The law in Washington allows a person to defend themselves against violent crime by using force to overcome that threat. The statute that authorizes this use of self-defense is RCW 9A.16.110, which states in part:
(1) No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.
Someone reading this statute might reasonably think that anyone who acts in self-defense cannot be charged with a crime (placed in legal jeopardy) if they are truly acting in self defense. However, this is not the case. We regularly see people charged with assaults, and other crimes when they are acting in self defense. Instead, they must go to trial and win, before the statute comes into play. They are offered reimbursement by the statute in a different section, if they end up being found not guilty of the offense, by reason of self-defense.
(2) When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense. This reimbursement is not an independent cause of action. To award these reasonable costs the trier of fact must find that the defendant's claim of self-defense was sustained by a preponderance of the evidence. If the trier of fact makes a determination of self-defense, the judge shall determine the amount of the award.
As a practical matter, when a client of ours is charged with assaulting someone, and we successfully get them acquitted at trial based on the use of self defense, we can then ask the judge to make an award for their time, legal fees, and costs. This usually means that the State of Washington will end up reimbursing the client for the money they spent or owe on their legal defense, as well as any lost wages or other costs incurred in mounting that defense. Although, it can take some time to actually receive payment from the state legislature.
This self defense reimbursement statute is only applicable to state prosecutions. Meaning someone charged in a municipal court does not have the ability to seek self defense reimbursement, even though the city derives its power to prosecute from the state.
Self defense also extends to defense of other people. A person who is defending someone else, can assert the right to defend that other person. We usually see this come up in situations where a family member, friend, or bystander will defend another person from an assault or violent crime. Similarly, a person has a right to defend their home, business, or personal property from someone seeking to take that property. This is why it may be lawful to shoot a burglar in your home, or a person robbing your business.
The tricky situation that arises in many self defense cases is what level of force can be used. I try to explain the rule by using common sense, in that you cannot use too much force to overcome the situation. For instance, a store employee cannot use a shotgun to kill a person trying to shoplift from them, but they can certainly use physical force to detain the person. If they offer resistance, they can overcome that resistance. Therefore, if a person who was shoplifting fought the store employee who was trying to detain them, strangling them and putting them in fear for their life, the store employee or another employee/bystander could use deadly force against the shoplifter.
I recommend that a person only use as much force is necessary to overcome the threat against them. This is difficult to judge however, as you don't know if someone who is attacking or robbing you or someone else has the capacity to kill you. The instruction that is given to members of a jury in a self-defense case is here:
WPIC 17.02 Lawful Force—Defense of Self, Others, Property
It is a defense to a charge of (fill in crime) that the force [used][attempted][offered to be used] was lawful as defined in this instruction.
[The [use of][attempt to use][offer to use] force upon or toward the person of another is lawful when [used][attempted][offered] [by a person who reasonably believes that [he][she] is about to be injured] [by someone lawfully aiding a person who [he][she] reasonably believes is about to be injured] in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary.]
[The [use of][attempt to use][offer to use] force upon or toward the person of another is lawful when [used][attempted][offered] in preventing or attempting to prevent a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession, and when the force is not more than is necessary.]
The person [using][or][offering to use] the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of [and prior to] the incident.
The [State][City][County] has the burden of proving beyond a reasonable doubt that the force [used][attempted][offered to be used] by the defendant was not lawful. If you find that the [State][City][County] has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty [as to this charge].
You will note that in the first underlined portion, the person who is using self defense must have a reasonable belief that the person is about to be injured. This means that someone cannot just claim they were in fear, that fear has to be reasonable to the jury. Additionally, in several places the statute makes it clear that he force cannot be "more than is necessary".
The jury generally gets to second guess the person who used force to defend themselves or others, since they decide whether the force was reasonably necessary: "such force and means as a reasonably prudent person would use under the same or similar conditions."
In general, what I see, is prosecutors who threaten a person who is seeking to assert a self-defense claim with as much punishment as they think they can get after trial. They do this in order to try to force a guilty plea in a case.
For instance, if someone is charged with Assault in the Second Degree, for pointing a gun (in self defense) at a person that they believed was seeking to hurt them. The prosecutor will seek a top of the range sentence of nine months, along with a three year deadly weapon enhancement (for using a gun), for a total maximum sentence of 45 months in prison for a first offense. They may, in the alternative, offer the person a plea bargain to Assault in the Second Degree with no deadly weapon enhancement, for a total sentence of only 90 days in jail, if they don't go to trial and plead guilty.
For someone who has never been in trouble, has a job, and has already had to spend many thousands of dollars on their legal defense, the proposition of facing nearly four years in prison may not be worth the risk, and they may buckle and accept a plea bargain. Prosecutors know this, and they bargain accordingly.
It was nice to see a recent article in the Seattle Times regarding a young college student at the University of Washington who faced this type of decision, and elected to take the case to trial. He ended up winning the trial, and the State of Washington has to pay him back for the $40,000.00 in legal fees he amassed in defending himself. There is much more to the story, and I would encourage you to read the whole article, since I think that it does a good job of explaining the emotional toil that this kind of case takes on someone involved in it.
Click here to read the story.
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