Should Pistorius’s self-defense claim be judged by the reasonable person or a reasonable disabled-person standard

July 14, 2014

Monday, July 14, 2014

Good afternoon:

Should Oscar Pistorius’s self-defense claim be judged according to the reasonable-person standard or a reasonable disabled-person standard?

Depending on the jurisdiction, the self-defense test can be objective or both objective and subjective.

Objective test: Whether a reasonable person in the same situation (i.e., the external reality) would have perceived himself to be in imminent danger of death or serious bodily injury?

Objective and Subjective Test: Whether a reasonable person, standing in the same shoes (i.e., knowing and perceiving what the defendant knew and perceived in that situation) would have perceived himself to be in imminent danger of death or serious bodily injury?

Consider, for example, a battered wife who kills her battering husband while he is asleep fearing that he will kill or seriously injure her when he wakes up. A reasonable person probably would not have believed herself to be in imminent danger, whereas a battered wife might reasonably have believed she was in imminent danger.

Keep in mind that imminent danger does not require proof that the danger be immediate. Therefore, a battered wife’s belief that she was in imminent danger of death or serious bodily injury when her husband awakens probably would be reasonable, if he had seriously injured her in the past after he woke up.

Therefore, prior history between the shooter and the victim or the shooter’s belief about the victim’s intent based on knowledge of the victim’s reputation for committing acts of violence can be relevant to a shooter’s claim of self-defense.

Even when the test is both objective and subjective, the finder of fact (be it judge or jury) does not have to believe the defendant.

Three possible results exist in the Pistorius case:

(1) Guilty of murder;
(2) Guilty of manslaughter; or
(3) Not Guilty.

I think Pistorius wins or loses on the murder charge depending on whether Judge Masipa believes his claim that he thought he was shooting at an intruder.

She will convict him of murder, if she does not believe him. In other words, she will convict him, if she believes he knew Reeva Steenkamp was behind the door. The defense of self-defense does not apply in that situation.

If she believes his claim that he thought an intruder was in the toilet stall, then she has to decide whether he reasonably believed that he was in imminent danger of death or serious bodily injury when he fired four shots through the closed door. Her decision possibly could be affected by whether the law requires her to apply an objective test or an objective and subjective test.

For the following reasons, regardless of the test she applies, I believe she will decide that he was not in imminent danger of death or serious bodily harm when he fired the gun.

He was an experienced and accurate shooter with the element of surprise on his side with his gun in hand, loaded with the most disabling ammunition available, aiming at the door with arm extended while standing far enough away from it to shoot and kill or disable the intruder, if the intruder opened the door.

By merely squeezing the trigger where he was standing, he could have killed or disabled the intruder before the intruder realized he was there.

He also had a cell phone with which to hold the intruder at bay in the stall behind the closed door while he summoned security guards and the police.

This situation does not change, regardless of his disability.

Nevertheless, I would find him guilty of manslaughter, rather than murder, because his decision to shoot prematurely through the door was a reckless or grossly negligent act.

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Thanks,

Fred


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