Read and absorb if you can, basically one must in imminent fear of life or limb, use reasonable force, not more the necessary and only enough force as a reasonable person know what you knew at the time.
Don in your original post/scenario on this matter was basically, uninvited guest, bulge in clothing, shoot!, the laws in Washington State are not that limited and has specific requirements.
11 WAPRAC WPIC 16.02
WPIC 16.02 Justifiable Homicide—Defense of Self and Others
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 16.02 (3d Ed)
Washington Practice Series TM
Database Updated November 2011
Washington Pattern Jury Instructions--Criminal
2008 Edition Prepared by the Washington Supreme Court Committee On Jury Instructions, Hon. Sharon S. Armstrong, Co-Chair, Hon. William L. Downing, Co-Chair
Part IV. Defenses
WPIC CHAPTER 16. Justifiable Homicide
WPIC 16.02 Justifiable Homicide—Defense of Self and Others
It is a defense to a charge of [murder] [manslaughter] that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the lawful defense of [the slayer] [the slayer's [husband] [wife] [registered domestic partner] [parent] [child] [brother] [sister]] [any person in the slayer's presence or company] when:
1) the slayer reasonably believed that the person slain [or others whom the defendant reasonably believed were acting in concert with the person slain] intended [to commit a felony] [to inflict death or great personal injury];
2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] [her], at the time of [and prior to] the incident.
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction in any homicide case in which this defense is an issue supported by the evidence. Use bracketed material as applicable.
Use WPIC 25.01, Homicide—Definition, with this instruction. Use WPIC 2.04.01, Great Personal Injury—Definition, and WPIC 2.09, Felony—Designation of, as applicable with this instruction. If there is an issue whether the defendant was the aggressor, use WPIC 16.04, Aggressor—Defense of Self and Others.
If resistance to a felony is involved, see WPIC 16.03, Justifiable Homicide—Resistance to Felony.
Do not use this instruction if the deadly force was used to defend against a non-violent felony, such as forgery, bribery, perjury, or the like.
When the offense charged is attempted murder, use this instruction, rather than WPIC 17.02, Lawful Force—Defense of Self, Others, Property.
If a case involves a registered domestic partnership, and if it becomes necessary to define the term for jurors, an instruction can be drafted using language from RCW Chapter 26.60.
COMMENT
Generally. The instruction is based upon RCW 9A.16.050(1).
All facts and circumstances. The instruction's third numbered paragraph, referring to all facts and circumstances, is based upon State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). In Allery, the Supreme Court held that if there is evidence of self-defense, the jury must be instructed “to consider the conditions as they appeared to the slayer, taking into consideration all the facts and circumstances known to the slayer at the time and prior to the incident.” State v. Allery, 101 Wn.2d at 595. Also see State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991); State v. Bell, 60 Wn.App. 561, 805 P.2d 815 (Div. 2 1991).
In a case involving allegations of ongoing abuse, the jury is to inquire whether the defendant acted reasonably, given the defendant's experience of abuse by the victim. State v. Janes, 121 Wn.2d 220, 239, 850 P.2d 495, 22 A.L.R.5th 921 (1993).
Burden of proof. The paragraph referring to the burden of proof is based upon State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983). In McCullum, the court held that the State has the burden of proving the absence of self-defense in a prosecution for first degree murder. McCullum continues to be cited with approval on this point. E.g., State v. Lively, 130 Wn.2d 1, 10, 921 P.2d 1035 (1996). For a detailed discussion see the Introduction to Part IV—Defenses. In State v. Read, 147 Wn.2d 238, 53 P.3d 26 (2002), the court held that a defendant had a burden of producing “some evidence” to establish the killing occurred under circumstances where there was a defense of life and also to produce “some evidence” that he or she had a reasonable apprehension of great bodily harm or imminent danger, before the defendant is deemed entitled to raise a self-defense claim. However, this must be read in conjunction with McCullum, where the court explained that there only needs to be some evidence admitted, from whatever source, which tends to prove the killing was done in self-defense. State v. McCullum, 98 Wn.2d at 487.
Withdrawal. As a general rule, one who is the aggressor or who provokes an altercation in which another is killed cannot invoke the right of self-defense to justify or excuse the homicide. However, the right of self-defense is revived as to the aggressor or the provoker if that person in good faith withdraws from the combat at such time and in such a manner as to clearly apprise the other person that he or she was desisting or intended to desist from further aggressive action. See State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973); State v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946). In State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990), the Washington Supreme Court found that the trial court correctly refused the defendant's proposed self-defense instruction in a prosecution for felony murder because the defendant did not drop his gun or surrender and did not “clearly manifest a good faith intention to withdraw from the burglary or remove the decedent's fear.” State v. Dennison, 115 Wn.2d at 618.
Felony murder. A claim of self-defense in felony murder prosecutions presents special problems for instructing the jury. In State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990), the Supreme Court held that because a defendant is strictly responsible for death caused while fleeing from first degree burglary, the trial court properly refused the defendant's proposed self-defense instruction because the burglary was still in progress at the time that the defendant was fleeing from scene. In State v. Bolar, 118 Wn.App. 490, 78 P.2d 1012 (Div. 1 2003), the court, discussing Dennison, seemed to hold that self-defense is not available as a matter of law when the felony murder is based on burglary. In State v. Ferguson, 131 Wn.App. 855, 129 P.3d 856 (Div. 2 2006), the Court of Appeals held that when the felony murder charge is predicated on assault, the defendant may claim self-defense but only if he reasonably feared death or great bodily harm. Thus, the Ferguson court concluded that only WPIC 16.02 can be given in a felony murder prosecution and that WPIC 17.02 can “never” be given. It appears that, in determining whether the jury should be instructed on self-defense, the court should carefully analyze the facts presented at trial and the elements of the predicate felony alleged.
Defense of others. A person has a right to use such force to defend another as the person may use in defending himself or herself. The right to resort to the use of force in defending another is to be judged by the facts and circumstances appearing to the defender at the time. Thus, an individual is justified in using force to defend another if that individual reasonably believes that the person to be protected is the innocent party and in danger, even if, in fact, the person being defended was the aggressor. See State v. Penn, 89 Wn.2d 63, 568 P.2d 797 (1977); State v. Fischer, 23 Wn.App. 756, 598 P.2d 742 (Div. 2 1979); State v. Bernardy, 25 Wn.App. 146, 605 P.2d 791 (Div. 1 1980).
RCW 9A.16.050(1) states in part that homicide is justifiable when committed “in the lawful defense of the slayer, or his or her husband, wife, parent, child, brother or sister, or of any other person in his or her presence or company.” It has been held that under this statutory language, a homicide committed in the defense of another is not justifiable, unless the person being defended was present at the time of homicide. See State v. Trevino, 10 Wn.App. 89, 516 P.2d 779 (Div. 3 1973) (homicide allegedly in defense of the defendant's wife and children was not justifiable because neither the wife nor the children were present at the time of the shooting).
Imminent danger. The phrase “the slayer reasonably believed that” is included in the second numbered paragraph in light of the holding of the court in State v. LeFaber, 128 Wn.2d 896, 913 P.2d 369 (1996) (overruled on other grounds in State v. O'Hara, 167 Wn.2d 91, 217 P.3d 756 (2009)) and State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999), that the former version could be misunderstood to require actual imminent danger. See also WPIC 16.07, Justifiable Homicide—Actual Danger Not Necessary, and its Comment.
“Imminence does not require an actual physical assault. A threat, or its equivalent, can support self-defense when there is a reasonable belief that the threat will be carried out. Especially in abusive relationships, patterns of behavior become apparent which can signal the next abusive episode.”
State v. Janes, 121 Wn.2d at 241 (citations omitted). While “immediate harm” means “occurring, acting, or accomplished without loss of time: made or done at once,” “imminent harm” means “ready to take place: near at hand: … hanging threateningly over one's head.” In an abusive situation, “[t]hat the triggering behavior and the abusive episode are divided by time does not necessarily negate the reasonableness of the defendant's perception of imminent harm.” 121 Wn.2d at 241.
Multiple assailants. There is no requirement that the defendant's fear be caused by only the person slain. His self-defense is lawful if based on reasonable fear of imminent harm from either the person slain, or others whom the defendant also reasonably feared. State v. Harris, 122 Wn.App. 547, 90 P.3d 1133 (Div. 2 2004); State v. Irons, 101 Wn.App. 544, 550, 4 P.3d 174 (Div. 1 2000).
Great personal injury. When given in conjunction with this instruction in a case involving the use of force against an unarmed assailant, the definition of “great personal injury” must contain the subjective element, as set forth in WPIC 2.04.01, Great Personal Injury—Definition. State v. Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997). Practitioners should carefully note that “great personal injury” is distinct from “great bodily harm.” See the discussion of these terms in the Comment to WPIC 2.04.01. The term “great bodily harm” should not be used with this instruction. State v. Walden, 131 Wn.2d at 475 n.3.
Attempted murder. This instruction, rather than WPIC 17.02, Lawful Force—Defense of Self, Others, Property, should be used when the charged offense is attempted murder. “[T]he important issue is the defendant's mental state in committing the crime, not whether the victim in fact died.” State v. Cowen, 87 Wn.App. 45, 53, 939 P.2d 1249 (Div. 1 1997).
Domestic partners. In 2009, the Legislature amended RCW Chapter 9A.16 to indicate that the chapter's references to spouses are to be interpreted as applying equally to state registered domestic partners. RCW 9A.16.900; Laws of 2009, Chapter 521, § 22 (effective December 3, 2009, based on voter approval of Referendum Measure 71). The pattern instruction has been updated accordingly.
Other. The statute states in part that the defense is applicable “when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony.” For purposes of the defense, the use of deadly force appears to be limited to the resistance of violent felonies that threaten human life or may result in great personal injury. See State v. Nyland, 47 Wn.2d 240, 287 P.2d 345 (1955) (adultery is not a crime that imperils the life of the unoffending spouse or threatens personal injury). No self-defense instruction should be given when deadly force is used to repel an unlawful trespass that does not amount to a felony, because such force is excessive as a matter of law. State v. Griffith, 91 Wn.2d 572, 589 P.2d 799 (1979).
For a discussion of non-violent felonies that would not justify the use of deadly force, see the Comment to WPIC 16.03, Justifiable Homicide—Resistance to Felony.
In State v. Hughes, 106 Wn.2d 176, 721 P.2d 902 (1986), the Washington Supreme Court refused to adopt the doctrine of “imperfect” self-defense. The court found that the trial court did not err in refusing an instruction that stated that “the use of force is not done with unlawful intent to kill where the person believes in good faith that he or she is acting in self-defense even though the person's belief is unreasonable.” State v. Hughes, 106 Wn.2d at 188. Also see State v. Bell, 60 Wn.App. 561, 805 P.2d 815 (Div. 2 1991). For cases relating to a defendant's reasonable belief as a justification for acting in self-defense, see the Comments to WPIC 16.04, Aggressor—Defense of Self and Others and WPIC 17.02, Lawful Force—Defense of Self and Others.
[Current as of February 1, 2010.]
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11 WAPRAC WPIC 16.02
END OF DOCUMENT
11 WAPRAC WPIC 17.02
WPIC 17.02 Lawful Force—Defense of Self, Others, Property
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 17.02 (3d Ed)Washington Practice Series TM
Database Updated November 2011
Washington Pattern Jury Instructions--Criminal 2008 Edition
Prepared by the Washington Supreme Court Committee On Jury Instructions, Hon. Sharon S. Armstrong, Co-Chair, Hon. William L. Downing, Co-Chair
Part IV. Defenses
WPIC CHAPTER 17. Lawful Force—Charges Other Than Homicide
WPIC 17.02 Lawful Force—Defense of Self, Others, Property
It is a defense to a charge of __________ that the force [used][attempted][offered to be used] was lawful as defined in this instruction.
[The [use of][attempt to use][offer to use] force upon or toward the person of another is lawful when [used][attempted][offered] [by a person who reasonably believes that [he][she] is about to be injured] [by someone lawfully aiding a person who [he][she] reasonably believes is about to be injured] in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary.]
[The [use of][attempt to use][offer to use] force upon or toward the person of another is lawful when [used][attempted][offered] in preventing or attempting to prevent a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession, and when the force is not more than is necessary.]
The person [using][or][offering to use] the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of [and prior to] the incident.
The
[State][City][County] has the burden of proving beyond a reasonable doubt that the force
[used][attempted][offered to be used] by the defendant was not lawful. If you find that the
[State][City][County] has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty
[as to this charge].
NOTE ON USE
Use this instruction in any case in which this defense is an issue supported by the evidence.
Use bracketed material as applicable. Use this instruction for any charge other than homicide or attempted homicide. If homicide is involved, use WPIC 16.02, Justifiable Homicide—Defense of Self and Others.
With this instruction, use WPIC 16.05, Necessary—Definition. Also use, as applicable, WPIC 2.13, Malice—Maliciously—Definition. If there is an issue whether the defendant was the aggressor, use WPIC 16.04, Aggressor—Defense of Self, or WPIC 16.04.01, Aggressor—Defense of Others.
COMMENT
RCW 9A.16.020(3).
Generally. The wording of this instruction in the second edition “correctly instructed the jury on the subjective standard of self-defense.”
State v. Goodrich, 72 Wn.App. 71, 77, 863 P.2d 599 (1993), partially abrogated on other grounds as noted in
State v. Ramos, 124 Wn.App. 334, 101 P.3d 872 (2004).
The instruction has been amended for the 2008 edition to clarify for the jury that the defendant need not believe that the defendant or another is about to be injured in order to lawfully use force against a malicious interference with property. See
State v. Bland, 128 Wn.App. 511, 116 P.3d 428, 430 (2005).
All facts and circumstances. The third paragraph, referring to all facts and circumstances, is based upon
State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). See Comment to WPIC 16.02.
Burden of proof. The paragraph referring to the burden of proof is based upon
State v. Acosta, 101 Wn.2d 612, 683 P.2d 1069 (1984). In
Acosta, the court held that the State has the burden of proving the absence of self-defense in prosecutions for assault. The court cited both a statutory and a constitutional basis for its holding. The court found that the Legislature intended that the State prove the absence of self-defense when it revised
RCW 9A.16.020. The court also found that the burden of proving self-defense may not constitutionally be placed on the defendant if proof of self-defense tends to negate one or more elements of the crime charged. The court noted that placing the burden of proof on the defendant in such cases would relieve the State of its burden of proving every element of the crime beyond a reasonable doubt.
Failure to instruct the jury that the State has the burden of proving the absence of self-defense beyond a reasonable doubt was reversible error when there was sufficient evidence of self-defense to present the issue to the jury.
State v. Redwine, 72 Wn.App. 625, 865 P.2d 552 (1994).
For a general discussion of the burden of proof on defenses, see Introduction to Part IV, Defenses.
Relationship to battered woman syndrome. The battered woman syndrome is not a defense in itself. The function of evidence of the battered woman syndrome is to assist the trier of fact in evaluating the defense of self-defense; i.e., in evaluating the reasonableness of both the use of force and the degree of force used by the defendant. Evidence of the battered woman syndrome, alone, is insufficient to submit the defense of self-defense to the jury. In order to submit the defense to the jury, the defendant must show that she perceived imminent danger, based on some threatening behavior or communication by the victim at the time of the incident in question.
State v. Walker, 40 Wn.App. 658, 700 P.2d 1168 (1985).
See the discussion of
State v. Janes, 121 Wn.2d 220, 239, 850 P.2d 495 (1993), in the Comment to WPIC 16.02, Justifiable Homicide—Defense of Self and Others.
Relationship with “no duty to retreat” rule. The pattern instruction tracks the statutory definition of when force is “not unlawful” as stated in
RCW 9A.16.020(3), including its provision that the “force
[used by the defendant] is not more than is necessary.”
The “necessary” force limitation included in both
RCW 9A.16.020(3) and this instruction may seem in conflict with Washington's rule that there is no duty to retreat in certain cases. See discussion in
State v. Williams, 81 Wn.App. 738, 916 P.2d 445 (1996). The statutory definition of “necessary” includes that “no reasonably effective alternative to the use of force appeared to exist.”
RCW 9A.16.010(1). In a given case, a jury could interpret this language as precluding consideration of self-defense for a defendant who was resisting an attack in a place where he had a right to be, because he did not take an avenue of retreat. In such a case, the court may need to make clearer to the jury that the defendant was not obliged to retreat rather than defend. See
State v. Williams, 81 Wn.App. at 744 (holding that “where a jury may conclude that flight is a reasonably effective alternative to the use of force in self-defense, the no duty to retreat instruction should be given.”). At the same time, the prosecutor should not be deprived of the argument that other alternatives to the use of force may have existed. In such a case, the court should use the “no duty to retreat” instruction of WPIC 17.05, using the second bracketed alternative, which explains in more detail the relationship of the “necessary force” limitation and the “no duty to retreat” rule.
Defense of property. Because the defendant was not in lawful possession of wildlife (coyotes), he could not invoke defense of property as a defense to assault.
State v. Mierz, 127 Wn.2d 460, 470–71, 901 P.2d 286, 50 A.L.R.5th 921 (1995). A defendant may use necessary force against a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession even though the defendant does not reasonably believe that he is about to be injured. See
State v. Bland, 128 Wn.App. 511, 116 P.3d 428, 430 (2005).
Accidental injury. When there is evidence that the defendant had a reasonable fear of the victim, intentionally pointed a gun at a victim, used a reasonable amount of force, and was not the aggressor, it is error to refuse to give a self-defense instruction. In such circumstances, a claim of self-defense is not inconsistent with a claim that the gun was fired accidentally.
State v. Callahan, 87 Wn.App. 925, 943 P.2d 676 (1997).
Attempted homicide. When the charged offense is attempted murder, the appropriate instruction is WPIC 16.02, Justifiable Homicide—Defense of Self and Others, rather than WPIC 17.02.
State v. Cowen, 87 Wn.App. 45, 53, 939 P.2d 1249 (1997).
Felony murder. A claim of self-defense in felony murder prosecutions presents special problems for instructing the jury. In
State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990), the Supreme Court held that because a defendant is strictly responsible for death caused while fleeing from first degree burglary, the trial court properly refused the defendant's proposed self-defense instruction because the burglary was still in progress at time that the defendant was fleeing from scene. In
State v. Bolar, 118 Wn.App. 490, 78 P.3d 1012 (2003), the court, discussing
Dennison, seemed to hold that self-defense is not available as a matter of law when the felony murder is based on burglary. In
State v. Ferguson, 131 Wn.App. 855, 129 P.3d 856 (2006), the Court of Appeals held that when the felony murder charge is predicated on assault, the defendant may claim self-defense but only if he reasonably feared death or great bodily harm. Thus, the
Ferguson court concluded that only WPIC 16.02 can be given in a felony murder prosecution and that WPIC 17.02 can “never” be given. It appears that, in determining whether the jury should be instructed on self-defense, the court should carefully analyze the facts presented at trial and the elements of the predicate felony alleged.
Other statutes. RCW 9A.16.020(4) defines lawful force by a parent, guardian, or teacher.
RCW 9A.16.100 defines lawful force by a passenger carrier in expelling a passenger.
RCW 9A.16.020(6) defines lawful force in dealing with a mentally retarded or mentally ill person.
[Current as of July 2008.]
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11 WAPRAC WPIC 17.02