USE OF FORCE USE OF FORCE IN DEFENSEIN DEFENSE

by Bill Filmoreby Bill FilmoreChief Assistant District AttorneyChief Assistant District Attorney

3333rdrd Judicial Circuit Judicial Circuitdalegenevada.orgdalegenevada.org

CURRENT LAWCURRENT LAW

13A-3-23 USE OF FORCE IN DEFENSE OF A 13A-3-23 USE OF FORCE IN DEFENSE OF A PERSONPERSON

(a) A person is justified in using physical (a) A person is justified in using physical force upon another person in order to force upon another person in order to defend himself or a third person from what defend himself or a third person from what he reasonably believes to be the use or he reasonably believes to be the use or imminent use of unlawful physical force by imminent use of unlawful physical force by that other person, and he may use a that other person, and he may use a degree of force which he reasonably degree of force which he reasonably believes to be necessary for the purpose. believes to be necessary for the purpose.

Self-Defense LawSelf-Defense Law

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

Section 13A-3-23(a) (Con’t)Section 13A-3-23(a) (Con’t) A person may use deadly physical force if the A person may use deadly physical force if the

actor reasonably believes that such other person actor reasonably believes that such other person is:is:

(1) Using or about to use unlawful deadly physical (1) Using or about to use unlawful deadly physical force; orforce; or

(2) Using or about to use physical force against (2) Using or about to use physical force against an occupant of a dwelling while committing or an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; attempting to commit a burglary of such dwelling; oror

(3) Committing or about to commit a kidnapping (3) Committing or about to commit a kidnapping in any degree, assault in the first or second in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, burglary in any degree, robbery in any degree, forcible rape or forcible sodomy.degree, forcible rape or forcible sodomy.

Force NecessaryForce Necessary

There are two types of force involved:There are two types of force involved: Ordinary physical force and “deadly Ordinary physical force and “deadly

physical force”, i.e., readily capable of physical force”, i.e., readily capable of causing death or serious physical injury.causing death or serious physical injury.

The section recognizes the opinion The section recognizes the opinion justifying one to whom it reasonably justifying one to whom it reasonably appears that he is imminently appears that he is imminently threatened with violence or actually threatened with violence or actually attacked, to ward off his attacker with a attacked, to ward off his attacker with a counter-force which reasonably appears counter-force which reasonably appears to be necessary under the to be necessary under the circumstances.circumstances.

Imminent DangerImminent Danger

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

Actual imminent perilActual imminent peril

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

Honest BeliefHonest Belief

A merely “honest belief, unless a A merely “honest belief, unless a reasonable one, that the killing was reasonable one, that the killing was necessary, will not make it justifiable.necessary, will not make it justifiable.

It is not an honest, but a reasonable It is not an honest, but a reasonable belief, that justifies. belief, that justifies.

An honest belief may not be a An honest belief may not be a reasonable belief; it may be the reasonable belief; it may be the offspring of fear, alarm or cowardice, offspring of fear, alarm or cowardice, or it may be the result of careless or it may be the result of careless and irrationality. and irrationality.

Justifies HomicideJustifies Homicide

A reasonable belief, honestly A reasonable belief, honestly entertained, generated by entertained, generated by circumstances fairly creating it will circumstances fairly creating it will justify a homicide;justify a homicide;

But not an irrational belief, however But not an irrational belief, however honest it may be.honest it may be.

Fear of an attackFear of an attack

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

REASONABLY BELIEVESREASONABLY BELIEVES

The test “reasonably believes” shifts The test “reasonably believes” shifts the emphasis to defendant’s reliance the emphasis to defendant’s reliance upon reasonable appearances, rather upon reasonable appearances, rather than expose him to the peril of than expose him to the peril of defending himself where defending himself where appearances were deceiving and appearances were deceiving and there was no actual imminent there was no actual imminent danger.danger.

The question is not merely what the The question is not merely what the defendant believed, but also, what defendant believed, but also, what did he have the right to believe.did he have the right to believe.

Section 13A-3-23(b) (Con’t)Section 13A-3-23(b) (Con’t)

(b) Notwithstanding the provisions of (b) Notwithstanding the provisions of subsection (a), a person is subsection (a), a person is not justifiednot justified in in using deadly physical force upon another using deadly physical force upon another person if it reasonably appears or he person if it reasonably appears or he knows that he can avoid the necessity of knows that he can avoid the necessity of using such force with complete safety:using such force with complete safety: (1) By retreating, except that the actor is not (1) By retreating, except that the actor is not

required to retreat:required to retreat: a. If he is in his dwelling or at his place of work and a. If he is in his dwelling or at his place of work and

was not the original aggressor; or was not the original aggressor; or b. If he is a peace officer or a private person lawfully b. If he is a peace officer or a private person lawfully

assisting a peace officer at his direction. assisting a peace officer at his direction.

Section (b) (1) CommentSection (b) (1) Comment

Section (b) further qualifies the use of Section (b) further qualifies the use of deadly force. If the defendant can avoid deadly force. If the defendant can avoid the necessity of taking life by retreating, the necessity of taking life by retreating, in general he must give way.in general he must give way.

Where defendant claims use of deadly Where defendant claims use of deadly physical force was in self-defense, the physical force was in self-defense, the onus rests on him to show that he could onus rests on him to show that he could not safely retreat without increasing or not safely retreat without increasing or apparently increasing his peril. apparently increasing his peril.

Burden on DefendantBurden on Defendant

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

Section (b) (1) b. CommentSection (b) (1) b. Comment

There is no requirement to give way There is no requirement to give way in the face of a forceful attack is in the face of a forceful attack is placed upon either an officer of the placed upon either an officer of the law or another that is lawfully law or another that is lawfully assisting such an officer, for the assisting such an officer, for the officer is under an affirmative duty officer is under an affirmative duty and he may call upon private persons and he may call upon private persons to assist him.to assist him.

Private person acting under police Private person acting under police orders orders apparently lawfulapparently lawful are not are not guilty of assaults. guilty of assaults.

Section 13A-3-23(c) (Con’t)Section 13A-3-23(c) (Con’t) (c) Notwithstanding the provisions of (c) Notwithstanding the provisions of

subsection (a), a person is not justified in subsection (a), a person is not justified in using physical force if:using physical force if: (1) With intent to cause physical injury or (1) With intent to cause physical injury or

death to another person, he provoked the use death to another person, he provoked the use of unlawful physical force by such other of unlawful physical force by such other person; orperson; or

(2) He was the initial aggressor, except that his (2) He was the initial aggressor, except that his use of physical force upon another person use of physical force upon another person under the circumstances is justifiable if he under the circumstances is justifiable if he withdraws from the encounter and effectively withdraws from the encounter and effectively communicates to the other person his intent to communicates to the other person his intent to do so, but the latter nevertheless continues or do so, but the latter nevertheless continues or threatens the use of unlawful physical force; orthreatens the use of unlawful physical force; or

(3) The physical force involved was the product (3) The physical force involved was the product of a combat by agreement not specifically of a combat by agreement not specifically authorized by law.authorized by law.

Subsection (c) Comment Subsection (c) Comment

(c) (1) and (c) (2) continue the policy that (c) (1) and (c) (2) continue the policy that one who claims justification in the use of one who claims justification in the use of force must not have brought on the force must not have brought on the necessity of using it; he must have been necessity of using it; he must have been entirely free from fault.entirely free from fault.

The usual exception to this requirement is The usual exception to this requirement is recognized: the initial aggressor may recognized: the initial aggressor may “effectively” withdraw and be restored to “effectively” withdraw and be restored to his position of defense while the erstwhile his position of defense while the erstwhile victim assumes the role of aggressor. victim assumes the role of aggressor.

Subsection (c) (3) Comment Subsection (c) (3) Comment

(c) (3) recognizes a limitation on (c) (3) recognizes a limitation on consensual assaults. consensual assaults.

A prearranged fist fight will not A prearranged fist fight will not justify the use of force by the justify the use of force by the defendant which ultimately leads him defendant which ultimately leads him to claim self-defense.to claim self-defense.

Neither of the mutually consenting Neither of the mutually consenting combatants can set up self-defense.combatants can set up self-defense.

NEW LAWNEW LAW

Effective June 1, 2006Effective June 1, 2006

What new law does…What new law does…

The law expands the circumstances The law expands the circumstances under which a person could use under which a person could use deadly force in self-defense of deadly force in self-defense of defense of other persons.defense of other persons.

The law makes legal presumptions The law makes legal presumptions that a person is justified in using that a person is justified in using deadly force against an aggressor deadly force against an aggressor and would not be required to retreat and would not be required to retreat from an aggressor intruding in a from an aggressor intruding in a dwelling, residence, or vehicle.dwelling, residence, or vehicle.

New law continuedNew law continued

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

Public banner on topic…Public banner on topic… License to murder, shoot first law, stand License to murder, shoot first law, stand

your ground law…your ground law… People in jail for self-defense that should People in jail for self-defense that should

not be?not be? Something wrong with current law?Something wrong with current law? Election year, NRA lobby? Election year, NRA lobby? DA’s Association opposed…does it lower DA’s Association opposed…does it lower

crime? Hillman’s statement.crime? Hillman’s statement. Does it make law enforcement more Does it make law enforcement more

difficult?difficult? Adds a defense to criminal trials.Adds a defense to criminal trials.

Section 13A-3-23 ChangedSection 13A-3-23 Changed

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

New (4)New (4) (4) In the process of unlawfully and forcefully (4) In the process of unlawfully and forcefully

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

New (4) a.New (4) a.

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

New (4) b.New (4) b.

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

New (4) c.New (4) c.

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

New (4) d. New (4) d.

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

New Section 13A-3-23 (b)New Section 13A-3-23 (b)

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

New Section 13A-3-23 (d)New Section 13A-3-23 (d)

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

New Section 13A-3-23 (e)New Section 13A-3-23 (e)

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

DEFENSE OF PREMISESDEFENSE OF PREMISES

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

Premises…Section 13A-3-25 (b)Premises…Section 13A-3-25 (b)

A person may use deadly physical A person may use deadly physical force under the circumstances set force under the circumstances set forth in subsection (a) of this section forth in subsection (a) of this section only:only: (1) In defense of a person, as provided in (1) In defense of a person, as provided in

Section 13A-3-23; orSection 13A-3-23; or (2) When he reasonably believes it (2) When he reasonably believes it

necessary to prevent the commission of necessary to prevent the commission of arson in the first or second degree by the arson in the first or second degree by the trespasser.trespasser.

Defense of property other than Defense of property other than premises premises

Section 13A-3-26 Use of force in defense of Section 13A-3-26 Use of force in defense of property other than premisesproperty other than premises

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

THE ENDTHE ENDUse of Force in DefenseUse of Force in Defense

by Bill Filmoreby Bill FilmoreChief Assistant District AttorneyChief Assistant District Attorney

3333rdrd Judicial Circuit Judicial Circuitdalegenevada.orgdalegenevada.org