Closer look at AZ "Castle Doctrine" bill
A conversation with friend and reader Bill Bailey prompted a closer look at Arizona's SB 1145, as passed by the House and signed recently by the Governor. It has five major thrusts:
(1) Previously, "justification" defenses, including self-defense, were affirmative defenses. The defendant (or self-defender) had to prove them by a preponderence of the evidence (i.e., proof of "more likely true than not). Under SB 1145, if the defense presents "evidence" (quantum undefined) of justification, the prosecution must disprove justification to a "beyond a reasonable doubt" standard. This change is not limited to defense of home or car, but applies anywhere.
(2) No duty to retreat before using force to prevent certain serious offenses, including aggravated assault. Again, this applies anywhere, any place a person has a right to be, in the language of the law.
(3) A person is presumed to be justified in using force or deadly force if he/she reasonably believes they are another are in imminent peril and the attacker has entered or is trying to enter a residence or occupied auto. Again, no duty to retreat. (I don't think this changes the law any, since if a person reasonably believes themselves in imminent peril they are justified in using deadly force whether in a house or anywhere else).
(4) A person is generally presumed to be justified in use of force if the attacker has unlawfully forced his way into residence or car or is trying to do so (with certain exceptions, such as if the person forcing in had a legal right to be in there). I wonder how this interacts with (1) above... if the prosecution is always required to disprove justification anyway, what is the additional effect of saying that in certain cases justification is presumed? I can think of two possibilities: (1) under the first, the defense must put up some "evidence" before the burden shifts to the prosecution, so perhaps this presumption substitutes for the evidence. If the defender proves a home invasion, the prosecution immediately assumes the burden of disproving justification. If home invasion is shown by the prosecution's own case, it had better disprove need for use of force before it rests, or it may lose on a directed verdict before defendant has to put on his/her case. (2) It's always nice to have two favorable jury instructions rather than one. Oh, perhaps (3) the shifting of the burden only functions at trial, so perhaps this presumption would function to prevent a finding of probable cause, and thus arrest, in a home invasion absent evidence that use of force was not justified.
(5) If the aggressor is foolish enough to sue, and the defender wins, the defender recovers attorney fees and lost income (presumably, lost while at the courthouse). This not limited to the home invasion situation. Good idea, but I think the legislature slipped up. It applies to any justification "under this chapter." This chapter is ch. 4 of TItle 13, ARS. That includes all justifications, including necessity (no way to obey law without greating greater social or individual harm, not applicable to causing serious injury or death) and duress (being forced into it, with the same limit). The good news for LEOs is that Chapter 4 also covers use of force in law enforcement.
The purpose of the apparent redundancy is to further defend this law and its intent against liberal judges who will try to ignore these laws and their stated intent. Language in laws must be THAT explicit to prevent some judge with an agenda from getting away with ruling on their own personal views instead of the actual law. This language gives much better chances to have their f---ed up ruling corrected on appeal.
When you have self-important fools like the riduculous 9th Circuit trying to legislate from the bench, being extremely clear and repeating it often is very important in modern legislation.
The next law we need is one that provides for automatic impeachment for any judge who is overturned more than 20% of their appealed cases. After all...why should we be payig someone to be on the bench when they obviously don't know what they're doing well enough to not be overturned more than infrequently on appeal.
Posted by: Dave at April 20, 2007 08:12 AM
im so glad to see mr fish get out. i had started reading about it and then saw it on 12 news.
his statement of having to kill someone are obviously from his heart.
i was faced with the same thing years ago, the gun jambed so i used it as a club to beat the assliant
until i could get away and get in my house and lock the door.
after calming down the full ramifications of potentially shooting even in self defense hit me
i sat up all night just blanked out over what had happened a was thankful the gun jammed. beating some one with it is a whole lot easier to accept than shooting possilby killing someone.
it gave me greater respect for any firearm
i only shoot deaar and game with a camera but do take a gun along, when i wander around trying to get a shot of wildlife and the beautiful scenery of arizona. today is indeed a great day for mr fish and his family
i wish them all the best for the rest of their
Posted by: ed rogers at July 17, 2009 11:18 PM
Something to consider.
What should be clear to everyone is there exists a minority of people who in positions of authority who are ever willing even eager to risk the lives of others to achieve their ideas of utopia.
Grant Kuenzli was a violent mentally unstable person allowed to walk the streets and forests because as a society we have become both too cheap and to weak in our spirit to lock such people up in mental facilities for their own welfare.
Long ago I watched P. Reagan by and large close the mental institutions which held those who today we now see homeless, on crack and other drugs. At best doing the Thorozine Shuffle thru their lives. All the while they bring crime, violence and death to themselves and others.
Harold Fish was every bit as much a victim of societies unwillingness to deal with the mentally ill as Grant Kuenzli was a victim of his own mental illness.
It is time we reopen the mental facilities and start putting those who demonstrate an unwillingness or inability to care for themselves back into such facilities..
Filling our Jails with such people by waiting until they act out is simply wrong.
For their safety and our own lests get them off the streets and trails.
Posted by: Mel at October 20, 2010 04:55 PM