United States v. Peterson

483 F.2d 1222 (Cir. D.C. 1973).

Charged with second-degree murder and convicted of manslaughter. He appeals for instruction error


Was there sufficient evidence to remove the provided instructions?


The right of self-defense requires

  1. Necessity
  2. Proportional force

At issue is necessity which requires:

  1. An unlawful threat
  2. Reasonable belief of peril
  3. Response was necessary to save himself.

Is not present if they build the requirement for necessity out of own aggression or fail to flee if possible.


No error in making those instructions. Affirmed.


Victim approached the defendants car to take off the windshield wipers. The defendant came out of the house and yelled, went back inside, grabbed a gun, and went back outside. The victim was in his car, preparing to leave. The defendant then loaded the gun, yelled at him again (challenging him from his yard). The victim then got out of the car, yelled back, grabbed an iron, and approached the defendant. The defendant offered a verbal warning then fired when the person continued to approach.

He was convicted of manslaughter after the judge read an instruction to the jury telling them that if they found that the defendant had instigated the argument, then he was not able to use self-defense. Additionally, he should have fled.


For the first instruction, the court said that the defendant initiated the confrontation. He had come out of his house, went back into the apparent safety of the home and returned with a gun. Although words alone are not adequate provocation, these facts are sufficient. He instigated the confrontation.

For the second element, the defendant brought the argument that he does not need to flee because he is “entitled to his castle”. This argument is fair except that he had instigated the argument. For these reasons, he is not entitled to that doctrine and the judge was correct in reading the statement.

Additional Notes

The show defense there needs to be both a subjectively held belief and an objectively reasonable response.

Peterson’s defense is that he can’t be the aggressor because he was not the one who instigated the crime. This may have been true initially. However, the victim began to withdraw so he was no longer the aggressor. Then, Peterson becomes the aggressor because he comes out with the gun. He is the one who comes out with the gun.

How do you determine who is the aggressor?

  1. Provoke the conflict
  2. Precipitates the altercation
  3. One who is not free from fault
  4. The one who incites the fatal attack

With the retreat rule, traditionally, one must retreat if they can. The exception is that someone does not need to retreat if they are backed into a corner or if they are in their own home (castle doctrine). However, because he was the aggressor, he cannot claim the castle doctrine.


Retreat is only a requirement if there is a treat of deadly force and only if the defendant knows (subjectively) that they can retreat to complete safety.

Castle Doctrine is that one does not need to retreat if they are in their home. However, there is debate about whether this extends to the “curtilage” (property immediately surrounding the home).

Proportionality. A non-deadly attack cannot be escallated with deadly force. There is no degree of deadly force, it will either kill or it will not.

MPC 3.04


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Criminal Law

Will Laursen

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