Self-Defense Law Holds Up, Even in Light of Goetz

The strong feelings that the Goetz case aroused suggest that we should reconsider when a citizen is justified in killing because he fears for his life. The jury verdict of acquittal is not a legal precedent, but the case raises important questions about the nature of our society and the proper limits of self-defense.

Some persons are so frustrated by crime and by the limited ability of the police and criminal-justice system to control it that they want to expand the circumstances in which a citizen can use deadly force to protect himself. Others believe that such an expansion would create further danger by increasing the risk of violence. Finally, many claim that current self-defense doctrine requires persons to adhere to an unfair standard of behavior.

The law currently requires that before a person may kill in self-defense he or she must honestly and reasonably believe that deadly force is necessary to protect against an imminent threat of death or serious bodily harm. Further, the law defines a “reasonable” belief as one that an “average reasonable person” would hold under the circumstances. Critics want either to enlarge the set of circumstances in which the average person’s belief in the necessity to kill is justified or to weaken the requirement that the defendant’s belief must meet the “average reasonable person” standard.

In the Goetz case, for example, one might claim that being hassled on a New York subway train by four tough-looking youths is sufficiently threatening to warrant the use of deadly force. After all, who could be expected cautiously and coolly to measure the potential danger of death or serious injury in such circumstances? Or critics of present law might claim that the law should consider Goetz’s unique life history and personal characteristics--how can we expect the behavior of a slightly built man who had been injured in a previous mugging to conform to the standard of a hypothetical “average” person? Another controversial example is whether battered women who kill their husbands or lovers when their lives are not immediately endangered should be able to claim that they acted in self-defense.

In our system the circumstances that will reasonably justify belief in the necessity for the use of deadly force is largely a question for the jury. The “reasonableness” criterion is vague, but it allows the jury to express what is essentially a moral judgment and to reflect changing social attitudes about when fear of death or great bodily harm is appropriate. Although the present standard may allow juries to behave arbitrarily, a more specific standard would necessarily fail to cover the enormous variety and complexity of events.

Another issue is whether the criteria for self-defense should be liberalized to permit the use of deadly force to defend against unlawful but non-deadly threats. Although one can rarely be certain about the extent of danger, suppose that a citizen has no means short of killing to prevent an assault that he can reasonably presume will not seriously harm him. Must citizens accept the inevitable rage and frustration of victimization in such circumstances?

Many believe that deadly force should be permitted. But our society has not yet reached the stage of an anarchic war of all against all that might justify such liberalization. Indeed, justifying the use of deadly force in these circumstances is likely to heighten the danger that we fear.

Many critics believe that it is unfair to judge the reasonableness of the defendant’s belief that killing is necessary according to the standard of what an average reasonable person would believe in the circumstances. They would therefore consider all attributes of the accused, like personality traits. For example, consider a defendant who was and always had been exceedingly fearful. Should we apply a “reasonable fearful person” standard to him? Or should battered women who kill be judged according to a “reasonable battered woman” criterion? Such an approach abandons the reasonableness standard altogether. Rather than treating self-defense as a justification, as right but regrettable behavior under unfortunate circumstances, this approach would treat it as an excuse for wrongful behavior.

This major legal change would be a mistake. The law can fairly ask citizens to meet standards of caution and self-control that will minimize unnecessary loss of life. Furthermore, such standards are not impossible to attain, even if it may be harder for some people than for others.

Some change in the pure “objective” reasonableness standard is necessary, however. Fair assessment of the reasonableness of belief must include the consideration of relevant characteristics, like the size and strength of the accused.

But character weakness or a unique life history that may predispose one to fearfulness should not be considered unless it is so extreme that the person is psychologically impaired. If such persons are permitted any defense, it should clearly not be the justification of self-defense. Rather, they are really claiming some form of diminished capacity--not unlike the now-abandoned “Twinkie” defense--and the merits of allowing such an excuse should be argued on that basis.

The law of self-defense has been evolving slowly for centuries in response to experience and shifting social mores. We should be cautious before adopting major changes, because the stakes are so high and the outcome of changes is so unpredictable. And we should not ask the law of self-defense to perform functions, like excusing psychologically impaired people, that it is not designed to perform.