TAMEKA PARKER v. UNITED STATES
TAMEKA PARKER v. UNITED STATES
Concurring Opinion
concurring:
I join the opinion of the court and write separately only to reinforce it with some additional perspective.
I.
This is a strange case. A man shouts an ugly slur against his neighbor across the street as she is getting into a friend’s car. He then crosses the street with members of his family, calls her a “bitch” (and more), and spits in her face as his family surrounds the car and hurls insults. She spits back. Others arrive (apparently including members of her family), and a shouting match ensues. In the meantime, a police officer has appeared in time to see her spit (but not to see her aggressor do so). The officer arrests her for simple assault, and she is charged.
In a bench trial the court finds that appellant “actually did fear” and “reasonably believed that she was in imminent danger of bodily harm,” having testified that she was “scared for my life, like I didn’t know what they were going to do.” But the court disallows her claim of self-defense, concluding that her principal reason for spitting in response to her aggressor’s liquid assault was that “he came on my property and ... spit on me first”— words of anger, indignation, and outrage, said the court, not words of defense against attack. Moreover, the trial court appears to believe that mere spitting, while noxious though not excessive, was not an authentic defensive move. The court’s ultimate characterization of her mindset — that she sought “street justice,” not self-protection, in spitting back — summarizes the court’s rejection of self-defense.
The issue here, therefore, is whether a victim’s court-established fear of imminent bodily harm, coupled with non-excessive force — however weak — in response, is enough to justify a claim of self-defense; or whether that fear and response, once established without retraction, can be negated by additional findings that the victim’s dominant mindset was a desire for retribution, and that the force used was too lame to evidence either a fearful mindset or an attempt at self-protection.
The theory of the dissent is twofold:
[T]he [1] necessary state-of-mind inquiry is not fully satisfied upon a conclusion that the defendant actually and reasonably believed she was in imminent danger of bodily harm, and ... [2] the self-defense analysis also is not complete upon a further conclusion that the amount of force used was not excessive. Post, at 861.
Respectfully, I believe the dissenting theory is flawed.
First, it presupposes a threshold trial-court analysis of the defendant’s mindset that requires a probe of her motives and emotions, even after establishing her actual and reasonable belief of imminent bodily harm. According to the dissent, such a probe, without precedent, can cancel a court’s firm finding of the level of fear that the case law unequivocally says will justify a self-defense instruction (absent unreasonable force).
Second, the dissent’s theory posits, again without precedent, that the force used can be so weak that it not only negates any effort for self-protection (thereby negating a court-established belief of imminent bodily harm) but also negates the “reasonable force” limitation on self-defense by suggesting that an ineffectual
Finally, the dissent offers no case law that says a retributive motive ultimately displaces the justification for self-defense even though the trial court has found, without qualification, that the defendant actually and reasonably believed she was in imminent danger of bodily harm.
These concerns require elaboration.
II.
I agree with Judge Easterly that, when evidence supports a claim of self-defense, the government has the burden of disproving beyond a reasonable doubt that the defendant (1) actually and reasonably believed she was in imminent danger of bodily harm and, in the event of such belief, (2) used only reasonable — meaning non-excessive — force to repel the attack. Ante, at 844-46.
Our dissenting colleague, however, advises that appellant failed to satisfy a third step: that despite an unequivocal, conclusive finding that appellant believed herself to be in imminent danger of bodily harm— a belief that, ordinarily would justify self-defense (when coupled with reasonable force) — the government can disprove the defense by satisfying the court that an additional motive negated her belief, and that the force employed was weak, not defensive.
I am not persuaded. In the first place, the dissent does not dispute the trial court’s unequivocal, unmodified first-step finding that appellant “reasonably believed” and “actually did fear that she was in danger of imminent bodily harm.” Ante at 841. Therefore, the dissent’s conclusion that this finding is not enough to justify a claim of self-defense (absent unreasonable force) must come either (1) from a source outside the two required self-defense findings, or (2) from a second-step finding that the force used was not “reasonable”; that is, instead of being excessive (the traditional ground for unreasonable force), the force of appellant’s spitting was so unreasonably lame that, along with appellant’s testimony, it nullified any motive of self-protection.
The dissent appears to take both positions. On the one hand, the dissent says the opinion for the court “fail[s] to give due attention to the lead-in clause that dictates when the ‘two-part’ test is applicable,” namely, that “[e]very person has the right to use a reasonable amount of force in self-defense if’ steps one and two are satisfied. Post, at 859, 859 n.8 (emphasis omitted). This quoted lead-in clause essentially says no more than that everyone is entitled to self-defense by meeting the two requirements for self-defense; it does not give life to an additional criterion that would nullify self-defense even when the two specified requirements are satisfied.
On the other hand, the dissent relies, in the alternative, on appellant’s spitting — a “predictably ineffectual,” “tit-for-tat act[] of retaliation,” post, at 858 n.6, 861 — to undermine the sufficiency of the trial court’s first-step finding that appellant’s fear of imminent bodily harm justified self-defense (absent unreasonable force). Under this approach, the dissent’s source of erosion of that first-step finding has to be the court’s second-step assessment of “reasonable force.” That is to say, the dissent has to mean that appellant did not “actually” and “reasonably” believe that the weak force used — her spitting — would be enough to protect her against “imminent bodily harm.” I have problems with this analysis.
First, this analysis does not appear in the trial court’s findings, quoted at length in the dissent. Post, at 856-57. Although the trial court speculated that appellant’s
Second, according to the government’s brief, the trial court — unlike the dissent— found that appellant, through her words, was motivated solely “by her desire to retaliate,” a finding inconsistent with the court’s threshold finding that appellant had “reasonably believed that she was in imminent danger of bodily harm.” Post, at 856. Thus, the court never questioned that spitting constituted reasonable force under the circumstances, and not even the prosecution has espoused the dissent’s reliance on the second-step (reasonable force) inquiry to inform the step-one (belief of imminent bodily harm) inquiry.
Third, I cannot agree that appellant’s spitting can disqualify her from claiming self-defense because of its presumed weakness as a response to the neighbor who spit at her first. Appellant’s response was “a proportionate reaction to the threat that [s]he perceived.”
Finally, I will assume for sake of argument that a step-two, “reasonable force” inquiry could inform a step-one, belief-of-imminent bodily harm inquiry — e.g., that a weak response to an attacker might signal that the defendant did not actually and reasonably believe that she was in imminent danger of bodily harm. But once that belief of imminent harm is established by a trial court finding, as in this case, it cannot be erased by invoking step two. My reasons follow.
III.
According to the court’s opinion, the victim’s actual perceptions will inform whether the force used under the circumstances is reasonable. Ante, at 845-46. For example, the intensity of an imminent threat of bodily injury may provoke a frenzied retaliation in self-defense, such as a hail of bullets, that ordinarily might seem excessive but in context appears reasonable.
The dissent acknowledges that not all mixed motives necessarily preclude an assertion of self-defense. Post, at 844.
Judge Easterly’s opinion for the court properly rejects a second-guess, weighing- and-balancing exercise once the trial court has found, without limitation, that the defendant experienced the belief of imminent bodily harm necessary to justify self-defense. I agree that it would be superfluous, indeed confusing, and contrary to the trial court’s unequivocal step-one finding, to try to sort out other motives that may be at work.
In sum, the fact that the defendant may have had a mixed mentality — great fear coupled with retributive anger — is irrelevant here. The latter cannot be used to negate the former once a defendant’s fear itself has been found, without caveat, to justify the use of reasonable force in self-defense.
I add here, finally, a postscript to explain some of the jury instructions, as supported by relevant case law, that inform the majority’s analysis. It is interesting to note, first, that the criminal jury instruction for non-deadly force — the force used in this case of simple assault — had initially required, for the second-step inquiry, only that the defendant had “reasonably believe[d]” — not “actually and reasonably believe[dj” — that the amount of force used in self-defense was “necessary to protect himself/herself from imminent bodily harm.”
In 2009, the pertinent criminal jury instruction for use of non-deadly force was amended to conform to the one traditionally used for deadly force.
V.
I cannot help feeling that if appellant had whacked her assailant rather than spit on him, there would have been little, if any, basis for questioning whether a self-defense instruction (from the court to itself) was available in this case. Indeed, our dissenting colleague seems to agree. Post, at 858 n.6. But apparently the trial court rejected self-defense not because appellant lacked the belief of imminent bodily harm required to justify self-defense but, at least in part, because the court believed that the defensive response was too lame — a curious concern because the forbidden response, unreasonable force, is force too violent, not too weak (a puzzling concern our dissenting colleague shares).
To justify the dissent’s analysis, the trial court might have withheld or revoked its threshold finding that appellant “actually did fear” and “reasonably believed” that she was “in danger of imminent bodily harm.” But the court couldn’t, and thus wouldn’t, and therefore didn’t — thereby precluding the analysis that our dissenting colleague presents.
⅝ ⅝ ⅜ ‡ ⅝
For the reasons expressed above, I join the opinion of the court.
. Ewell v. United States, 72 A.3d 127, 130 (D.C. 2013).
. See Criminal Jury Instructions for the District of Columbia, No. 9.501C (5th ed. rev. 2016) ("In the heat of passion, a person may actually and reasonably believe something that seems unreasonable to a calm mind.”); id. No. 5.13C (4th ed. rev. 2008) (same).
.See 2 Wayne R. LaFave, Substantive Criminal Law § 10.4 (c) (2d ed. 2003) (citing State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984)).
. See Criminal Jury Instructions for the District of Columbia, No. 9.501A (5th ed. rev. 2016) (quoted infra).
. This interpretation is consistent with our recent, reorganized formulation of self-defense in a homicide case, Bassil v. United States, 147 A.3d 303 (D.C. 2016), explaining self-defense as (1) an honest believe of "imminent danger of serious bodily harm or death” and the "need[] to use deadly force to save [one]self from that danger,” coupled with (2) a requirement that "both those beliefs were objectively reasonable under the circumstances." Id. at 307.
.See LaFave, supra note 3, § 10.4 (c) (“[I]f [one] acts in proper self-defense, he does not lose the defense because he acts with some less admirable motive in addition to that of defending himself, as where he enjoys using force upon his adversary because he hates him.”).
. Criminal Jury Instructions for the District of Columbia, No. 5.13A (4th ed, rev, 2008), provides in full:
A person may use a reasonable amount of force in self-defense, A person may use an amount of force which, at the time of the incident, s/he reasonably believes is necessary to protect himself/herself from imminent bodily harm. (Emphasis added).
. See Ewell v. United States, 72 A.3d 127, 131-32 (D.C. 2013) (simple assault); Snell v. United States, 754 A.2d 289, 290 (D.C. 2000) (simple assault); Guillard v. United States, 596 A.2d 60, 63 (D.C. 1991) (simple assault); Potter v. United States, 534 A.2d 943, 945-46 (D.C. 1987) (simple assault); see also Kittle v. United States, 65 A.3d 1144, 1158 (D.C. 2013) (assault and felony threats); Higgenbottom v, United States, 923 A.2d 891, 900 (D.C. 2007) (assault with intent to kill while armed, aggravated assault while armed, assault with a dangerous weapon, mayhem while armed); McPhaul v. United States, 452 A.2d 371, 373-74 (D.C. 1982) (assault with a deadly weapon).
In Ewell, this court reversed a conviction for simple assault, holding (in part) that the trial court had erroneously instructed the jury on the use of deadly, not non-deadly, force in self-defense. Relying on McPhaul and Snell, we held that, for non-deadly force, a defendant had to meet a “less onerous standard,” showing only “a reasonable belief that he was in imminent danger of bodily harm,” 72 A.2d at 131, whereas for deadly force the defendant had to show both an "honest[]" and a "reasonabl[e]” belief that “he was in imminent danger of serious bodily harm.” Id. at 132 (emphasis added) (internal quotation marks omitted). In a footnote, the court also referenced the different instructions for deadly and non-deadly force in the Criminal Jury Instructions for the District of Columbia Nos. 9.501A and 9.501B (5th ed. 2009), in order to evidence the distinction between “bodily harm” and "serious bodily harm,” Presumably in light of binding case law, however, the court did not address the change from the fourth (2008) edition of the Instructions in 9.501 A: that self-defense with non-deadly force henceforth required a showing that the defendant "actually,” as well as "reasonably,” believed the amount of force used "was necessary to protect himselRherself from imminent bodily harm.”
. See supra section III (explaining "the crucial distinction between the court’s opinion and the dissent”).
. See Criminal Jury Instructions for the District of Columbia, No. 9.501A (5th ed. 2009). This formulation of Instruction No. 9.501A remains unchanged and is found in the most recent (2016) revised version of the Criminal Jury Instructions for the District of Columbia.
. Instruction No. 9.501A, see supra note 9, provides in full:
A person may use a reasonable amount of force in self-defense. A person may use an
. Years ago, in an opinion concerning defense of a third person, we acknowledged that "[t]he right of self-defense, and especially the degree of force the victim is permitted to use to prevent bodily harm, is premised substantially on the victim’s own reasonable perceptions of what is happening.” Fersner v. United States, 482 A.2d 387, 391 (D.C. 1984).
. The decision underlying the line of homicide self-defense cases is United States v. Peterson, 483 F.2d 1222, 1229-30 (D.C. Cir. 1973). See Bassil v. United States, 147 A.3d 303, 306-07 (D.C. 2016); Richardson v. United States, 98 A.3d 178, 187 (D.C. 2014); Edwards v. United States, 721 A.2d 938, 941 (D.C. 1998); Smith v. United States, 686 A.2d 537, 544 (D.C. 1996), cert. denied, 522 U.S. 839, 118 S.Ct. 115, 139 L.Ed.2d 67 (1997); Swann v. United States, 648 A.2d 928, 930 (D.C. 1994); Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992).
In particularly violent assault cases which do not result in homicide, a deadly force instruction for self-defense may be appropriate. See, e.g., Travers v. United States, 124 A.3d 634, 639 (D.C. 2015) (felony assault and mayhem); Freeman v. United States, 912 A.2d 1213, 1220 (D.C. 2006) (assault with intent to kill while armed); Harper v. United States, 608 A.2d 152, 155 (D.C. 1992) (assault with a dangerous weapon); LaFave, supra note 3, § 10.4 (a).
Dissenting Opinion
dissenting:
I am unable to join the majority opinion because my colleagues’ analysis dispenses with the requirement that, for a claim of self-defense to be valid, the defendant must have honestly and reasonably believed that her action (that would otherwise constitute an unlawful assault) was
A.
I will not repeat the summary of evidence set out in the majority opinion, but do need to highlight relevant portions of appellant’s testimony and statements by the trial judge that reveal the court’s reasoning.
The trial court was very interested in why appellant spit on Powell, commenting that appellant’s “state of mind is what is important.” During appellant’s testimony, there was the following exchange:
THE COURT: I am going to ask this question during cross-examination so that it can be fully explored by both attorneys. Why is it that you spit in [Powell’s] face?
MS. PARKER: Because he came on my property and he came and spit on me first, ma’am, that’s why.
Later, during defense counsel’s re-direct examination of appellant, the court cautioned counsel against asking leading questions, explaining that:
THE COURT: [T]he answer is not going to be credible if the question is leading[,] and it is an important point in my fact finding responsibility whether she spit in his face out of a sense of anger and vindication and fairness and justice or whether she spit in his face as a form of self-defense. That is a critical question of fact for me ....
Defense counsel then asked appellant again why she took the actions she took. She answered:
MS. PARKER: It was just that he spit in my face and I felt scared with the way they approached me that day. They approached me in a very scary situation. I had a lot of people come approach me at one time and I really did not know what I did or what I did wrong for him to say he was going to smack me and walk on my property and then to spit in my face.
This echoed appellant’s earlier direct testimony that, “I just know that I didn’t do anything wrong.” The court thereafter denied defense counsel’s (renewed) motion for judgment of acquittal, stating that “a reasonable juror based on this record would be able to find that the defendant did what she did, performed the act of spitting not in self-defense but in anger and indignation” (emphasis added).
After closing arguments, the court found that appellant “reasonably believed that she was in imminent danger of bodily harm.” The court nevertheless ruled that the government had “carried its burden of proving beyond a reasonable doubt that with respect to the ... spitting, self-defense was not in play[.]” In explaining its ruling, the court said the following:
THE COURT: [I]n order for self-defense to apply[,] she has to use a reasonable amount of force in self-defense. Using a reasonable amount of force because she is angry or indignant or outraged or because of injustice, if somebody spits in your face which is what he did, that person deserves to be spit on and should expect to be spit on, that is not self-defense. That is spitting but not for purposes of self-defense and the government has proven on this record that*857 the spitting occurred not for reasons of self-defense but for those other reasons.
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[E]very time [appellant] is asked, why did you spit on him, the immediate answer is, because he spit on me, and that was said directly on the scene to the police officer.[2 ] The answer to the same effect was indeed given to the prosecutor, I spit on him because he spit on me, and I directly asked, why did you spit on him. [Appellant’s answer was] I spit in his face because he came on my property and he spit on me first and there is street justice in that, (emphasis added).
Further explaining its finding, the court referred to “what could have been expected to happen next if that police officer had not been there” when appellant spit on Powell. Crediting appellant’s testimony to the effect that Powell was “backed up by his mother” and that “half a dozen members of his family were also approaching [appellant] and backing him up[,]” the court reasoned that:
THE COURT: Powell[,] backed up by his family and surrounding [appellant] the way he was and having just been spat on[,] would have made good on some of th[e] threats [he had made to appellant], not the shoot you threatf,] but the beat the S part of the threat. [Powell’s side] had the numbers and they had the anger and they had their expressed motivation.
The court found that appellant “did not spit on Mr. Powell as an act of self-defense[,]” i.e., that “the spitting occurred not for reasons of self-defense but for those other reasons.”
B.
The court’s statements quoted above reflect a recognition that what was missing each time from appellant’s explanation of why she spit on Powell was any statement to the effect that she spit on him in an effort to protect herself from harm.
MS PARKER: I threw [the can] in the middle of the street. I didn’t throw it at*858 him exactly. I just threw it, the can. I just threw the can. I don’t know, I was seared. I don’t know. I don’t know.
The court’s statements quoted above also appear to reflect an assessment by the court that, given the evidence that Powell was “backed up by [a half-dozen or more angry members of] his family,” no reasonable person could have believed that appellant’s spitting at Powell would protect appellant from harm.
Thus, the court’s key factual finding and reasoning were as follows: First, the court found that appellant’s motive in spitting on Powell was to effect “street justice” (i.e., retribution, revenge, or retaliation), and was not at all to defend herself.
Second, the court reasoned that appellant could not have reasonably thought that her spitting at Powell would extricate her from danger, i.e., cause Powell and his family to leave her alone.
C.
In numerous cases involving claims of self-defense, this court has said the following or its equivalent: “One who is defending against an assault charge, who is claiming self-defense, must have honestly and reasonably believed that he was in imminent peril of death or serious bodily harm, and that his response was necessary to save himself.” Travers, 124 A.3d at 639 (italics and underscoring added, internal quotation marks omitted; citing cases); see also, e,g., Higgenbottom v. United States, 923 A.2d 891, 900-01 (D.C. 2007) (approving an instruction that told the jury, inter alia, that “[a] person may use
The foregoing citations demonstrate that what is firmly grounded in this court’s ease law (as well as in logic) is that a person acts in self-defense only when her action is an effort to save or protect herself or to fend off harm. While my colleagues make much of what they call our jurisdiction’s “two-part test” for self-defense,” ante, at 844 (majority opinion), they fail to give due attention to the lead-in clause that dictates when the “two-part test” is applicable: the statement that there is a right to use a “reasonable amount of force” (defined as applicable here by the non-deadly force paragraph of standardized jury instruction 9.501) “in self-defense.”
In this case — one in which the issue is whether the evidence permitted the court to find that appellant’s use of force was solely retaliatory and not defensive — we may not rest on the truncated discussions
Discussions of the self-defense standard in other cases add to the required inquiry whether, objectively, the force used by the defendant was reasonable or necessary. See, e.g., Higgenbottom, 923 A.2d at 900 (“[TJhe central questions for the jury were (1) whether appellant [who was charged with striking his assailant with a pipe] actually and reasonably believed that he was in imminent danger of bodily harm, and (2) whether he used only reasonable force to repel the perceived attack.” (italics added)). Formulations like this have been used when the focus of analysis was on whether the force the defendant used was excessive, not on whether the defendant used force that was so predictably ineffectual as not to qualify as force the defendant believed was necessary to protect herself. It appears that, until now, the latter issue simply has not arisen.
This court’s articulations of the self-defense standard that are on point here establish that an act is not taken in self-defense unless it is intended to be (and could reasonably be thought to be) defensive.
D.
All the foregoing said, I am not prepared simply to affirm appellant’s conviction, because it appears that the trial court, in reasoning that appellant could not have reasonably believed that spitting on Powell might extricate her from danger, failed to take into account some of the rebuttal testimony by Officer Bradley. Officer Bradley testified on rebuttal that when he came upon the scene, he observed “two families or two groups of family and friends yelling at each other on behalf of who[m]ever they were with.” On appel
In explaining its verdict and the rejection of appellant’s self-defense claim, the trial court did not mention Officer Bradley’s testimony about the “other people” on appellant’s side and thus did not explicitly credit or discredit the officer’s testimony in this regard. As described above, the court emphasized that Powell’s side “had the numbers and they had the anger” and reasoned that if Officer Bradley had not arrived just before appellant spit on Powell, Powell and the group of people on his side “would have made good on some of th[e] threats” he had made to appellant and predictably would have “beat the S” out of appellant (a forecast of violence that was not entirely speculative given appellant’s testimony that sometime prior to this incident, Powell had “jumped [appellant’s] daughter”). The court did not consider, however, whether, in a context where appellant had a “few other people” on her side who were showing anger toward Powell, appellant could honestly and reasonably have believed that her act of spitting on Powell could serve as a deterrent to further violence by Powell or the people who were on his side.
To put it differently, even if appellant could not reasonably have thought that spitting would protect her in a situation where she was alone against Powell and his several family members, it is less dear that she could not reasonably have thought that spitting would protect her in the situation Officer Bradley described. And because all the evidence, and not just the defendant’s testimony, is relevant to a finding about what the defendant who asserts a claim of self-defense could reasonably have believed (and to an inference about what she actually did believe),
E.
The final observations I will make about the majority opinion are these: First, in focusing only on whether the defendant feared imminent bodily harm and whether she used excessive force, the majority opinion gives short shrift to the rule that, even as to non-deadly force, “[t]he right of self-defense is a law of necessity, arising only when the necessity begins, and equally ends with the necessity.”
. Travers v. United States, 124 A.3d 634, 639 (D.C. 2015) (quoting Edwards v. United States, 721 A.2d 938, 941 (D.C. 1998)).
. The police officer who responded to the scene testified that appellant “explained to me clearly that she wouldn’t just spit on him for no reason, that he spit on her first
. I do not mean to imply that appellant bore the burden to prove that she acted in self-defense. I agree with my colleagues that it was “the government’s burden to prove that she did not.” Ante, at 843 n.13 (majority opinion). However, in determining whether that burden was met, the trial court was entitled to consider all the evidence, including appellant's own testimony — -and glaring omissions in that testimony — about why she spit on Powell.
.Cf. Ewell v. Untied States, 72 A.3d 127, 128, 132 (D.C. 2013) (internal quotation marks omitted) (describing the defendant's testimony that he struck the complainant in the face because, after throwing a cup of vodka at him and hitting him in the mouth, she “ 'was still coming’ at him” and he feared she had a knife and might pull it out and stab him; remanding the case to the trial court for reconsideration of defendant’s self-defense claim, because the court had failed to account for the testimony "tending to show that appellant acted to protect himself”).
. The court's focus was not on (as the concurrence puts it) "how many elements of retributive anger” it takes to defeat a claim of self-defense. Ante, at 853 (concurring opinion). The issue the court resolved was whether appellant’s spitting on Powell was at all an effort to repel the attack that was threatened by Powell and the half-dozen members of his family who had approached appellant and were backing Powell up, or instead was merely appellant’s effort to satisfy her (admittedly understandable) desire for retribution.
. I suspect the trial judge would have had no trouble concluding that appellant had acted in self-defense if she had, for example, grabbed a stick and brandished it at Powell and his family members, or if she had pulled out a can of pepper spray and let them have it. Both of those actions are, at least arguably, more aggressive actions than spitting, and our public policy surely is not to encourage an escalation of aggressive conduct. But, as a policy matter reflected in the common law, we tolerate a victim’s violent actions designed to stop a first aggressor’s assaultive action, and do not tolerate a victim’s violent actions that amount to nothing more than tit-for-tat acts of retaliation (and that risk elevating the first aggressor’s threatening conduct). None of this is to say, of course, that spitting could never be a defensive act against a violent aggressor. As one court has explained, "[i]t is not difficult to imagine a scenario in which spitting could conceivably constitute a use of force in self-defense — for example, where a person who has been placed in a chokehold spits at the aggressor to get him to loosen his grip,” State v. Markou, No. 104,931, 255 P.3d 51, 2011 WL 2802408, *3, 2011 Kan. App. Unpub. LEXIS 505, at *6 (Kan, Ct. App. July 5, 2011).
. Like Travers, many of our cases articulate essentially the same state-of-mind standard in the context of a defendant’s use of deadly or potentially deadly force. See, e.g., Bassil v. United States, 147 A.3d 303, 306-07 (D.C. 2016) (explaining that the use of deadly force in self-defense is justified if the defendant “honestly believed she was in imminent danger of serious bodily harm or death, and that she needed to use deadly force to save herself from that danger" and if "both those beliefs were objectively reasonable under the circumstances” (italics and underscoring added)); Edwards v. United States, 721 A.2d 938, 941 (D.C. 1998) (“The defender must have believed that he was in imminent peril of death or serious bodily harm, and that his response was necessary to save himself therefrom. These beliefs must not only have been honestly entertained, but also objectively reasonable in light of the surrounding circumstances. It is clear that no less than a concurrence of these elements will suffice.” (quoting United States v. Peterson, 483 F.2d 1222, 1229 (D.C. Cir), cert. denied, 414 U.S. 1007, 94 S.Ct. 367, 38 L.Ed.2d 244 (1973) (footnote signals omitted, italics and underscoring added)); Harper v. United States, 608 A.2d 152, 155 (D.C. 1992) ("The defender must have believed that he [or she] was in imminent peril of death or serious bodily harm, and that his [or her] response was necessary to save himself [or herself] therefrom.” (italics and underscoring added) (quoting Peterson); see also Freeman v. United States, 912 A.2d 1213, 1220 (D.C. 2006) ("In order to raise a claim of self-defense, a defendant must show ... that his response was necessary to save himself from the danger.” (italics added) (citing Brown v. United States, 619 A.2d 1180, 1182 (D.C. 1992) (citing cases))).
. See Criminal Jury Instructions for the District of Columbia, No. 9.500 (5th ed. rev. 2016) (“Self Defense — General Considerations”), providing in pertinent part that ”[e]very person has the right to use a reasonably amount of force in self-defense if (1) s/he actually believes s/he is in imminent danger of bodily harm and if (2) s/he has reasonable grounds for that belief.”) (emphasis added); see also, e.g., Snell v. United States, 754 A.2d 289, 290 (D.C. 2000) ("Reasonable force may be used in self-defense if the actor reasonably believes that he or she is in imminent danger of bodily harm.” (emphasis added)).
. In my view, these are quite unremarkable propositions. My colleagues in the majority, too, recognize that what is "entirely congruent with [a] claim of self-defense” is action "to repel the reasonably perceived danger[.]” Ante, at 843 (majority opinion).
To be clear, I do not suggest that a person who uses force after being assaulted by an aggressor may not have a mixture of emotions, including emotions such as anger, hate, or indignation. Indeed, I expect that any person in that situation would be quite likely to have a mix of emotions. But to be entitled to the defense of self-defense, the person must have used force not purely as an expression of those emotions, but in an effort to repel the imminent danger of bodily harm. A person may use "reasonable force to repel the perceived attack,” Higgenbottom, 923 A.2d at 900 (emphasis added).
. I agree with my colleagues that "[t]he essence of the self-defense situation is a reasonable and bona fide belief of the imminence of ... bodily harm (emphasis added)," Kinard v. United States, 96 F.2d 522, 526 (D.C. Cir. 1938), but the fact that the situation was one that would have justified efforts at self-defense does not mean that the defendant actually acted in self-defense. I agree that "the threshold question for the fact finder is whether the government has disproved that the ‘appellant actually and reasonably believed that [s]he was in imminent danger of bodily harm[,]’ ” Higgenbottom, 923 A.2d at 900, but that threshold question is not the only relevant question.
.The court’s inquiry was consistent not only with our case law discussed supra, but also with a common-law principle that is over a century old. See, e.g., Lyons v. People, 137 Ill. 602, 27 N.E. 677, 682 (1891) (approving a self-defense instruction that told the jury, “It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears and not in a spirit of revenge”) (second set of italics added); Wortham v. State, 70 Ga. 336, 339 (1883) (explaining that for a homicide to be justifiable, “[i]t must appear that the circumstances were such as to excite the fears of a reasonable man; and it must also further appear that he acted under those fears, and not in a spirit of revenge”) (italics added). I also note that issues such as those we have had to consider in this case continue to be discussed in the academic literature. See, e.g., Stephanie Spies, Malice Aforethought and Self-Defense: Mutually Exclusive Mental States?, 91 N.Y.U. L. REV. 1027, 1046 (Oct. 2016) (discussing a category of cases finding retaliation/revenge and self-defense incompatible); see also Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 Utah L. Rev. 635 (1993).
. I note tangentially that I take no issue with the statement that “[i]n the heat of passion, a person may actually and reasonably believe something that seems unreasonable to a calm mind,” Criminal Jury Instructions for the District of Columbia, No. 9.501.C.
. Cf. Guillard, 596 A.2d at 63 (concluding that defendant was entitled to an instruction on self-defense, even though defendant himself denied ever striking the complaining witness, because other evidence, including testimony that the complainant was violent and aggressive and had thrown items at the defendant, "fairly raised the issue of self-defense”); Gray v. United States, 549 A.2d 347, 349 n.2 (D.C. 1988) ("[A] defendant is entitled upon request to an instruction on any issue fairly raised by the evidence, regardless of whether it is consistent with the defense theory of the case or the defendant’s testimony.”).
. This is not to agree with my colleagues’ assertion that "it is difficult if not impossible to accept that [appellant’s] he-spit-on-me-first statement alone establishes, beyond a reasonable doubt, that [appellant was motivated solely by a desire to impose 'street justice,’ ” Ante, at 843 (majority opinion). Rather, it is to acknowledge that sometimes a defendant may be less than fully articulate or less than candid about her reason for acting, and that the court must consider all the evidence, not just the defendant’s testimony, before drawing an inference about why she acted as she did.
.Contrary to the suggestion in the concurrence, I do not suggest that appellant’s weak response signaled that the she did not actually and reasonably believe that she was in imminent danger of bodily harm (and the trial court, which expressly found that appellant believed that she was in imminent danger of
.The court’s task on remand would include determining, in light of the officer's testimony about the presence of some of appellant’s family members on the scene, whether appellant's spitting on Powell "was too lame to evidence ... an attempt at self-protection,” ante, at 850 (concurring opinion), because it was not a proportionate reaction to the "very scary situation” she perceived from the "like eight people [on Powell’s side]” who "ap-proacbfed] [her] at one time.”
. Harper, 608 A.2d at 154 (D.C. 1992) (quoting United States v. Peterson, 483 F.2d 1222, 1229 (D.C. Cir.), cert. denied, 414 U.S. 1007, 94 S.Ct. 367, 38 L.Ed.2d 244 (1973)).
. State v. Ouellette, 37 A.3d 921, 926 n.2 (Me. 2012) ("Self-defense is defensive, not retaliatory: You may prevent an injury from being done by all proper means, but, when done, you cannot take redress into your own hands.” (internal quotation mark omitted)).
Opinion of the Court
Opinion for the court by Associate Judge Easterly.
Concurring opinion by Senior Judge Ferren at page 849.
Dissenting opinion by Associate Judge Thompson at page 855.
Tameka Parker appeals her conviction, following a bench trial, for simple assault.
We question whether the record evidence supports the trial court’s determination that Ms. Parker’s motivation was purely retributive, but ultimately conclude that the trial court erred as a matter of law in conducting a separate inquiry into Ms. Parker’s motive. Under the District’s long-standing common law test for self-defense, captured in our standard jury instructions, whether the government has disproved a claim of self-defense turns on two questions: (1) whether a defendant reasonably believed that she was in imminent danger of bodily harm (an inquiry that may be informed, among other things, by motive evidence presented by the government); and (2) if so, whether the force used was excessive. Motive is not separately and additionally considered as a basis for disproving a claim of self-defense. In this ease, the trial court found that Ms. Parker’s belief she was in imminent danger was reasonable and there was never an argument that her act of spitting on Mr. Powell constituted excessive force. As there was no basis for the trial court to reject Ms. Parker’s claim of self-defense, we reverse.
I. Facts
Early one evening in June 2014, Ms. Parker walked out of her home where she lived with her three children. She was about to get into a friend’s car, when she heard Mr. Powell
Mr. Powell’s mother crossed the street with him, and several of his brothers joined them on Ms. Parker’s property; the family surrounded her friend’s car and yelled insults at Ms. Parker. They called her a “dirty bitch” and accused her of being “hot,” ie., “working with the police.” “[T]here were a lot of them,” and Ms. Parker “fear[ed] for [her] life.”.
When he was less than two feet away from her, Mr. Powell spit in her face. Ms. Parker was “really was scared” once Mr. Powell spit on her, because she “didn’t know what he was going to do next.” She spit back.
At about that time, unbeknownst to Ms. Parker,
At trial, Mr. Powell did not testify and the government called only one witness, the arresting officer. Ms. Parker testified on her own behalf. Ms. Parker conceded that she spit on Mr. Powell but claimed she was acting in self-defense. On direct and cross-examination, Ms. Parker repeatedly testified that she was afraid of Mr. Powell. On direct, Ms. Parker was asked what she believed was going to happen at the time she spat back at Mr. Powell and she said, “I thought he was going to hit me, honestly that was the next thing. I was fearing for my life. ... I am scared for my life, like I didn’t know what they w[ere] going to do.” On cross-examination, she specifically denied being angry: “I wasn’t angry. I was scared for my life. ... I was more scared than anything.” In response to a followup question from the court — “Why is it that you spit in [Mr. Powell’s] face?” — she explained, as she had to the police officer, that she had spit on Mr. Powell “[b]ecause he came on my property and ... spit on me first.” Finally, on redirect, Ms. Parker once again explained why she had spit on Mr. Powell:
It was just that he spit in my face and I felt scared with the way they approached me that day. They approached me in a scary situation. I had a lot of people approach me at one time and I really did not know what I did or what I did wrong for him to say he was going to smack me and walk on to my property and then to spit in my face.
The government argued in closing that it had carried its burden to show that “the defendant was not in fear of imminent bodily harm which is the standard of self-defense.” Instead the government asserted that the evidence established that Ms. Parker was “very angry,” “indignant,” and “offended by what she states that the complainant did to her.” The government further asserted that Ms. Parker had not “expressed a fear of imminent bodily injury. What she has expressed is being angry at this complainant and not liking this complainant.” The government then highlighted Ms. Parker’s testimony that she had spit on Mr. Powell because he spit on her. The defense countered in its closing that there was “absolutely no reason or evidence to believe that Ms. Parker wasn’t afraid and, in fact, it is to the contrary.” “[T]here is evidence and there is testimony that she was actually afraid ... and that she had reasonable grounds for that belief.”
The trial court, after determining that Ms. Parker’s spitting was an assaultive act, rejected her claim of self-defense, but not on the ground urged by the government. Preliminarily, the court “instruct[ed] [it]self” on the law of self-defense and acknowledged that “every person has the right to use a reasonable amount of force in self-defense if one, she actually believes she is in imminent danger of bodily harm and if two, she has reasonable grounds for that belief.”
I conclude based on this record that Ms. Parker reasonably believed that she was in imminent danger of bodily harm. I think it is a very rich record with respect to her belief of imminent bodily harm and the reasonableness of that belief. She testified entirely credibly with no impeachment at all that amount- ■ ed to anything except a minor difference in recollection about exactly what the spacing of the complaining witness and Ms. Parker was, that she was walking out of her door to get into her friend’s car and as she was doing nothing more than walking to a car, Mr. Powell who was sitting nearby on his family’s porch said loudly enough for her to hear, I should go over there and smack the shit out of that bitch, and he then approached her walking across the street like he was going to fight her and he was backed up by his mother who was also saying aggressive things towards Ms. Parker. They were saying such things as, bitch, you hot, which meant that she was working with the police and, you want that smoke, which was a threat to shoot and he got right up in her face and she said, who you talking to, and he said, bitch, you, and she said, whatever, little boy, get out of my face, at which point he spit on her and a half a dozen members of his family were also approaching her and backing him up.
The court also “credit[ed] Ms. Parker’s testimony that she didn’t realize that Officer Bradley was there” and thus did not appreciate she could have asked him for help:
It is perfectly believable to me that with people shouting at each other, with her attention focused on what is going on and having been spit on, on having been threatened, on the mother coming across the street and yelling at her also on the back up of the relatives, that she is looking at all of that and everything else that is occurring is somewhere in the background noise and not quite registering for her. So, I don’t think that it detracts from her credibility that the officer was there and she could easily have turned to the officer and said, look what he did and then he would be prosecuted before me for assault instead of her. I accept Ms. Parker’s explanation that she was afraid even though she didn’t get in the car. It is her judgment whether she is at more risk in a confined space than she. is out in the open. She had family members to access to her as long as she was out in the open. I am not going to question that judgment and I don’t think it detracts from her testimony that she actually did fear that she was in imminent danger of bodily harm that she didn’t get into the car. That is a judgment that you make at the time and it was for her to make at that time.
Although the court found that Ms. Parker reasonably believed herself to be endangered by Mr.-Powell and his entourage, the court nonetheless concluded that Ms. Parker’s self-defense claim failed because of what it perceived to be Ms. Parker’s motive in responding to Mr. Powell:
It is [ejminently reasonable that with those threats and that expressed motivation and that backup she would feel herself in imminent danger and I find that she did, but in order for self-defense to apply she has to use a reasonable amount of force in self-defense.[8 ] Using*842 a reasonable amount of force is [not9 ] because she is angry or indignant or outraged or because of injustice, if somebody spits in your face[,] which is what he did, that person deserves to be spit on and should expect to be spit on, [but] that is not self-defense. That is spitting[,] but not for purposes of self-defense[,] and the government has proven on this record that the spitting occurred not for reasons of self-defense but for those other reasons. The government correctly argues that every time Ms. Parker is asked, why did you spit on him, the immediate answer is, because he spit on me, and that was said directly on the scene to the police officer. The answer to the same effect was indeed given to the prosecutor, I spit on him because he spit on me, and I directly asked, why did you spit on him. I spit in his face because he came on my property and he spit on me first and there is street justice in that. That is fíne in a sense, in a fairness sense and I will take account of sentencing time but it is not fine when it comes to the law of the District of Columbia because what could have been expected to happen next if that police officer had not been there was that Mr. Powell backed up by his family and surrounding Ms. Parker the way he was and having just been spat on would have made good on some of those threats, not the shoot you threat but the beat the [shit] part of the threat. They had the numbers and they had the anger and they had their expressed motivation.
The court concluded that “[f]or all th[e]se reasons ... the government ha[d] proved beyond a reasonable doubt that Ms. Parker committed the offense of simple assault and did not spit on Mr. Powell as an act of self-defense.”
II. Analysis
When a defendant “presentís] any evidence that she acted in self-defense,” the government assumes the burden of proving, beyond a reasonable doubt, that she did not. See Williams (Shirley) v. United States, 90 A.3d 1124, 1128 (D.C. 2014). In this ease, Ms. Parker argues that the government failed to present sufficient evidence that she did not act in self-defense when she spit on Mr. Powell. We review sufficiency of the evidence claims de novo. High v. United States, 128 A.3d 1017, 1020 (D.C. 2015),
Here, the trial court credited Ms. Parker’s testimony that she “was afraid,” and determined that she subjectively and reasonably believed that she was in imminent danger of bodily harm from Mr. Pow
As a preliminary matter, we question whether the record supports the court’s finding that Ms. Parker acted out of a purely retributive motive. See High, 128 A.3d at 1020 (noting that we defer to the trial court’s credibility determinations and findings of fact from a bench trial unless they are “plainly wrong or without evidence to support [them]” (alteration in original)). The government’s only witness, the arresting officer, could not testify to much more than the fact that he had seen Ms. Parker spit on Mr. Powell, and he did not attribute any emotion to her, much less describe her as being angry or indignant. For her part, Ms. Parker never indicated that she had the “street justice” motive that the court imputed to her. Moreover, she denied that she was angry, and she was not impeached on this point. In short, the record evidence was that Ms. Parker “was scared for her life” — the reasonable inference being that she acted upon her reasonable belief that she was in imminent danger.
The trial court’s contrary motive determination appears to be based entirely on Ms. Parker’s initial explanation to the police officer and her subsequent testimony in court that she spit on Mr. Powell because “he spit on me first.”
We are doubtful that Ms. Parker’s admissions that her action was responsive to Mr. Powell’s initial assault can carry the retributive meaning the court ascribed to them. It seems more likely that her statement to the police officer — who arrived in the midst of the incident and whom Ms. Parker did not see until he approached her to place her under arrest — was made to ensure that the officer understood the full sequence of events and, in particular, that she was not the first aggressor. Similarly, her response to the court’s “why” inquiry, taken in context of her previous and subsequent expressions of fear, seems more susceptible to a benign interpretation that is entirely congruent with her claim of self-defense: to repel the
We need not decide whether the trial court made a factfinding error, however, because the trial court’s focus on motive begs a more fundamental question of law: if the government fails to disprove that a defendant reasonably believed that she was in imminent danger of bodily harm,
“The essence of the self-defense situation is a reasonable and bona fide belief of the imminence of ... bodily harm.”
Every person has the right to use a reasonable amount of force in self-defense if (1) s/he actually believes s/he is in imminent danger of bodily harm and if (2) s/he has reasonable grounds for that belief. The question is not whether looking back on the incident you believe that the use of force was necessary. The question is whether [name of the defendant], under the circumstances as they appeared to him/her at the time of the incident, actually believed s/he was in imminent danger of bodily harm, and could reasonably hold that belief.
Criminal Jury Instructions for the District of Columbia, No. 9.500 (5th ed. rev. 2014) (“Self Defense — General Considerations”).
If there is evidence that the defendant actually and reasonably believed herself to be in imminent danger of bodily harm — i.e., if the government cannot prove beyond a reasonable doubt that the defendant did not have such a belief— the inquiry proceeds to the amount of force employed. A defendant may use “only reasonable force to repel the perceived attack.” Higgenbottom, 923 A.2d at 900. Or, rephrased in the context of the government’s burden of proof, “[i]n a situation where the evidence establishes that self-defense would otherwise be justified,”
[T]he claim of self-defense is not necessarily defeated if, for example, more knife blows than would have seemed necessary in cold blood are struck in the heat of passion generated by the unsought altercation. A belief which may be unreasonable in cold blood may be actually and reasonably entertained in the heat of passion.
Inge v. United States, 356 F.2d 345, 348 (D.C. Cir. 1966).
Under this construct — where the first inquiry is whether a defendant actually and reasonably believed she was in imminent danger of bodily harm and the second inquiry is whether, taking this belief into account, she employed excessive force — motive is not an additional, separate consideration.
To our knowledge, this court has never held that, despite evidence that the defendant actually and reasonably believed she was in imminent danger of bodily harm, her self-defense claim had been adequately disproved on the ground that the defendant had somehow set aside her belief and acted purely out of a different motive— e.g., anger or a desire for retribution. The government does not cite to any such case.
In Ms. Parker’s case, the trial court as the factfinder concluded that Ms. Parker
But instead of acquitting Ms. Parker, the trial court appeared to misuse the inquiry into whether Ms. Parker had used “a reasonable amount of force,” to circle back to Ms. Parker’s motive in responding Mr. Powell’s assault. It is correct that, in order for a factfinder to determine if a defendant employed excessive force, consideration should be given to whether a defendant subjectively perceived a need to employ such force to repel the threat. As explained above, however, this consideration of the defendant’s subjective perceptions is meant to expand the boundaries of what constitutes reasonable force, “by takfing] into account that the defendant was acting in the ‘heat of conflict.’ ” Williams, 90 A.3d at 1128. It is not meant to authorize a factfinder to separately assess a defendant’s motive in responding to a reasonably perceived threat to her safety.
Accordingly, we reaffirm that, when self-defense is raised, the proper inquiry with respect to a defendant’s mental state (which motive evidence may inform) is whether she subjectively (and reasonably) believed that she was in imminent danger of bodily harm. The government bears the burden to prove that a defendant did not hold such a belief. Where, as here, the government fails to meet that burden — i.e., where it cannot disprove that the defendant subjectively and reasonably believed she was in imminent danger of bodily harm — and also fails to show that the defendant employed excessive force, the defendant must prevail on her self-defense claim.
III. Conclusion
For the foregoing reasons, we reverse Ms. Parker’s conviction for simple assault.
So ordered.
Dissenting opinion by Associate Judge Phyllis D. Thompson.
. D.C. Code § 22-404 (a)(1) (2016 Supp.).
. For the narrative of the incident, we primarily rely on Ms. Parker’s testimony which the trial court credited in all material respects.
. Ms. Parker had no personal relationship with Mr. Powell, but, more than a year prior to this incident, he and Ms. Parker’s daughter had been romantically involved.
. She also threw an unopened can of soda into "the middle of the street,” without hitting Mr. Powell. She explained, "I didn't throw it at him exactly. I just threw it .... I don't know, I was scared.”
. Ms. Parker testified thatshe did not realize a police officer was on the scene until he walked up to her.
. According to the officer, by this time "[h]is family was out. Her family was out .... ”
. The court appeared to be reading verbatim from the standard jury instruction on "Self-Defense — General Considerations.” Criminal
. Here, it appears the court was referring to the standard jury instruction on “Self-Defense — Amount of Force Permissible.” Crimi
. It appears that either the court reporter failed to transcribe the word “not,” or that the trial court misspoke.
. Sufficiency claims implicate the Due Process Clause, which requires that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct 2781, 61 L.Ed.2d 560 (1979).
. The trial court and Ms. Parker herself described her response to her encounter with Mr. Powell in terms of fear. To clarify, fear is an emotion that is presumably often experienced by a person who has a right to defend herself. And evidence of fear will support a conclusion that that person actually and reasonably believed that she was in imminent danger of bodily harm. But if a person is confident in her ability to defend herself and does not feel afraid when she is placed in a situation where she actually and reasonably believes that she is in imminent danger of bodily harm, she would still have a right to act to prevent that harm and later claim self-defense.
. The government had highlighted this testimony for the court, but for the distinct purpose of proving that Ms. Parker did not subjectively believe she was in imminent danger of bodily harm. Although the government now seeks to defend the trial court’s separate motive analysis, it did not seek to rebut Ms. Parker’s claim of self-defense on this basis at trial.
. Our dissenting colleague asserts that the court’s statements "reflect a recognition that what was missing each time from appellant's explanation of why she spit on [Mr.] Powell was any statement to the effect that she spit on him in an effort to protect herself from harm.” Post, at 857 (dissenting opinion). But Ms. Parker repeatedly made it clear that she was afraid of Mr. Powell. And it was not Ms. Parker's burden to prove that she acted in self-defense; it was the government’s burden to prove that she did not.
. In Williams, we held that a defendant’s statement while holding a knife — “You think I’m crazy? I’m going to show you crazy”— was subject to at least "two reasonable interpretations”: (1) she was "letting others know whom she felt were out to do her harm that she was willing to defend herself, even so far as using the knife”; or (2) she was making a threat. Id. at 1129 n.6. And thus we held that the statement could not be relied upon by the government to carry its burden to disprove the defendant’s self-defense claim beyond a reasonable doubt. Id.
. Evidence that a defendant has mixed emotions, however, will not defeat a claim of self-defense. Again, the proper inquiry is whether the defendant believed she was in imminent danger, not whether she was or was not fearful. See supra note 11. Moreover, as humans rarely experience one emotion at a time, it is only to be expected that, in a situation where a person might need to act in self-defense, she will experience some mix of fear and anger or indignation or vindictiveness. Cf. Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921) (noting that as the common law of self-defense has evolved over time, "it has tended in the direction of rules consistent with human nature”). Thus, if the government could carry its burden to disprove a claim of self-defense simply by establishing that a defendant who actually and reasonably believed she was in imminent danger also experienced other emotions or had mixed motives, self-defense claims would be severely curtailed, if not eliminated entirely. See People v. Nguyen, 61 Cal.4th 1015, 191 Cal.Rptr.3d 182, 354 P.3d 90, 113 (2015) ("[I]t would be unreasonable to require an absence of any feeling other than fear, before [use of force] could be considered justifiable [self-defense].”); State v. Adviento, 319 P.3d 1131, 1157 (Haw. 2014) (observing that "actions taken in self-defense may indeed be committed while the defendant is subject to a certain degree of terror, resentment, rage or anger”); Wayne R. LaFave, Substantive Criminal Law § 10.4 (c) (2d ed.) (noting that a defendant acting in self-defense "does not lose the defense because [s]he acts with some less admirable motive in addition to that of defending [herjself,” as in a situation where the defendant also "us[es] force upon h[er] adversary because [s]he hates him”). In short, the government will prevail over a claim of self-defense only when it proves that the defendant did not reasonably believe that she was in imminent danger of bodily harm, see infra p. 863 — not when it proves the defendant reasonably experienced other emotions.
. The requisite level of reasonably perceived danger is different, depending on whether the defendant employed deadly or nondeadly force: "where an accused, claiming self-defense, uses deadly force, he must — at the time of the incident — actually believe and reasonably believe that he is in imminent peril of death or serious bodily harm; whereas one utilizing nondeadly force must show that he reasonably believed that [some] harm was imminent.” Ewell v. United States, 72 A.3d 127, 131 (D.C. 2013).
. Decisions of the D.C. Circuit prior to February 1, 1971, are binding on this court per M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).
. See also Kittle v. United States, 65 A.3d 1144, 1158 (D.C. 2013) (“To invoke self-defense, there must be some evidence that; ‘(1) [appellant] actually believed he was in imminent danger of bodily harm, and (2) he had reasonable grounds for that belief.’") (quoting Guillard v. United States, 596 A.2d 60, 63 (D.C. 1991)); Snell v. United States, 754 A.2d 289, 290 (D.C. 2000) ("Reasonable force may be used in self-defense if the actor reasonably believes that he or she is in imminent danger of bodily harm.”); McPhaul v. United States, 452 A.2d 371, 374 & n.2 (D.C. 1982) (upholding the instructions that "emphasized the general concept of the self-defense doctrine” and told the jury, inter alia, that the defendant had a right to act in self-defense if "one, he actually believes he is in imminent danger of bodily harm; and, two, if he has reasonable grounds for that belief”).
.Nearly identical standard instructions have been employed in the District since 1972. See Criminal Jury Instructions for the District of Columbia, No. 5.13 (2d ed, 1972) (“Self Defense — General Considerations”).
, See id. at 391 ("The right of self-defense, and especially the degree of force the victim is permitted to use to prevent bodily harm, is premised substantially on the victim’s own reasonable perceptions of what is happening.”).
. See also Brown, 256 U.S. at 343, 41 S.Ct. 501 (“Detached reflection cannot be demanded in the presence of an uplifted knife.”); Williams (Shirley), 90 A.3d at 1128 ("[T]he fact-finder must take into account that the defendant was acting in the ‘heat of the conflict.’ ”) (quoting Brown, 256 U.S. at 344, 41 S.Ct. 501); Perry v. United States, 422 F.2d 697, 698 (D.C. Cir. 1969) (citing Inge and reaffirming that the fact-finder must "consider ... whether the defender in the heat of an attack actually entertained a belief which would be unreasonable in one acting in cold blood”).
. There is an analogous instruction for use of deadly force. Criminal Jury Instructions for the District of Columbia, No. 9.501.B,
. Our colleague in dissent faults us for relying on "truncated discussions of the law of self-defense,” post, at 860 (dissenting opinion), but these discussions capture the operative core of our test for self-defense and fully align with our standard jury instructions.
By contrast, the dissent seeks to create a new, additional requirement that a defendant
All of the cases cited by our dissenting colleague that refer to "necessity” support this understanding of the law of self-defense. They discuss necessity either in the context of step one of our self-defense test, examining whether the defendant reasonably believed he was in imminent danger of bodily harm, see, e.g., Edwards v. United States, 721 A.2d 938, 941, 943 (D.C. 1998) (cited post, at 855 n.1 (dissenting opinion)), or in the context of step two of our self-defense test, examining whether the defendant employed excessive force, see Travers v. United States, 124 A.3d 634, 639 (2015); Higgenbottom, 923 A.2d at 900-01; McPhaul, 452 A,2d at 373 n.1. In addition, the dissent cites one case, Potter v. United States, 534 A.2d 943, 946 (D.C. 1987) (cited post, at 859 (dissenting opinion)), that does not reference "necessity” at all and conducts a step one analysis to conclude that a self-defense instruction should have been given, because a jury could have found that defendant "believe[d], reasonably, that he had to throw a brick to fend off imminent bodily harm.” The dissent cannot point to a single case where this court has indicated — much less held — that, even where a defendant actually and reasonably believed she was in imminent danger of bodily harm and employed a reasonable amount of force, the government may yet disprove a claim of self-defense on the ground that the defendant did not subjectively believe her use of force was "necessaty to save herself.” In short, the majority opinion is firmly grounded in the law of this jurisdiction; the dissent is not.
. In a circumstance where a person actually and reasonably believed that she was in imminent danger of bodily harm, it would be functionally impossible for the government to prove beyond a reasonable' doubt. that the defendant’s (actual and reasonable) belief was not, at the very least, a significant component of the motivation behind actions that the defendant took. Our dissenting colleague concedes the difficulty, post, at 860 (dissenting opinion), but does not address (on these facts or more generally) how a trial court could possibly determine that the government had proved beyond a reasonable doubt that a defendant, who actually and reasonably believed she was in imminent danger, had a different guiding motive, id.
. Conversely, if the defendant is shown not to have actually and subjectively believed that she was in imminent danger of bodily harm because the evidence establishes that the defendant acted solely out of anger or because she had an axe to grind, her self-defense claim would fail at the first step. See, e.g., Brown, 256 U.S. at 344, 41 S.Ct. 501 (noting that, where the defendant and decedent had a
. Of course, where the government proves beyond a reasonable doubt that the defendant was "the [first] aggressor” or "provoked the conflict upon herself,” the fact-finder need not even reach the core self-defense inquiry. See Criminal Jury Instructions for the District of Columbia, No. 9.504.A.
. In its brief, the government asserts that it was "permissibl[e]” for the trial court to determine that Ms. Parker’s "desire to retaliate against Mr. Powell for spitting on her first” overrode its determination that Ms. Parker subjectively and reasonably believed that she was in imminent danger of bodily harm. But the only authority from this court the government cites for this proposition is Medley v. United States, 104 A.3d 115 (D.C. 2014). In Medley, we adhered to Garibay and reaffirmed that motive evidence — in that case, "outrage” at the victim for giving drugs to the defendant's girlfriend — is admissible to negate a defendant's narrative that he was subjectively afraid. Id. at 129. We did not hold, or even suggest, that once the court had concluded that the defendant was subjectively afraid, such outrage could be independently considered to establish the defendant’s "true” motive.
The government also cites two unpublished decisions from the intermediate appellate court of Kansas (which have no precedential authority even in that jurisdiction and are not favored for citation under Kansas Supreme Court Rule 7.04 (f)) where spitting was found, based on the facts alleged, not to be an act of self-defense (while recognizing that there might be factual scenarios where it would be). But in each of these cases, the intermediate appellate court concluded that the evidence did not support a determination that the defendants subjectively and reasonably believed they were in danger of bodily harm. State v. White, No. 105488, 275 P.3d 931, 2012 WL 1649841, at *3 (Kan. Ct. App. May 4, 2012) (“There was no need for [defendant] to defend himself from any imminent use of unlawful force when he spit on [victim].”); State v. Markou, No. 104931, 255 P.3d 51, 2011 WL 2802408, at *2 (Kan. Ct. App. July 15, 2011) ("[Defendant’s spitting was not done in defense of any imminent use of unlawful force.”).
.See note 23 supra. Accordingly, our dissenting colleague’s assertion, post, at 863 (dissenting opinion), that we are somehow disregarding binding precedent in contravention of M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), is without foundation. The invocation of M.A.P. v. Ryan is especially confusing given our dissenting colleague’s concession that “until now” this court has never been confronted with a case where, as here, the question was "whether the defendant used force that was so predictably ineffectual as to not
. "Our cases upholding determinations of excessive force 'uniformly involve situations where the secondary, responsive aggression was completely disproportionate to the initial aggression faced.’ ” Williams, 90 A.3d at 1128 (quoting Gay v. United States, 12 A.3d 643, 649 (D.C. 2011)). The government never argued at trial that Ms. Parker’s act of spitting back was disproportionate to being spit upon. To the extent the government now suggests that the act of spitting is inherently intemperate and cannot be self-defense as a matter of law, this division unanimously disagrees. See post, at 858 n.6 (dissenting opinion). We see no reason why, when a defendant reasonably believes herself to be in imminent danger, spitting should be distinguished from other types of assaultive conduct, particularly when being spit on is part of the conduct that induces the defendant’s belief.
. Nor is our concern under the excessive force inquiry the use of too little force. One of the trial court's reasons for rejecting Ms. Parker’s claim of self-defense, seemingly embraced by our dissenting colleague, post, at 844 n.6 (dissenting opinion); see also id. at 861-63, was because, in the court’s view, Ms. Parker’s response was so ineffectual, it had no deterrent value and, had the police not been on site, was likely only to have only prompted a more severe response from Mr. Powell and his family. Again, we do not expect people to be purely rational actors in selecting the proper amount of force to use in response to a reasonably perceived threat to their safety, and we certainly have no desire to encourage individuals to make more aggressive showings of force to ensure they have a legal right to self-defense.
Reference
- Full Case Name
- Tameka PARKER, Appellant, v. UNITED STATES, Appellee
- Status
- Published