Memorandum Regarding HB 444, 2018 Idaho Legislature
House Bill 444 is currently before the 2018 Idaho Legislature. The bill combines "Duty to Retreat" and "Castle Doctrine" issues, among other things. House Bill 444 is beginning its life in the House State Affairs Committee. As of this date the Idaho State Rifle and Pistol Association has not taken any position on this legislation. I write to help identify some of the known issues and questions with this legislation. HB 444 can be found at this url:
First, I believe that gun owners and our citizens in general appreciate that the legislature is looking at these important issues of lethal force and self-defense. With that said, there are a number of issues within this legislation which could lead to undesirable results. I will address the Castle Doctrine component and the Duty to Retreat component separately.
Idaho's current "Castle Doctrine" law is flawed, complex, and unworkable for many simple defense matters that could occur in the home. I discussed this in an article that was posted in June 2017:
HB 444 first repeals Idaho's existing Castle Doctrine law in lines 27 to 31 on page 1.
The operative part of the bill's proposed Castle Doctrine defense begins on line 5 of page 2. It would create a presumption that there is a reasonable and justifiable fear of death or great bodily harm in certain circumstances against a person who unlawfully uses force to enter a home or car. While a presumption of that kind of fear might often be justifiable, setting such a presumption into statute opens the prospect for a number of pitfalls for undesirable and unjust results.
Intent to Kill and Self-defense
The language in lines 7 and 8 which would permit "using defensive force that is intended [ ] to cause death or great bodily harm to another" appears to be a flawed standard that runs counter to current self-defense law. Better language might include "capable of causing death or great bodily harm."
The current status of Idaho law on self-defense does not tolerate an intent to kill on the part of the defender. An operative part of existing Idaho self-defense law permits that the circumstances must have been such that a reasonable person, under similar circumstances, would have believed that the defendant or another person was in imminent danger of bodily injury. It permits use of lethal force when faced with imminent threat of death or great bodily harm. The defendant relying upon self-defense must have believed that the action taken was necessary. The defendant must have acted only in response to that danger and not for some other motivation. The defender may use force to stop a threat. Once the threat is stopped, use of that force in defense is no longer allowed. It seems undesirable to incorporate an intent to kill as a matter of right into a self-defense law. Ordinarily we consider "intent to kill" to be murder. Yet, an intent to kill is included from the language in lines 7 and 8 on page 2 of the bill.
Fear of Death Presumed on Unlawful Forced Entry
The bill attempts to attach its presumption of reasonable fear of death or great bodily harm to an "unlawful and forcible entry" and to a list of places including residences and cars, most notably. It seems like a worthy and desirable list of places proposed to offer protection by the bill in lines 11 and 12 of page 2. Tying the automatic presumption to "unlawful and forced entry" creates pitfalls and problems.
The bill addresses some of these pitfalls in a list of exceptions in lines 18 to 39 of page 2. The problem with such a list is that it almost invariably will not address some conduct or circumstance, resulting in an unjust result. As an example, apparently this law would exonerate our "shower shooter" from Mason County Washington in 2017. [See also my attached article from June of 2017] In that circumstance a person who was likely intoxicated forced his entry into a house which he had apparently mistakenly identified the residence of a friend. While the drunk intruder was taking a shower in the morning, the homeowner went to another house, returned with a gun, and shot the showering man four times through the shower curtain. It is comparable to assassination, yet apparently would be exonerated under the language of HB 444.
Our Idaho Supreme Court has reminded us that "[i]t is well-settled that criminal statutes are to be construed strictly and in favor of the defendant." State v. McCoy, 128 Idaho 362. One would hope that the Legislature considers this as they review any aspect of criminal law.
It seems that great care should be used to avoid unjust results before creating a presumption in law for automatically declaring that reasonable fear exists to justify use lethal force. HB 444 instead appears to incorporate some flaws leaving opportunity for such unjust results.
DUTY TO RETREAT
Portions of HB 444 would specify by statute that there is no duty to retreat when a person faced with the kind of threat which justifies use of force in self-defense. These are often referred to as "Stand Your Ground" laws and they refer back to the common law provision which describes no duty to retreat. Many state legislatures have now adopted statutes which codify the recognition of no duty to retreat and to stand your ground in self-defense. States began to codify this in response to some more activist state courts which began to recognize and apply a duty to retreat if reasonably possible. To the best of my knowledge Florida was the first state to enact such a statute within about the past two decades.
Idaho caselaw has long recognized that there is no duty to retreat for a person who is faced with a self-defense decision. See also State v. McGreevey, 17 Idaho 453 (1909); and State v. Thomas, 155 Idaho 766 (2014). This law is even embodied in Idaho Jury Instructions in ICJI 1519 as follows:
ICJI 1519 SELF–DEFENSE—DUTY TO RETREAT
In the exercise of the right of [self-defense] [defense of another], one need not retreat. One may stand one's ground and defend [oneself] [the other person] by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge [; and a person may pursue the attacker until [the person] [the other person] has been secured from danger if that course likewise appears reasonably necessary]. This law applies even though the person being [attacked] [defended] might more easily have gained safety by flight or by withdrawing from the scene.
HB 444 attempts to address the duty to retreat in lines 40 to 46 of page 2 and again in lines 3 to 6 of page 3. My first criticism is the disjointed nature of this statutory approach. There does not appear to be a good reason to separate provisions regarding the duty to retreat into two subsections.
The language of HB 444 may actually be more restrictive, hence less beneficial to the defender, than that language of existing Idaho law. Current law exemplified in ICJI 1519 appears to more broadly allow its operation in any exercise of self-defense. HB 444 in lines 40 and 41 operates to say " A person who is not knowingly engaged in an unlawful activity and who is attacked in any other place where he has a right to be [ ]." Reading further along the language, the bill applies its "duty to retreat" and "stand your ground" provisions to a limited set of circumstances in a list in lines 43 to 46 that I will address as items:
1. if he reasonably believes it is necessary to do so
2. to prevent death or great bodily harm to himself or another
3. to prevent the commission of a violent felony
4. when attempting to apprehend any person for any felony committed
5. to suppress a riot
This language appears to authorize force including lethal force under item 1 when the defender reasonably believes it is necessary to do so. Standing on its own this "reasonable man" standard should be acceptable. We will return to this when reviewing subsection (5) of this proposed law.
The bill would provide that a defender may "stand his ground and meet force with force, including deadly force." A legitimate question regarding this language of subsection 3 is whether there is a limit on using deadly force, and, if so, what that limit is. An equally legitimate question would be the reasoning for limiting your provisions regarding duty to retreat to the exclusion of all those other threats which are not included in the list. Existing Idaho Stand Your Ground law extends to deadly threats and non-lethal threats. It requires that the force used is "reasonable." HB 444 does not appear to extend to a broad range of non-lethal threats.
Item 2 may be the most straight forward part of these proposed stand your ground provisions.
Items 3 and 4 regarding felonies and applying this designated force are similar and do present similar problems. First, it assumes that the defender knows what the definition of a felony or violent felony is. Many felonies are obvious. Some are not. A particular problem under this proposed law might be the domestic violence provisions under I.C. 18-918. A crime of violence between two people of the right class, "household members," which results in traumatic injury is certainly a violent felony. Just as certain, not every event producing such a traumatic injury involves an imminent threat of death or great bodily harm. As an example, a man in his home delivers a derogatory epithet to his ex-wife who is present to complain about a child custody issue. She slaps him intentionally yet unintentionally causes superficial lacerations to his shoulder from her well-manicured nails. This is a felony domestic violence by virtue of traumatic injury between "household members." The language of HB 444 would authorize the defender to stand his ground and "meet force with force, including deadly force." BLAM BLAM BLAM and the ex wife is bleeding out as the shooter has stood his ground, having endured a violent felony from her.
Words matter. Choosing the correct language on this type of legislation is paramount.
The only limiting factor on that application of this statute for felonies might have been the initial modifying condition: "if he reasonably believes it is necessary to do so." I say "might have been" because as we read further in the legislation we reach the dangerous presumption in subsection (5), lines 5 and 6 page 3.
(5) If subsection (1) or (3) of this section applies, the trier of fact may not consider whether the person who used defensive force had an opportunity to flee or retreat before he used force and the person is presumed to have reasonably believed that the force was necessary.
The inclusion of a provision about riots creates unnecessary problems and pitfalls. If a defender was faced with a riot, it seems that it should be fairly straightforward to identify and articulate if a threat exists and what, if any, characteristics about that gathering of persons rises to the level of an imminent threat of death or great bodily harm. If that kind of threat is present, the defender can act under basic self-defense law. Idaho has defined a riot in I.C. §18-6401:
Riot defined. Any action, use of force or violence, or threat thereof, disturbing the public peace, or any threat to use such force or violence, if accompanied by immediate power of execution, by two (2) or more persons acting together, and without authority of law, which results in:
(a) physical injury to any person; or
(b) damage or destruction to public or private property; or
(c) a disturbance of the public peace;
is a riot.
Two or more people acting together in a manner which results in disturbance of the public peace can be a "riot" under Idaho law. Certainly, not every angry or vocal gathering of people justifies being dispelled by lethal force, though HB 444 apparently authorizes such force. Bear in mind that the basic standards of self-defense which we define and authorize by law will apply generally to citizens and law enforcement alike.
To summarize, I believe that the existing Idaho law regarding no duty to retreat and stand-your-ground is relatively straight-forward and easy to understand. It does not have some of the problems that could result from the proposed legislation in HB 444. I believe that Idaho's gun owners and her citizens in general would be well-served by legislation which adopted and codified the existing law regarding no duty to retreat which has been recognized by Idaho Courts.
HB 444 would enact immunity provisions for persons who use force in self-defense. Idaho already has statutory provisions regarding civil liability and use of force in self-defense. A combination of redundancy of existing law and the exceptions carved out in the bill make the immunity provisions of this bill problematic. These problems are extensive enough that I will not address them in detail in this writing.
On a secondary matter, the Statement of Purpose for HB 444 indicates that it would require reimbursement of legal expenses by the State to a person exercising self -defense if that person was found "not guilty" of a criminal offense. In the Fiscal Note on the same page it is stated that there is no fiscal impact to state General Fund or local governments. These two statements appear incongruous.
The Statement of Purpose indicates that the bill will codify the State's current "Stand Your Ground" law. As discussed earlier, the provisions of HB 444 bill differ very significantly from current Idaho "Stand Your Ground" law.
This is by no means an exhaustive analysis of proposed HB 444. I hope that it is helpful in deciding action on it and other legislation like it.
/s/ Matthew W. Faulks, Attorney at Law, matthewfaulks.net
© 2018 Matthew Faulks, used by permission
Attorney, NRA instructor, hunter education instructor