The Self-Defense Justification

July 25th, 2005

By Vince Imhoff, Esq., and Dan Rhoads

In December 1984, Bernhard Goetz, a slight 37-year-old white man, boarded a subway train in the Bronx, which four young black men were already riding. The youths were on their way to Manhattan to rob videogame machines with sharpened screwdrivers they were carrying. One of them demanded $5 from Goetz and threatened him with a screwdriver when Goetz refused.

Goetz, who had been mugged and injured three years earlier and who feared being maimed, pulled out an unlicensed .38 caliber pistol and fired four shots, one at each of the youths, the first three of which struck their targets. Once Goetz noticed that his fourth target had not been hit, he said, You seem to be all right; heres another, and fired a shot that severed the mans spinal cord. People v. Goetz, 497 N.E.2d 41, 44 (NY Ct. App. 1986).

Bernhard Goetz became known as the Subway Vigilante, and his case divided both New York and the nation. Those who were frustrated by the New York polices failure to fight crime backed Goetz. Others, who viewed the episode as a racial issue, vilified him.

A grand jury indicted Goetz on attempted murder, assault, and illegal gun possession. When the case eventually went to trial, Goetz claimed self-defense. The jury found in his favor and convicted him only for the gun charge, for which he served 8 months in jail.

The Law of Self-Defense

The New York self-defense law is typical of American justification statutes. It says that a person may use force when and to the extent he reasonably believes such to be necessary to defend himself . . . from what he reasonably believes to be the use or imminent use of unlawful physical force by another person. N.Y. Penal Law 35.15(1). The defense usually does not apply when the person using force was the aggressor. As in the Goetz case, deadly physical force is prohibited unless the person reasonably believes that the other is using or is about to use deadly force, or that the other is committing or about to commit a burglary, kidnapping, forcible sexual intercourse, or robbery. 35.15(2).

The phrase reasonably believes was a source of controversy in Goetz. The appellate court determined that a determination of reasonableness must be based on the circumstances facing a defendant or his situation. Goetz, 497 N.E.2d at 52. These circumstances may include knowledge the defendant had about the other, the physical attributes of all people involved, and any prior experiences. Because the defense successfully depicted the situation as a group of young men threatening one smaller individual who had previously been injured in a mugging, the jury acquitted.

Limitations on Self-Defense

Noting that self-defense is a law of necessity, the D.C. Circuit Court of Appeals has said, the right of self-defense arises only when the necessity begins, and equally ends with the necessity. U.S. v. Peterson, 483 F.2d 1222, 1229 (D.C. Cir. 1973). An incident inside a prison illustrates the imminence requirement.

Nelson Flores-Pedroso continually threatened a fellow inmate, Charles Haynes, sometimes in front of guards who did nothing. One day, Pedroso told Haynes that, after food service, Pedroso would finish what he started. U.S. v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998). So, during food service, Haynes snuck up on Pedroso and poured scalding oil onto Pedrosos head. Noting that later and imminent are opposites, Id., the court rejected Haynes self-defense justification.

The classic example of an imminent threat is the aiming of a gun. In the early 1990s, rapper Snoop Dogg was charged as an accomplice in the murder of Philip Woldermarian. Represented by Johnnie Cochran, Snoop and his confederates were acquitted of murder when they convinced the jury that the deceased had pointed a gun at them.

In any jurisdiction, a defendant claiming self-defense must have lacked a legal alternative to violating the law. U.S. v. Bailey, 444 U.S. 394, 410 (1980). In other words, if walking away is an option, self-defense is not a justification.

In the summer of 2005, a 13-year-old Pony League baseball player killed a 15-year-old spectator with a baseball bat after the older boy harassed him. The 15-year-old, named Jeremy Rourke, was 510, 190 pounds, and white. The 13-year-old defendant, whose name is withheld because of his age, was 51, 90 pounds, and black.

After the younger boys team lost a game, Rourke harassed the defendant by using a racial slur and telling him, You suck (13-Year-Old). Rourke shoved the minor, who said that he was not in the mood to be messed with. Rourke said, What are you going to do about it?, (Id.), and shoved the boy again.

The young defendant testified that he feared assault: in his words, I thought he was going to beat me up (Defendant). So, he pulled out an aluminum bat and hit Rourke once in the leg. Rourke bent over and balled his hand into a fist, at which time the younger boy swung again and hit Rourke in the head. Rourke died from his injuries.

Although people familiar with the league agreed that Jeremy Rourke was a bully and a troublemaker, although he stood a head taller and was 100 pounds heavier than his assailant, and although he initiated the conflict by harassing the defendant and using a racial slur, the self-defense claim failed. Los Angeles County Superior Court Judge Richard Naranjo said, when the opportunity was there to avoid further confrontation, [the defendant] did not take that opportunity (Ballplayer). The boy was convicted for second-degree murder.

Battered Women

The self-defense claims of women who kill the men that consistently assault them begin with the principle that a determination of reasonableness must be based on the circumstances facing a defendant or [her] situation. Goetz, supra. The question presented is whether or not the circumstances facing battered women justify a relaxation of the imminence requirement.

Only during the last two decades of the twentieth century did the courts begin to allow testimony of Battered Womans Syndrome (BWS) in such cases. See, e.g., State v. Kelly, 478 A.2d 364 (NJ 1984). Although courts in most jurisdictions are increasingly open to BWS evidence, critics insist that, Such relativization of ethical standards is . . . impossible for the law to adopt if it is to maintain its moral basis (Morse).


Self-defense can be a justification for an assault when a person has a reasonable expectation that he is about to be injured. The type of defense must be appropriate in light of the perceived threat. Thus, the use of deadly force in self-defense is permissible only where the person perceives imminent death or serious bodily injury.

Because the reasonability of the perception of the threat depends upon the persons circumstances and situation, the law of self-defense has some flexibility. In cases of battered women or children, courts have allowed evidence of the abuse to help explain the defendants disposition. However, the attempt to expand self-defense by limiting the imminence requirement has met with resistance.

Self-defense is actually a difficult justification to prove. Because of the value of human life, juries tend to err in favor of the deceased, unless countervailing societal factors, such as frustration with law enforcement, prevail. In any case, it takes a skilled attorney and advocate to argue to a jury that an assault or a killing was justified.

Caitlin Liu, Defendant, 13 Says He Feared Assault, Los Angeles Times, 8 July 2005, B1.

Caitlin Liu, 13-Year-Olds Lawyer Argues Self-defense, Los Angeles Times, 7 July 2005, B3.

Caitlin Liu and Hector Becerra, Ballplayer, 13, Convicted of Fatal Beating with Bat, Los Angeles Times, 9 July 2005, A1.

Stephen Morse, The New Syndrome Excuse Syndrome, Criminal Justice Ethics, Winter/Spring 1995, p. 13.

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