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.