Looking for Trouble: Framing and the Dignitary Interest in the Law of Self-Defense

Abstract

This article addresses when an actor can be denied a claim of self-defense based on the fact that, at an earlier point in time, she could have avoided the ultimate violent encounter in which she resorted to the use of lethal force. The article analyzes the issue as a problem of “framing,” relying on research from the area of cognitive psychology to point out the critical importance of the framing of an issue to its ultimate resolution. It then identifies a persistent error in the writing of many scholars about this problem. While most commentators assert that the law draws the frame narrowly and that defendants are never denied a claim of self-defense because of their failure to avoid a dangerous situation, they are wrong; a range of cases - both historical and contemporary - deny self-defense claims as a matter of law on the ground that the actor was “looking for trouble” and should have avoided the situation entirely. The article then argues that broadly framing the self-defense inquiry improperly encroaches on the actor’s fundamental right to freedom of choice and movement, defined as the actor’s dignitary interest. Not only does the broad frame impose liability on such an actor without reference to the actor’s culpability, but it permits the subjugation of that actor by a violent aggressor. The article concludes that broad framing impermissibly invades the actor’s dignitary interest.