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.