Government of the Virgin Islands v. Samuel Isaac

SCIRICA, Circuit Judge,

concurring.

It appears that in this type of case, in which the defendant used deadly force in response to an attack or threat by the victim, the Virgin Islands statutory scheme on culpability — particularly the defense of justification — renders a nullity the limitations contained in the defense of self-defense. Nevertheless, I agree that we must follow the statutory language and reverse.

Evidence that the victim was attempting to commit a felony, pursuant to the justification defense, seemingly would track the danger to life or great bodily harm requirement of self-defense.¹ Yet, self-defense requires that the defendant reasonably believe he was in “imminent or immediate danger of his life or great bodily harm” and that he not use more force than necessary, V.I.Code Ann. tit. 14, § 43 (1964). Because the broader justifiable homicide defense does not so require, id. §§ 927-28, the limitations on self-defense are left meaningless in this type of case. Although such a result seems incongruous, I am hesitant to write in these restrictions to the statutory definition of justifiable homicide. Instead, I believe these are policy decisions properly left to the legislature.²

1 . The court’s opinion suggests that a jury could find the victim here was attempting to commit a felony other than an attempt to murder or cause great bodily harm, such as an assault. Yet, the definitions of those assaults classified as felonies in the Virgin Islands Code bear a striking resemblance to attempts to murder or cause great bodily harm. See V.I.Code Arm. tit. 14, § 295 (1964) (defining assault in the first degree as requiring "intent to commit murder,” "intent to kill,” or intent to commit various other often-violent felonies); id. § 296 (defining assault in the second degree as attempts to injure by poisoning or disfiguring another); id. § 297 (Supp. 1993) (defining assault in the third degree as assaults, inter alia, with intent to commit a felony, or with a deadly weapon, or by means calculated to inflict great bodily harm, or which inflict serious bodily injury).

2 . See, e.g., Model Penal Code and Commentaries, art. 3 (Introduction), at 4 (1985) ("iT]here often was, and in some states there still is, internal inconsistency of policy, as when limitations on the privilege to kill in self-defense or in defense of others are nullified by the breadth of the justification recognized for crime prevention.”); see also id. § 3.04, at 34, 37.