Self Defense and Use of Force Losing Your Freedom Is Not an Option

Self Defense and Use of Force

Arizona has a version of a “stand your ground” law, where individuals who believe that they are the victim of a serious crime (the list of crimes that apply is listed below) may use deadly physical force to defend themselves.

As an initial matter, if you are asserting a self-defense claim, who has the burden of proving you acted in self-defense? Under the Arizona statutes, there are times that the person accused of a crime is required to prove their claim. We call this an affirmative defense. For example, if someone is arrested for a drug DUI, and prescription medications are found to be in their bloodstream, the law places the burden on the accused to prove that they were using the medication as prescribed – otherwise the presence of the drug in their system means they are guilty of a drug DUI.

Self-defense is different, however. A defendant is entitled to a self-defense instruction if the record contains the “slightest evidence” that they acted in self-defense. The state must then prove beyond a reasonable doubt that they didn’t act in self-defense. Obviously, this is a huge advantage to someone accused of a crime. Let’s review the different Self-defense and Justification statutes.

Under A.R.S. §13-404, Use of Force, an individual is justified in threatening or using physical force to the extent a reasonable person would believe it is immediately necessary to protect themselves against the other’s use or attempted use of unlawful physical force.

First, note that this statute does not discuss when deadly physical force may be used, just non-lethal force, such as punching or striking someone. As is the case throughout these statutes, the test for determining whether a person was acting in self-defense is deciding what a reasonable person would have done under the circumstances. Would a reasonable person have used force or just walked away? How much time did the accused have to respond to the other individual’s use of force? The answer to these questions will determine whether the accused individual has a viable self-defense claim.

There are two important caveats to this statute, however. First, physical force can’t be used in response to words alone. Having offensive language used against you or being called offensive names doesn’t allow you to use force against the person. The other individual has to take some action that threatens you before you can use physical force against them.

Second, physical force can’t be used if the person withdraws from the encounter. No matter how threatening the individual may have been when it started, once the other individual clearly withdraw from the encounter, you can no longer use physical force against them.

Pursuant to A.R.S. §13-405 Deadly Physical Force, a person is justified in threatening or using deadly physical force, first, if the person would be justified in using physical force (pursuant toA.R.S. §13-404 above), and then they may use deadly physical force when and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect themselves against the other’s use or attempted use of unlawful deadly physical force. Significantly, there is no duty to retreat first if you are where you are allowed to be and not breaking the law when the deadly physical force is used.

Once again, the deciding issue for determining whether a person was acting in self-defense is deciding what a reasonable person would have done under the circumstances. In the case of deadly physical force, the question is what I call the “911 test.” Could you have called 911 to resolve the situation rather using deadly physical force? A defendant asserting self-defense in a deadly physical force case must be prepared to show that it was “kill or be killed.” and that no other options were available.

A significant statute regarding justification is A.R.S. §13-411 Crime Prevention. Under that statute a person is justified in threatening or using physical force or deadly physical force to prevent what a reasonable person would believe is the actual or imminent commission of the following specified felonies:

  • Arson of an occupied structure
  • Burglary of a residential structure
  • Armed burglary
  • Kidnapping
  • Murder or manslaughter
  • Sexual Conduct with a Minor
  • Rape
  • Child Molestation
  • Armed Robbery
  • Aggravated Assault

Thus, if someone is breaking into your home (residential burglary), you are justified in using even deadly force, if a reasonable person would do so under the circumstances.

Another important statute is A.R.S. §13-406Defense of Others. Under that statute a person is justified in threatening or using physical force or deadly physical force to protect a third person, if, under the circumstances as a reasonable person would believe them to be, the person would be justified in using physical force or deadly physical force to protect himself or herself themselves against the unlawful physical force or deadly physical force a reasonable person would believe is threatening a third person.

Interestingly, the third party does not have to be actually threatened, so long as a reasonable person would believe that they were being threatened, and that immediate force was necessary to protect the third party.

Arizona provides a defense for using force not just for the protection of people, but also to the defense of property. Under A.R.S. §13-408 Defense of Property a person is justified in using physical force to the extent a reasonable person would believe it is necessary to prevent what a reasonable person would believe is an attempt or commission by the other person of theft or criminal damage involving tangible movable property under his possession or control.

Deadly physical force, however, may not be used solely to protect property. Deadly physical force may only be used to protect a person or a third party from unlawful or deadly physical force, as described above.

And then we’ll put a banner telling people to call us for their self-defense case at the bottom.

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