Justification: Performance of Duty

courtmartialdefenselawyers10.58.33 2A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful. R.C.M. 916(c).

Justification is raised only if the accused was performing a legal duty at the time of the offense. In United States v. Rockwood, 52 M.J. 98, 112 (1999), there was no performance of duty defense where neither international law nor television speech by the President imposed on the defendant a duty to inspect Haitian penitentiary for possible human rights violations. In United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993), the killing of a civilian may be justified by a mistake of fact as to victim’s identity.

In United States v. Reap, 43 M.J. 61 (C.A.A.F. 1995), the Court found that the naval custom of bartering goods from department to department in order to avoid delays, red tape, and technicalities incident to acquisition through regular supply channels, is not a defense to wrongful disposition of government property unless it rises to the level of a claim of authority or honest and reasonable mistaken belief of authority.