USE OF FORCE IN DEFENSE

1. USE OF FORCE IN DEFENSE by Bill Filmore Chief Assistant District Attorney 33rd Judicial Circuit dalegenevada.org

2. CURRENT LAW • 13A-3-23 USE OF FORCE IN DEFENSE OF A PERSON • (a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose.

3. Self-Defense Law • This section codifies (puts in a legal statute – not just case law) much of the contemporary doctrine of self-defense and protection of others.

4. Section 13A-3-23(a) (Con’t) • A person may use deadly physical force if the actor reasonably believes that such other person is: • (1) Using or about to use unlawful deadly physical force; or • (2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; or • (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape or forcible sodomy.

5. Force Necessary • There are two types of force involved: • Ordinary physical force and “deadly physical force”, i.e., readily capable of causing death or serious physical injury. • The section recognizes the opinion justifying one to whom it reasonably appears that he is imminently threatened with violence or actually attacked, to ward off his attacker with a counter-force which reasonably appears to be necessary under the circumstances.

6. Imminent Danger • Danger, or apparent danger, must be present, not prospective, not even in the near future. Human life must not be sacrificed under the apprehension of a prospective probable danger even in the near future.

7. Actual imminent peril • Apparent imminent peril means that the circumstances and conditions perceived by the accused at the time he did the homicidal act were such as would have reasonably impressed a reasonable person that the accused was in danger of immediately being killed or seriously harmed in body by the deceased; and that the accused honestly believed himself to be in such danger.

8. Honest Belief • A merely “honest belief, unless a reasonable one, that the killing was necessary, will not make it justifiable. • It is not an honest, but a reasonable belief, that justifies. • An honest belief may not be a reasonable belief; it may be the offspring of fear, alarm or cowardice, or it may be the result of careless and irrationality.

9. Justifies Homicide • A reasonable belief, honestly entertained, generated by circumstances fairly creating it will justify a homicide; • But not an irrational belief, however honest it may be.

10. Fear of an attack • The mere fear of an attack will not justify action on the part of the defendant; and he cannot avail himself of communicated threats until he first shows some overt act or hostile demonstration on the part of the deceased which would be calculated to reasonably impress upon him the bona fide belief that he was in imminent peril.

11. REASONABLY BELIEVES • The test “reasonably believes” shifts the emphasis to defendant’s reliance upon reasonable appearances, rather than expose him to the peril of defending himself where appearances were deceiving and there was no actual imminent danger. • The question is not merely what the defendant believed, but also, what did he have the right to believe.

12. Section 13A-3-23(b) (Con’t) • (b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety: • (1) By retreating, except that the actor is not required to retreat: • a. If he is in his dwelling or at his place of work and was not the original aggressor; or • b. If he is a peace officer or a private person lawfully assisting a peace officer at his direction.

13. Section (b) (1) Comment • Section (b) further qualifies the use of deadly force. If the defendant can avoid the necessity of taking life by retreating, in general he must give way. • Where defendant claims use of deadly physical force was in self-defense, the onus rests on him to show that he could not safely retreat without increasing or apparently increasing his peril.

14. Burden on Defendant • In the absence of evidence indicating both that the defendant was in actual or apparent imminent peril and was unable to retreat, it is assumed that she was not in such peril and was able to retreat; thus, the defendant has the burden of producing evidence warranting both of such findings and the discharge of that burden is one of the conditions precedent to a jury instruction on self-defense.

15. Section (b) (1) b. Comment • There is no requirement to give way in the face of a forceful attack is placed upon either an officer of the law or another that is lawfully assisting such an officer, for the officer is under an affirmative duty and he may call upon private persons to assist him. • Private person acting under police orders apparently lawful are not guilty of assaults.

16. Section 13A-3-23(c) (Con’t) • (c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if: • (1) With intent to cause physical injury or death to another person, he provoked the use of unlawful physical force by such other person; or • (2) He was the initial aggressor, except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or • (3) The physical force involved was the product of a combat by agreement not specifically authorized by law.

17. Subsection (c) Comment • (c) (1) and (c) (2) continue the policy that one who claims justification in the use of force must not have brought on the necessity of using it; he must have been entirely free from fault. • The usual exception to this requirement is recognized: the initial aggressor may “effectively” withdraw and be restored to his position of defense while the erstwhile victim assumes the role of aggressor.

18. Subsection (c) (3) Comment • (c) (3) recognizes a limitation on consensual assaults. • A prearranged fist fight will not justify the use of force by the defendant which ultimately leads him to claim self-defense. • Neither of the mutually consenting combatants can set up self-defense.

19. NEW LAW Effective June 1, 2006

20. What new law does… • The law expands the circumstances under which a person could use deadly force in self-defense of defense of other persons. • The law makes legal presumptions that a person is justified in using deadly force against an aggressor and would not be required to retreat from an aggressor intruding in a dwelling, residence, or vehicle.

21. New law continued • The new law provides immunity from criminal prosecution and civil action for persons justified in using defensive force against an aggressor, and would allow a court to award certain fees, expenses, and compensation for persons immune from civil action.

22. Public banner on topic… • License to murder, shoot first law, stand your ground law… • People in jail for self-defense that should not be? • Something wrong with current law? • Election year, NRA lobby? • DA’s Association opposed…does it lower crime? Hillman’s statement. • Does it make law enforcement more difficult? • Adds a defense to criminal trials.

23. Section 13A-3-23 Changed • Section 13A-3-23 (b) has been deleted and in its place a new (4) has been added to 13A-3-23 (a)

24. New (4) • (4) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring. The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if:

25. New (4) a. • a. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; [or]

26. New (4) b. • b. The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; [or]

27. New (4) c. • c. The person who used defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

28. New (4) d. • d. The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.

29. New Section 13A-3-23 (b) • (b) A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.

30. New Section 13A-3-23 (d) • (d) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.

31. New Section 13A-3-23 (e) • (e) A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.

32. DEFENSE OF PREMISES • Section 13A-3-25 (a) A person in lawful possession or control of premises, as defined in Section 13A-3-20, or a person who is licensed or privileged to be thereon, may use physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon such premises.

33. Premises…Section 13A-3-25 (b) • A person may use deadly physical force under the circumstances set forth in subsection (a) of this section only: • (1) In defense of a person, as provided in Section 13A-3-23; or • (2) When he reasonably believes it necessary to prevent the commission of arson in the first or second degree by the trespasser.

34. Defense of property other than premises • Section 13A-3-26 Use of force in defense of property other than premises • A person is justified in using physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes it to be necessary to prevent or terminate the commission by the other person of theft or criminal mischief with respect to property other than premises as defined in section 13A-3-20.

35. THE ENDUse of Force in Defense by Bill Filmore Chief Assistant District Attorney 33rd Judicial Circuit dalegenevada.org