I am working on a new edition of the self-defense book I wrote in 1996. As in the story of Rip Van Winkle, a lot has changed in twenty years. Most notably, the General Assembly adopted new statutes in 2011 on self-defense and related defenses. This blog post addresses one of those provisions, in G.S. 14-51.4, which disqualifies a person from relying on self-defense while committing, attempting to commit, or escaping from the commission of a felony. North Carolina appellate courts have not yet considered the meaning of this provision. Cf. State v. Rawlings, ___ N.C. App. ___, 762 S.E.2d 909 (2014) (felony disqualification did not apply to case in which defendant’s offense predated enactment of provision, and court expressed no opinion on proper construction of provision).
What felonies are disqualifiers? Interpreted literally, the language in G.S. 14-51.4 covers all felonies, regardless of the nature of the offense or its relationship to the incident in which the need for defensive force arose. To take an extreme example, a woman in possession of a little more than one and a half ounces of marijuana, a felony in North Carolina, could not rely on self-defense to justify the use of defensive force if her abusive boyfriend, for reasons unrelated to her marijuana possession, began to beat and threaten to kill her. Such a result would represent a drastic change to self-defense law in North Carolina and elsewhere, which provides for forfeiture of a person’s right to act in self-defense only when the person is “at fault” in some sense for bringing about the conflict. See John Rubin, The Law of Self-Defense in North Carolina § 2.1(b), at pp. 14–15 (UNC Sch. of Gov., 1996) (discussing underlying principles of self-defense).
The structure of G.S. 14-51.4 suggests that the General Assembly did not intend such a result and intended to retain a “fault” requirement, although not expressly stated in the statute. The statute contains two subsections. Subsection (1) contains the felony disqualifier. Subsection (2) contains the “aggressor” disqualifier, which provides that a person forfeits the right of self-defense (subject to certain exceptions) if he or she “provokes the use of force against himself or herself.” The aggressor doctrine has been the principal means by which North Carolina and other jurisdictions have expressed the concept that a person who is at fault in provoking an encounter generally loses the right to self-defense. The pairing of the felony and aggressor disqualifier provisions suggests that both are mechanisms for addressing the impact of fault in an encounter involving the use of defensive force.
Decisions from jurisdictions that have adopted crime disqualification language support this view. See 2 Wayne R. LaFave, Substantive Criminal Law § 10.4(e), at p. 154 & n.64 (2d ed. 2003) (identifying jurisdictions). For example, Indiana’s self-defense statutes state that a person is not justified in using defensive force while committing or escaping after the commission of a crime. The Indiana Supreme Court rejected a literal application of this exception, finding that such an interpretation “would nullify claims for self-defense in a variety of circumstances and produce absurd results in the process.” Mayes v. State, 744 N.E.2d 390, 393–94 (Ind. 2001). The Court found that its legislature “could not have intended that a defense so engrained in the jurisprudence of this State be dependent upon . . . happenstance . . . .”
We conclude that because a defendant is committing a crime at the time he is allegedly defending himself is not sufficient standing alone to deprive the defendant of the defense of self-defense. Rather, there must be an immediate causal connection between the crime and the confrontation. Stated differently, the evidence must show that but for the defendant committing a crime, the confrontation resulting in injury to the victim would not have occurred.
Florida and a few other states provide that self-defense is unavailable during the commission of a “forcible felony,” defined by Florida statute to include certain dangerous felonies such as robbery, burglary, and any other felony that involves the use or threat of physical force or violence against any individual. Florida’s courts have recognized the explicit limits of this provision, holding that the right of self-defense is only lost during the commission of one of the enumerated felonies or a felony that has as an element the use or threat of physical force or violence. Perkins v. State, 576 So. 2d 1310, 1313 (Fla. 1991). The concurring opinion in Perkins observed further that a broader disqualification would violate a defendant’s state constitutional rights in two respects. First, it would violate a defendant’s fundamental right to defend his or her life and liberty in court by asserting a reasonable defense. Second, it would violate the fundamental right to meet force with force in the field when attacked illegally and without justification, the “right to life itself.” 576 So. 2d at 1314. The concurrence observed that the State has a compelling interest in disallowing the use of self-defense only when “a person’s own unprovoked, aggressive, and felonious acts set in motion an unbroken chain of events leading to a killing or other injury.” Id.
The foregoing suggests that the felony disqualification statute in North Carolina contains some causation limitation, which would bring it more in line with North Carolina’s established law on aggressors. The exact nature of the limitation will depend on further appellate interpretation.
How should trial judges handle the matter? The felony disqualification statute affects how trial judges instruct the jury on self-defense. In the absence of any North Carolina appellate opinions so far, the pattern jury instructions track the language of the statute. The instruction is to be given to the jury in cases in which the evidence shows that the defendant engaged in a disqualifying felony. See, e.g., N.C.P.I.—Crim. 2016.10 at p. 4 n.6 (June 2014) (first-degree murder). If a causal connection is a required part of the felony disqualifier, additional language may be necessary. The Indiana courts have found it to be reversible error for jury instructions to include a blanket statement that one committing a crime may not assert self-defense; the instructions should indicate that a defendant “may not be precluded from asserting the defense of self-defense if there is no immediate causal connection between his or her crime and the confrontation which occasioned the use of force.” Smith v. State, 777 N.E.2d 32, 36 (Ind. Ct. App. 2002); accord Fuentes v. State, 952 N.E.2d 275 (Ind. Ct. App. 2011). The Indiana courts have found that the failure to include such language may not be error, however, if not specifically requested. See Smith, 777 N.E.2d at 36.
It also may be inappropriate for trial judges to instruct the jury about the felony disqualification if the evidence doesn’t show that the felony had a causal relationship to the conflict. The North Carolina courts have consistently held that it is error to instruct on the aggressor doctrine, which likewise disqualifies a defendant from asserting self-defense, unless there is evidence that the defendant was the initial aggressor. See, e.g., State v. Juarez, ___ N.C. App. ___, 777 S.E.2d 325, 332 (2015) (citing principle and cases), review granted, ___ N.C. ___, 781 S.E.2d 473 (2016).
Is imperfect self-defense still available against a murder charge? Yes, it appears so. The felony and aggressor provisions in G.S. 14-51.4 disqualify a person from relying on the “justification” defenses in G.S. 14-51.2 and G.S. 14-51.3. Those two statutes describe the circumstances in which the defendant is entitled to acquittal when defending his or her home and other interests, himself or herself, and other people. Satisfaction of those circumstances constitutes “perfect” self-defense and “justifies” the defendant’s conduct. Imperfect self-defense, although a variation of self-defense, reduces murder to voluntary manslaughter, does not result in acquittal, and is typically not considered a justification defense. The statutory disqualification for commission of a felony therefore does not appear to deprive a defendant of imperfect self-defense.
The pattern jury instructions appear to recognize this result. The felony disqualification is included in the portion of the instructions addressing the defendant’s right to engage in perfect self-defense; it is not included as basis for precluding a defendant from reducing murder to voluntary manslaughter. See N.C.P.I—Crim. 206.10 at pp. 10–11 (June 2014) (stating that jury may return verdict of voluntary manslaughter if the defendant kills in self-defense but was the aggressor without murderous intent or used excessive force). This result is also consistent with existing self-defense law. If a person provokes a conflict by an action that is not life threatening, whether or not the action is a felony, the person is considered an aggressor without murderous intent and may rely on imperfect self-defense against a murder charge. See John Rubin, The Law of Self Defense § 3.3(d), at pp. 71–72.
Commission of a disqualifying felony would, however, preclude a defendant from asserting self-defense against an assault charge. The reason is that North Carolina law does not recognize imperfect self-defense against charges other than murder. Consequently, if the defendant is charged with an assault and does not meet the requirements for perfect self-defense—by having committed a disqualifying felony, among other things—the defendant loses all rights to self-defense.