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REFERENCE TITLE: justification; self defense; sentencing |
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State of Arizona House of Representatives Fifty-first Legislature Second Regular Session 2014
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HB 2209 |
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Introduced by Representatives Borrelli, Kwasman, Mitchell, Seel, Senator Murphy: Representatives Boyer, Fann, Livingston, Mesnard, Thorpe, Townsend, Senators Shooter, Ward
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AN ACT
amending sections 13‑404 and 13‑405, Arizona Revised Statutes; repealing section 13‑406, Arizona Revised Statutes; amending sections 13‑407, 13‑408, 13‑409, 13‑410, 13‑411, 13‑415, 13‑418, 13‑421, Arizona Revised Statutes; amending title 13, chapter 4, Arizona Revised Statutes, by adding sections 13‑422 and 13‑423; amending section 13‑4903, Arizona Revised Statutes; relating to justification.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-404, Arizona Revised Statutes, is amended to read:
13-404. Justification; self‑defense
A. 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 it is immediately necessary, or the person would believe reasonably believes that physical force is immediately necessary, to protect himself or a third person against the other's use or attempted use of unlawful physical force.
B. 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 is committing, attempting to commit or fleeing after committing a felony; or
3. 4. If the person provoked the other's use or attempted use of unlawful physical force, unless:
(a) 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
(b) The other nevertheless continues or attempts to use unlawful physical force against the person.
C. A person's reasonable belief that physical force is immediately necessary pursuant to subsection A of this section does not need to be the sole motivation for the person's threat or use of physical force.
Sec. 2. Section 13-405, Arizona Revised Statutes, is amended to read:
13-405. Justification; use of deadly physical force
A. A person is justified in threatening or using deadly physical force against another:
1. If such the 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 that it is immediately necessary, or the person would believe reasonably believes that deadly physical force is immediately necessary, to protect himself or a third person against the other's use or attempted use of unlawful deadly physical force.
B. 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.
C. A person's reasonable belief that using deadly physical force is immediately necessary pursuant to subsection A of this section does not need to be the sole motivation for the person's threat or use of deadly physical force.
Sec. 3. Repeal
Section 13-406, Arizona Revised Statutes, is repealed.
Sec. 4. Section 13-407, Arizona Revised Statutes, is amended to read:
13-407. Justification; use of physical force in defense of premises; definition
A. A person or his agent in lawful possession or control of premises is justified in threatening to use physical force or using deadly physical force or in threatening or using physical force against another when and to the extent that it is immediately necessary, or 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 on the premises.
B. 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.
C. B. In For the purposes of 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.
Sec. 5. Section 13-408, Arizona Revised Statutes, is amended to read:
13-408. Justification; use of physical force in defense of property
A person is justified in using physical force against another when and to the extent that it is necessary, or 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.
Sec. 6. Section 13-409, Arizona Revised Statutes, is amended to read:
13-409. Justification; use of physical force in law enforcement
A person is justified in threatening or using physical force against another if in making or assisting in making an arrest or detention or in preventing or assisting in preventing the escape after arrest or detention of that other person, such person uses or threatens to use physical force and all of the following exist:
1. It is immediately necessary, or a reasonable person would believe that such force is immediately necessary, to effect the arrest or detention or prevent the escape.
2. Such person makes known the purpose of the arrest or detention or believes that it is otherwise known or cannot reasonably be made known to the person to be arrested or detained.
3. The arrest or detention is lawful, or a reasonable person would believe the arrest or detention to be lawful.
Sec. 7. Section 13-410, Arizona Revised Statutes, is amended to read:
13-410. Justification; use of deadly physical force in law enforcement
A. The threatened use of deadly physical force by a person against another is justified pursuant to section 13‑409 only if the suspect or escapee is, or a reasonable person effecting the arrest or preventing the escape would believe the suspect or escapee is:
1. Actually Resisting the discharge of a legal duty with deadly physical force or with the apparent capacity to use deadly physical force; or
2. A felon who has escaped from lawful confinement; or
3. A felon who is fleeing from justice or resisting arrest with physical force.
B. The use of deadly physical force by a person other than a peace officer against another is justified pursuant to section 13‑409 only if either:
1. The suspect or escapee is resisting the discharge of a legal duty WITH physical force or with the apparent capacity to use deadly physical force.
2. A reasonable person effecting the arrest or preventing the escape would believe the suspect or escapee is actually resisting the discharge of a legal duty with physical force or with the apparent capacity to use deadly physical force.
C. The use of deadly force by a peace officer against another person is justified pursuant to section 13‑409 only when it is necessary or when the peace officer reasonably believes that it is necessary:
1. To defend himself or a third person from the use or imminent use of deadly physical force or what the peace officer reasonably believes to be the use or imminent use of deadly physical force.
2. To effect an arrest or prevent the escape from custody of a person whom the peace officer reasonably believes:
(a) Has committed, attempted to commit, is committing or is attempting to commit a felony involving the use or a threatened use of a deadly weapon.
(b) Is attempting to escape by use of a deadly weapon.
(c) Through past or present conduct of the person which is known by the peace officer that the person is likely to endanger human life or inflict serious bodily injury to another unless apprehended without delay.
(d) Is necessary to lawfully suppress a riot if the person or another person participating in the riot is armed with a deadly weapon.
D. Notwithstanding any other provisions provision of this chapter, a peace officer is justified in threatening to use deadly physical force when and to the extent that it is necessary to protect himself against another's potential use of physical force or deadly physical force or that a reasonable officer believes it necessary to protect himself against another's potential use of physical force or deadly physical force.
Sec. 8. Section 13-411, Arizona Revised Statutes, is amended to read:
13-411. Justification; use of force in crime prevention; applicability
A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent that physical force or deadly physical force is immediately necessary to prevent, or that 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, 3 and 4.
B. There is no duty to retreat before threatening or using physical force or deadly physical force justified by subsection A of this section.
C. 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.
D. 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.
Sec. 9. Section 13-415, Arizona Revised Statutes, is amended to read:
13-415. Justification; domestic violence
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, and 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.
Sec. 10. Section 13-418, Arizona Revised Statutes, is amended to read:
13-418. Justification; use of force in defense of residential structure or occupied vehicles; definitions
A. 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 who is unlawfully entering or has entered a residential structure or occupied vehicle by force or by stealth and the person reasonably believes that the entry is attempted or made to assault any person in the residence or vehicle, to remove a person from the residential structure or to commit a felony and the force used is necessary, or the person reasonably believes it to be necessary, to prevent the assault, removal or felony.
B. A person has no duty to retreat before threatening or using physical force or deadly physical force pursuant to this section.
C. 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.
Sec. 11. Section 13-421, Arizona Revised Statutes, is amended to read:
13-421. Justification; defensive display of a firearm or other weapon; definition
A. The defensive display of a firearm or other weapon by a person against another is justified when and to the extent that it is either immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force or 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.
B. 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 or other weapon during the commission of a serious offense as defined in section 13‑706 or a violent crime as defined in section 13‑901.03.
C. This section does not require the defensive display of a firearm or other weapon before the use of physical force or the threat of physical force by a person who is otherwise a person is justified in the use or threatened use of physical force or deadly physical force.
D. For the purposes of this section, "defensive display of a firearm or other weapon" includes:
1. Verbally informing another person that the person possesses or has available a firearm or other weapon.
2. Exposing or displaying a firearm or other weapon 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 or other weapon while the firearm or other weapon is contained in a pocket, purse or other means of containment or transport.
Sec. 12. Title 13, chapter 4, Arizona Revised Statutes, is amended by adding sections 13-422 and 13-423, to read:
13-422. No duty to retreat; evidentiary considerations
A. A person who is in a place where the person may lawfully be has no duty to retreat before threatening or using physical force or deadly physical force pursuant to this chapter. The possibility of retreat shall not be considered in determining whether the use of force, or its extent, was necessary or whether the person who used force had a reasonable belief that the use was necessary.
B. In determining whether the threat or use of physical force or deadly physical force was immediately necessary or whether a person reasonably believed that the use of force or deadly force was necessary, a court may consider the following factors:
1. The nature and immediacy of the risk.
2. The probability that law enforcement, if summoned, would not arrive in time to end the risk or be unable to protect against the risk.
3. Prior violent acts and violent propensities by the person against whom the force was used.
4. The person's beliefs regarding prior violent acts and violent propensities by the person against whom force was used.
13-423. Imperfect self‑defense motion; sentencing
A. Notwithstanding any other law, a person who presents evidence of justification pursuant to this chapter and who is found guilty after a trial may file a motion for imperfect self‑defense before sentence is imposed. If the court grants the motion, the court shall sentence the person as follows:
1. If the person was found guilty of first or second degree murder pursuant to section 13‑1104 or 13‑1105, the person shall be sentenced for manslaughter pursuant to section 13‑1103.
2. If the person is convicted of an offense that is not listed in paragraph 1 of this subsection, the person may be placed on probation in accordance with chapter 9 of this title.
B. The court shall grant a motion for imperfect self‑defense if any of the following occurs:
1. The person used physical force or deadly physical force with the belief that the use of the force was immediately necessary pursuant to this chapter but that belief was not reasonable under the circumstances.
2. The person or a third person was the victim of a felony or attempted felony and the person acted out of outrage, shock or anger resulting from that crime.
Sec. 13. Section 13-4903, Arizona Revised Statutes, is amended to read:
13-4903. Use of force; armed nuclear security guards
A. An armed nuclear security guard is justified in using physical force against another person at a commercial nuclear generating station or structure or fenced yard of a commercial nuclear generating station if the armed nuclear security guard reasonably believes that such force is necessary to prevent or terminate the commission or attempted commission of criminal damage under section 13‑1602, subsection A, paragraph 3 and subsection B, paragraph 1 or 2, misconduct involving weapons under section 13‑3102, subsection A, paragraph 13 or criminal trespass on a commercial nuclear generating station under section 13‑4902.
B. Notwithstanding sections 13‑403, 13‑404, 13‑405, 13‑406, 13‑408, 13‑409, 13‑410 and 13‑411, an armed nuclear security guard is justified in using physical force up to and including deadly physical force against another person at a commercial nuclear generating station or structure or fenced yard of a commercial nuclear generating station if the armed nuclear security guard reasonably believes that such force is necessary to:
1. Prevent the commission of manslaughter under section 13‑1103, second or first degree murder under section 13‑1104 or 13‑1105, aggravated assault under section 13‑1204, subsection A, paragraph 1 or 2, kidnapping under section 13‑1304, burglary in the second or first degree under section 13‑1507 or 13‑1508, arson of a structure or property under section 13‑1703, arson of an occupied structure under section 13‑1704, armed robbery under section 13‑1904 or an act of terrorism under section 13‑2308.01.
2. Defend oneself or a third person from the use or imminent use of deadly physical force.
C. Notwithstanding any other provision of this chapter, an armed nuclear security guard is justified in threatening to use physical or deadly physical force if and to the extent a reasonable armed nuclear security guard believes it necessary to protect oneself or others against another person's potential use of physical force or deadly physical force.
D. An armed nuclear security guard is not subject to civil liability for engaging in conduct that is otherwise justified pursuant to this chapter.