2011 (September Term)
United States v. Behenna, 71 M.J. 228 (the standard for self-defense is set out in RCM 916(e)(1), which provides that if an individual apprehends on reasonable grounds that grievous bodily harm or death is about to be wrongfully inflicted to his or her person, then the individual may use such force as is appropriate for the circumstances, including deadly force).
(the right to act in self-defense is not absolute; initial aggressors and those involved in mutual combat lose the right to act in self-defense; however, an initial aggressor or a mutual combatant regains the right to act in self-defense if the other party escalates the degree of force, or if the initial aggressor or the mutual combatant withdraws in good faith and communicates that intent to withdraw).
(instruction on losing and regaining the right to act in self-defense was erroneous where (1) the military judge provided no guidance on how to evaluate an offer-type assault, which occurs, for instance, when an individual points a loaded pistol at another person without lawful justification or authorization, and (2) the military judge gave an inaccurate statement of the law when he linked the lawful use of force with the issue of escalation with the conjunction “and” (“However, if you have a reasonable doubt that the accused assaulted Ali Mansur, was provoked by Ali Mansur, or had some other legal justification or excuse, and you are not convinced beyond a reasonable doubt that Ali Mansur did not escalate the level of force, then you must conclude that the accused had the right to self-defense ....”; the statement of law was inaccurate because appellant would have had the right to self-defense if his original use of force had been lawful - it was provoked, justified, or otherwise excusable (i.e., appellant was not an initial aggressor) - or if Mansur had escalated the level of force).
(if appellant was the initial aggressor - i.e., the one that provoked or brought about the situation that resulted in the necessity to kill another, then he lost his right to self-defense, unless the deceased either escalated the level of force or appellant withdrew and communicated that withdrawal in good faith).
(appellant’s initial use of deadly force against a detainee, whom he had taken to remote location, stripped naked, and interrogated at gunpoint, was unauthorized and excessive; therefore, he had no right of self-defense, and he could not have later regained the right to act in self-defense because he did not withdraw; even if the detainee had thrown a piece of concrete at him, that would not have amounted to escalation in this situation where appellant had already introduced deadly force - that is, a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at an initial aggressor in full battle attire, armed with a loaded pistol, and lunges for the pistol - and this is especially so when the initial aggressor had every opportunity to withdraw from the confrontation and there was no evidence he either attempted or was unable to do so; even assuming that the detainee lunged for appellant’s pistol and appellant feared that the detainee would use the pistol if he was able to seize it, because appellant was the initial aggressor, and because there was no evidence to support a finding of escalation or withdrawal, a rational member could have come to no other conclusion than that appellant lost the right to act in self-defense and did not regain it).
United States v. Stanley, 71 M.J. 60 (self-defense is an affirmative defense for homicide or assault cases involving deadly force that consists of two elements: (1) that the accused apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on him; and (2) that the accused believed that the force he used was necessary for protection against death or grievous bodily harm).
(the theory of self-defense is protection and not aggression, and to keep the two in rough balance, the force to repel should approximate the violence threatened).
(even a person who starts an affray is entitled to use self-defense when the opposing party escalates the level of the conflict).
United States v. Schumacher, 70 M.J. 387 (to present a valid claim for self-defense to assault with a dangerous weapon or means likely to produce death or grievous bodily harm, the evidence must show that the accused (1) apprehended, on reasonable grounds, that bodily harm was about to be inflicted wrongfully on him, and (2) in order to deter the assailant, offered but did not actually apply or attempt to apply such means or force as would be likely to cause death or grievous bodily harm).
(MPs are allowed to use reasonable force in carrying out their official duties; to conclude that an MP’s use of force is wrongful for an instruction on self-defense, the evidence must show that the MP either used unreasonable force or was acting in something other than an official capacity).
(in this case, the evidence was insufficient to establish that appellant reasonably believed the MPs who arrived at his home during a domestic dispute with his wife were unknown intruders in order to warrant a self-defense instruction in an assault prosecution arising from appellant pointing a pistol at one of the MPs, where (1) appellant was present when his wife requested that her neighbor call the MPs, (2) the MPs arrived four minutes later, (3) during the interim period, appellant’s wife had tried to persuade him to put away his guns because the MPs were coming, (4) when the MPs arrived, they were dressed in full military police attire including badges, (5) while in the process of waving the pistol around, appellant stated that it would be nothing for him to kill a few MPs, and (6) appellant’s defense counsel explicitly denied that the evidence could warrant such an instruction; given the sequence of events, the physical appearance of the MPs, appellant’s statement indicating knowledge of who the people were, and defense counsel’s concessions at trial, the military judge did not err in determining that there was no evidence that appellant reasonably perceived the infliction of wrongful bodily harm).
2008 (September Term)United
States v. Yanger, 67 M.J. 56 (the elements of
self-defense in a situation of
non-aggravated assault require that the accused apprehended, upon
reasonable
grounds, that bodily harm was about to be inflicted wrongfully on him,
and
believed that the force that he used was necessary for protection
against
bodily harm, provided that the force used by him was less than force
reasonably
likely to produce death or grievous bodily harm).
(under RCM 916(e)(4), the
right to self-defense is lost if the accused was an aggressor, engaged
in mutual combat, or provoked the attack which gave rise to an
apprehension that the accused was about to suffer death or grievous
bodily harm, unless the accused had withdrawn in good faith after the
aggression, combat, or provocation and before the offense alleged
occurred; while RCM 916(e)(4) sets out a duty to withdraw under certain
circumstances in order to avail oneself of the defense of self-defense,
it does not address either escalation in general or the specific
situation in which the original aggressor or someone engaged in mutual
combat is not able to withdraw in good faith; the Rule’s silence
regarding an inability to withdraw creates an ambiguity).
(under common law
self-defense principles, even a person who starts an affray is entitled
to use self-defense when the opposing party escalates the level of the
conflict).
(a mutual combatant can
regain the right of self-defense when the opposing party escalates the
conflict and when he is incapable of withdrawing in good faith, as long
as he responds in a manner proportionate to the threat faced; RCM
916(e)(4) does not require the absurd result of requiring a mutual
combatant or even an initial aggressor to withdraw when he is
physically incapable of doing so).
(in this case, the
self-defense instruction given was incomplete where the military judge
erred in not instructing the members that a mutual combatant could
regain the right to self-defense when the opposing party escalated the
conflict and when he was incapable of withdrawing in good faith).
(military judge’s failure to
give complete and correct self-defense instruction created a
constitutional error).
United
States v. Dearing, 63 M.J. 478 (an initial
aggressor is still entitled to use
deadly force in his own defense, just as he would be if he withdrew
completely
from combat and was then attacked by his opponent, in instances where
the
adversary escalates the level of conflict).
(the military
judge’s error in precluding
appellant from introducing corroborating evidence when her credibility
was
attacked regarding the state-of-mind element of her claim of
self-defense to
premeditated murder was not a constitutional error that was prejudicial
unless
harmless beyond a reasonable doubt; appellant had an extensive
opportunity to
present a state-of-mind defense).