Displaying items by tag: Assault

As we watch juries around the country come up with varied verdicts relating to self-defense, we thought it would be a good time to give our two cents when it comes to the basics in Washington. As required, we must remind everyone that this blog is not legal advice and should not be used as advice when handling actual issues of conflict and self-defense. 

If self-defense is allowed under the law, why do juries convict people defending themselves?

 

One of the biggest reasons you see such varied verdicts when it comes to defendants claiming self-defense is that, while self-defense is spelled out in statute and case law, it is actually quite subjective in reality. More often than not, you will rarely find 12 jurors who will instantly agree that a defendant acted in self-defense. While the state has the burden to prove the elements of the crime charged, the defense attorney also has quite a significant burden to establish self-defense. And, even if the defense attorney meets this burden such that the burden shifts back to the prosecution to prove the absence of self-defense, it does not mean a jury will agree that the defendant truly met the burden. Juries just don’t always agree with the defendant’s version of events or who was the first aggressor. 

How do I know whether I can use force for self-defense?

 

Washington law allows for use of force in certain circumstances. The RCW 9A.16.020 provides the basic outline of when an individual is allowed use of force, which boils down to self-defense, defense of others, and defense of property. However, there must be an additional analysis as to the amount of force and whether it is reasonable given the circumstances. There are additional RCWs and case law that address both non-deadly force as well as deadly force.

 

While Washington law does not impose a duty to retreat, it is important to know that the person asserting self-defense cannot use more force than necessary. For example, if you are in an argument with your neighbor and he pulls apples from the tree in his yard and throws them across the fence in your direction, you may not pull out a gun and shoot the neighbor. You don’t have to retreat but turning a hose on the neighbor is a more appropriate “amount of force” in response to the apple throwing. Better yet, go inside and call the police so that your neighbor will be charged with assault and a no contact order will be put in place. That solves any further un-neighborly interactions. 

What if I think the neighbor is actually going to cause serious harm?

 

Again, this requires an analysis of your risk and whether there is an imminent threat of death or great bodily harm. If your neighbor came to your driveway with a baseball bat and smashed out your vehicle’s headlights, you should not go to the driveway and shoot the neighbor because that is not a reasonable amount of force. While a bat can be used as a deadly weapon and might justify deadly force in response, in the scenario where the bat is simply used to destroy minimal property, you would not be justified in shooting the neighbor based on the statute and case law regarding use of deadly force. However, if the neighbor then starts walking toward you and threatening “I’m going to do the same thing to your head,” it’s much more reasonable that your use of deadly force meets the standard of what a reasonably prudent person would find necessary in that circumstance. 

The costs of asserting self-defense

 

While it is better to be asserting self-defense in a criminal trial than be six feet under, if you are being prosecuted for your choice to defend yourself with deadly force, you will face many life-altering costs. The biggest problem is the “gray area” in analyzing self-defense and the uncertainty of juries.

 

To go to trial, you are likely looking at tens of thousands of dollars in legal fees. If you can’t afford bail, you may spend months in jail while you prepare for trial. Depending on your employment, you may lose your job while you wait for your day in court. Additionally, the emotional cost to your spouse and family are immeasurable and the stress of uncertainty is overwhelming. If you are lucky enough to prevail, you can seek reimbursement for legal costs but the damage to your life is truly irreparable. While you may have every “right” to defend yourself, that defense may come at a hefty price.

 

Honestly, it may be a safer choice to be a victim of property crime or potential minimal bodily harm, such as shoving or being punched, rather than face potential criminal charges for firing a weapon at an aggressor. Obviously, it is hard to know in every situation what risk you truly face but it’s important to keep a clear head if you think a situation is escalating to need for a weapon. Is there a way to avoid that confrontation or reduce your chance for serious bodily injury or death such that self-defense is unnecessary?

 

For example, if you notice that someone has entered your attached garage, you could call 911 and make sure your deadbolt to the home is secure. Rather than open the door to the garage and confront the person, you may want to wait for the intruder to initiate entry into your residential space. Clearly, waiting to avoid confrontation would appear to a jury that you met the “reasonably prudent person” standard—even if many of us would rather not wait for that possibility. Unfortunately, depending where you live, if you enter the garage to shoot the intruder, you may risk a criminal charge. While a legal analysis would suggest you are perfectly justified under the Castle Doctrine, in our experience, it does not prevent an overzealous prosecutor from charging you and creating absolute hell in your life. So, for those who own firearms, you must know precisely when you can use deadly force without risk of prosecution. 

Can I always use deadly force to defend myself inside my home?

 

In theory, yes. In reality, no. Regardless of the Castle Doctrine, every use of deadly force must be considered under the analysis of reasonableness and imminent threat of death or serious bodily injury. Deadly force may only be used in self-defense if the defendant reasonably believes he or she is threatened with death or great personal injury. State v. Walden, 131 Wn.2d 469 (1997).

 

For example, if you find an intruder in your home and you can see he is not armed and, upon seeing you, attempts to flee the home, you should not shoot the person in the back as he is leaving. Perhaps you were so scared that you didn’t realize the intruder was fleeing and thought he would grab a knife in the kitchen. Unfortunately, when the police arrive to find a deceased person with a bullet in his back, you better hope that your story meets the subjective and objective standard regarding self-defense.

 

Remember, to use a firearm in defense of yourself or in your home, make sure that you are facing “imminent peril of death or serious bodily harm.” There may be reasons that you subjectively believed those risks existed but you must make sure that it is also reasonable from an objective standpoint. This means that the jury doesn’t just consider what you thought was happening in that moment but what a reasonably prudent person would choose to do in the same circumstance. Those two standards do not always match and your reality may not be enough to successfully assert justifiable homicide as a defense. 

What if I am unsure where and when I can discharge my firearm due to a perceived threat?

 

If you are unsure when and where you can discharge a firearm in your defense, you need to really think about whether you should carry one. While it might make sense to keep it safely secured in your home for defense, which has more well-established case law in the homeowner’s favor, the “gray area” is significant when it comes to situations outside your “castle.” If you plan to carry a firearm on your person, do a deep dive into your obligations as a gun owner. When it comes to firearms, there is a lot of discussion regarding rights and less information regarding obligations for safe use. Do not put yourself in a situation where you are the defendant because you mistakenly discharged your gun in response to a threat. 

If the law is on my side, why should I be concerned about defending myself by use of force?

 

Obviously, the best option is to avoid conflict entirely so that you don’t find yourself justifying your reaction. It’s easy enough to blog about all the “rights” you have when it comes to self-defense but the truth is, if you have to spell that out to a jury, you are potentially facing serious risks to your freedom, your career, and devastation of your finances. If the prosecutor charged you with a crime, the state does not agree with your story. You have to wonder whether you can get 12 other people to see it your way. If you don’t like risk, being faced with trial as your only option will be life-altering regardless of the verdict. So, while there is no duty to retreat in Washington, it is certainly part of the equation if you are “selling” your story to a jury. Did you do everything you could to deescalate the situation? Do you seem the most reasonable? Do you seem like the first aggressor? All of these factors should be considered before you assume a right to use force—deadly or not. 

What if I carry a firearm because I am frequently in dangerous confrontations?

 

If you are frequently in confrontations or in relationships with volatile people, the common denominator is you. Thankfully, you can change your surroundings and your friends to avoid a lot of trouble. And, if you are a reactive person or someone prone to conflict, we can not emphasize enough that you will save yourself a lifetime of heartache by making the effort now to change your instinctive responses. Do not risk facing criminal charges and the need to convince a jury to see it your way. Even if the law is on your side, there are never any guarantees.

 

If you would like to know more about self-defense and law regarding use of deadly force, please return to this blog in the future. We are reaching out to other legal service providers and firearm safety experts to find information and possible free trainings offered. With such serious consequences at stake, be sure to keep informed.

 

If you need additional information, legal help, or a referral, please reach out to our office at (360) 792-1000.

For More Information On Self-Defense, Watch Our Video Below! 

 

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If you are facing a Domestic Violence charge in the State of Washington, you may be eligible to enter a rigorous but rewarding treatment plan commonly known as a Deferred Prosecution. A successful Deferred Prosecution ends with the current charge(s) being dismissed, but not everyone is eligible to enter a domestic violence Deferred Prosecution.

 

The four major factors that determine whether or not a person may be allowed into a Deferred Prosecution are (1) you can not have done a previous Deferred Prosecution, (2) you believe that, without such treatment, you have a high likelihood to reoffend, (3) you must be diagnosed that you are in need of domestic violence treatment, and (4) the case is charged in a District or Municipal Court in the State of Washington. 

Benefits of a Domestic Violence Deferred Prosecution

 

•The case is dismissed

•There is no jail time

•More often than not, even initially reluctant people at the end of the Deferred Prosecution report that is was a very positive experience

 

Downside of a Domestic Violence Deferred Prosecution


• You are only eligible to enter the program once in your life. If you mess it up, even at the beginning, that was your only shot

 •You are waiving substantial rights upon entry of a Deferred. If you fail, it is much easier for the State (or City) to convict you. If the Court deems that you are out of compliance, the Judge simply reads the Officer’s narrative of the events – no trial is held

 •In entering a Deferred, you have created a legal record that you are in need of domestic violence prevention treatment 

 •The entrant bears the cost of the domestic violence treatment program, and the Court costs for the Deferred Prosecution

 

The Domestic Violence Case Will Be Dismissed

 

Under RCW 10.05.120(3), the domestic violence case will be dismissed. The Statute states:

 

When a deferred prosecution is ordered for a petition brought under RCW 10.05.020(1) involving a domestic violence behavior problem and the court has received proof that the petitioner has successfully completed the domestic violence treatment plan, the court shall dismiss the charges pending against the petitioner

The fantastic part (other than getting the case dismissed) about this plan is that the dismissal can happen very quickly. Once a treatment plan is complete, the Court shall dismiss the pending charges. This would typically be in one year, because the average DV treatment plan is one year long. To contrast, Deferred Prosecutions for alcohol are five years, at the minimum. 

 

If you have questions about entering into a Deferred Prosecution for your domestic violence case, give our office a call. We have offices in Gig Harbor, Bremerton and Poulsbo for your convenience. 

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People are often shocked by the rule that when a law enforcement officer responds to a domestic violence call, someone has to be arrested. Even if the individuals involved don’t want assistance, and everything is back in a peaceful state, someone will be arrested and taken to jail. The arrest most often seems excessive and leads people to be upset not just at the other party, but usually at the police. Which begs the question….

Why Are People Arrested Over Such Minimal Events?

 

Why is it that law enforcement arrest individuals over the most benign altercations? The short answer is: they have to. By statute, law enforcement officers who respond to a domestic violence call within four hours of the event, and who have probable cause to believe that a crime of domestic violence has occurred, must make an arrest.

The Mandatory Arrest Rule Comes From The Combination Of Two Washington Statutes.

 

RCW 10.99.030 (6)(a) states “[w]hen a peace officer responds to a domestic violence call and has probable cause to believe that a crime has been committed, the peace officer shall exercise arrest powers with reference to the criteria in RCW 10.31.100.”


RCW 10.31.100 (2) states that “[a] police officer shall arrest and take into custody …a person without a warrant when the officer has probable cause to believe that:

(d) The person is eighteen years or older and within the proceeding four hours has assaulted a family or household member or intimate partner… and the officer believes:

(i) A felonious assault has occurred;

(ii) an assault has occurred which has resulted in bodily injury to the victim, whether or not the injury is observable; or,

(iii) that a physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death.

 

When the officer has probable cause to believe that the individuals involved have assaulted each other, the officer is NOT required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor.

Why Can’t The Officer Use Discretion?


The law enforcement officers who respond are sometimes in a box. Even though there may be a better solution than arresting a party, they must make an arrest. If officers, using their best judgment and discretion, decides to not arrest an individual, they can get in trouble upon review of the situation by their supervisor.


Knowing They Have To Arrest, How Do They Decide?

 

The officers try to determine who was the “primary aggressor” or, in other words, the individual who started the altercation or who kept it going. Or, it could come down to the individual who poses the greater threat. This can be a tricky situation because Officers are thrust into a scene with no understanding of the backstory.


Some individuals are just naturally better story tellers, and some clam up when they are confronted with law enforcement. This can be a huge factor. Some people tell wild and fanciful stories, while the other party just keeps their mouth shut. As such, the police only have one avenue to direct their efforts – they usually are directed by the individual who is more vocal.


Can’t That Lead To Error?


Absolutely. People should find it troubling that the police are NOT there to get to the absolute truth of the matter. Law enforcement works under the premise that getting to the ultimate truth isn’t their responsibility. They are there simply to begin the investigation and separate the individuals involved. The idea is that the truth will shake out in the Court process, by investigation and discussion between the prosecution and defense.


The problem with this logic is that often the police report is all the prosecution and defense have to go on. More often than not, there is no other information gathered and heavy reliance upon the law enforcement officer’s report is bolstered because the Judges take them as unquestionably true.


Another Compounding Issue Is The Low Standard Of Probable Cause


Referencing back to the Statute, it doesn’t take a high measure of proof to determine that there is “bodily injury to the victim, whether or not the injury is observable” The standard to arrest is “probable cause”, which is a very low standard, as opposed to “proof beyond a reasonable doubt” which is necessary to convict.


For example, if a law enforcement officer responds to the scene, and an individual simply says “he pushed me down” with nothing more and no visible injury, that is enough for the officer to make a finding of probable cause. And once that P.C. determination is made, an arrest is mandatory. Often these accusations are exaggerations or total fabrications – that does not matter in the probable cause analysis as long as the tall tale meets the elements of a crime.


Collateral Consequences Of The Mandatory Arrest

 

When the defendant makes his first appearance in Court for the domestic violence charge, the Court will always place a “no-contact order” on the defendant, prohibiting the defendant from contacting the alleged victim. This happens even when the alleged victim comes to court and argues vehemently that the order is not necessary. Astonishingly, the order will even be put in place when the alleged victim tells the Court and prosecutor that the claims he or she made to the officer were a total fabrication. The no contact order requires the defendant to move out of the family home. As you can imagine, the order causes tremendous hardship on both parties, especially if the protected party is now responsible for all child care, bills, upkeep of the house and errands. The contact orders are often devastating to the family, both financially and in the shifting of responsibilities.


What To Do If You Or A Loved One Has A Domestic Violence Charge?


Call the law office of Witt Law Group right away. We have offices in Bremerton, Poulsbo and Gig Harbor for your convenience. If your case is outside of our area, we can always provide a quality referral.


For More Information On Domestic Violence Charges, Watch Our Video Below ↓

 

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During the pandemic, what has risen at a rate as sharply as the virus? - Occurrences of domestic violence.

The conditions that people have been required to endure (unexpected time at home, unemployment and financial insecurity, anxiety, and stress) are all known to aggravate domestic violence.

In a recent study from UC Davis, the researcher said “The pandemic, like other kinds of disasters, exacerbates the social and livelihood stresses and circumstances that we know lead to intimate partner violence” and further the “increased social isolation during COVID-19 has created an environment where victims and aggressors in a relationship, cannot easily separate themselves from each other. The extra stress also can cause mental health issues, increasing individuals perceived stress and reactions to stress through violence and other means.”

Is the uptick in acts of violence attributed to domestic abusers who were “predisposed” to be abusive or could the uptick in assaults be attributed to, otherwise peaceful people, being placed under stress from the COVID-19 pressures?

 

Additional data from the UC Davis study “[does] not suggest causality and there is no way to determine if intimate partner violence was present in those relationships prior to the pandemic. What the data does suggest, however, is that experiencing such violence is related to reporting more exposure to stress.” Researchers found that “as people find themselves in a more tenuous financial situation due to COVID-19, there are more things to worry about and subsequently argue about” which leads to an occasion for intimate partner violence.

One study by two economists at BYU, published in the journal of Public Economics, found disturbing trends. They sampled 14 large cities across the United States. To note, “the data suggested that the pandemic has produced many new offenders; reports coming from city blocks with no previous record of domestic violence were the main drivers of the increase.”

What we see on the ground level

 

Many people who have been married peacefully for decades have succumbed to the stress inflicted by the COVID lockdowns. People are irritated with each other as there have been no viable outlets. Otherwise good people now are facing Assault charges. People who have no history, or violent tendencies, are now wrapped up in the criminal justice system. 911 calls are often made out of frustration and exhaustion rather than violence or danger. Many people who make the call recognize, after the fact, that it was a mistake. 

Is your family impacted?

 

If you find yourself facing a criminal charge involving partner or family violence, give our office a call. Our experienced attorneys have helped many people throughout the past 18 months walk through this very delicate and embarrassing situation. The lockdowns and stressors have created many challenges for our community, including terrible conflicts for families. We are here to help.

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Assault charges are very serious criminal cases. One of the biggest challenges is fighting the No Contact Order once a person is arrested for Assault 4 with the special allegation of domestic violence. The cost to the person accused, as well as the entire family, can be overwhelming.

 

If you are arrested for assault against a family member, friend, or roommate, you will be required to stay away from the victim—even if the victim lives in your home or apartment. The prosecutor and judge do not care whether you have no other place to stay. Any attempt to return to the home or have contact with the victim will likely result in an additional criminal charge.

 

Often, assault charges that involve family members are misunderstandings. Arguments might get out of hand and someone throws something, slaps another, or shoves a family member. All of those behaviors can be considered assault. Once the police arrive, if an assault has occurred, law enforcement must arrest the alleged perpetrator.

 

Washington law requires a mandatory arrest in most domestic situations where an assault or threat of assault has taken place. This arrest will lead to criminal charges. Once arraigned on the Assault charge, a No Contact Order will be put in place and the alleged person is not allowed to return to the home or location where the victim lives. However, in rare circumstances, this can be avoided if you have legal counsel involved early in the process. It is unusual but you should always contact an experienced criminal defense as soon as law enforcement is involved and, ideally, before the arrest has been made.

 

In retrospect, many people wish that they had never called the police. But once the call is made, and an arrest has been made, there is no going back. Get an attorney on board early on so that you, and your loved one, have the ability to advocate for your selves. Many "victims" in these cases feel like they are actually being victimized by the prosecuting attorney and the court. If you are interested on more info about Assault charges, and why you need an attorney prior to your arraignment, click the box below:

 

Why You Need An Attorney Prior to Arraignment

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Assault charges are very serious criminal cases. An assault arrest, even prior to a conviction, can have earth-shattering consequences. Job prospects, security clearances, a level playing field in family law matters - these are all relevant concerns. Even though a person is presumed innocent, it doesn't feel that way once the State has brought charges against you.

 

Arrested for Assault?

 

One of the biggest challenges is fighting the No Contact Order once a person is arrested for Assault 4 with the tag of domestic violence. The cost to the person accused, as well as the entire family, can be overwhelming. If you are arrested for assault against a family member, friend, or roommate, you will be required to stay away from the victim—even if the victim lives in your home or apartment. The prosecutor and judge do not care whether you have no other place to stay. Any attempt to return to the home or have contact with the victim will likely result in an additional criminal charge. Additionally, the collateral consequences of a No Contact Order are huge. Once a NCO is entered, there is an automatic firearms prohibition, which is highly relevant to members of the military. 

 

Did the alleged a Assault involve a family member?

 

Often, assault charges that involve family members are misunderstandings. Arguments might get out of hand and someone throws something, slaps another, or shoves a family member. All of those behaviors can be considered assault. Once the police arrive, if an assault has occurred, law enforcement must arrest the alleged perpetrator.

 

Obtain counsel early in the process 

 

Washington law requires a mandatory arrest in most domestic situations where an assault or threat of assault has taken place. At the same time, a No Contact Order will be put in place and the alleged person is not allowed to return to the home or location where the victim lives. However, in rare circumstances, this can be avoided if you have legal counsel involved early in the process. It is unusual but you should always contact an experienced criminal defense as soon as law enforcement is involved and, ideally, before the arrest has been made.

 

For more information regarding Assault charges, click below. 

 

More Information On Assault

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