Liberalizing Self-Defense Laws: Personal Autonomy & Deadly Force, Lecture notes of Law

Download Liberalizing Self-Defense Laws: Personal Autonomy & Deadly Force and more Lecture notes Law in PDF only on Docsity! The Case for Liberalizing the Use of Deadly Force In Self-Defense John Q. La Fond* I. INTRODUCTION For at least a century the common law of Washington and of virtually every state in the United States has permitted a citi- zen to use deadly force in self-defense, but only if he was unlaw- fully threatened, or appeared to be threatened, with death or serious bodily harm.' Despite growing public fear of violent crime' and recent statistics which provide a strong empirical basis for that fear, 3 almost no state has expanded the common law right to permit a citizen to use deadly force to resist unlaw- ful violence to his person if he was not threatened with death or serious bodily harm.4 It is no longer clear that the common law's * B.A., J.D., Yale. Professor of Law, University of Puget Sound School of Law. The author gratefully wishes to acknowledge the extraordinary generosity of his colleague, Professor George Nock, who unstintingly shared his extensive research for, and the man- uscript of, his forthcoming book, WASHINGTON CRIMINAL LAW (an invaluable aid to the practitioner) scheduled for publication in 1983 by Butterworth Legal Publishing. The author also is indebted to the invaluable research assistance provided by Ms. Meg Jones- Shelton, J.D., 1982 University of Puget Sound. 1. See State v. Brooks, 172 Wash. 221, 19 P.2d 924 (1933); State v. Lewis, 6 Wash. App. 38, 491 P.2d 1062 (1971); R. PERKINS, CRIMINAL LAW 993-1004 (2d ed. 1969); W. LA FAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 392-93 (1972); MODEL PENAL CODE § 3.04 (Proposed Official Draft 1962). See also, 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 179, 184 (Oxford 1769); 2 F. POLLACK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 478 (Lawyer's Literary Club ed. 1959). 2. See Raab, Crime Fear Seen Changing Habits Around the U.S., N.Y. Times, Sept. 17, 1980, at B5, col. 1 (private research poll indicates that "fear of crime has become so 'alarmingly pervasive' in the United States that it has altered the way people live throughout the country"). See also Herbers, Fear of Crime Leads in Survey on Reasons to Leave Big Cities, N.Y. Times, May 16, 1981, at A8, col. 1; The Curse of Violent Crime, TIME, March 23, 1981, at 16, col. 1. 3. From 1970 to 1979, according to the Federal Bureau of Investigation's Uniform Crime Reports, the rate of violent crime increased a little more than five percent a year on the average. From 1978 to 1979, the rate increased 10% and in the first half of 1980, it increased 10% over the same period of 1979. Even though the number of serious crimes reported to law enforcement agencies leveled off in 1981 and the crime rate for that year decreased two per cent, the number of violent crimes increased one per cent for that same year. N.Y. Times, August 27, 1982, at As, col. 1. 4. But see infra note 196. 238 University of Puget Sound Law Review stringent rules limiting the use of deadly force to instances in which the victim's life may be at stake are in accord with a shift- ing public value system or are sufficiently protective of the indi- vidual in these increasingly violent times. Recently, Washington courts have applied the traditional common law rules of self-defense in several provocative "hard cases" which test the logic and impact of the traditional rules at the margin and which thereby question the continued vitality of the common law formulation.' In attempting both to preserve the formal doctrine of the law governing the use of deadly force in self-defense and to adjust to changing social conditions, these courts have resolved the tension between rule and reality in a very unsatisfactory manner. As a result of these decisions, the basic common law structure of the rules of self-defense remains formally intact, but the specific content and predictive applica- tion of those rules no longer make much sense. This article will set forth the primary theories which might underlie the right of self-defense: necessity, duress, and personal autonomy. It will then examine the common law and the law of Washington governing the use of force in self-defense and demonstrate that both are grounded primarily in the utilitarian theory of necessity, which has as its primary objective the mini- mization of social loss even at the cost of harm to individual innocent victims. The article then will analyze the inadequate manner in which Washington courts are resolving difficult cases involving the use of deadly force in self-defense. Finally, this article will argue that the law of self-defense ought to be grounded primarily in the theory of personal auton- omy and, accordingly, that the law should be changed explicitly to permit recourse to deadly force by innocent victims against aggressors whenever necessary to defend effectively against unlawful violence. In addition, it will argue that such a shift in underlying theory and explicit reformulation is not necessarily inconsistent with utilitarian objectives and that, in any event and more importantly, such a shift is necessary to insure that the law is congruent with current public values and affords citi- zens reasonable assurance of preserving their bodily integrity. 5. State v. McCullum, 98 Wash. 2d 484, 656 P.2d 1064 (1983); State v. Hanton, 94 Wash. 2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980); State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977); State v. Adams, 31 Wash. App. 393, 641 P.2d 1207 (1982). [Vol. 6:237 1983] Self-Defense and Deadly Force One strains hard to find much in the way of persuasive analysis by courts as to why the victim's interest in bodily security should be given preference, yet this result seems to be clearly in accord with prevailing social values. The emphasis on minimizing social loss and its concomitant expression in rule form that an innocent victim threatened only with physical harm cannot resort to deadly force in self-defense necessarily allocated to the victim the risk that his limited response, though proportional, would not be effective.1 8 Thus, in order to maximize social gain by preserving the life of the aggressor, 9 the innocent victim might be required to accept as a personal cost the infliction of physical harm. Distribution of this risk to any particular victim was perceived simply as the inevita- ble cost of minimizing the net social loss. Of course an innocent victim who suffered such a loss personally, though without an effective private remedy at that moment, did have the prospec- tive (and contingent) public remedy of arrest and prosecution at a later time to vindicate, at least in part, his private interest.20 ests of the aggressor. This is the critical factor in deciding whether self-defence ought to be available to defend against rape, castration, maiming, and theft as well as against homicide. The more significantly one regards the culpability of the aggressor, the less significant the victim's interest has to be for the victim to have the right to use deadly force, if necessary, to repel the attack. Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8 ISR. L. REv. 367, 377 (1973) [hereinafter cited as Fletcher, The Psychotic Aggressor]. Kadish, however, argues that the "balance of utilities" does not adequately explain why an innocent victim is permitted under specific conditions to kill his aggressor. He concludes that a theoretical explanation based on calculating social utilities violates the principle of equality which asserts that "the lives of all persons must be regarded as of equal value." Furthermore, he notes that the common law permitted a victim to take life even when lesser interests were threatened. Thus, a victim could kill to prevent rape or kidnapping. See Kadish, Respect for Life and Regard for Rights in the Criminal Law, 64 CALIF. L. REV. 871, 882 (1976) [hereinafter cited as Kadish, Respect for Life]. 18. See R. PERKINS, CRIMINAL LAW 996 (2d ed. 1969); Fletcher, The Psychotic Aggressor, supra note 17, at 367. An "effective" response in defense of self is used in this article to indicate protective measures taken in self-defense, including recourse to deadly force, which will enable a victim to repel successfully the unlawful application of violence to his person. For a specific application of this definition see infra notes 161-71 and accompanying text. 19. The common law considered human life as the supreme value and, consequently, subordinated most other interests in order to maximize the preservation of human life. For an excellent discussion of this priority, see Kadish, Respect for Life, supra note 17, at 878-81. 20. See R. PERKINS, CRIMINAL LAW 996 (2d ed. 1969). University of Puget Sound Law Review B. Duress Other rationales have been offered to explain the availabil- ity of the right to use force in self-defense. Some commentators have suggesed that it may be more properly grounded in the general principle of duress." Duress under the common law was a doctrine which excluded a person from criminal responsibility for acts he committed as a result of some form of recognized compulsion which overcame his will." An individual who acted under duress acted intentionally but did not make a "true choice" to act, given the pressure to which he was subjected." Thus, intentionally using force to harm another human being in self-defense can be seen as responding under conditions of stress in which the threat to one's self-interest (life or bodily security) inevitably causes an individual to act in a predictable self-defensive fashion. Commentators have suggested that not only is the use of force in self-defense a predictable human response, it is also not deterrable. 4 Whether self-defense is grounded in the rationale of neces- sity or duress can have important theoretical as well.as practical consequences. 6 Most importantly, this choice of grounding may determine whether the act of the victim was "justified" or "excused. 2 6 On the one hand, if the victim's act of self-defense 21. See H. PACKER, THE LIMrrS OF THE CRIMINAL SANCTION 114-18 (1968). But see Kadish, Respect for Life, supra note 17, at 881. Kadish claims that people in fact regard intentional killing of aggressors as "justifiable." Additionally, he argues that a theory of self-defense which rests on presumed compulsion does not explain all instances in which the law permits an individual to take intentionally the life of an aggressor. Specifically, it does not explain why the law permits a third party coming to the aid of an innocent victim to take, under specified circumstances, the life of an aggressor. Kadish seemingly concludes that the third party could be deterred by the threat of punishment not to kill the aggressor. Whether his conclusion would stand up when there is a "special relation- ship" between the victim and the third party (such as parent or spouse) is an interesting question as he admits. Id. at 881. 22. See W. LA FAVE & A. Sco'r, HANDBOOK ON CRIMINAL LAW 374-81 (1972). It is also possible to characterize this model as a form of "necessity" which functions as an excuse, not as a justification. In either case, this model essentially focuses on the inevita- bility that the victim will necessarily be compelled to kill the aggressor in order to pre- serve his own life. See Fletcher, The Psychotic Aggressor, supra note 17, at 376-77. 23. See G. FLETCHER, RETHINKING CRIMINAL LAW 829-34 (1978); Fletcher, The Psychotic Aggressor, supra note 17, at 367-75. 24. See, e.g., H. PACKER, THE LiMrrs OF THE CRIMINAL SANCTION 113-18 (1968). 25. See infra notes 26-27 and accompanying text. It should be noted that most com- mentators seemingly do not consider the doctrine of self-defense to be grounded prima- rily in the theory of duress. 26. Conduct that is "justified" can be considered broadly as conduct which is, under the particular circumstances, not unlawful and, consequently, no criminal responsibility 242 [Vol. 6:237 Self-Defense and Deadly Force is grounded in necessity and thus is seen as justified, it is consid- ered to be a correct and appropriate social response which soci- ety ought to permit, and even encourage. If, on the other hand, it is seen as grounded in duress, an act of violence to another in self-defense is considered as a personal excuse avoiding individ- ual criminal responsibility because of the absence of a necessary condition for criminal responsibility, i.e., the opportunity for true choice.17 C. Vindication of Autonomy A perceptive and influential contemporary scholar of crimi- nal law has suggested that the right to use force in self-defense ought to be grounded not in necessity or duress but rather in the vindication of the victim's interest in autonomy."' Broadly stated, this principle holds that an aggressor's unilateral act of aggression places him outside the protection of the law 9 and, more importantly, constitutes a breach of the victim's intimate zone of privacy and personal security.30 Both because the aggres- sor has by his own action forfeited consideration of his interests by the law and, more significantly, because the interest invaded is considered of absolute importance, the victim is authorized to take whatever steps are necessary to repel the intruder and to may be imposed upon the individual defendant for behaving as he did. Conduct that is "excused" can broadly be described as unlawful but for which personal criminal respon- sibility cannot be imposed on the particular defendant. For a sophisticated analysis of these two concepts see G. FLETCHER, RTMNKING CRIMINAL LAW 759-817 (1978); Kadish, Respect for Life, supra note 17, at 874-77. See also Fletcher, The Psychotic Aggressor, supra note 17, at 373. 27. Characterizing exculpatory claims either as issues of justification or of excuse may have practical consequences. Arguably, the government might be required to negate claims of justification while defendants might be required to establish claims of excuse. See infra notes 93-159 and accompanying text. 28. See G. FLETCHER, RErHINKING CRiMINAL LAw 860-75 (1978); Fletcher, The Psychotic Aggressor, supra note 17, at 378-79. 29. Fletcher, The Psychotic Aggressor, supra note 17, at 379-80. According to Fletcher, John Locke considered an aggressor to be in a state of war with the victim, thereby breaching an implied contract among autonomous agents to respect each other's personal living space. Id. at 380. Kadish rejects this argument, asserting that it is merely a legal conclusion which does not adequately explain why an aggressor should forfeit any protection under the law and that it does not explain all cases of self-defense, specifically those involving nonculpable aggressors such as children or the insane. See Kadish, Respect for Life, supra note 17, at 883-84. 30. G. FLETCHER, RETHINKING CRIMINAL LAw 860-75 (1978); Fletcher, The Psychotic Aggressor, supra note 17, at 378-79. This theory does not rest on a conflict of interests which requires weighing by the law. Rather, it postulates an absolute right to repel aggression to a vital personal interest. 24319831 246 University of Puget Sound Law Review [Vol. 6:237 legislature, in enacting the current statutory scheme, intended to confirm the common law rules of self-defense." Like the common law, 6 Washington distinguishes between the victim's right to use nondeadly force and deadly force. 7 Which force, deadly or nondeadly, a victim can use in self- defense depends on the nature of the harm threatened. 8 As a practical matter, however, this principle frequently (though not always") limits a victim to respond in kind to the force used or or to any such person, and there is imminent danger of such design being accomplished; or (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is. WASH. Rav. CODE § 9A.16.050 (1981). 35. State v. Fischer, 23 Wash. App. 756, 598 P.2d 742 (1979); State v. Bailey, 22 Wash. App. 646, 591 P.2d 1212 (1979). Most courts have reached this conclusion in a rather perfunctory manner, relying on inferred "legislative intent" from enactment of the statutory provisions. This finesse has permitted courts to avoid confronting the fact that the clear language of the relevant Washington statutes creates an extraordinarily gener- ous right of self-defense. WASH. Rav. CODE § 9A.16.050(2) (1981), for example, would, if not limited by the common law, permit a victim to take human life in resisting a felony committed by an aggressor in his presence. See supra note 34. 36. See W. LA FAvE & A. Scor, HANDsOOK ON CRIMINAL LAW 391-94 (1972). 37. Deadly force may be defined as force (a) which its user uses with intent to cause death or serious bodily injury to another or (b) which he knows creates a substantial risk of death or serious bodily injury to the other. The definition thus focuses on the objec- tives of the user to cause serious harm or on the probability that such harm might occur rather than on whether it actually did occur. See W. LA FAv & A. Scorr, HANDBOOK ON CRMINAL LAW 392 (1972); MODEL PENAL CODE § 3.11(2) (Proposed Official Draft 1962). "Great bodily harm" is defined in WASH. PArTERN JURv INSTRUCTONs-CIMINAL § 2.04 (1980) as any serious hurt or injury that is seriously painful or hard to bear. Occasionally trial courts have been reversed for giving a misleading definition of "great bodily harm." E.g., State v. Painter, 27 Wash. App. 708, 620 P.2d 1001 (1980) (trial court reversed for instructing jury that "great bodily harm means an injury of a more serious nature than an ordinary striking with the hands or fist" even though this instruction appears to state accurately the common law rule). The plain meaning of the words suggests that the aggressor's conduct must threaten an injury which could result in death, thus preserving the interest-balancing analysis and minimization of the loss of life implicit in the com- mon law defense. Yet there is some flexibility in the definition permitting factfinders to determine that threatened harm less serious than death might justify the use of deadly force in self-defense. Cf. Cook v. Gisler, 20 Wash. App. 677, 582 P.2d 550 (1978) (court held that a threatened sadistic sexual assault by a husband upon his wife could consti- tute a threat of great bodily harm); State v. Lewis, 6 Wash. App. 38, 491 P.2d 1062 (1971) (court defined "grievous bodily harm" as an injury of a graver and more serious nature than an ordinary battery with the fist or pounding with the hand; an injury of such a nature as to produce severe pain, suffering or injury)." "Nondeadly" force is, in effect, a residual concept. It refers to force that is not likely to cause death or great bodily harm. See W. LA FAvE & A. Scor, HANDBOOK ON CRIMINAL LAW 392 (1972). 38. See infra notes 40-44 and accompanying text. 39. Cf. Cook v. Gisler, 20 Wash. App. 677, 582 P.2d 550 (1978) (court concluded that victim, threatened with a sadistic sexual act by her unarmed husband, could use deadly 1983] Self-Defense and Deadly Force 247 threatened by the aggressor. It is useful at this juncture to set forth the law of self- defense as understood by Washington courts. There are several elements that must be satisfied to claim the right to use nondeadly force intentionally against another person in self- defense. The victim must have an honest 40 and reasonable"4 belief based on appearances that another person is threatening him with the imminent application' of nondeadly force to his person and that recourse to nondeadly force is necessary in order to avoid the harm threatened.43 In order to use deadly force against an aggressor, a victim must have an honest and reasona- ble belief based on appearances that another person is threaten- ing him with imminent death or great bodily harm and that it is necessary to resort to deadly force in order to avoid the serious harm threatened.4 The requirement that the unlawful force or harm threatened by the aggressor be "imminent" serves an important force in self-defense). 40. In order to qualify as "honest" the actor himself must subjectively have believed that he was threatened. The focus is on the actual state of mind of the actor at the time of the incident. Cf. State v. Fischer, 23 Wash. App. 756, 598 P.2d 742 (1979) (trial court reversed for failing to give a self-defense instruction that made "the subjective standard manifestly apparent to the average juror." Id. at 759). 41. The concept of "reasonable belief" introduces an objective standard into the jury's determination. The factfinder must determine that the actor's perception was con- gruent with that of the so-called "reasonable person" under the same circumstances at the time of the confrontation. This insures that the actor's behavior was consistent with a community standard of behavior applicable to all members of society. It also protects against feigning by persons who kill or harm another knowing they are not threatened but who intend to prevaricate in order to avoid criminal responsibility. See H.L.A. HART, PUNISHMENT AND RESPoNsmEnrrv 33 (2d ed. 1978). See also infra note 89 and accompany- ing text. Recently, this concept has been badly handled by several Washington courts. See infra notes 162-68 & 173-80, and accompanying text. See also State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977), State v. Hill, 76 Wash. 2d 557, 458 P.2d 171 (1969); State v. Tyree, 143 Wash. 313, 255 P. 382 (1927); State v. Miller, 141 Wash. 104, 250 P. 645 (1926); State v. Dunning, 8 Wash. App. 340, 506 P.2d 321 (1973); 3 J. STEPHEN, A HISTORY OF THE CRIMINAL LAw OF ENGLAND 12 (1883). 42. "Imminent" requires the jury to find that the victim honestly and reasonably believed that the aggressor intended to inflict serious bodily injury in the very near future. If the threatened violence is more remote in time, the victim may have an alter- native course of action (other than intentionally causing death or serious bodily injury) to avoid the threatened harm. See generally W. LA FAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 394 (1972). 43. State v. Strand, 20 Wash. App. 768, 582 P.2d 874 (1978). 44. State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977). See also MODEL PENAL CODE § 3.04(2)(b)(i) (Proposed Official Draft 1962). 248 University of Puget Sound Law Review function. This element establishes that a choice between two evils (harm to the aggressor or harm to the victim) was in fact necessary, and that there was an occasion which actually required the individual (and society) to minimize loss. Of course, one difficulty generated by this requirement is the disadvantage it imposes on the victim by effectively delaying a self-protective response until the aggressor has explicitly initiated the violent confrontation. The aggressor has thereby gained the advantage of choosing the place and the time for violence and, perhaps, also achieved the benefit of surprise. In this sense, the require- ment also limits the effectiveness of a victim's response.' The rules governing the use of force in self-defense are straightforward and comprehensible. It is, however, important to analyze the theoretical bases which seemingly underlie these rules. First, the common law frequently casts the rules in terms of the force threatened or used by the aggressor and not in terms of the harm threatened or likely to occur. Implicit in the com- mon law's verbal formulation is the strong presumption that only deadly force threatened by an aggressor is likely to cause death or serious bodily injury. Put conversely, the common law rules seem to assume that an aggressor who does not explicitly threaten deadly force or is not armed with a deadly weapon will not cause death or serious bodily injury.' Thus, as a practical matter, the law permits a victim to meet nondeadly force only with nondeadly force. Only if the aggressor is armed with a deadly weapon or if the victim can otherwise demonstrate that he honestly and reasonably believed that the aggressor intended 45. See supra note 42. 46. Of course, the requirement of "imminent" also functions to minimize "mistakes" by requiring the victim to perceive behavior which manifests a threat to his personal security. See supra notes 28-33 and accompanying text. For a provocative and lively debate of an analogous problem in the definition of criminal attempt, see G. FLETCHER, RETHINKING CRIMINAL LAw 115-235 (1978); Weinreb, Manifest Criminality, Criminal Intent, and the "Metamorphosis of Larceny," 90 YALE L.J. 294 (1980). 47. Washington courts have defined "great bodily harm" to mean "any serious hurt or injury or one that is seriously painful or hard to bear." State v. Painter, 27 Wash. App. 708, 620 P.2d 1001 (1981); WASH. PATTERN JURY INSTRUCTIONS-CRIMINAL § 2.04 (Supp. 1982). It should be noted that at common law a person could be convicted of murder if he only intended to cause serious bodily injury to his victim but in fact caused death. The rationale of this formulation is clear: there is always a substantial risk that death may occur because such conduct is very dangerous. See W. LA FAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 540-41 (1972). Thus, permitting a victim to respond with deadly force when threatened with great bodily harm is, in effect, authorizing him to take life lest his own life be put at risk. [Vol. 6:237 Self-Defense and Deadly Force mon law seems to presume that an aggressor who does not use or threaten to use a deadly weapon does not intend or will not cause death or serious bodily injury. 7 Washington law does not create a presumption to this effect, but it effectively casts on the victim the difficult burden of persuading the jury that an unarmed aggressor threatened (or appeared to threaten) death or great bodily harm.58 As will be discussed,5 9 it may not be pos- sible to gauge either as a matter of law" or of fact6 ' the inten- tion of today's violent criminals or the probable outcome of vio- lent confrontation by ascertaining whether aggressors are armed with deadly force. IV. SUBSIDIARY RULES OF SELF-DEFENSE There are additional rules governing the right of self- defense in Washington. A. No Duty to Retreat In Washington an innocent victim is under no duty to retreat even if he knows that he could do so with complete impunity.62 Failure to require a victim to exercise this alterna- tive remedy if available is actually inconsistent with the utilitar- ian goal of minimizing social loss. The drafters of the Model Penal Code reached a contrary conclusion with respect to the use of deadly force, concluding that most citizens would, in a moment of quiet reflection subse- quent to the violent confrontation, prefer to have suffered the temporary ignominy of retreating rather than to have taken a human life.6" To this extent, Washington's failure to impose a 57. As noted earlier, deadly force is not defined explicitly in terms of deadly weapon or instrumentality, but rather in terms of the user's intention or awareness of its danger- ousness. Thus, to limit a victim's ability to respond with deadly force to instances in which he is threatened with deadly force may require him to assess accurately the user's intention-a very difficult task. See supra note 37. 58. See supra notes 48 & 53 and accompanying text. 59. See infra notes 192-93 and accompanying text. 60. See supra note 47-49 and accompanying text. 61. See supra note 53 and accompanying text. 62. State v. Meyer, 96 Wash. 257, 164 P. 926 (1917); State v. Lewis, 6 Wash. App. 38; 491 P.2d 1062 (1971). 63. MODEL PENAL CODE § 3.04(2)(b)(iii) comment at 24-25 (Tent. Draft No. 8 1958). The Code does not, however, require a victim to retreat from his dwelling place or place of work. Nor need he retreat if he is assaulted in his dwelling by another person whose dwelling it is also. In part, the drafters of the Code concluded that the duty to retreat in all cases but those just mentioned (if retreat is available and without risk to the victim) 1983] 252 University of Puget Sound Law Review [Vol. 6:237 duty to retreat can be seen as adopting in part the preservation of autonomy rationale which has been suggested as the underly- ing rationale of self-defense.6 4 A victim will be permitted to stand his ground and defend his personal zone of privacy and security rather than yield it to a violent, intruding aggressor even if standing one's ground and keeping intact one's zone of personal autonomy results in the loss of human life. 5 B. Use of Deadly Force Versus Outcome Like the common law, the law of Washington does not let the privilege of using deadly force in self-defense turn on the outcome of its use in any particular case. Thus, an innocent vic- tim may use deadly force under specified conditions. The privi- lege to use such force will not depend on whether its use in fact took human life or caused serious bodily injury. This approach makes sense since the outcome of using deadly force in any specific instance is not predictable because it is dependent on too many variables including, among others, marksmanship, range, and movement of the participants. More- over, a primary purpose of the law is to specify in advance of is consistent with the utilitarian theory of minimizing loss since it is not necessary for the victim to injure his attacker if he can avoid the harm to himself by retreating. See also 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 179, 185 (Oxford 1769). 64. Washington courts have not provided a satisfactory explanation of why a victim is under no duty to retreat before using force. Probably the best attempt at such an explanation is set forth by the court in State v. Meyer, 96 Wash. 257, 164 P. 926 (1917): [T]he ancient doctrine of the common law, that the right of self-defense did not arise until every effort to escape had been resorted to, even to the point of retreating until an impassable barrier was reached, has been supplanted in many of the American states, including the state of Washington, by the more reasonable doctrine and the one more in keeping with the dictates of human nature, to the effect that, when one is feloniously assaulted in a place he has the right to be and is placed in danger, either real or apparent, of losing his life or of suffering great bodily harm at the hands of his assailant, he is not required to retreat or to endeavor to escape, but may stand his ground and repel force with force, even to taking the life of his assailant if necessary, or in good reason apparently necessary, for the preservation of his own life or to protect himself from great bodily harm. Id. at 264, 164 P. at 928 (emphasis added). The court also may have considered self- defense to be based on the concept of excuse rather than justification since it seemed to conclude that most people would in fact defend themselves rather than retreat. Argua- bly, this type of stress may exert irresistible pressure on humans to act in a self-defen- sive manner. See supra notes 21-27 and accompanying text. 65. Not requiring a victim to retreat can also be explained by utilitarian objectives. Arguably, a victim can increase his disadvantage and the risk of harm to himself by retreating, rather than engaging in self-defense. Self-Defense and Deadly Force conduct when risk-creation is permissible.6 To impose liability on the basis of the subsequent result violates our intuitive sense of the prohibition against ex post facto law.8 7 It also might excessively inhibit the resort to deadly force, further vitiating any meaningful right to defend oneself by deadly force. C. Mistakes and the Justificatory Effect of Appearances A pervasive problem in substantive criminal law in general, and in the law of self-defense in particular, is that of mistakes. s The generic problem arises when appearances are not in fact congruent with reality. Yet the law must permit and encourage citizens to respond appropriately to their environment as it is generally perceived. 9 The problem is particularly acute in cases of self-defense because the time for decision is often very brief, limiting the opportunity for further inquiry and clarification. Also the consequence of action or inaction can be grave. The dilemma posed is whether, subject to the rules dis- cussed earlier, the right to use either deadly or nondeadly force in self-defense should be permitted only in cases in which an aggressor is in fact threatening harm to the victim. Like the common law, Washington does not so limit the privilege.70 Rather, it permits a victim to use force in self-defense if he hon- estly and reasonably believes that an aggressor is threatening him. The requirement that the victim's belief be honest imposes on him the duty that he sincerely believes he is acting in self- defense. The requirement that the belief be reasonable (and thus conform to an objective standard) helps insure that the vic- tim was not feigning his claim of self-defense and that his response was in fact generated by the external world.7 1 It also 66. See, e.g., MODEL PENAL CODE § 1.02(1)(d) (Proposed Official Draft 1962). 67. U.S. CONsT. art. I § 9, cl. 3, § 10, cl. 1. J. HALL, GENERAL PRINCIPLES OF CmIMI- NAL LAW 58-59 (2d ed. 1960). See also Bouie v. City of Columbia, 378 U.S. 347 (1964); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (1970). 68. La Fave and Scott state: "No area of the substantive criminal law has tradition- ally been surrounded by more confusion than that of ignorance or mistake of fact or law." W. LA FAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 356 (1972). 69. See G. FLETCHER, RETHINKING CRIMINAL LAW 707-13 (1978). 70. See WASH. REV. CODE § 9A.16.050 (1981); W. LA FAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 393 (1972); 3 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND at 12 (1883). Cf. State v. Penn., 89 Wash. 2d 63, 568 P.2d 797 (1977) (one is justified in going to the defense of another whom he reasonably believes not to be the aggressor even though the belief subsequently turns out to be erroneous). 71. See G. FLETCHER, RETHINKING CRIMINAL LAW 707-13 (1978). 1983] 256 University of Puget Sound Law Review in most cases unlawful." Also, defendants were considered to have better access to any evidence which would demonstrate why it was not unlawful under the particular circumstances.s4 The allocation of burdens of proof reflects several important concerns in the criminal law. Of paramount importance is the role the burden of proof plays in preserving our accusatorial sys- tem of justice.85 Requiring the state to prove all material ele- ments of a crime insures that the defendant will be entitled to exercise his fifth amendment right not to incriminate himself.86 Any human factfinding endeavor is capable of error. The formulation and allocation of burdens are also designed to insure that, if some mistakes are inevitable, they will probably be consistent with whatever policy goals the legislature or court deem paramount. Allocating the burden of persuasion in cases of self-defense to criminal defendants reflects the social policy objective that, in close cases, any uncertainty in factfinding involving persons who cause intentional harm to others should be resolved in favor of criminal responsibility.8 7 Thus, error (or, more precisely resolving uncertainty in close cases) is resolved against this class of defendants. Resolving close cases against criminal defendants is also perceived as reflecting serious concern about the possibility of feigning by criminal defendants. Making claims of self-defense more difficult to sustain can be seen as exercising a form of gen- eral deterrence, dissuading those who might wrongfully inflict intentional harm on others and then hope to avoid criminal responsibility by falsely claiming the right to use force in self- defense.8' In addition to influencing outcomes in particular cases, the allocations of the burden of proof have serious theoretical impli- cations. If self-defense is seen as justified behavior which citi- 83. Id. 84. People v. Patterson, 39 N.Y.2d 288, 306, 347 N.E.2d 898, 909, 383 N.Y.S.2d 573, 583 (1976) (Breitel, C.J., concurring). 85. An accusatorial system of justice requires the police to gather evidence against an accused without requiring the accused to give testimonial evidence himself. See Miranda v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478 (1964). 86. The fifth amendment assures that "no person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. CONST. amend. V. Requiring a criminal defendant to explain why he acted as he did could undermine the privilege against self-incrimination. 87. See People v. Patterson, 39 N.Y.2d 288, 305-07, 347 N.E.2d 898, 909-10, 383 N.Y.S.2d 573, 583-85 (1976) (Breitel, C.J., concurring). 88. See supra note 41. [Vol. 6:237 Self-Defense and Deadly Force zens are entitled to engage in, and if self-defense is perceived either as the choice of lesser evils or as the vindication of per- sonal autonomy and security, then the defendant's act is the appropriate and desirable social response under the circum- stances. Arguably, then, the state ought to bear the burden of proof in negating a claim of self-defense since the intentional causation of harm to another under these circumstances is not only lawful but desired social behavior.8 9 If, on the other hand, self-defense is grounded in the doc- trine of duress, then arguably it is a claim that the individual defendant lacked a true choice and should not be considered personally responsible.90 Since such a claim clearly focuses more on the will of the defendant than on the conduct he engaged in," a good case can be made that defendants should be required to carry the burden of proof. Of course, procedural concerns, such as error and feigning, may be in conflict with substantive theory. Absent constitutional limitations,92 the legislature is free to override the logic of sub- stantive theory by insuring that its procedural concerns are solved by appropriate procedural devices such as burdens of proof. The United States Supreme Court has recently confronted analogous issues. In the recent cases of Mullaney v. Wilbur 3 and Patterson v. New York," the Court grappled with the proper-allocation of the burden of proof in state prosecutions for homicide. In Mullaney,98 the Court held that the state could not dispense with its constitutional burden of proving all elements of a crime by conclusively presuming that one element had been established once it had proven a different element. Nor could it require a defendant in a criminal prosecution to establish the nonexistence of any statutory element.96 In Patterson,97 the Court concluded that the state could require the defendant to bear the burden of proof of an affirmative defense, provided the state clearly denominated it as such in its statutory scheme. In 89. See supra notes 25-27 and accompanying text. 90. Id. 91. See supra notes 21-24 and accompanying text. 92. See infra notes 93-98 and accompanying text. 93. 421 U.S. 684 (1975). 94. 432 U.S. 197 (1977). 95. 421 U.S. 684 (1975). 96. Id. at 686-87, 703-04. 97. 432 U.S. 197 (1977). 1983] 258 University of Puget Sound Law Review [Vol. 6:237 addition, the Court noted that the defense provided by New York's statutory scheme was more favorable to the defendant than previously available defenses."8 At the moment there is no Supreme Court case which explicitly requires the state to dis- prove the traditional common law claim of self-defense.9 In the 1977 case of State v. Roberts00 the Washington Supreme Court held that the state had'to disprove beyond a rea- sonable doubt the existence of self-defense once the defendant had introduced some evidence tending to establish the claim. The court essentially concluded that the state homicide statute in effect at that time specified that the absence of either "justifi- cation or excuse" was a material element set forth on the face of the homicide statute.10' Thus, under Mullaney,0 2 the state had to negate all "elements" of the crime including the possible "facts" of self-defense which, if present, would have constituted "justification." Since the Roberts case, the Washington legislature has changed the homicide statute.108 The words "without justifica- 98. Id. at 202-09. It is not clear, however, whether this fact was essential to the Court's holding. 99. Critics of the Patterson case maintain that the analysis used by the majority simply requires state legislatures to draft criminal statutes with care and precision. They claim that state legislatures are free to allocate to criminal defendants the burden of proof in establishing the claim of self-defense provided the statute clearly labels self- defense as an affirmative defense and that it does not draw any inference concerning the presence or absence of other enumerated material elements. See, e.g., Patterson v. New York, 432 U.S 197, 221-23 (1977) (Powell, J., dissenting). 100. 88 Wash. 2d 337, 562 P.2d 1259 (1977). 101. Id. at 343-44, 562 P.2d at 1262. 102. 421 U.S. 684 (1975). 103. In enacting WASH. REV. CODE §§ 9A.32.030, .050 (1981), the legislature had deleted the words "unless it [killing another human being] is excusable or justifiable," definitional terms which arguably cast on the prosecution the burden of proving the absence of self-defense. See State v. Takacs, 31 Wash. App. 868, 645 P.2d 1109 (1982). Section 9A.32.030 currently defines first degree murder as follows: Murder in the first degree. (1)A person is guilty of murder in the first degree when: (a) With a premeditated intent to cause the death of another person, he causes the death of such person or of a third person; or (b) Under circumstances manifesting an extreme indifference to human life, he engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person; or (c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second dedgree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnaping in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants; except that in any prosecution under Self-Defense and Deadly Force Frankly, if the court was confident that its analysis was cor- rect (i.e., that a claim of self-defense was logically inconsistent with acting recklessly), it should have required the trial court to give an instruction which would make clear to the finders of fact the logic of their factfinding task. If self-defense is logically inconsistent with a reckless act, and if the government must establish that the defendant acted "recklessly," an instruction requiring the prosecution to negate a claim of self-defense beyond a reasonable doubt should be given to insure that the jury fully comprehends its difficult task. Failure to do so may well give the government the benefit of implied linkage or pre- sumption of elements or of an improperly allocated burden of persuasion."' These are precisely the shortcomings criticized by the United States Supreme Court in Mullaney.11 2 A more fundamental question, however, is whether the court was essentially correct in its analysis. To be sure, the court's analysis was not without some support, given the Wash- ington statute defining "recklessness." The intriguing inquiry is whether the legislature truly intended to pack into the statutory definition of "recklessly" either the common law defense of self- defense or the broader common law defense of mistake of law.113 For this was essentially what the court concluded. The court seemingly has decided that not only must the defendant have been reckless as to whether his action might cause harm,1 4 but he also must have acted disregarding the risk that his act might also be "wrongful." It is very unlikely that the legislature intended to impose on the government the burden of establish- ing beyond a reasonable doubt, in every case in which a defen- dant recklessly kills or harms another human being, that he acted with conscious awareness of the risk that he might be committing a "wrongful act." Such an interpretation, in effect, 111. See supra note 95. But see infra notes 145-46 and accompanying text. 112. See supra notes 95-96 and accompanying text. 113. A "mistake of law" arises generally when an individual believes that his con- duct is not proscribed by the criminal law. See generally W. LA FAVE & A. ScoTr, HAND- BOOK ON CRIMINAL LAW 362-69 (1972). Such a belief by an individual is usually not rele- vant to an assessment of criminal responsibility. For an excellent analysis of the problem see United States v. Barker, 514 F.2d 208 (D.C. Cir.), cert. denied, 421 U.S. 1015 (1975) (Bazelon, J., concurring). 114. The Model Penal Code defines an actor as acting "recklessly" in similar situa- tions if "he consciously disregards a substantial risk that the material element exists or will result from his conduct, "in this case the death of a human being." MODEL PENAL CODE § 2.02 (Proposed Official Draft 1962). 1983] 262 University of Puget Sound Law Review [Vol. 6:237 requires the state to establish that each defendant acted with awareness that he might be breaking the law. Surely, the maxim that everyone is presumed to know the law is still valid in this state and generally under the common law. 1 5 There is absolutely no indication that the legislature intended to change the fundamental architecture of the homi- cide statute from a "descriptive" theory" of criminal law to a "normative" theory.17 Such a change could require the state to prove in all homicide prosecutions (except for second-degree manslaughter) that the defendant acted with actual awareness that his conduct might be against the law. If the court's analysis is correct, will any justificatory claim (such as necessity) or any exculpatory claim (such as mistake of fact or of law) suffice to cast on the government the burden of disproving the claim?" 8 Moreover, the net result of the opinion is to dispense with the requirement that the defendant have a reasonable belief that the elements of self-defense are met." 9 The court would permit 115. See W. LA FAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 356-69 (1972). 116. A descriptive theory describes similarities in statutes but draws no inferences other than the fact that the similarities exist. Consequently, a descriptive theory does not serve as a basis for further legislation because it does not infer any principles from existing laws. Descriptive theorists strive to minimize the normative content of the crimi- nal law in order to render it "precise and free from the passions of subjective moral judgment." Consequently, descriptive rules specify proscribed behavior in rather simple, straightforward terms that do not invite subjective assessments of moral blameworthi- ness. See G. FLETCHER, RETHINKING CRIMINAL LAW 396-401 (1978). 117. A normative theory infers from similarities in statutes the standards of conduct that are present in communities. Thus, a normative theory serves as a basis for future legislation because it infers principles from existing laws. Normative theorists seek to keep the language of the criminal law "close to the daily problems of assessment and blame that infuse the criminal process." Consequently, normative rules specify pro- scribed behavior in value-laden terms that invite subjective assessments of moral blame- worthiness. See G. FLETCHER, RETHINKING CRIMINAL LAw 396-401 (1978). 118. In State v. Hanton, 94 Wash. 2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980), the defendant's claim was self-defense and the court concluded that such a claim was inconsistent with acting in disregard "of a substantial risk that a wrongful act may occur .... " Id. at 133, 614 P.2d at 1282. But the variety of explanations offered by future defendants may not be so limited. One could easily imagine justificatory claims like "national security," see United States v. Barker, 514 F.2d 208 (D.C. Cir. 1975), or defense of property against trespass. See State v. Griffith, 91 Wash. 2d 572, 589 P.2d 799 (1979). In effect, a claim by the defendant that he honestly believed his conduct to be "lawful," and thus not "wrongful," would establish that he was not acting "recklessly." Under the court's analysis, the government would have to prove beyond a reasonable doubt that the defendant did not believe that his reasons for acting made his conduct lawful. 119. Assumedly, in Hanton, if the jury finds that the defendant honestly but unrea- sonably believed in the need to take human life in self-defense, it should not convict the defendant of first-degree manslaughter because such honest belief is inconsistent with 1983] Self-Defense and Deadly Force a defendant to intentionally inflict harm on another and cause death even though his behavior did not measure up to the com- munity standard.2 0 If the court's analysis is correct, and the statutory scheme of self-defense set forth in sections 9A.16.050(1) and (2) of the Washington Code in fact accurately states the law of self-defense, then other cases decided since Hanton may have been incorrectly decided.'" What is more troubling, however, is that the court's decision effectively created a strong possibility that Washington will rec- ognize the defense of "imperfect self-defense," a reductive defense not previously permitted.' A defendant who honestly but unreasonably believes he is entitled to take human life in self-defense cannot be convicted of first-degree manslaughter.12 The court in Hanton did not consider whether the prosecu- tion had to carry the burden of proof in negating a claim of self- defense in a prosecution for first- or second-degree mur- der.'2 However, the question did arise three years later. In State recklessness or conscious awareness of the risk that self-defense might not be necessary. 120. The Model Penal Code may support the approach taken by the court in Hanton. The Code simply treats the actor's belief in the necessity of self-defense as a material element which must be assessed in light of the degree of culpability specified in the statute. Thus, the Code suggests that an actor cannot be convicted of reckless homi- cide even if he intentionally takes human life unless he was reckless in deciding that the use of deadly force in self-defense was necessary. See MODEL PENAL CODE § 2.02 com- ment at 131-32 (Tent. Draft No. 4 1955). The Code approach has had very little impact on state criminal legislation. See Note, Justification: The Impact of the Model Penal Code on State Law Reform, 75 COLUM. L. REV. 914, 920 (1975). 121. See, e.g., State v. Jones, 95 Wash. 2d 616, 628 P.2d 472 (1981); State v. Castro, 30 Wash. App. 586, 636 P.2d 1099 (1981). 122. See, e.g., State v. Painter, 27 Wash. App. 708, 620 P,2d 1001 (1980). 123. See supra note 119. The proper charge would probably be manslaughter in the second degree since that crime simply requires the government to prove that the defen- dant acted negligently. 124. For the text of the first-degree murder statute see supra note 103. The statu- tory definition of second-degree murder is as follows: Murder in the second degree. (1) A person is guilty of murder in the sec- ond degree when: (a) With intent to cause the death of another person but without premedita- tion, he causes the death of such person or of a third person; or (b) He commits or attempts to commit any felony other than those enumer- ated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants; except that in any prose- cution under this subdivision (1)(b) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a pre- ponderance of the evidence, it is a defense that the defendant (i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and 266 University of Puget Sound Law Review descriptive first degree murder statute a requirement that the government establish that a defendant acted with the purpose of committing a crime. However, it is clearly not a requirement for criminal respon- sibility that a person must act with the intent to commit a crime. The specific language of the murder statute simply requires the prosecution to prove that the defendant "intended to cause the death of another person" together with the other elements not at issue here. A general definitional term of "intent" ought not to convert the mens rea requirement, speci- fied in the murder statute itself, into the more demanding requirement that the prosecution establish beyond a reasonable doubt that every deliberate killing of another human being is also unlawful or constitutes a crime. 38 Nor does characterizing a killing in self-defense as "lawful" necessarily resolve which party should bear the burden of proof as to the presence or absence of self-defense. 3 9 It simply describes the legal consequence once a particular fact (or set of facts) has been determined. Moreover, as at common law, 40 deliberately taking the life of another human being is presumptively proscribed unless the defendant can explain why the killing is within a recognized exception to the general proscriptive rule against taking human life intentionally. In McCullum,'" the court did not consider whether the defense of "imperfect self-defense' 42 would now become availa- ble to defendants charged with first or second degree murder. It seems unlikely that this defense should be permitted since the statutory definition of "intent" (unlike the statutory definition 138. There is no evidence that the legislature, in revising the criminal code, intended to shift from a descriptive theory of criminal law to a normative theory. See supra notes 117-18 and accompanying text. Moreover, the statutory language defining "intent" in the first and second degree murder statutes is far less capable of sustaining within its meaning additional normative content such as "awareness of wrongdoing" than is the statutory language defining manslaughter in the first degree. See supra notes 113-15 and accompanying text. The linguistic analysis used by the court utterly fails to convince the careful reader that the legislature intended to pack into the concept of "intent" the general concepts of "lawful" or "justified" conduct or the specific legal doc- trine of self-defense. 139. Even the court tacitly recognized this in its opinion in McCullum by noting that the criminal code requires defendants to bear the burden of certain defenses as to certain crimes or to rebut certain inferences. State v. McCullum, 98 Wash. 2d 484, 492- 93, 656 P.2d 1064, 1070 (1983). 140. See supra notes 34-58 and accompanying text. 141. 98 Wash. 2d 484, 656 P.2d 1064 (1983). 142. See supra notes 122-23 and accompanying text. [Vol. 6:237 Self-Defense and Deadly Force of "recklessly" as interpreted in Hanton"13 ) does not refer to the defendant's belief about the "wrongfulness" of his conduct. 44 It would be anomalous to permit imperfect self-defense to be avail- able in a prosecution for first degree manslaughter but not in a prosecution for first or second degree murder. Nonetheless, it seems very unlikely that it would be available to defendants charged with either first or second degree murder. If this is the case, then prosecutors need only charge first or second degree murder in order to avoid the defense of imperfect self-defense. Having decided that the state must prove the absence of self-defense beyond a reasonable doubt, the court had the cour- age of its conviction sufficient to require that a specific jury instruction to this effect should be given. It modified State v. Hanton"5 and other cases"" which had not required a specific jury instruction allocating to the prosecution the burden of negating a claim of self-defense, so long as the instructions had permitted defense counsel to argue that theory. It should be noted, however, that at its core, McCullum is a case that turns solely on legislative intent. Despite the constitu- tional analysis contained in the opinion, it seems almost certain that the opinion does not preclude the legislature from treating self-defense as an affirmative defense and allocating the burden of persuasion to the defendant, provided such legislative intent is made manifestly clear."" The constitutional problems noted by the court arose only after the court concluded the legislature intended to make the absence of self-defense an element of homicide and that the definitional terms of homicide necessarily incorporated the absence of self-defense as an element. As it did in Hanton,"I the court took the most narrow ana- lytical approach available. It focused exclusively on the specific statute defining the offense charged, and its parsing of the ele- ments contained in the statute determined the allocation of the burden of proof in a claim of self-defense. There was no attempt 143. 94 Wash. 2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980). 144. See supra notes 108-09 and accompanying text. 145. 94 Wash. 2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980). 146. State v. Savage, 94 Wash. 2d 569, 618 P.2d 82 (1980); State v. Burt, 94 Wash. 2d 108, 614 P.2d 654 (1980); State v. King, 92 Wash. 2d 541, 599 P.2d 522 (1979). 147. The court in McCullum said: "Since the Legislature has not clearly imposed the burden of proving self-defense on criminal defendants, we conclude the obligation to prove the absence of self-defense remains at all times with the prosecution." 98 Wash. 2d 484, 494, 656 P.2d 1064, 1071 (1983). 148. 94 Wash. 2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980). 1983] 268 University of Puget Sound Law Review in the majority opinion to consider self-defense as an integrated common law doctrine, analyzing the issues in a comprehensive and cohesive manner in light of the substantive policies " e and procedural concerns'"0 underlying the doctrine. Certainly, the Supreme Court did not intend, as it made clear in Patterson,"1 to impose doctrinal straight-jackets on state legislatures as they confront difficult policy choices in criminal law nor to reduce state supreme courts to the exclusive role of technicians charged with construing criminal codes. The court's decisions in State v. Hanton 5 1 and State v. McCullumM6 are at best plausible results and, at worst, illogical and incorrect results. It is not clear that Mullaney required the results reached in these cases since in fact neither the elements of first-degree murder nor the elements of first-degree man- slaughter refer explicitly to self-defense. Nor is there on the face of the statute impermissible linkage or presumptive findings of material elements. The court would have been better off addressing the issue by analyzing either the general intent of the legislature in revising the murder and manslaughter statutes or, preferably, by examining the common law of self-defense as an integrated defense applicable to all homicide charges. Indeed, the court's analysis may well lead to selective and different outcomes in the allocation of burdens dependent on the crime charged when self-defense is raised. This result can be seen in State v. Takacs.1 5 4 In that case the court, using the architectonic analysis set forth in Hanton, concluded that the claim of self-defense was not logically inconsistent with the mental state required for assault in the second degree (namely, "knowledge" and "intent") and, accordingly, the state did not have to bear the burden of proof in negating a claim of self- defense.1 5 The Washington Supreme Court, in trying too hard to thread its way through Mullaney,156 Patterson,1 57 and Sand- 149. See supra notes 7-33 & 89-91 and accompanying text. 150. See supra notes 80-88 and accompanying text. 151. 432 U.S. 197 (1977). 152. 94 Wash. 2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980). 153. 98 Wash. 2d 484, 656 P.2d 1064 (1983). 154. 31 Wash. App. 868, 645 P.2d 409 (1982). 155. This decision may no longer be correct in light of McCullum. 156. 421 U.S. 684 (1975). 157. 432 U.S. 197 (1977). [Vol. 6:237 Self-Defense and Deadly Force the current law of self-defense imposes on most females and on many other victims of violence. Under the current law, 69 it may be possible to take into account the characteristics of a defen- dant (such as gender, size, or injury) in deciding what type of harm the victim reasonably feared. But so long as the law insists that a victim, however weak or otherwise physically disadvan- taged, respond to the threat of nondeadly force (and the pre- sumed harm of only a battery) with nondeadly force, these vic- tims will in the vast majority of cases, be condemned to suffer a beating without hope of any effective right of self-defense. Their sole recourse is the contingent remedy of public arrest and pros- ecution at a later date.'70 In other words, the right to respond only with force which is proportional to the force threatened is an illusory right for many victims. The law in practice denies them any effective right of self-defense. The facts of the Wanrow case pose the dilemma poign- antly. 17' Yvonne Wanrow was not confronted with deadly force by her aggressor. Therefore, it is submitted that it would be very unlikely for any jury to conclude that she reasonably feared death or great bodily harm at his hands.'7 2 Thus, under common law doctrine as traditionally applied by Washington courts, Wanrow was virtually condemned to lose in her confrontation with violence unless she could use deadly force-the only force which could compensate for her extreme physical limitations. This violent confrontation was a classic case of a proportional response insuring an ineffective response. In a more recent Washington case, State v. Adams,'7 3 the court of appeals reversed a conviction for second-degree man- slaughter and remanded the case with instructions that the defendant should be permitted to place his theory of self- defense before the jury even though it was virtually certain 169. See supra note 44 and accompanying text; infra note 172. 170. See supra note 55 and accompanying text. 171. See supra notes 156-57 and accompanying text. 172. Since the definition of deadly force focuses on either the intent of its user or the probable result of its use, counsel for defendants such as Ms. Wanrow can always argue to the jury that the defendant reasonably feared death or great bodily harm even if the aggressor was not armed with a deadly weapon or instrument or did not verbally threaten such harm. Such an argument may be difficult to carry successfully since the objective facts (other than perhaps the disparity in size or past experience of the partici- pants) are not likely to persuade a jury that the defendant reasonably feared death or great bodily harm. See supra notes 47-48; supra note 57 and accompanying text. 173. 31 Wash. App. 393, 641 P.2d 1207 (1982). 1983] 272 University of Puget Sound Law Review (despite the appellate court's conclusion to the contrary) that the requisite elements of self-defense were not present. In this rather bizarre case, the defendant was nearby while two burglars were breaking into and entering a trailer which belonged to a neighbor who lived next door to the defendant. Apparently the burglars, one of whom was carrying a loaded shotgun stolen from the trailer, were not aware of the defendant's presence. Accord- ing to the defendant's testimony, he was "very scared . .. in fear of my life" and he unintentionally fired a single round which struck the victim in the back, killing the burglar who was carrying the weapon.1" 4 The trial court had refused to give a self-defense instruction despite defendant's request because, in its opinion, "there is no evidence whatever of any assault or intended assault or attempted assault on his person. ' 175 Essentially, the trial court had determined that no reasonable person in the defendant's situation would have believed he was threatened with imminent death or great bodily harm. The appellate court disagreed and decided that there was sufficient evidence for the defendant to place this defense before the jury for its determination. Based on the facts presented in the appellate court opinion, this conclusion is rather extraordinary. The defendant evidently did not indicate in his testimony that the victim or his compan- ion even knew of his presence or that he believed the burglars knew of his presence. Nor did he set forth any facts which indi- cated that the aggressor, though armed with deadly force, intended to use it against the defendant or anyone else. 176 What is even more startling, and is not even discussed by the appellate court, is the defendant's own testimony that he fired his weapon unintentionally. 77 At its core, the claim of self- defense is a claim that, under the circumstances as the defen- dant perceived them, his use of force (deaaly or nondeadly) was deliberate and appropriate.178 It strains both the credulity of 174. 31 Wash. App. 393, 394, 641 P.2d 1207, 1209 (1982). 175. Id. at 395, 641 P.2d at 1209. 176. There were additional facts which the court relied on in concluding that the defendant had adduced sufficient evidence to place his claim of self-defense before the jury. These included: the neighbor whose house was being burglarized had shot at one of the burglars a week earlier; the incident occurred in a remote area in the evening and there was no telephone nearby; the defendant did not know where one of the burglars was at the time of the shooting. 177. Adams, 31 Wash. App. at 394, 641 P.2d at 1209. 178. See supra notes 7-20; supra notes 28-33 and accompanying text. It should be [Vol. 6:237 Self-Defense and Deadly Force factfinders and the theory of self-defense to rest the justification of self-defense on accident. Put differently, the fundamental substance of the claim of self-defense is that the defendant intentionally responded with force to avoid harm or because of his lack of free will or to preserve his personal zone of secur- ity. '79 The accidental or unintentional use of deadly force is inconsistent with any theory of self-defense which must take as its primary objective the deliberate preservation of life or limb or security. It is difficult to understand how accidental use of force promotes or advances those objectives. There is no doubt that the Adams case posed serious ques- tions for the appellate court. How imminent or explicit must the threat of deadly force or serious bodily harm be before the vic- tim will enjoy the right of self-defense? When a defendant is confronted by multiple aggressors, is the presence or threatened use of deadly force a necessary condition for lawful resort to deadly force by the victim? And, perhaps, most important, given a state of extreme uncertainty as to the aggressor's intention, the precise nature of the force threatened and the harm the vic- tim may suffer, should the law place on innocent victims the burden of further inquiry to ascertain the "true" state of affairs? Rather than confront these questions and the more difficult questions of whether the law governing the use of deadly force should be changed, the appellate court effectively preserved the formalism of the present law while deliberately inviting jury nul- lification of this formal law at another trial.180 A better course for the court would have been to face these tough questions forthrightly; instead, it was satisfied with a procedural sidestep. Rather than confront the difficult question of whether the law of self-defense in its present form is viable in today's violent noted that, according to the court, Wanrow testified that she shot her alleged aggressor "in what amounted to a reflex reaction." 88 Wash. 2d at 226, 559 P.2d at 551. It may be that a victim can shoot reflexively and still be acting in self-defense. But see Annot., 15 A.L.R. 4th 983 (1982). 179. See supra notes 7-33 and accompanying text. 180. It can be argued that the better method of adjusting to today's increased vio- lence and the deficiencies of the law of self-defense as criticized in this article is to pre- serve the current formal content of the law but to encourage jury justice through jury nullification on the particular facts of each case. This remedial approach would not require the law of self-defense to be recast in a more expansive fashion. This approach ignores empirical evidence indicating that juries generally do follow the law as set forth in jury instructions. See H. KALVEN & H. ZasL, THE AMERICAN JURY 55-56 (1966). It also sacrifices predictability and even-handedness, qualities generally perceived as desir- able in the law. See generally L. FULLER, THE MORALITY OF LAW (1964). 27319831 276 University of Puget Sound Law Review ences of society. There are other cogent criticisms that can be made of the limitation on the use of deadly force in self-defense. As observed previously,'"8 limiting the right to use deadly force to instances in which deadly force is threatened may insure an ineffective response to violence. The victim may, once subjugated, only suf- fer physical harm together with the psychic scarring which usu- ally accompanies such violence.' 8 It is also possible, however, that the aggressor will proceed to inflict even more serious dam- age on a victim once subjugation is complete and the possibility of resistance has been terminated. Indeed, the very helplessness of the victim may invite further aggression since there is virtu- ally no present risk of resistance and harm to the aggressor. This fear is not unfounded. For, it is precisely the random and unpre- dictable nature of violence, the possibility of unforeseen shifting aggressor objectives, and escalation in the level of aggressor vio- lence after the initial confrontation that are so bewildering today.18 7 It is not unusual to read about purse snatchings, mug- gings, and other crimes initially involving nondeadly force that result in appalling harm to the victim including death.'" If ini- tial aggressor threats of mere physical harm in fact frequently explode unpredictably into instances in which aggressors cause death or serious bodily harm, then even utilitarian objectives may not be furthered by the present law. In its current formulation, the law of self-defense effectively creates a strong evidentiary presumption about the nature of the harm threatened to the victim based on the nature of the force threatened by the aggressor.189 As a practical matter most juries are unlikely to conclude that a victim reasonably feared death or serious bodily injury at the hands of the aggressor unless the aggressor was armed with a deadly weapon or other deadly force.190 This inference of fact seems both unnecessarily rigid 185. See supra notes 53-55 and accompanying text. 186. See, e.g., Farber, Manhattan Crime Victims Tell of Despair and Emotional Scars, N.Y. Times, Oct. 18, 1982, at 15, col. 1; Meyer & Goodman, Marauders from Inner City Prey on L.A.'s Suburbs, L.A. Times, July 12, 1981, at 1, ol. 1; Busier, For Some Victims of Crime, the Fear Never Leaves, N.Y. Times, May 5, 1981 at 6, col. 1; Machlowitz, Emotional Injury in Assaults Assessed, N.Y. Times, April 6, 1981, at 11, col. 4. See generally C. SELBE.aM., CRIMINAL VIOLENCE, CRIMINAL JUSTICE (1978). 187. See authorities cited supra note 186. 188. See authorities cited supra note 186. 189. See supra notes 57-61 and accompanying text. 190. See supra note 172. [Vol. 6:237 Self-Defense and Deadly Force and incongruent with experience.19' Predicting violence is at best a difficult task.' 92 Predicting the level of violence or the outcome of a violent confrontation is no easier. Nor is there any necessary logical correlation between what harm an aggressor intends to inflict and the force he has at his disposal. Certainly, the actual threat or use of deadly force ought to permit the victim reasonably to fear that the aggressor intends to inflict death or serious bodily harm on him. It is not clear, however, that the presence of deadly force is a necessary factual predicate for such fear. Rather the presence, use, or threat of deadly force ought simply to be one fact among others for the jury to consider in determining what the victim reasona- bly feared.' 93 Violent confrontations normally occur under conditions of uncertainty. Frequently they are of short duration and without warning. They may also occur in situations in which the victim may be at an extreme disadvantage in gauging the level of vio- lence or harm threatened or the intention of the aggressor.194 Perhaps the paradigm case testing whether the current law of self-defense makes sense is the nighttime burglary of a resi- dence when the lawful occupants do not know whether the intruder is armed or what his objective is in entering the home. 195 It makes no sense to have rules of self-defense which impose the drastic disadvantage generated by the uncertainty of the confrontation on innocent parties. Yet the current rules of self-defense may do just that. In Washington, for example, occu- pants of a home may use deadly force if they are imminently threatened with death or bodily harm or if the aggressor attempts to commit a felony on the victim or in their home.' 191. See supra note 186. 192. Cocozza & Steadman, The Failure of Psychiatric Predictions of Dangerous- ness: Clear and Convincing Evidence, 29 RUTGERS L. REv. 1084 (1976); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 CALIF. L. REv. 693 (1974); Kozol, Boucher & Garofali, The Diagnosis and Treatment of Dangerousness, 18 Cims & DELINQ. 371 (1972); Rubin, Prediction of Dangerousness in Mentally Ill Criminals, 27 ARCH. GEN. PsYcH. 397 (1972); Steadman, Some Evidence on the Inadequacy of the Concept and Determinations of Dangerousness in Law and Psy- chiatry, 1 J. PSYCH. & L. 409 (1973). 193. See supra notes 37, 48. 194. It is precisely because the stakes for victims are extraordinarily high, and the opportunity for decision and action usually so minimal, that legal rules governing vic- tims' responses must be fairly simple yet comprehensible. 195. See supra note 182. 196. See supra note 182. Delaware has just passed legislation which seems to strike 1983] 278 University of Puget Sound Law Review These rules may require the lawful occupants to make factual inquiry, once an intruder has been detected in the house, suffi- cient to ascertain the aggressor's objectives. Since he has created the potentially violent confrontation fully aware of his intention and his capability for violence, the aggressor is not so disadvantaged. Moreover, he has chosen to intrude into the home, the most personal zone of autonomy and security each citizen enjoys in our society. The abstract objective of preserving human life does not seem sufficiently persuasive to justify limiting the victim's resort to deadly force only to those instances in which he has clarified the facts and knows that the intruder is armed with deadly force or is threatening death or serious bodily injury or intends to commit a felony on the victim or in his home. Requiring further factual inquiry on the part of the victim may well disadvantage him even more and shift the odds enormously in favor of the aggressor. With the possible exception of the problem of mistakes, no compelling argument can be offered that would justify requiring the victim to bear the risk of uncertainty generated by the aggressor's unlawful conduct. The aggressor has initiated the violent confrontation and the concomitant uncertainty. It is dif- ficult to accept the logic and value of rules which, most citizens probably believe, generate an intolerable allocation of risk to innocent citizens in such paradigmatic cases. It seems far more preferable that all disadvantages which flow from such uncer- tainty should be allocated to the person who has caused the situ- ation to occur. Finally, an organized police force and the other apparatus of public security are simply not adequate by themselves to the tasks of controlling violent crime and of protecting ordinary peo- a more reasonable balance between imposing a risk of harm on the lawful occupant and requiring him to clarify the factual situation before using deadly force in self-defense. A new section of the Delaware Code provides: Same-Person Unlawfully in a Dwelling. In the prosecution of an occupant of a dwelling charged with killing or injuring an intruder who was unlawfully in said dwelling, it shall be a defense that the occupant was in his own dwelling at the time of the offense, and: (a) the encounter between the occupant and intruder was sudden and unexpected, compelling the occupant to act instantly; or (b) the occupant reasonably believed that the intruder would inflict personal injury upon the occupant or others in the dwelling; or (c) the occupant demanded that the intruder disarm or surrender, and the intruder refused to do so. H.R.J. Res. 695, 131st Leg., 1982 Del. Laws - (19-) (to be codified at 11 Del. Laws § 496). [Vol. 6:237 Self-Defense and Deadly Force reasonableness these proposed changes require all citizens to abide by a standard of common social responsibility applicable to all. Giving primacy to the personal autonomy theory of self- defense and formulating the substantive rules of self-defense accordingly will simply recognize that, in these violent times, an individual ought to be entitled to take whatever steps are neces- sary to defend his zone of personal security and to preserve intact his bodily integrity. However, the revision is not necessa- rily incompatible with the utilitarian theory of justice underly- ing the traditional common law formulation of self-defense. The traditional cost/benefit assessment of the common law assumed that an aggressor not armed with deadly force did not intend to, and generally would not, kill his victim or inflict serious bodily harm. That assumption is open to serious doubt today. More- over it also assumed a pattern of violent confrontation between participants of rough physical parity. Again, that is no longer the case, as increasingly victims are drawn from physically dis- advantaged classes. Our contemporary concern with equality militates in favor of legal rules which adjust for disadvantage rather than preserving inequality which flows from characteris- tics of gender or other attributes beyond an individual's control.2 0 2 Furthermore, it is no longer clear that society regards pre- serving the life or limb of violent criminals as a value superior to preserving the physical integrity and psychological health of innocent victims. In fact, a good case can be made that striking the balance in favor of violent criminals increases the general disrespect for criminal law which seems to be increasing.203 Finally, this view of the right of self-defense and the broad scope of authorization which is thereby created may enhance the general deterrent impact of permitting victims to use force 202. There is some evidence that females suffer from cultural bias which is exacer- bated by the current law whenever they seek to use deadly force in self-defense. Brown, A Double Standard at Work in Self-Defense Cases, Too, Seattle Post-Intelligencer, Nov. 14, 1982, at B1, col. 1. The proposed changes do not require gender-specific rules of self- defense. Rather, they permit the jury to consider the defendant's physical ability to respond effectively to aggression. Personal characteristics of victims thus are made rele- vant by the proposed rule change, but there is no need to pack such characteristics into statutes. 203. Busler, For Some Victims of Crime, The Fear Never Leaves, N.Y. Times, May 5, 1981, at A6, col. 1. 1983] 282 University of Puget Sound Law Review [Vol. 6:237 against aggressors. 2 Aggressors, put at greater risk by this par- ticular concept of self-defense and the rules implementing it, may be more reluctant to resort to violence to effectuate their unlawful desires once they become aware that they do so at greater personal risk.20 5 If this were the case, then expanding the right to use deadly force in self-defense might result in less loss of life or other physical harm generally as aggressors become less emboldened.0 6 Since these proposed changes in the substantive rules gov- erning self-defense would expand the right and scope of the privilege of self-defense, it seems appropriate to treat the doc- trine as an affirmative defense imposing on victims the burden of producing evidence and the burden of ultimate persuasion. This structure of criminal law recognizes, as does the common law, that the intentional infliction of harm on another human being is, based on general experience, presumptively proscribed behavior.2 08 Therefore, one who acts in such a manner had bet- ter have a good reason for causing such harm in order to avoid personal criminal responsibility. Treating self-defense as an affirmative defense also acknowledges that the defendant has better access to evidence concerning his motivation which is the 204. G. FLETCHER, RETHINKING CRIMINAL LAW 860-75 (1978). 205. Whether expanding the right of victims to resort to effective force, including deadly force, will in fact deter aggressors from initiating violent confrontations is an empirical question that can only be answered with any certainty by accurate social sci- ence techniques. Kadish apparently rejects this rationale for self-defense though his arguments do not appear persuasive. See Kadish, Respect for Life, supra note 17, at 882- 83. But Weschler and Michael, in their important early work on homicide, considered this objective an important and valid consideration in the formulation of the rules of self-defense. They concluded: "Given the choice that must be made [between saving the life of the aggressor or that of the innocent victim], the only defensible policy is one that will operate as a sanction against unlawful aggression." Weschler & Michael, A Rationale of the Law of Homicide, 37 COLUM. L. REv. 701, 737 (1937). 206. This assumes that aggressors, before initiating violent confrontations, engage in rational decisionmaking, which would include an assessment of the nature and degree of resistance the victim is likely to offer. This assumption may be more valid when the aggressor plans his violent conduct (e.g., in mugging or in burglary) than when the aggressor acts with minimal forethought (e.g., in bar room brawls or in domestic dis- putes). Even the drafters of the Model Penal Code concluded that the use of deadly force in self-defense is a private sanction that might operate as a deterrent to aggressors though they generally preferred public sanctions. See MODEL PENAL CODE § 3.04 com- ment at 24-25 (Tent. Draft No. 8 1958). 207. See supra notes 77-103 and accompanying text. It should be noted that the proposed formulation of the right of self-defense is an expanded version of the common law version and thus should clearly fall within the rationale of Patterson v. New York, 432 U.S 197 (1975). See supra notes 97-98 and accompanying text. 208. See supra notes 81-82 and accompanying text. Self-Defense and Deadly Force crucial inquiry in self-defense. This allocation of the burden of proof also properly takes into account the concern society has with making mistakes in legal adjudication and in deterring feigning. 209 VIII. MEETING COUNTER ARGUMENTS Are there compelling counter-arguments that should per- suade us not to make the changes recommended here? Perhaps the most difficult counter-argument is that the pro- posed expansion of the right of self-defense will generate "hard cases" of another kind; namely, that the law would authorize victims to take human life when in fact they were threatened with a very slight, unlawful physical force such as a push or a shove. The use of the term "violence" in the proposed formula- tion is intended to make clear that more than minimal uncon- sented touching would normally be required before the right to self-defense arose. Moreover, it is likely that juries will in fact interpret the statutory rule in a common sense fashion on the facts of each case. 10 It also may be argued that these changes in the law would cause an escalation of violence with increased loss of life or seri- ous bodily harm. Obviously, this is an empirical question which cannot be answered solely by intellectual analysis. On the one hand, expanding the right of victims to respond with deadly force and self-defense may increase the loss of life or serious bodily harm. On the other hand, expanding this right might increase general deterrence against violent assaults by criminals, thereby actually reducing violence and its accompanying poten- tial for death or injury." Even if the deterrent effect does not materialize, adjusting the law as suggested at least effectuates a more desirable allocation of risk of harm between aggressor and victim. An argument also can be made that any change in the law which may increase the potential for loss of life or serious injury cheapens the value society places on human life and bodily integrity. Though plausible enough, this argument fails to take 209. See supra notes 41, 88 and accompanying text. 210. Juries are frequently required to engage in "factfinding" on matters which are not susceptible of empirical proof. Rather, they involve issues of community judgment such as "reasonableness" or "substantiality." Cf. United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) (Bazelon, J., concurring in part and dissenting in part). 211. See supra notes 204-06 and accompanying text. 1983]