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Forell on Self-Defense & Mistakes

By Lawrence Solum

Caroline Anne Forell (University of Oregon - School of Law) has posted What?s Reasonable?: Self-Defense and Mistake in Criminal and Tort Law (Lewis & Clark Law Review, Forthcoming) on SSRN. Here is the abstract:

A terrified homeowner, Rodney Peairs, killed a teenage boy, Yoshi Hattori, in a mistaken belief that deadly force was necessary to protect himself, his family and his home. What role should the reasonable person play when such a claim of self-defense based on mistake as to necessity of using deadly force is asserted in criminal and tort cases?

In this Article I use the State v. Peairs criminal and Hattori v. Peairs tort mistake-as-to-self-defense cases to illustrate why application of the reasonable person standard to the same set of facts in two areas of law can lead to different outcomes. These cases also highlight how fundamentally different the perception of what is reasonable can be in different cultures. I then question whether both criminal and tort law should continue to treat a reasonably mistaken belief that deadly force is necessary as justifiable self-defense. Based on the different purposes that tort and criminal law serve, I conclude that criminal law should retain this standard but that tort law should adopt a strict liability with comparative fault standard.

Full post as published by Legal Theory Blog on September 01, 2010 (boomark / email).