Self Defense

· It Was Self Defense, Your Honor and It’s Just Insane

Select either Self Defense or Insanity and explore that defense in detail for this written assignment You are to write a paper that is 3-5 pages in length and should properly cite your outside sources and use APA style formatting.

You should include a minimum of two outside sources, making certain to properly cite your sources.

I. “It was Self Defense, Your Honor”

On February 26, 2012, George Zimmerman shot and fatally wounded Trayvon Martin. The case is venued in Florida and is currently in process.

You should research the Zimmerman case. Should the defense of “self defense” be raised in this case? What facts and circumstances are relevant to deciding whether George Zimmerman is entitled to the defense of self-defense.

Analyze the concept of “imminent” danger and apply it to the facts of this case. If you were the judge in this case would you rule for or against an imminent danger argument? If you were the Judge or Jury in this case would you accept a defense of self-defense if asserted by Mr. Zimmerman? How might this impact the outcome of the case?

II. “It’s Just Insane”

On July 20, 2012 James Holmes became the suspected shooter in a mass theatre shooting that killed 12 people and injured 58 others.

You should research the Holmes case. Should the defense of “insanity” have been raised in this case? What facts and circumstances are relevant to deciding whether James Holmes would have been entitled to the defense of insanity.

Analyze each of the four tests for insanity. If you were the judge in this case would you rule for or against allowing a defense of insanity?

If you were the Judge or Jury in this case would you accept a defense of insanity if asserted by Mr. Holmes? How might this impact the outcome of the case?

Here are some notes down below to help you!!

Defenses to Criminal Liability: Justifications

In failure-of-proof defense, the defendant has only to raise a reasonable doubt about the prosecution’s proof of one element in the crime; it can be any element or elements.

The defenses of justification and excuse are affirmative defenses, which operate like this:

· Defendants have to “start matters off by putting in some evidence in support” of their justification or excuse.

Most affirmative defenses are perfect defenses; this means that if they’re successful, defendants are acquitted. One major exception is defendants who plead the excuse of insanity. Special hearings are held to determine if they are still insane and, if so, they are sent to maximum security mental hospitals.

Evidence that doesn’t amount to a perfect defense might amount to an imperfect defense; that is, defendants are guilty of lesser offenses.

Even when the evidence doesn’t add up to an imperfect defense, it might still show mitigating circumstances that convince judges or juries that defendants don’t deserve the maximum penalty for the crime they’re convicted of.

Self Defense

Sometimes, the government isn’t, or can’t be, there to protect you when you need it. So necessity—the heart of self-defense—allows “self-help” to kick in. Self-defense is a grudging concession to necessity. It’s only good before the law when three circumstances come together: the necessity is great, it exists “right now,” and it’s for prevention only. Preemptive strikes and retaliation are not allowed. Self-defense consists of four elements:

1. Unprovoked attack. The defender didn’t start or provoke the attack; Self-defense isn’t available to an initial aggressor; someone who provokes an attack can’t then use force to defend herself against the attack she provoked except for the withdrawal exception.

2. Necessity. Defenders can use deadly force only if they reasonably believe it’s necessary to repel an imminent deadly attack, namely one that’s going to happen right now;

3. Proportionality. Defenders can use deadly force only if the use of non deadly force isn’t enough to repel the attack. Excessive force is not allowed;

4. Reasonable belief. The defender has to reasonably believe that it’s necessary to use deadly force to repel the imminent deadly attack.

The best-known cases of justified self-defense involve individuals who need to kill to save their own lives, but self-defense is broader than that. It also includes killing someone who’s about to kill a member of your family—or any innocent person for that matter.

You can also kill an attacker whom you reasonably believe is right now going to hurt you or someone else badly enough to send you or them to the hospital for the treatment of serious injury. Some self-defense statutes go even further.

They allow you to kill someone you reasonably believe is about to commit a serious felony against you that doesn’t threaten either your life or serious bodily injury. Almost all statutes require that your belief also be reasonable.

The English common law “retreat to the wall” survived in a minority of American states. In the 19th Century, however, an important legal change occurred when the law changed to the majority stand-your-ground rule, namely that if he didn’t start the fight, he could stand his ground and kill to “defend himself without retreating from any place he had a right to be” (245).

The minority rule, the retreat rule, says you have to retreat, if you reasonably believe that you’re in danger of death or serious bodily harm and that backing off won’t unreasonably put you in danger of death or serious bodily harm.

· States that require retreat have carved out an exception to the retreat doctrine. According to this castle exception, when you’re attacked in your home, you can stand your ground and use deadly force to fend off an unprovoked attack, but only if you reasonably believe the attack threatens death or serious bodily injury (State v. Kennamore 1980, 858).

“New Castle Laws”

What if two men live in the same “castle”? Can they both stand their ground? It was these cases of cohabitants that gave birth to the rules governing domestic violence. One of the most famous and most often-cited cohabitant cases, the World War I era People v. Tomlins (1914), involved a man who killed his 22-year-old son, who had attacked his father in their cottage.

Then Judge Cardozo (later a U.S. Supreme Court Associate Justice), wrote: It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. The Connecticut Supreme Court relied on family violence to back up its creation of the cohabitant exception to the Connecticut retreat rule, even though it involved male roommates (State v. Shaw 1981).

By the late 1990s, the recognition that battered women cases fit the “real man” protecting his castle paradigm had definitely influenced the law of self-defense. Courts in several Castle Doctrine states have adopted rules that allow women to “stand their ground and kill their batterers.”

Historically, self-defense meant protecting yourself and the members of your immediate family. Although several states still require a special relationship, the trend is in the opposite direction. Many states have abandoned the special relationship requirement altogether, replacing it with the defense of anyone who needs immediate protection from attack.

The right to use force in the defense of one’s person, family, habitation, lands, or goods is one of the natural and unalienable rights of man. Statutes vary as to the area that the use of deadly force covers. Most require entry into the home itself.

· This doesn’t include the curtilage, the area immediately surrounding the home. Many require entry into an occupied home. Homes are special places; they’re not in the same category as our “stuff.”

· Can you use force to protect your “stuff”? Not deadly force. But you can use the amount of nondeadly force you reasonably believe is necessary to prevent someone from taking your stuff. You can’t use force if there is time to call the police.

Self-defense is undergoing an epochal transformation. Since 2005, more than forty states have passed or proposed new “Castle Doctrine” legislation intended to expand the right to use deadly force in self-defense. The first castle doctrine passed the Florida legislature in October 2005. Opponents and supporters of the castle laws see them in fundamentally different ways.

· Supporters claim them as the public reasserting fundamental rights. Gun control advocates say the laws “are ushering in a violent new era where civilians may have more freedom to use deadly force than even the police.”

In March 2007, the American Prosecutors Research Institute (APRI) held a symposium consisting of prosecution, law enforcement, government, public health, and academic experts from 12 states. The purpose? Discuss the possible unintended negative consequences for public safety created by the new castle laws.

The main concerns include officers’ use of force; operations and training requirements; increased investigation burdens; law enforcement attitudes and their impact on officer performance; and doubts that the castle laws deter crime (Jansen and Nugent-Barakove 2008, 8–9).

There’s no empirical research to help explain why so many states have adopted the “new castle laws.” But there’s plenty of speculation as to why these laws have proliferated now.

Two commonly mentioned reasons are Americans’ heightened consciousness and concern about their security since 9/11 and the lack of enough police officers to protect the public. See TABLE 5.1 Expansion of “New Castle Laws.”

Choice of Evils

The choice-of-evils defense, also called the general defense of necessity, justifies the choice to commit a lesser crime to avoid the harm of a greater crime.

The defense enjoys a long history in the law of Europe and the Americas. The defense has generated heated controversy with one side claiming that it is a justification defense and correct and the other claiming that it is so vague as to allow judges to interpret it to mean anything they wanted.

The choice-of-evils defense consists of proving that the defendant made the right choice, the only choice—namely, the necessity of choosing now to do a lesser evil to avoid a greater evil.

The Model Penal Code choice-of-evils provision contains three elements laid out in three steps:

1. Identify the evils;

2. Rank the evils;

3. Reasonable belief that the greater evil is imminent, namely it’s going to happen rightnow (ALI 1985, 1:2, 8–22).

The Model Penal Code (ALI 1985, 1:2, 8) lists all of the following “right” choices:

· Destroying property to prevent spreading fire;

· Violating a speed limit to get a dying person to a hospital;

· Throwing cargo overboard to save a sinking vessel and its crew;

· Dispensing drugs without a prescription in an emergency;

· Breaking into and entering a mountain cabin to avoid freezing to death.

The right choices are life, safety, and health over property.

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