Right to use deadly force widens under 2 bills - East Valley Tribune: News

Right to use deadly force widens under 2 bills

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Posted: Friday, January 27, 2006 9:54 am | Updated: 2:24 pm, Fri Oct 7, 2011.

State legislators are moving to let Arizonans shoot to kill when someone invades their home or car, without fear of prosecution or civil suit.

The House Judiciary Committee adopted a proposal Thursday that says a person is justified in using deadly physical force when someone forcibly and unlawfully enters a home or vehicle and the person believes he or she or someone else is in imminent danger of death or serious injury.

Rep. Russell Pearce, RMesa, said HB2392 makes it absolutely clear in Arizona law that there is no duty to retreat if the offender has invaded the home or car.

But that’s the milder version of the measure. A more comprehensive proposal crafted by Senate Majority Leader Tim Bee, R-Tucson, would spell out in state law that when a person claims he or she killed someone in selfdefense, no matter where that occurs, it is up to prosecutors to prove otherwise.

Now the burden falls on the person who did the shooting to prove that it was justified.

That provision has alarmed prosecutors. Rick Unklesbay, chief criminal deputy Pima County attorney, said it could result in people getting away with murder.

He said that virtually every gang shooting involves the survivor saying that the other person made some sort of threatening gesture or gang sign that left the person in fear for his or her life. Unklesbay said the nature of these crimes would make it difficult — if not impossible — to overcome that person’s claim of self-defense.

Ed Cook, lobbyist for the Arizona Prosecuting Attorney’s Advisory Council said these kind of situations generally have only two witnesses, “and one of them is dead.’’

Bee dismissed those concerns as alarmist, saying 45 other states have the same requirement on prosecutors to overcome a claim of selfdefense. He also noted that’s the way Arizona law read until lawmakers changed it a decade ago.

Unklesbay countered that proves his point. He said that, under the old law, “people were walking away from charges when they shouldn’t have because we couldn’t prove it wasn’t self-defense.’’

State law already says people may use deadly physical force if they believe it is immediately necessary to protect self or others against unlawful use of physical or deadly force. Pearce said those existing provisions are insufficient to protect innocent victims who opt to stay and fight instead of retreat.

The no-retreat concept bothered Rep. Ted Downing, D-Tucson. “Fleeing is a lot better than fighting,’’ he said.

Pearce said that may be true, but not in every circumstance. He said that choice should be left to the home or vehicle owner — and that person should not have to worry that a decision made to confront an invader will land them in legal trouble.

Downing said the law should spell out that people have an obligation to withdraw whenever possible.

Home and vehicle invasion

Current law: Deadly physical force can be used when a person reasonably believes it is necessary to prevent certain crimes, including murder, kidnapping, arson, rape, robbery or aggravated assault. There is no duty to retreat.

Proposed additions to law:

Individuals may use deadly physical force if they reasonably believe the other person had or was in the process of illegally and forcibly entering a home or vehicle. The action is presumed reasonable by virtue of the other person having entered illegally and forcibly. There is no duty to retreat.

Self-defense

Current law: A person charged with homicide must prove by a preponderance of the evidence that he or she was justified in using deadly physical force in self-defense.

Proposed law: A prosecutor has the burden of disproving the claim by a defendant charged with homicide that he or she was acting in self-defense.

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