Cert Petition Highlight: The Fundamentality of a Self-Defense Exception

  • Date:
  • March 24th, 2021

By: Jacob Charles

In a really interesting cert petition filed last week, the petitioner challenges a state court’s refusal to give a jury instruction on self-defense as violating federal law. In Keahey v. Marquis, this question involves the interplay between the Antiterrorism and Effective Death Penalty Act, which governs (among other things) arguments that a prisoner’s rights were violated in a state trial, and the Sixth, Fourteenth, and even Second Amendments. The appeal is from a Sixth Circuit opinion by Judge Jeffrey Sutton concluding that the Supreme Court has never squarely established a federal right to a self-defense instruction and denying relief.

The underlying case involved a melee between petitioner Keahey and a man named Hampton. The stories differ among participants and parties, but all seemed to agree that Hampton had stabbed Keahey two weeks prior to the event in question. On the day of the event, Hampton appeared unexpectedly at a location where Keahey was picking up his kids. Keahey claimed that Hampton charged at him with a knife, and then later pulled out a gun to shoot at him. Prosecutors claimed that Keahey started shooting at Hampton to retaliate for the prior stabbing. The trial court refused to give a self-defense instruction on the grounds that Keahey started the fight and that he did not retreat from the fight before shooting. (Note that at least part of the court’s refusal to give the instruction was based on the notion that Keahey did not retreat. Ohio recently changed its self-defense law, adopting a stand-your-ground regime that does not require retreat, so this factor would no longer be relevant in Keahey’s case.) The jury convicted Keahey of attempted murder.

Keahey exhausted his state court appeals, which were unsuccessful, before filing for habeas relief in federal court. To merit habeas relief, a state petitioner has to show (among other things) that a state court ruling was “contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.” The Sixth Circuit ultimately affirmed his convictions after concluding that (in the words of the cert petition) “there was no clearly established law involving a self-defense instruction so the state appellate court’s decision could not have contradicted or unreasonably applied [the Supreme] Court’s precedent.” The court also (again in the words of the petition) concluded that “the Constitution does not safeguard the right to assert self-defense as a defense to a criminal prosecution.”

The cert petition contends that the case merits Supreme Court review because the Sixth Circuit’s decision created a circuit split with two other circuits, the Second and Ninth. Focusing on history and the Second Amendment, the petition goes on:

The Sixth Circuit’s holding could render the Second Amendment’s right to self-defense meaningless whenever a citizen actually exercises that right to protect himself. This flouts the Second and Sixth Amendments, this Court’s precedent, and history which all confirm the right to exercise self-defense and then assert it as a defense to a criminal prosecution is safeguarded by the Constitution.

One key issue is whether the Supreme Court has held or implied a fundamental federal right to a self-defense instruction. The Sixth Circuit considered the state court’s failure (to the extent there was one) to be a failure to follow state law, which does not merit habeas relief. Keahey, on the other hand, argues that Supreme Court precedent and history show that a self-defense instruction is a federal right because it did not allow him to present a complete defense. As he says, “[t]he historical record and early case law confirm that self-defense and having a jury weigh the merits of that defense rank as fundamental.” He describes a self-defense instruction as an integral component of the Second Amendment. (Eric Ruben has written persuasively about the ways that Heller’s discussion of self-defense doesn’t exactly map onto traditional self-defense doctrine.)