J. 12 (C.A.A.F. 2001), the defendant could not raise the defense of self-defense, when after she was hit, she retreated from her room, unsuccessfully sought assistance from fellow NCOs, grabbed a knife, and then reentered her room, and started a confrontation by threatening the victim with the knife. See also United States v. Brown, 33 C.M.R. 17 (C.M.A. 1963), United States v. O’Neal, 36 C.M.R. 189 (C.M.A. 1966) and United States v. Green, 33 C.M.R. 77 (C.M.A. 1963). 

Retreat or Withdrawal

bestmilitarydefensedefenseattorneys10.01.28PMcopyThe person is not required to retreat when he or she is at a place where he or she has a right to be. However, the ability to withdraw safely may be a factor in deciding whether the defendant had a reasonable belief that bodily harm was imminent. R.C.M. 916(e)(4). In United States v. Adams, 18 C.M.R. 187 (C.M.A. 1955) the Court considered whether a soldier has an obligation to retreat from his tent when that is the place in which he or she was attacked. The Court held that when a soldier is in his home, the soldier has retreated as far as the law requires. In United States v. Jenkins, 59 M.J. 893 (Army Ct. Crim. App. 2004), the Court found that when the defendant’s friend because unconscious and ceased to resist, he effectively withdrew, giving the defendant the right to exercise self-defense on his behalf. See also United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967) and United States v. Smith, 33 C.M.R. 3 (C.M.A. 1963).

If a victim responds to a threat or assault in a manner that escalates the affray, then the defendant may have a defense of self-defense for his or her response to the victim’s actions. In United States v. Cardwell, 15 M.J. 124 (C.M.A. 1983), the Court held that even a person who is the initial aggressor has the right to self-defense if the victim escalates the level of combat. Likewise, in United States v. Dearing, 63 M.J. 478 (2006) (citing Cardwell, the Court noted that “initial aggressor is still entitled to use deadly force in his own defense just as he would he withdrew completely from combat and was then attacked by his opponent, in instances where the adversary escalates the level of conflict.” In United States v. Lewis, 65 M.J. 85 (2007), the Court stated that in a case where the opposing party escalates the conflict, the initial aggressor is entitled to use “that force reasonably necessary to deter or defend against the opposing party’s use of escalated force.” Conversely, self-defense is not raised where the defendant/initial aggressor participated in escalating the affray. United States v. Winston, 27 M.J. 618 (A.C.M.R. 1988).

Termination of Threat

The right to self-defense goes away when the threat no longer exists. See United States v. Richey, 20 M.J. 251 (C.M.A. 1985)

Voluntary Intoxication

In determining whether a defendant’s acting reasonably in responding to a perceived threat, the fact that the defendant was voluntarily intoxicated cannot be taken into consideration. See United States v. Judkins, 34 C.M.R. 232 (C.M.A. 1964).

“Egg-Shell” Victim

C.M. 916(e)(3). If the defendant acts in self-defense under lawful circumstances and uses less force than would likely cause death or grievous bodily harm, the defendant may still use the defense of self-defense, even if the victim dies, if the defendant’s use of force was not disproportionate, the victim’s death was unintended and the victim’s death was not reasonably foreseeable.

In United States v. Jones, 3 M.J. 279 (C.M.A. 1977), the victim hit the defendant in the face and the defendant responded by hitting the victim in the face, causing the victim’s death. The Court found that the defendant was lawfully acting in self-defense by using nondeadly force to repel a battery by the victim. See also United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).

5–2. SELF-DEFENSE GENERALLY AND USING THESE INSTRUCTIONS

The military judge must instruct on self-defense, sua sponte, when the issue has been raised by some evidence. The first five instructions (Instructions 5-2-1 through 5-2-5) contain basic self-defense instructions that apply in five distinct situations:
a. Homicide is charged or the assault in issue involves the use of deadly force or a force likely to produce grievous bodily harm (Instruction 5-2-1).
b. Ordinary assault or battery not involving deadly force or a force likely to produce grievous bodily harm is in issue (Instruction 5-2-2).
c. Assault or assault consummated by a battery is in issue as a lesser included offense to an offense involving the use of deadly force or a force likely to produce grievous bodily harm (Instruction 5-2-3).
d. Homicide is charged and there is evidence that the death was an unintended result of the application of less than deadly force (Instruction 5-2-4).
e. The use of force to deter (Instruction 5-2-5).
Instruction 5-2-6 contains instructions on issues that occasionally arise in connection with self-defense (e.g., opportunity to withdraw; mutual combat).

5–2–1. HOMICIDE OR ASSAULT AND/OR BATTERY INVOLVING DEADLY FORCE

The evidence has raised the issue of self-defense in relation to the offense(s) of (state the alleged offense(s)). (There has been (evidence) (testimony) that (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).)

Self-defense is a complete defense to the offense(s) of (state the alleged offense(s)).
For self-defense to exist, the accused must have had a reasonable apprehension that death or grievous bodily harm was about to be inflicted on (himself) (herself) and (he) (she) must have actually believed that the force (he) (she) used was necessary to prevent death or grievous bodily harm.

In other words, self-defense has two parts. First, the accused must have had a reasonable belief that death or grievous bodily harm was about to be inflicted on (himself) (herself). The test here is whether, under the same facts and circumstances present in this case, an ordinary, prudent adult person faced with the same situation would have believed that there were grounds to fear immediate death or serious bodily harm.

Because this test is objective, such matters as intoxication or emotional instability of the accused are not relevant. Second, the accused must have actually believed that the amount of force (he) (she) used was required to protect against death or serious bodily harm. To determine the accused’s actual belief as to the amount of force which was necessary, you must look at the situation through the eyes of the accused. In addition to the circumstances known to the accused at the time, the accused’s (age) (intelligence) (emotional control) (__________) are all important factors to consider in determining the accused’s actual belief about the amount of force required to protect (himself) (herself).

As long as the accused actually believed that the amount of force (he) (she) used was necessary to protect against death or grievous bodily harm, the fact that the accused may have used excessive force (or a different type of force than that used by the attacker) does not matter.

The prosecution’s burden of proof to establish the guilt of the accused not only applies to the elements of the offense(s) of (state the alleged offense(s)) (and) (the lesser included offense(s) of (state the lesser included offense(s) raised)), but also to the issue of self-defense. In order to find the accused guilty you must be convinced beyond a reasonable doubt that the accused did not act in self-defense.

NOTE 1: Grievous bodily harm. The following definition may be given if the term has not yet been defined: “Grievous bodily harm” means serious bodily injury. It does not mean minor injuries such as a black eye or a bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, or other serious bodily injuries.

NOTE 2: Reasonableness of apprehension of harm. The ordinary objective standard used to determine whether apprehension of serious bodily harm or death was reasonable must be qualified if there is evidence of a special factor affecting the reasonableness of the apprehension (e.g., sex of the accused, age of the accused, or if the accused is a person who lacks sufficient intelligence to act as a normal prudent adult person). The requirement of reasonableness should be determined in light of these special factors.

NOTE 3: Other instructions. Instructions on additional issues in connection with self-defense should be given at this point when appropriate. Sample instructions on opportunity to retreat/presence of others, accused’s state of mind, voluntary intoxication, provocateur/mutual combatant, and escalation of force are included in Instruction 5-2-6.

5–2–2. ASSAULT OR ASSAULT AND BATTERY INVOLVING OTHER THAN DEADLY FORCE

NOTE 1: Using this instruction. This instruction is distinguished from deadly force situations. When ordinary assault or battery is charged and deadly force is not employed, the standard of self-defense is different from a situation in which deadly force is employed. The accused must only apprehend some bodily harm, not death or grievous bodily harm. However, when the accused only apprehends some bodily harm, the accused is then limited in the force which the accused can legitimately use to defend himself/herself, i.e., the accused may not use such force as would likely cause death or grievous bodily harm.

The evidence has raised the issue of self-defense in relation to the offense(s) of (state the alleged offense(s)). (There has been (evidence) (testimony) that (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).)
Self-defense is a complete defense to the offense(s) of (state the alleged offense(s)).
For self-defense (to exist) (to be a defense to the lesser included offense(s) of (state the lesser included offense(s) raised)), the accused must have had a reasonable belief that bodily harm was about to be inflicted on (himself) (herself) and (he) (she) must have actually believed that the force (he) (she) used was necessary to prevent bodily harm.

In other words, the defense of self-defense has two parts. First, the accused must have had a reasonable belief that physical harm was about to be inflicted on (him) (her). The test here is whether, under the same facts and circumstances in this case, any reasonably prudent person faced with the same situation, would have believed that (he) (she) would immediately be physically harmed.

Because this test is objective, such matters as intoxication or emotional instability of the accused are not relevant. Secondly, the accused must have actually believed that the amount of force (he) (she) used was required to protect (himself) (herself). To determine the accused’s actual belief as to the amount of force which was necessary, you must look at the situation through the eyes of the accused. In addition to the circumstances known to the accused at the time, the accused’s (age) (intelligence) (emotional control) (__________) are all important factors in determining the accused’s actual belief about the amount of force required to protect (himself) (herself). In protecting (himself) (herself), the accused is not required to use the same amount or kind of force as the attacker. However, the accused cannot use force which is likely to produce death or grievous bodily harm.

The prosecution’s burden of proof to establish the guilt of the accused not only applies to the elements of the offense(s) of (state the alleged offense(s)) (and) (to the lesser included offense(s) of (state the lesser included offense(s)) but also to the issue of self- defense. Therefore, in order to find the accused guilty of the offense of (state the alleged offense(s)), you must be convinced beyond reasonable doubt that the accused did not act in self-defense.

NOTE 2: Grievous bodily harm. The following definition may be given if the term has not yet been defined:

“Grievous bodily harm” means serious bodily injury. It does not mean minor injuries such as a black eye or a bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, or other serious bodily injuries.

NOTE 3: Reasonableness of apprehension of harm. The ordinary objective standard used to determine whether apprehension of serious bodily harm or death was reasonable must be qualified if there is evidence of a special factor affecting the reasonableness of the apprehension (e.g., sex of the accused, age of the accused, or if the accused is a person who lacks sufficient intelligence to act as a normal prudent adult person). The requirement of reasonableness should be determined in light of these special factors.

NOTE 4: Other instructions. Instructions on additional issues in connection with self-defense should be given at this point when appropriate. Sample instructions on opportunity to retreat/presence of others, accused’s state of mind, voluntary intoxication, provocateur/mutual combatant, and escalation of force are included in Instruction 5-2-6.

5–2–3. HOMICIDE OR AGGRAVATED ASSAULT WITH ASSAULT CONSUMMATED BY A BATTERY OR ASSAULT AS A LESSER INCLUDED OFFENSE

NOTE 1: Using this instruction. In some cases both standards of self- defense (deadly and non-deadly force) may be in issue. In such cases, the military judge must carefully explain and distinguish both standards and the offenses to which they apply. The following may be used as a guide in such cases:

The evidence has raised the issue of self-defense in relation to the offense(s) of (state the alleged offense(s)). (There has been (evidence) (testimony) that (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).)

Self-defense is a complete defense to the offense(s) of (state the alleged offense(s)).
For self-defense to exist, the accused must have had a reasonable apprehension that death or grievous bodily harm or some lesser degree of harm was about to be inflicted on (himself) (herself) and (he) (she) must have actually believed that the force (he) (she) used was necessary to prevent death or harm to (himself) (herself).
In other words, the defense of self-defense has two parts.

First, the accused must have had a reasonable belief that death or grievous bodily harm or a lesser degree of harm was about to be inflicted on (himself) (herself). The test here is whether, under the same facts and circumstances present in this case, an ordinary prudent adult person faced with the same situation would have believed that there were grounds to fear immediate death or grievous bodily harm or some lesser degree of harm. Because this test is objective, such matters as intoxication or emotional instability of the accused are not relevant. Second, the accused must have actually believed that the amount of force (he) (she) used was required to protect against death or the harm that (he) (she) reasonably apprehended.

If the accused reasonably apprehended that death or grievous bodily harm was about to be inflicted upon (himself) (herself), then (he) (she) was permitted to use any degree of force actually believed necessary to protect against death or grievous bodily harm. The fact that the accused used excessive force, if in fact you believe that, or that (he) (she) used a different type of force than that used by the attacker does not matter.
If the accused reasonably apprehended that some harm less than death or grievous bodily harm was about to be inflicted upon (his) (her) person, (he) (she) was permitted to use the degree of force actually believed necessary to prevent that harm. However, the accused could not use force which was likely to produce death or grievous bodily harm. The accused was not required to use the same amount or kind of force as the attacker.

To determine the accused’s actual belief as to the amount of force which was necessary, you must look at the situation through the eyes of the accused. In addition to the circumstances known to the accused at the time, the accused’s (age) (intelligence) (emotional control) (__________) are all important factors to consider in determining the accused’s actual belief about the amount of force required to protect (himself) (herself).

If the accused reasonably apprehended that death or grievous bodily harm was about to be inflicted upon (himself) (herself), and if the accused believed that the force (he) (she) used was necessary to protect against death or grievous bodily harm, (he) (she) must be acquitted of the alleged offense(s) and all lesser included offenses. (If the accused reasonably apprehended that some harm less than grievous bodily harm was about to be inflicted upon (himself) (herself), and if (he) (she) believed that the force used was necessary to prevent this harm, and such force was not likely to produce death or grievous bodily harm, the accused may not be convicted of any of these offenses including the lesser included offense(s) of (assault) (or) (assault consummated by a battery).)

The prosecution’s burden of proof to establish the guilt of the accused not only applies to the elements of the offense(s) of (state the alleged offense(s)) (and to the lesser included offense(s) of (state the lesser included offense(s) raised)), but also to the issue of self-defense. In order to find the accused guilty you must be convinced beyond a reasonable doubt that the accused did not act in self-defense.
NOTE 2: Grievous bodily harm. The below definition may be given if the term has not yet been defined:

“Grievous bodily harm” means serious bodily injury. It does not mean minor injuries such as a black eye or a bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, or other serious bodily injuries.

NOTE 3: Reasonableness of apprehension of harm. The ordinary objective standard used to determine whether apprehension of serious bodily harm or death was reasonable must be qualified if there is evidence of a special factor affecting the reasonableness of the apprehension (e.g., sex of the accused, age of the accused, or if the accused is a person who lacks sufficient intelligence to act as a normal, prudent, adult person). The requirement of reasonableness should be determined in light of these special factors.

NOTE 4: Other instructions. Instructions on additional issues in connection with self-defense should be given at this point when appropriate. Sample instructions on opportunity to retreat/presence of others, accused’s state of mind, voluntary intoxication, provocateur/mutual combatant, and escalation of force are included in Instruction 5-2-6.

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