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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.1 Self Defense: Miscellaneous Issues

    253.4.1.1 Self Defense: Right to Arm
    253.4.1.2 Brandishing A Deadly Weapon In Self Defense
    253.4.1.3 Self Defense: Still Available Even If Defendant Was Unlawfully Carrying A Weapon
    253.4.1.4 Self Defense: Definition Of Necessary
    253.4.1.5 Self Defense: Not Guilty Verdict As To Greater Offense Precludes Conviction Of Lesser
    253.4.1.6 Self Defense -- Defense Of Others: Should Apply To Both Threat Of Force And Use Of Force
    253.4.1.7 Self Defense: Right To Continue Shooting
    253.4.1.8 Self Defense: Right To Pursue Assailant
    253.4.1.9 Self Defense: When Defendant Does Not Intend To Kill
    253.4.1.10 Self Defense: Racial Epithets
    253.4.1.11 Self Defense Requires Acquittal Even If Defendant Also Acted In Heat of Passion
    253.4.1.12 Self Defense Against Forcible Felony: Felony Need Not Be Charged
    253.4.1.13 Self Defense Against Assault Or Battery: Applicability To Battery Without Bodily Harm
    253.4.1.14 Applicability Of Self Defense To Felony Murder
    253.4.1.15 Self Defense: Exfelon In Possession Of Weapon
    253.4.1.16 Speeding: Justification As Defense Theory
    253.4.1.17 Self Defense: When Deadly Force May Be Used By Private Citizen To Make An Arrest
    253.4.1.18 Instruction On Heat Of Passion/Hot Blooded Reaction To Provocation Not Precluded By Self Defense
    253.4.1.19 Self Defense Does Not Foreclose Other Defenses
    253.4.1.20 Self Defense: Federal Model Instructions

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RATIONALE: A person with a valid reason to fear an attack should not be penalized for obtaining a weapon to defend against such attack.

POINTS AND AUTHORITIES: It is a "fundamental doctrine that a person who has been threatened with death or serious bodily harm and has reasonable grounds to believe that such threats will be carried into execution, has the right to arm himself [or herself] in order to combat such an emergency." (Bevley v. Commonwealth (VA 1946) 38 SE2d 331, 333; see also Tijerina v. State (TX 1996) 921 SW2d 287, 289-90 [when trial court has charged jury on provoking the difficulty, court must also give charge on defendant's right to arm himself and seek explanation, if raised by evidence]; Gilbert v. Commonwealth (VA 1998) 506 SE2d 543, 547; State v. Brown (WV 1988) 371 SE2d 609, 613 [failure to give defendant’s proposed instruction on right to arm would be reversible error if defendant was convicted of first degree murder, because possession of firearm would be prima facie evidence of premeditation]; see also People v. Saavedra (2007) 156 CA4th 561 [an inmate can raise self-defense where the prisoner was under imminent mortal attack, had no opportunity to seek protection of the authorities, and temporarily seized a prohibited weapon in order to save his life]..)

    See also NCJIC 77.6.3.1 [Brandishing, Exhibiting Or Pointing A Deadly Weapon In Self Defense].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTE:

Wharton’s Criminal Law (West, 15th Ed. 1994) § 127, pp. 188-89.

See also generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    The defendant who because of threats or prior difficulties with __________ (name of alleged victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of ____________ (name of alleged victim), has the right to arm [himself] [herself].

[See generally Gilbert v. Commonwealth (VA 1998) 506 SE2d 543, 547; State v. Brown (WV 1988) 371 SE2d 609, 613; Tijerina v. State (TX 1996) 921 SW2d 287, 289-90; see also FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 3.04(d) [Justifiable Use Of Deadly Force] p. 49 (Florida Bar, 2000).]

    Evidence that shortly prior to the killing the defendant reasonably apprehended an attack upon his person by the deceased gives the defendant a right to arm himself if he reasonably feared such an attack.

[See McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 12:760:10 [Burden Of Proof And Persuasion] (James Publishing, 2000); see also Cottom v. State (TX 1922) 240 SW 918.]

    When a person reasonably apprehends that another intends to attack him for the purpose of killing him or doing serious bodily harm, then such person has a right to arm himself for his own necessary self protection, and in such case, no inference of malice can be drawn from the fact that he prepared for it.

[Source: Delacruz v. Commonwealth (VA 1990) 398 SE2d 103, 106.]

    One who has reasonable grounds to believe that another will attack him, and that the anticipated attack will be of such a character as to endanger his or her life or limb, or to cause him or her serious bodily harm, has a right to arm himself or herself for the purpose of resisting such attack.

    A person who arms himself or herself in reasonable anticipation of being attacked is not the aggressor and is not deprived of the right of self defense simply by virtue of being armed prior to the attack.

[See generally Gilbert v. Commonwealth (VA 1998) 506 SE2d 543, 547; State v. Brown (WV 1988) 371 SE2d 609, 613; Tijerina v. State (TX 1996) 921 SW2d 287, 289-90; State v. Jackson (AZ 1963) 382 P2d 229, 232; cf. WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, WPIC 8.05 [Right To Arm] (Wyoming State Bar, 1996).]

    A person does not become an aggressor merely by providing an opportunity for conflict. Therefore, one who does an act which merely affords an opportunity for conflict is not thereby precluded from claiming self defense.

[See generally State v. Jackson (AZ 1963) 382 P2d 229, 232.]

    A person who reasonably believes that another intends to attack him for the purpose of killing him or doing him serious bodily harm has a right to arm himself for his own necessary self protection. In such a case, no inference of malice can be drawn from the fact that he or she armed himself or herself.

[See generally Bevley v. Commonwealth (VA 1946) 38 SE2d 331, 333; Gilbert v. Commonwealth (VA 1998) 506 SE2d 543, 547; cf. Virginia Model Jury Instructions - Criminal 35.200 [Arrest-Definition] (Lexis, 2000).]

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    253.4.1.2    Brandishing A Deadly Weapon In Self Defense

RATIONALE: If a person may lawfully use actual force in self defense it follows, a fortiori, that a person may exhibit a weapon in self defense.

POINTS AND AUTHORITIES: Self-defense is a defense to a charge of exhibiting a weapon in an angry or threatening manner. (See e.g., People v. Curtis (CA 1994) 30 CA4th 1337, 1362-63 [37 CR2d 304] [recognizing potential of sua sponte duty to instruct when requisite facts exist]; People v. Corlett (CA 1944) 67 CA2d 33, 45 [153 P2d 595]; State v. Griffin (MO 1993) 859 SW2d 816, 819; see also NCJIC 253.4.16.1 [Self Defense: Brandishing Or Attempted Brandishing Of Firearm As Imminent Danger].)

    See also NCJIC 253.4.1.1 [Self Defense: Right to Arm].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See also generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    A person may draw or exhibit a deadly weapon in self defense.

[Source: NCJIC.]

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PRACTICE NOTE:  Even if a person is unlawfully carrying a weapon he or she may use the weapon in self defense. (See Wharton’s Criminal Law (West, 15th Ed. 1993) § 127, pp. 191-92.)

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

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RATIONALE: Pattern instructions on self defense may use the term "necessary" in describing the lawfulness of the force used. When used in this context the term "necessary" has a special meaning upon which the jury should be instructed.

POINTS AND AUTHORITIES: See NCJIC 3.2.6 [Duty To Define Terms with Specialized/Technical Meaning].

PRACTICE NOTE: The concept of necessity may also encompass the issue of retreat. (See NCJIC 253.4.5 [Duty To Retreat].) In this respect, there should be a knowledge requirement on the part of the defendant as to the availability of an effective alternative to the use of force. (See NCJIC 253.4.5.2 [Duty To Retreat: Knowledge That Retreat Is Available And Possible With "Complete Safety"]; see also WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 16.08 [No Duty To Retreat] (West, 2nd ed. 1994).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    For the purposes of these instructions the term necessary is defined as follows: Under the circumstances as they appeared to the defendant, (1) no reasonably effective alternative to the use of force appeared to exist and (2) the amount of force used was reasonable.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 16.05 [Necessary-Definition] (West, 2nd ed. 1994) (1998 Pocket Part).]

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    See NCJIC 275.1.4 [Not Guilty Verdict As To Greater Offenses Based On Self Defense Precludes Conviction of Lesser Included Offense].

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RATIONALE: Self defense should apply to both the actual use of force and the threat to use force in defending against an imminent attack.

POINTS AND AUTHORITIES: Some pattern instructions may only refer to, or focus on, the use of actual force in self defense. (See e.g., CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.39 [General Jury Instructions-Charge-Self Defense] (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).) However, lawful self defense should also include the right to threaten the use of force.

    "If he is justified in using deadly force, he is of course justified in threatening to use it. If he is not justified in using deadly force, he may nevertheless be justified in threatening to use it without intending to use it." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7 p. 652, fn. 13.)

    For example, State v. Ambuehl (WI 1988) 425 NW2d 649, illustrates why the omission of "threat of force" may be erroneous. In that case the defendant was charged with attempted murder. The charges arose from a bar room fight during which a gun the defendant was holding went off, injuring one of the combatants. The defendant claimed she intentionally pointed the gun in defense of her friend but that the gun went off accidentally. In other words, she intentionally threatened force but did not intentionally use force. Under these circumstances the failure of the instruction to include a "threat of force" alternative "was likely to divert the jury from [the defendant’s] version of the shooting to a version which she denied had occurred." (Ambuehl, 425 NW2d at 661.) As a result, the defense theory was never resolved by the jury and the case was reversed.

    In sum, any self defense or defense of other instructions should include both the threat of force and the actual use of force as within the ambit of the defense.

    See also NCJIC 253.4.11.9 [Self Defense: Reasonable Person Standard -- Defendant Need Not Wait For The Attack].

    See also NCJIC 253.4.1.2 [Brandishing A Deadly Weapon In Self Defense].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    A person may lawfully threaten to use force in self defense and/or defense of others.

[See generally State v. Ambuehl (WI 1988) 425 NW2d 649; cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 830 [Privilege: Defense Of Others: Force Intended Or Likely To Cause Death Great Bodily Harm] ¶ 1 (University of Wisconsin Law School, 1999).]

    It is lawful to attempt or offer to use force or violence upon or toward the person of another in self defense and/or defense of another.

[Cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-9-1 [Self Defense Against Assault] (State Bar of South Dakota, 1996).]

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RATIONALE: Without special instruction the jury may not understand the defendant's right to continue using force against the assailant.

POINTS AND AUTHORITIES: A person who is lawfully acting in self defense has no obligation to cease using deadly force so long as he or she reasonably believes the danger has not passed. (See LaFave & Scott, Substantive Criminal Law (West, 1986) 5.7(c), p. 654.) In fact, the person who is attacked may actually pursue the assailant. (See NCJIC 253.4.1.8 [Self Defense: Right To Pursue Assailant].)

    Hence, it has been held that when appropriate, the jury should be instructed that the defendant may "continue shooting him so long as it reasonably appeared to him, at the time, that all danger had not passed as viewed from the defendant's standpoint." (Stevens v. State (TX 1984) 671 SW2d 517, 522; but see Philen v. State (TX 1984) 613 SW2d 440, 445 [separate instruction would be repetitious].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    If the defendant was acting in self defense when [he] [she] started firing at the deceased, then the defendant was justified in continuing to fire at the deceased so long as it reasonably appeared to the defendant, as viewed from [his] [her] standpoint alone, that all danger had not passed.

[See generally Ross v. State (TX 1988) 763 SW2d 897, 902; cf. McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 12:1110:100 [Right To Continue Shooting] (James Publishing, 2000).]

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RATIONALE: Without an explanatory instruction the jury may improperly assume that if the defendant pursued the assailant there would be no right to self defense.

POINTS AND AUTHORITIES: It has been held that a person may pursue an assailant until the person has secured himself/herself from danger if that course appears reasonably necessary. (See Luby v. Commonwealth (KY 1876) 75 Ky. 1 [12 Bush 1]; but see Idrogo v. State (CO 1991) 818 P2d 752, 755-56 [no right to pursue when apparent danger has passed]; Hollowell v. State (IN 1999) 707 NE2d 1014, 1021 [same].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    If the defendant was acting in self defense as defined in these instructions, [he] [she] was justified in pursuing the assailant until the defendant secured [himself] [herself] from danger if the defendant reasonably believed that such pursuit was necessary.  This law applies even though the defendant might more easily have gained safety by flight or by withdrawing from the scene.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.50 [Self-Defense–Assailed Person Need Not Retreat] (West, 6th Ed. 1996).]

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RATIONALE: Self defense does not necessarily involve an intent to kill. For example, the defendant may have intended to frighten or disable the attacker rather than to kill. In such a case it is error to instruct the jury on self defense only in terms of intent to kill.

POINTS AND AUTHORITIES: Some pattern instructions define self defense in terms of "intent to kill." (See e.g., MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 7.05, comment [Self-Defense- Causing Death] (West, 4th ed. 1999); but see Cooper, KENTUCKY INSTRUCTIONS TO JURIES 11.07 [Justification - Self Protection; Homicide] (Anderson, 4th ed. 2001) [criticizing refusal "to accept the concept that a person can commit an intentional act (shooting, stabbing, beating, etc.) without intending the result of that act (death or injury)"]; see also Elliott v. Commonwealth (KY 1998) 976 SW2d 416, 418.) This may mislead the jury in situations where the defendant did not intend to kill. (See e.g., State v. Fidel (MN 1990) 451 NW2d 350, 356 [improper to instruct that the defendant's "election to kill" must have been reasonable; instead, the trial court should have instructed that the defendant's "election to defend himself in the way he did" must have been reasonable]; see also State v. Smith (MN 1985) 374 NW2d 520, 522-23; State v. Malaski (MN 1983) 330 NW2d 447, 453.) Hence, when appropriate, such language should be changed to reflect the facts of the case -- e.g., change "election to kill" to "election to defend."

    See also NCJIC 92.8.3.2 [Unintentional Murder: Negation Of Malice By Imperfect Self Defense].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    The defendant's [decision] [election] to defend in the way [he] [she] did] must have been reasonable. This requires you to consider whether a reasonable person in the defendant's situation would have [decided] [elected] to defend [in the way the defendant did].

[Source: NCJIC.]

    The defendant's decision to defend must be a decision which a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril.

[See generally State v. Fidel (MN 1990) 451 NW2d 350, 356; cf. MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 7.05 [Self-Defense- Causing Death] ¶ 2, (West, 4th ed. 1999).]

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RATIONALE: Racial epithets are so highly provocative that an explanatory instruction regarding the jury's consideration of such words may be appropriate.

POINTS AND AUTHORITIES: While words alone will not normally justify the use of force in self defense, words combined with hostile acts may be sufficient. (See NCJIC 253.4.14.5 [Self Defense: Definition Of Aggressor -- Words Alone Not Sufficient]; see also NCJIC 253.4.11.5 [Self Defense: Reasonable Person Standard -- Words of Provocation May Be Considered].) This is especially true when the words constitute racial epithets. (See State v. Fuller (SC 1989) 377 SE2d 328, 331; 40 AM.JUR.2d Homicide 156 at 445 ["[U]nder some circumstances words, threats, menaces or contemptuous gestures are sufficient to engender a belief that killing is necessary"].)

    See NCJIC 255.3.3.4 [Provocation/Heat Of Passion: Jury May Consider Insulting Words Combined With Other Provocation].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    In deciding whether the prosecution has proved beyond a reasonable doubt that the defendant did not have a right to use force in self defense, consider whether any words accompanying the hostile acts involved racial epithets which, in the context of the circumstances involved, indicated a stronger likelihood that force would be used by the assailant or assailants to inflict death or serious bodily harm.

[See generally State v. Fuller (SC 1989) 377 SE2d 328, 331; cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst 10.8 [Racial Epithets] p. 281 (South Carolina CLE, 1994).]

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RATIONALE: In a case which presents both the issue of self defense and heat of passion/provocation the jury may be confused by the existence of both theories even though the instructions describing each theory are themselves correct. That is, the jury may not understand that a defendant who acts in self defense must be found not guilty without regard to the applicability of voluntary manslaughter based on heat of passion/provocation.

POINTS AND AUTHORITIES: Juror confusion in cases involving defenses of both self defense and heat of passion from provocation may be reduced by telling the jurors that they are required to find the defendant not guilty if his conduct met the definition of self defense. (See State v. Parish (NM 1994) 878 P2d 988, 995-96; see also NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-222, annotations [Sufficient Provocation; Defined] (Lexis, 1998).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    If the prosecution fails to meet its burden of disproving self defense beyond a reasonable doubt, you must find the defendant not guilty regardless of whether or not the defendant acted in the heat of passion.

[Source: Adapted from State v. Parish (NM 1994) 878 P2d 988, 996.]

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RATIONALE: If the jury is simply instructed that self defense is available against a forcible felony, the jury may be misled into assuming that the felony must actually be charged.

POINTS AND AUTHORITIES: See generally Wharton’s Criminal Law (West, 15th Ed. 1993) § 129, pp. 200-01 [Self defense to Prevent Felony].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    It is not necessary that _________ (name of alleged victim) be charged or convicted of __________ (name of forcible felony).  It is only necessary that the defendant knew that __________ (name of alleged victim) was committing a forcible felony. 

[See IOWA CRIMINAL JURY INSTRUCTIONS 400.9 [Knowledge Of Forcible Felony Being Committed] (Iowa State Bar Association, 1991); see also Wharton’s Criminal Law (West, 15th Ed. 1993) § 129, pp. 200-01.]

    A forcible and atrocious crime, as used in these instructions, means any crime, the commission of which is reasonably believed by the defendant to threaten life or great bodily injury.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.16 [Forcible And Atrocious Crime-Defined] (West, 6th Ed. 1996).]

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RATIONALE: The defendant should be able to use reasonable self defense against a battery even if it doesn't cause bodily harm.

POINTS AND AUTHORITIES: The right to resist a battery is not necessarily dependent upon whether or not the battery poses an imminent danger of bodily injury. "[A]n offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery which the victim is privileged to resist with such force as is reasonable under the circumstances. The same may be said of an assault insofar as it is an attempt to commit such a battery." (People v. Myers (CA 1998) 61 CA4th 328, 335 [71 CR2d 518].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    A person may lawfully act in self defense based on an honest and reasonable belief that bodily injury or any battery was about to be inflicted upon him or her. Based on such a belief the person may use all force and means which he or she believes to be reasonably necessary and which would appear to a reasonable person in the same circumstances to be necessary.

[See generally People v. Myers (CA 1998) 61 CA4th 328, 335 [71 CR2d 518]; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.30 [Self Defense Against Assault] (West, 6th Ed. 1996).]

    Actual danger is not necessary to justify self defense. If one is confronted by circumstances which create an honest and reasonable belief that he or she is in danger of being the victim of a battery, he or she may lawfully use reasonable force in self defense.

[Source: NCJIC.]

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PRACTICE NOTE: It has been held that self defense does not apply to felony murder predicated upon a nighttime burglary of an occupied residence. (People v. Loustaunau (CA 1986) 181 CA3d 163, 170 [226 CR 216]; State v. Amado (CT 1996) 680 A2d 974, 980-81; State v. Bradley (ME 1987) 521 A2d 289; State v. Dennison (WA 1990) 801 P2d 193, 197-98 [self defense not available if death occurs in the attempt, commission or flight from a felony].)

    However, no case has addressed the question of whether felony murder predicated upon a nondeadly felony (e.g., second degree auto-burglary) precludes self defense. Because a citizen's right to use deadly force to apprehend a felon turns on whether the felony was "forcible and atrocious" (see e.g., People v. Quesada (CA 1980) 113 CA3d 533, 539 [169 CR 881]), it follows that self defense should be available to defend against the use of deadly force by the apprehending citizen when the defendant committed a felony which was not "forcible and atrocious." (See also Robinson, Criminal Law Defenses (West, 1984) § 132 p. 99 ["...[A] blanket denial of self defense for all felony murders may be inappropriate"].)

    Another analysis from State v. Dennison (WA 1990 ) 801 P2d 193, 204 (Utter, J., dissenting) is as follows:

1.    The legislature has specifically provided for a statutory claim of self defense against any homicide charge.

2.    Homicide includes murder.

3.    Felony murder is not a separate crime from murder; it is but one way of committing the crime of murder. (State v. Powell (WA 1983) 664 P2d 1, 3; see also People v. Dillon (CA 1983) 34 C3d 441, 476 fn 3 [194 CR 390] [felony murder is a type of murder].)

4.    Therefore, felony murder is a homicide and self defense is applicable.

BRIEFING AVAILABLE: Click here. [Brief Bank # B-521].

RESEARCH NOTES:

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

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    253.4.1.15    Self Defense: Exfelon In Possession Of Weapon

RATIONALE: When a person not authorized to possess a weapon (e.g., an exfelon) possesses a firearm for purposes of immediate self defense, it may be appropriate to instruct the jury on the availability of self defense.

POINTS AND AUTHORITIES: Self defense should be available to a charge of possession of a prohibited weapon. (See U.S. v. Perrin (4th Cir. 1995) 45 F3d 869, 873-74; Potter v. U.S. (DC App. 1987) 534 A2d 943, 946; U.S. v. Panter (5th Cir 1982) 688 F2d 268, 270-72.) The rationale for this rule is akin to necessity. (See e.g., Crawford v. State (MD 1985) 487 A2d 1214, 1219-20; see also NCJIC 56.3.3 [Necessary Or Justified Possession].)

    For example, U.S. v. Paolello (3rd Cir. 1991) 951 F2d 527, 540 held that an exfelon may possess a firearm in self defense if four elements, akin to the elements of a necessity defense, exist: (1) the defendant was under unlawful and present threat of death or serious bodily injury; (2) the defendant did not recklessly place himself or herself in the situation; (3) the defendant had no reasonable legal alternative to both the criminal act and the avoidance of the threatened harm; and (4) there was a direct causal relationship between the criminal act and the avoidance of the threatened harm. (See also U.S. v. Gant (5th Cir. 1982) 691 F2d 1159, 1161-62 [right to self defense defined in terms of duress and necessity]; U.S. v. Talbott (7th Cir. 1996) 78 F3d 1183, 1185 [error to not instruct that prosecution has burden of negating defense of self defense raised by convicted felon]; Commonwealth v. Brown (PA 1980) 421 A2d 660, 664 ["Since this conviction requires a finding that appellant must be found to have intended to use the weapon criminally, [citation], a proper determination of the self-defense issue is critical to the finding as to this weapons charge"]; Wilson v. U.S. (D.C. Cir. 1952) 198 F2d 299, 300 [recognition of self defense as to possession of weapon charge].)

    See also NCJIC 56.3.2 [Innocent Possession].

    See also NCJIC 106.4.2.1 [Carrying Concealed Weapon Without A License: Self Defense].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 2.35 [Justification Defense] (TRCC 1999).

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

    When a person picks up and/or uses a weapon during the actual exercise of [self defense] [defense of a third person], as defined in these instructions, that person is not guilty of unlawfully carrying a weapon.

[See generally U.S. v. Perrin (4th Cir. 1995) 45 F3d 869, 873-74; Wilson v. U.S. (DC Cir. 1952) 198 F2d 299, 300 [recognition of self defense as to possession of weapon charge]; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.71 [Carrying A Concealed Weapon Or A Pistol Without A License-Defenses] ¶ 1 (Bar Association of the District of Columbia, 4th ed. 1993).]

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    253.4.1.16    Speeding: Justification As Defense Theory

    See NCJIC 105.3.3.4 [Speeding: Justification As Defense Theory].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

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PRACTICE NOTE: In California, a citizen may use deadly force to make an arrest when "the circumstances of a particular case establish that the perpetrator's conduct threatened, or was reasonably believed to threaten, death or serious bodily harm.'" (See People v. Ceballos (CA 1974) 12 C3d 470, 479 [116 CR 233].) Also, the arresting citizen must have actual knowledge that the felony was committed by the person being arrested. (See Gomez v. Garcia (CA 1980) 112 CA3d 392, 397 [169 CR 350]; People v. Aldapa (CA 1971) 17 CA3d 184, 188 [94 CR 579]; see also Phoenix v. State (FL 1984) 455 So2d 1024, 1025 [citizen must have probable cause that person arrested had committed a felony, must only use reasonable force and person being arrested must know citizen was attempting to make an arrest].)

    In the event of a citizen's arrest the person arrested does not lose the right to use self defense against unreasonable force. (See e.g., State v. Johnson (NM 1997) 954 P2d 79, 83; U.S. v. Shepherd (CMA 1991) 33 MJ 66, 69.)

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

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    See NCJIC 255.3.2.5 [Defense Theory Of Accident Or Self Defense Does Not Preclude Instruction On Heat Of Passion/hot Blood].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

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PRACTICE NOTE: Self defense does not foreclose other inconsistent defenses. (See e.g., People v. Fuqua (MI 1985) 379 NW2d 396, 399 [right to instruction on both mistaken identification and self defense].)

    See also NCJIC 250.2.5 [Right To Instruction On Inconsistent Defenses].

    See also NCJIC 253.4.2.7 [Instruction On Both Self Defense And Accident].

    See also NCJIC 255.3.2.5 [Defense Theory Of Accident Or Self Defense Does Not Preclude Instruction On Heat Of Passion/Hot Blood].

See generally, NCJIC 305.19.1  [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense:  Federal Model Instructions].

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    253.4.1.20    Self Defense:  Federal Model Instructions

See 1st Circuit Pattern Jury Instructions - Criminal 5.04.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.09.

See also 6th Circuit Pattern Jury Instructions - Criminal 6.06.

See also 7th Circuit Federal Jury Instructions - Criminal 6.01.

See also 8th Circuit Model Jury Instructions - Criminal 9.04.

See also 9th Circuit Model Jury Instructions - Criminal 6.7.