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

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

  1. aussie says:

    The “intruder” was no danger to him though. He could and should have used his phoned to call for help (police, security, resident houseboy etc) and call out “stay where you are or I’ll shoot”.

    Well maybe he did but she didn’t think he’d really do it.

    An intruder with a gun would have gone to the bedroom and threatened him with it, not locked himself into the toilet.

    He shot from anger. Or maybe he shot hoping to shoot out the lock. Once she was injured she could not be allowed to live. Same reason as Trayvon had to die …. to leave only one side of the story alive.

  2. fauxmccoy says:

    i struggle with serious ambivalence over this case and i do not mind stating why.

    in my own personal experience, i loved living in san francisco in the 80s, even more so in the low rent part of town (the mission district). i was 5’10”, strong, throwing produce cases for a living, and generally had my produce knife on me. i felt quite capable of either escaping danger and/or defending myself, both of which i did with relative frequency. i moved back to my hometown in far northern CA in ’95.

    i went on a business trip for the natural foods coop industry a few years later but was 7 months pregnant. now, i do not consider a normal pregnancy to be a disability, i certainly noticed a feeling of vulnerability in the mission district that i had never experienced before and it really threw me off guard.

    now that i am disabled, i find it very difficult to walk the streets that were once home and especially if i had my children in tow. i simply do not enjoy it which makes me sad.

    my other experience is with two korean war vets who were my dad’s best friends growing up. both came home from korea as paraplegics. interesting side note, one of them even gold medaled in the paralympics just after i was born in ’64. we lived in southern california at the time and both of these guys who i called ‘uncle’ were specifically targeted for robberies and home invasions. my ‘uncle dean’, the archery gold medalist, was attacked brutally in his home, tied to a chair, was beaten mercilessly and watched helplessly as his valuables (including his wheelchair!) were stolen from him. it took him hours to be able rock the chair until it fell to the ground, loosen the ropes from the chair and then crawl to a phone.

    i know that these guys who were strong, brave, capable men experienced extreme vulnerability due to their obvious disability. i now share a portion of that with them, although to an untrained eye, i do not appear disabled. all three of us had/have PTSD as well.

    if one has never experienced such disability it would be almost impossible to understand the daily fear that never leaves. it messes with your mind. to a large extent, i can understand pistorius’ actions, especially when i hear my girlfriend discuss every day life in south africa.

    that said, i think pistorius is a prick and thoroughly unlikeable. i am glad i am not in any position to pass judgement on this case, but i am expecting a verdict of manslaughter.

    • Malisha says:

      I just can’t go with the “fear” explanation and I don’t believe disability has anything to do with it. “Fear” is what gave Fogen the right to kill Trayvon Martin. “Fear” is with us all and yes, it is with the physically less domineering to a greater extent than the physically more domineering, obviously. But I don’t even think it is a factor in the Pistorius case.

      Crime, crime, crime, everybody imagines that the presence or even the ever-presence of crime is the reason for killing people. But really, what does that say? It says that a person’s fears can justify them hurting others to comfort themselves! If so, why do we even bother putting women on trial who kill their husbands or their boyfriends? Nearly ALL women have reason to fear angry men and if any woman has a husband or boyfriend, there’s going to be a day when that man feels angry.

      Either we have to expect people to manage their own fears or we should REALLY allow killing whenever ANYBODY feels fear. Only excusing killing for the famous, rich, or white scared folks is not equality. Let’s all get a free-card when we’re afraid.

      • fauxmccoy says:

        malisha — when you are unable to walk or know that you cannot rescue your own children from a burning building because of disability, i would be willing to give your point more credence. these are pervasive, encompassing fears that i live with every single day.

        if you have not experienced it, you can not possibly know. disability especially combined with PTSD is no picnic and has nothing to do with zimmerman and his asinine life choices.

        • bettykath says:

          I think I understand. You feel vulnerable because you are. Those who are looking for victims don’t look for the hale and hearty who can whip their axx, they look for those they expect to overwhelm with the greatest of ease.

          I accept that OP felt vulnerable, but I also accept that he had a temper and was irresponsible in his use of guns. I didn’t hear the prosecution’s case. I agree that if he knew the person in the toilet was Reeva, it was murder. If he didn’t know, it was manslaughter. No way he should be acquitted.

          • bettykath says:

            A thought I forgot to mention. It doesn’t matter that you don’t appear to be vulnerable. Even if your disability isn’t obvious to others, If you know that you have a disability that will prevent you from defending yourself, you feel vulnerable. I’ve had to admit to a certain vulnerability b/c I’m less agile than I used to be and I’m pretty much defenseless if I’m knocked down. I now take more care in where I go. For me it’s not fear, it’s common sense self defense.

          • fauxmccoy says:

            you’ve got it, bettykath. the whole enchilada, so to speak. anyone who has helped their own parents into old age has probably seen them lose confidence in their ability to navigate the world as their health and mobility decline. sadly, this is what makes the elderly and the disabled ‘low hanging fruit’ to others with criminal intentions.

            i am in no way defending pistorius, but he was a very public figure, wealthy way beyond the imagination of the average south african and every body knew that he had no legs below his knees. i can clearly see how this would make him feel vulnerable and a potential target.

          • Not sure, but I don’t believe that he ever claimed that he felt vulnerable.

            Instead, he seems to have turned his disability into a strength and celebrated his triumph.

          • fauxmccoy says:

            he did, fred and his actions demonstrated as much, at least to my somewhat trained eye.

            what really stood out for me is that he never removed his prostheses except to sleep. this is unhealthy in many ways. it is not good for his stumps, it creates sores and agitation to have no exposure to air. he never wanted to be seen without his prostheses and even hid them when he changed them out for his running blades.

            even witnesses for the prosecution confirmed that he never relaxed in his own home enough to remove his prostheses, but only to sleep. this is not enough time for his stumps to have full circulation, fresh air and the environment harbors bacteria. sorry, this all tells me a lot in addition to other mannerisms.

            http://www.merckmanuals.com/home/special_subjects/limb_prosthetics/skin_care_for_amputees.html

          • If I were a right-wing wacko, I would now call you a bunch of names because you dared to disagree.

            Instead, I will thank you for showing me a different way to look at the situation

            Thanks.

            🙂

            Doesn’t change my conclusions, but I do have a better understanding of him.

          • fauxmccoy says:

            well i sure am glad that neither of us are right wing wackos 🙂 left wing wackos, highly possible though.

            i simply cannot help but to advocate for the disabled, i was taught this from birth, in the laps of my uncles. this feature was only slightly enhanced by becoming disabled myself at the age of 40.

            i think pistorius is in the bastardized words of lionel richie

            ‘once, twice, three times an asshole’

            but i have empathy as well and believe that i understand a portion of what lies beneath some of his warped thinking.

          • fauxmccoy says:

            another link — because i can only put one in per comment. this involves care of the stump. he often had sores and other skin issues because he was an athlete and he wore the prostheses almost constantly. i believe this is out of fear — i have seen similar issues with the paraplegics i loved enough to call ‘uncle’. also, remember that my mom is a rehab nurse, i’ve been schooled quite heavily in these kinds of things.

            http://www.amputee-coalition.org/inmotion/may_jun_08/taking_care_your_limb.html

          • fauxmccoy says:

            thanks, bettykath. i think you get it about the vulnerability part and it does not just relate to crime — as i say, it impacts my ability to protect my children, perform routine household chores without injury, and accomplishing what most folks would consider a simple task such as showering and washing my hair or merely walking down a crowded street. there is real fear attached to all of these.

            i completely agree with your assessment of pistorius as well. as a gun owner myself, i am appalled at his previous conduct with firearms. he routinely displayed wanton recklessness and i find that disgusting. as i said above, i perceive him as a complete prick, unlikeable and a hothead.

        • Malisha says:

          I want to emphasize that I wasn’t addressing the fact that you, who lack the mobility and strength, obviously feel more afraid than someone like Fogen or Pistorius. I was saying that these gunlovers are not acting out of fear. They are using fear for an excuse. We all live with fear and those of us who can’t move around, obviously more so — I didn’t mean to minimize that. What I was saying was that I don’t believe Fogen’s or Pistorius’s fear were the issues. These very aggressive “fearful” people are armed and dangerous.

    • I agree that the most likely verdict is manslaughter, although I think he lied when he said he thought he was shooting at an intruder.

      • MKX says:

        Does South Africa have something akin to castle doctrine?

        If they do, then accepting that Pistorius thought there was an intruder means that the intruder was in his home, thus allowing the intruder to be shot based on how the law applies in most of the USA.

        IMO, Pistorius is a liar.

        Just like Zimmerman and Dunne, a creep looking for any excuse whatsoever to absolve himself of acts he does because he can not control his petulant rage.

        So I hope and pray that he is found guilty of murder.

  3. Malisha says:

    Sorry, OT, but I’m re-posting this from the Todd Akin thread:

    He said a woman couldn’t get pregnant while being legitimately raped because if you google “stress” and “pregnancy” you will see that it’s harder for a woman to get pregnant when she’s stressed.

    So a woman cannot get pregnant when:

    (a) She needs dental work and has no money for it;
    (b) She started dating this guy but thinks she made a mistake;
    (c) She really REALLY wants to be in bed with Fogen but isn’t;
    (d) She’s been trying to get pregnant for two years but can’t;
    (e) There’s a nodule on her lung but it’s only a 15% chance of being malignant;
    (f) Her boss is going to go over that last proposal with a fine-tooth comb;
    (g) She’s figured out her husband is cheating;
    (h) Her daughter’s being bullied at school;
    (i) She has to deal with the insurance company because some asshole put a ding in her car;
    (j) there’s global warming;
    (k) there’s no peace in the middle East;
    (l) She’s been sober for 14 months in a 12-step program but feels kinda shaky now;
    (m) The baby did not get into that really good preschool;
    (n) Last time the computer crashed a banner came up that said, “Your kingdom has been weighed in the balances of the Lord and found lacking”;
    (o) She can’t remember where she put the GPS charger;
    (p) the cat barfed;
    (q) She thinks someone wrinkled their nose at her in the grocery store so maybe her deodorant isn’t working;
    (r) she’s mad as hell and isn’t going to take it any more;
    (s) she believes the guy who had sex in the office on top of the desk is going to get the promotion she should get;
    (t) the five-dollar coupon she printed right off-line yesterday was rejected because it was “expired” and when she showed that she had just that day printed it out they refused to honor it anyway adn there was a long line;
    (u) she found out that her favorite charity was a scam;
    (v) she had ENRON stock; (w) she and Oscar Pistorius had generalized anxiety disorder;
    (x) her lover’s no good in bed;
    (y) she might have accidentally killed her sour-dough starter; or
    (z) She believes she accidentally voted for Akin.

  4. ay2z says:

    And there is more from UK telegraph tonight, claiming that Pistorius was drunk and aggressive. Who knows, someone should keep a tight rein on him so he can’t be accused of this, or can’t get into it.

    http://www.telegraph.co.uk/news/worldnews/oscar-pistorius/10967355/Oscar-Pistorius-gets-into-fight-at-nightclub.html

    I thought he had a big PR team behind him, if he needs to unwind, they might have a bash in private so he can tie one on.

    • Malisha says:

      Apparently that nightclub openly declares itself to be the most ostentatious venue in Jo’burg. Hello, Hello, is this the place for the heartbroken love-starved remorseful hero to be spending his time? Hello! The Sandton Nightclub is all about money and conspicuous consumption, including alcohol. Either Pistorius has no handlers, or he has mentally deficient handlers, or he disobeys his handlers.

  5. Malisha says:

    Oh gag me with a spoon!
    Love, pain and the meaning of life!

    http://www.latimes.com/world/africa/la-fg-oscar-pistorius-tweets-20140714-story.html

    Should be a new form of social media: barftweets. “BFTWTS” for short.

  6. Malisha says:

    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.

    You mean manslaughter rather than acquittal, right?

    • No, I’m saying an acquittal is not in the cards because,

      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.

      In other words, she will convict him of murder, if she decides he knew Reeva was in the toilet stall. If she decides he believed an intruder was behind the door, she will convict him of manslaughter rather than murder because he recklessly decided to shoot through the door before he was in imminent danger of death or serious injury.

      • Malisha says:

        Oh now I get it. I thought you meant if he KNEW it was Reeva, it could be murder (planned) or manslaughter (had a temper tantrum) but if she believes the “intruder” story it could be manslaughter (shot without provocation or need) instead of acquttal (of course he would shoot a barrage of bullets like a scene out of a WWII movie; he was threatened with imminent death and mayhem and even insult). I get it.

  7. MKX says:

    I absolutely reject that it was reasonable for him to fear for his life based in his handicap. There is a reason they called a gun the great equalizer back in the Old West.

    The same logic should have applied to Zimmerman.

    And I think laws pertaining to use of guns need to be changed or given a more reasonable interpretation here in the USA.

    If you are carrying a gun, there is no fear for your life with respect to another person who has no gun, unless you can prove that they attacked you out of the blue.

    Otherwise, a gun carrier can do acts that cause a response and then claim self defense.

    And that is exactly how the Reich Wing, sissy, bullies want the law interpreted.

    • Malisha says:

      Agree completely. Remember, the reason each of these gun-owners originally gave for getting guns and permits was “self defense” and they trained for “self defense.” Thus they had a clear edge on the rest of us, who are not as “defensive.”

      They don’t fear as much. But they’re more aggressive. If I hear noises at night and I do NOT have a gun, I have reason to fear. If I have a gun, I have a method of protection so that after I dial 911 (or whatever you dial in South Africa), I can wait quietly with my gun in my hand, secure in the knowledge that I can defend myself. I don’t have to shoot through a toilet door.

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