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Criminal Justice Masters Program Comprehensive Exam Question 5: In United States v. Thomas, 34 F2. 44 (1994, 2nd Cir), the court stated that “It has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill.” What is the logic behind this principle?…
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Download file to see previous pages It is also otherwise referred to as ownership or proprietas (Encyclopedia Britannica, 2012). This indicates that even in the earliest versions of law in the West, it is recognized that a person has the right to protect and defend his dominium – his family, his property, and his well-being – from external aggression that harms or threatens to harm it. The right of self-defense is claimed by the aggressor or defendant charged with a violent crime. Some of these crimes include: battery (striking someone against his or her will), assault with a deadly weapon, assault with intent to commit serious bodily injury, manslaughter, and first or second degree murder (Bergman & Berman, 2009, p. 314). Self-defense is a justifying circumstance. It is an affirmative defense in that it justifies the use or threat of force exerted by an individual when he or she believes that there is a danger of an imminent, immediate, and unlawful infliction of serious bodily harm or death (Lippman, 2010, p. 216). A criminal act, such as a homicide, is justified when it is resorted to in order to prevent a greater, imminent, and immediate harm, when there are no other equally effective alternatives possible. The court quoted: “all homicide is malicious, and of course, amounts to murder, unless… justified by the command or permission of the law; excused on the account of accident or self-preservation; or alleviated into manslaughter, by being the involuntary consequence of some act not strictly lawful or (if voluntary) occasioned by some sudden and sufficiently violent provocation” (Blackstone, 1854, p. 201 in U.S. v Peterson, par. 14). In the modern application of the law, much of Blackstone’s commentaries are still relevant, although jurisprudence has enumerated the requisites that support a claim of self-defense. These are that the defendant: (1) must not have provoked or been the aggressor in the assault; (2) must have reasonable grounds for the belief that he is faced with imminent danger of serious bodily injury; (3) must not use more force than that which appears reasonably necessary; and (4) must do everything in his power consistent with his own safety to avoid the danger and must retreat if retreat is practicable (Lippman, 2010, p. 222). A special case when self-defense cannot be resorted to as a defense is when the accused invoking it is the very person who instigated or provoked the aggressive act. What this exactly means can only be explained by a perusal of case law where the principle was applied with varying premises and results. Case Law: United States v. Thomas, 34 F2. 44 (1994, 2nd Cir) The case concerned the fatal shooting of Wallie Howard, a Syracuse police officer who worked undercover for the Federal Drug Enforcement Administration (DEA) during a “buy-bust” operation on 30 October 1990. In this instance, the suspected cocaine dealers decided to likewise rob Howard, who was seated in the front passenger seat of a car. The perpetrators, Stewart and Lawrence, were each armed with .22 and .357 revolvers. Stewart tried to shoot Howard but failed because there was no bullet in the chamber. Howard gets off a shot and hits Stewart in the shoulder. Lawrence, standing at the rear passenger side of the car, shot at Howard, striking the rear of his head and instantly killing him. The two were arrested minutes later. The defendants, Lawrence and Stewart, claimed self-defense in that Howard was the first to draw his gun, and Lawrence believed that Howard ...Download file to see next pagesRead More
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