the force must be proportional to the force that the defendant is facing.
exam note: be careful to think about the defendant and the victim separately -- don't think of who can use self-defense, think of what kind of force the defendant was facing. it doesn't matter whether the victim is also guilty of a crime/ should be charged with a crime.
common law
force:
(1) deadly
(2) unlawful
(3) imminent
belief:
(4) necessary
(5) reasonable
NYPL
peterson:
belief:
(1) reasonable ?
(2) necessary ?
force:
(3) imminent -- yes
(4) unlawful -- yes
(5) deadly -- yes
at some point, have to determine when the necessity for self-defense arises.
1. aggressor's rule: peterson is at fault, but only a little bit... so who do we
want to get more hurt?
common law: 1. unlawful act
2. reasonably calculated to lead to an affray foreboding
injurious or fatal consequences.
NYPL
1. initial aggressor, OR
2. provoker, with intent to cause physical injury
did you provoke with the intent to cause injury? was your purpose to start a fight? what is the policy reasoning? we don't want people to start fights, for the potential that the other person might escalate the harm.
now if the initial aggressor punches, and the other guy goes down and comes up with a gun.
(a) if you say sorry -- not a withdraw
(b) if you put your gun down -- not a withdraw
(c) if you walk away, kind of --- not a withdraw
(d) if you then effectively communicate the withdrawal, you're a good guy
(e) now that you're a good guy, you can use self-defense
in NYS, withdraw is called renunciation: "withdraw from the encounter and effectively communicated such withdraw to the other..."
under the NYPL, any amount of aggression makes you a bad guy, the initial aggressor.
MPC s.3.04(b): "with the purpose of causing death or serious physical injury, provoked the use of force."
serious physical harm is something that will disable or kill you.
this rule is like the dekki bar fight rule: the sudden escalation rule
the NYPL is the ari lessa rule of "don't fight"
is there withdraw under the MPC? it all has to be in the same encounter.
peterson loses on issue 1 (jury instructions naming him the aggressor), because the court says that he was aggressor under common law (see above). he has a backup argument: the retreat rule.
NYPL 35.15(c)
n.b. -- you only have to think about retreating before deadly force is used. if albina is coming towards dean simons, he can stand his ground and punch her.
in NYS, the defendant must retreat if
(1) he knows
(2) he can retreat in complete safety
what does complete safety mean?
it does not mean this. dean simons with a gun still gets killed with caitlin's lug wrench...
in the US, it's called the "true man" rule, cause a true man stands his ground!
in the west and southwest, we follow the true man rule, y'maam. in the north east,
you are supposed to run away and get a lawyer.
exception: castle rule -- you don't have to retreat in your own home.
curtalage... which means that if you don't have to be in the "castle", you can be as far as the "moat"... in a residential neighborhood like this, it could be your front yard. and most states that follow the castle exception allow the back yard.
DC allows the castle exception. peterson was in his yard. why can't he use it?
because he was the aggressor: if you start a fight in your own home, and the other guy comes towards you with intent to kill you and you can run away, you gotta try to.
reasonableness requirement... it's gotta be reasonable.
goetz.
kids say, "gimme $5!"
OK, this possibly was the prelude to a mugging. but do we think it was the prelude to a use of deadly force?
"i knew they didn't have a gun.... "Myra, in a situation like this, your mind, you're in a combat situation. Your mind is functioning. You're not thinking in a normal way. Your memory isn't even working normally. You are so hyped up. Your vision actually changes. Your field of view changes. Your capabilities change. What you are capable of changes. You are under adrenaline, a drug called adrenaline. And you respond very quickly, and you think very quickly. That's all. [...] You think! You think, you analyze, and you act. And in any situation, you just have to think more quickly than your opposition. That's all. You know. Speed is very important."
we already know you can't respond to non-deadly force with deadly force. so what's going on?
NYPL s.160, robbery
in NYS, if someone is in the process of robbing you (forceable stealing: "gimme your case book or i'll slap you!"), you may use deadly force to stop them
does it matter if they did rob him? no
does it matter if they were planning to rob him? no
what matters? goetz' REASONABLE belief of whether or not the kids were going to rob him
what's the procedural posture? goetz had been charged, moves to dismiss, and now we're at the appellate level: claims the prosecution gave the jury the wrong instructions on self-defense
prosecution says "what would a reasonable man objectively have believed."
goetz wants "what he subjectively would reasonably have believed in that situation"
goetz' statutory support is that it says "what *HE* reasonably would have believed", instead of statutory language used in like manslaughter statutes etc.
MPC: is it obj or sub?
NYPL: is goetz reasonable or unreasonable?
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