SELF-DEFENSE ANALOGIES

The defendant was parked in a parking lot one night when his arch-enemy, the decedent, drove by and shot at the defendant=s car. The bullet hit his right front tire.

The decedent drove to the far end of the lot and then drove back toward the defendant=s car. The defendant then fired six bullets from his own gun at the decedent=s car. One of the bullets struck the decedent in the head and killed him instantly.

The decedent and the defendant were old enemies. They recently had an argument and each had threatened to kill the other. The defendant knew that the decedent hung out at the fast food place next to the parking lot and he also knew that there was likely to be trouble when they saw each other again.

We represent the government as appellee, and are responding to the defendant=s appeal in which he argues that his conviction was improper and that his self-defense claim should have been given to the jury for consideration.

How would the following cases fit into a legal argument against the defendant=s argument that he acted properly in self-defense?

(1) In a prosecution for an assault with intent to kill, the defendant had no legitimate claim of self-defense when he voluntarily placed himself in a position which he reasonably could expect would result in violence. The defendant had joined a gang that was going to rob the proprietor of a 7-11 store and was threatened by the gang leader when he tried to back out. He subsequently killed the proprietor who pulled a gun on him during the robbery.

(2) A person may use only that amount of force in self-defense which is considered reasonably necessary in light of all the surrounding circumstances. A martial arts expert may not inflict a Akilling@ blow on an opponent who has attacked him when he or she has the ability to inflict a less serious amount of force safely in order to stop the assailant.

(3) When the danger is past, one may not use self-defense to prevent a recurrence of the attack. One may not claim self-defense to justify attacking a person who has clearly broken off the fight.

(4) One need not wait until the danger is so imminent that it would be dangerous to do so. However, the danger must be obvious to a reasonable person so that self-defense is justified. A man who reaches in his pocket while threatening to Aget@ the defendant does not thereby properly incur the use of deadly force in self-defense by the defendant.