JUSTIFICATION DEFENSES TO ASSAULT AND GUN CRIMES

Cindy Castillo FAQs

As detailed in the Castillo Law practice areas entitled “Assault Crimes” and “Gun Crimes,” you can be arrested and charged with several serious crimes here in Arizona if you use a firearm, even if you think that you are justified at the time. The following outlines some legal “justification” defenses (and limits to those defenses) that we can use to help you in your defense, if you are charged with Aggravated Assault, Disorderly Conduct with a Weapon, Unlawful Discharge of a Firearm, or in some circumstances even a Drive by Shooting. These will also help you to understand when you are actually justified to use your firearm and when you are not in order to avoid potential prosecution. The following laws (“justifications”) are listed in full followed by a brief explanation in laymen’s terms. (Note: The following explanations are strictly hypothetical situations. Every case is different and a number of different factors can apply. Therefore, these defenses may not be applicable to your individual situation. Please contact us immediately if you have been or may be charged for any criminal offense). Also understand that, even though you may be entitled to assert one of these defenses, you may be prosecuted and still have to defend yourself and the fact that your actions were justified in a trial. In other words, just because you were justified does not mean you will not be prosecuted.

SELF DEFENSE

The Law: “Justification; self-defense” (ARS § 13-404):

  1. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful physical force.
  2. The threat or use of physical force against another is not justified:
    1. In response to verbal provocation alone; or
    2. To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer’s presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or
    3. If the person provoked the other’s use or attempted use of unlawful physical force, unless:
      1. The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and
      2. The other nevertheless continues or attempts to use unlawful physical force against the person.

Explanation: You can only use force if another reasonable person in the same position would use force in that same situation. Force can’t be used just because someone verbally threatens you. You also can’t provoke the person first and then claim self-defense. Basically, you can’t hit someone just because they insult you, and you can’t pick a fight and then claim self-defense after they attack you. Plus, if the person who attacks you tries to retreat to a point where you are no longer in danger, you can’t chase them and continue fighting. Also, you can’t use physical force against a police officer who is legally arresting you.

USE OF DEADLY FORCE (INCLUDING USING A GUN OR OTHER DEADLY WEAPON)

The Law: “Justification; use of deadly physical force” (ARS § 13-405):

  1. A person is justified in threatening or using deadly physical force against another:
    1. If such person would be justified in threatening or using physical force against the other under section 13-404, and
    2. When and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly physical force.
  2. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act.

Explanation: Just like “self-defense,” under the law, you can only use deadly force if another reasonable person in the same position would use force in that same situation. Deadly force can’t be used just because someone verbally threatens you. You also can’t provoke the person first and then claim a deadly force justification defense. Basically, you can’t point a gun or shoot someone just because they insult you, and you can’t pick a fight with your weapon (ie: pull it on someone first) and then claim a deadly force justification defense after they attack you. Plus, if the person who attacks you tries to retreat to a point where you are no longer in danger, you can’t chase them and shoot them. Also, you can’t shoot a police officer who is legally arresting you.

DEFENSE OF OTHERS

The Law: Justification; defense of a third person (ARS § 13-406):
A person is justified in threatening or using physical force or deadly physical force against another to protect a third person if, under the circumstances as a reasonable person would believe them to be, such person would be justified under section 13-404 or 13-405 in threatening or using physical force or deadly physical force to protect himself against the unlawful physical force or deadly physical force a reasonable person would believe is threatening the third person he seeks to protect.
Explanation: You can only use force or deadly force to protect another person if another reasonable person in the same position would feel that the use of force in that same situation is needed to protect the other person, and it can’t be used just because someone verbally threatens the other person. An example would be if your friend or family member is being attacked by someone with a knife, gun or other deadly weapon and the only way you (or another reasonable person standing in your shoes) could help them is to shoot the attacker, then you may be justified in shooting the attacker.

USING DEADLY FORCE TO PROTECT YOUR HOME

The Law: Justification; use of physical force in defense of premises (ARS § 13-407):

  1. A person or his agent in lawful possession or control of premises is justified in threatening to use deadly physical force or in threatening or using physical force against another when and to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises.A person may use deadly physical force under subsection A only in the defense of himself or third persons as described in sections 13-405 and 13-406.In this section, “premises” means any real property and any structure, movable or immovable, permanent or temporary, adapted for both human residence and lodging whether occupied or not.

    Explanation: If someone is trespassing inside your home you can threaten to use or use deadly force, if a reasonable person in your shoes would do the same.

    USING DEADLY FORCE TO PROTECT YOUR PROPERTY

    The Law: Justification; use of physical force in defense of property (ARS § 13-408)
    A person is justified in using physical force against another when and to the extent that a reasonable person would believe it 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, but such person may use deadly physical force under these circumstances as provided in sections 13-405, 13-406 and 13-411.
    Explanation: If another reasonable person in your shoes would use physical force to stop someone from stealing something in their immediate control (ie: your purse or wallet), then you can use physical force. You can only use deadly force if you do so as described in the self-defense and use of deadly force sections outlined above or the crime prevention section below.

    USING FORCE TO PREVENT A CRIME

    The Law: Justification; use of force in crime prevention; applicability (ARS § 13-411):

    1. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other’s commission of arson of an occupied structure under section 13-1704, burglary in the second or first degree under section 13-1507 or 13-1508, kidnapping under section 13-1304, manslaughter under section 13-1103, second or first degree murder under section 13-1104 or 13-1105, sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, child molestation under section 13-1410, armed robbery under section 13-1904 or aggravated assault under section 13-1204, subsection A, paragraphs 1 and 2.
    2. There is no duty to retreat before threatening or using physical force or deadly physical force justified by subsection A of this section.
    3. A person is presumed to be acting reasonably for the purposes of this section if the person is acting to prevent what the person reasonably believes is the imminent or actual commission of any of the offenses listed in subsection A of this section.
    4. This section includes the use or threatened use of physical force or deadly physical force in a person’s home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be.

    Explanation: You can use force or deadly force if another reasonable person in your shoes would do so in order to prevent the crimes listed above. Note: Don’t be a vigilante. If you have the ability to call the police before you are forced to intervene, than do so.

    DURESS- USING PHYSICAL FORCE BECAUSE YOUR ARE FORCED

    The Law: Duress (ARS § 13-412):

    1. Conduct which would otherwise constitute an offense is justified if a reasonable person would believe that he was compelled to engage in the proscribed conduct by the threat or use of immediate physical force against his person or the person of another which resulted or could result in serious physical injury which a reasonable person in the situation would not have resisted.
    2. The defense provided by subsection A is unavailable if the person intentionally, knowingly or recklessly placed himself in a situation in which it was probable that he would be subjected to duress.
    3. The defense provided by subsection A is unavailable for offenses involving homicide or serious physical injury.

    Explanation: If someone forces you to commit a crime by threatening you or another with serious physical injury than you can use physical force, but it cannot cause serious injury or death to another. Obviously, this defense will not justify shooting someone, but it could justify being forced to point a weapon, in some situations.

    SELF-DEFENSE BY A VICTIM OF DOMESTIC VIOLENCE

    The Law: Justification; domestic violence (ARS § 13-415):
    If there have been past acts of domestic violence as defined in section 13-3601, subsection A against the defendant by the victim, the state of mind of a reasonable person under sections 13-404, 13-405 and 13-406 shall be determined from the perspective of a reasonable person who has been a victim of those past acts of domestic violence.
    Explanation: If you have been a victim of domestic violence in the past and you use physical or deadly force against your attacker, who is the same person who previously committed a domestic violence offense against you then the previous history of abuse will be factored into and possibly allow for a justification defense.

    SELF DEFENSE FROM BURGLARY OF YOUR HOME OR CARJACKING

    The Law: Justification; use of force in defense of residential structure or occupied vehicle; definitions (ARS § 13-418):

    1. Notwithstanding any other provision of this chapter, a person is justified in threatening to use or using physical force or deadly physical force against another person if the person reasonably believes himself or another person to be in imminent peril of death or serious physical injury and the person against whom the physical force or deadly physical force is threatened or used was in the process of unlawfully or forcefully entering, or had unlawfully or forcefully entered, a residential structure or occupied vehicle, or had removed or was attempting to remove another person against the other person’s will from the residential structure or occupied vehicle.
    2. A person has no duty to retreat before threatening or using physical force or deadly physical force pursuant to this section.
    3. For the purposes of this section:
      1. “Residential structure” has the same meaning prescribed in section 13-1501.
      2. “Vehicle” means a conveyance of any kind, whether or not motorized, that is designed to transport persons or property.

    Presumptions; defense of a residential structure or occupied vehicle; exceptions; definitions (ARS § 13-419):

    1. A person is presumed to reasonably believe that the threat or use of physical force or deadly force is immediately necessary for the purposes of sections 13-404 through 13-408, section 13-418 and section 13-421 if the person knows or has reason to believe that the person against whom physical force or deadly force is threatened or used is unlawfully or forcefully entering or has unlawfully or forcefully entered and is present in the person’s residential structure or occupied vehicle.
    2. For the purposes of sections 13-404 through 13-408, section 13-418 and section 13-421, a person who is unlawfully or forcefully entering or who has unlawfully or forcefully entered and is present in a residential structure or occupied vehicle is presumed to pose an imminent threat of unlawful deadly harm to any person who is in the residential structure or occupied vehicle.
    3. The presumptions in subsections A and B of this section do not apply if:
      1. The person against whom physical force or deadly physical force was threatened or used has the right to be in or is a lawful resident of the residential structure or occupied vehicle, including an owner, lessee, invitee or titleholder, and an order of protection or injunction against harassment has not been filed against that person.
      2. The person against whom physical force or deadly physical force was threatened or used is the parent or grandparent, or has legal custody or guardianship, of a child or grandchild sought to be removed from the residential structure or occupied vehicle.
      3. The person who threatens or uses physical force or deadly physical force is engaged in an unlawful activity or is using the residential structure or occupied vehicle to further an unlawful activity.
      4. The person against whom physical force or deadly physical force was threatened or used is a law enforcement officer who enters or attempts to enter a residential structure or occupied vehicle in the performance of official duties.
    4. For the purposes of this section:
      1. “Residential structure” has the same meaning prescribed in section 13-1501.
      2. “Vehicle” means a conveyance of any kind, whether or not motorized, that is designed to transport persons or property.

    Explanation: If someone breaks into your house and attacks you, or is carjacking you, then you can threaten to use or actually use physical force. If they have a deadly weapon, you can use deadly force to stop them. If the person is invited to be in your house or car, you can’t use the defense.

    DISPLAYING A FIREARM TO PROTECT YOURSELF FROM AN ATTACKER

    The Law: Justification; defense display of a firearm; definition (ARS § 13-421):

    1. The defensive display of a firearm by a person against another is justified when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force.
    2. This section does not apply to a person who:
      1. Intentionally provokes another person to use or attempt to use unlawful physical force.
      2. Uses a firearm during the commission of a serious offense as defined in section 13-706 or violent crime as defined in section 13-901.03.
    3. This section does not require the defensive display of a firearm before the use of physical force or the threat of physical force by a person who is otherwise justified in the use or threatened use of physical force.
    4. For the purposes of this section, “defensive display of a firearm” includes:
      1. Verbally informing another person that the person possesses or has available a firearm.
      2. Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect the person against another’s use or attempted use of unlawful physical force or deadly physical force.
      3. Placing the person’s hand on a firearm while the firearm is contained in a pocket, purse or other means of containment or transport.

    Explanation: This is a relatively new defense that allows a person to flash a weapon or announce that they have a weapon to their attacker. It allows you to display your firearm to stop someone who is already attacking you. You are not allowed to flash it just because someone cuts you off and it makes you mad. They have to be trying to run you off the road first. If you are on the street and someone comes at you with a baseball bat, you can flash a gun or yell at them that you have a gun to get them to stop. Be very careful. Don’t actually point the gun at the person or actually fire it and expect to be able to use this defense. This statute does not currently allow for you to display a weapon in defense of others.

    WHEN YOU CAN’T USE JUSTIFICATION AS A DEFENSE

    The Law: Unavailability of justification defense; justification as a defense (ARS § 13-401):

    1. Even though a person is justified under this chapter in threatening or using physical force or deadly physical force against another, if in doing so such person recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.
    2. Except as provided in subsection A, justification, as defined in this chapter, is a defense in any prosecution for an offense pursuant to this title.

    Explanation: If you are defending yourself, make sure no innocent bystander is hurt or killed, or you could be prosecuted for their injury or death.

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