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The intent of this column is to increase understanding of the legal defense of legitimate use of force in self defense, sometimes by discussing the laws in force in the various states, other times in discussions of broader topics, like the interplay between actions and attitudes taught to armed citizens in firearms training and interaction with the legal system after using those skills in self defense.

This month’s question, posed by Network President Marty Hayes, asked our affiliate attorneys about murder charges after a self-defense shooting.

He writes –

This question is premised on the hypothetical of a self-defense shooting (involved persons do not know each other) with the shooter firing in self defense and the legal argument of self defense being used in court.

It’s been common training doctrine for decades that shooting in self defense is not done with the intent to kill another, but is instead done to prevent/stop a killing or severe injury. But when an armed citizen is criminally charged after such a shooting, they are routinely charged with one or more levels of the crime of murder. In most jurisdictions, “murder” is a crime requiring the element of “intent to kill.” For example, Washington statutory law states:

RCW 9A.32.050

Murder in the second degree.

(1) A person is guilty of murder in the second degree when:

(a) With intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person;

So, with the above example and utilizing your own state’s case law, statutory law, jury instructions, etc. can you discuss --

If an armed citizen is arrested after a self-defense shooting and prosecuted for the crime of murder, why is the charge murder, when there is no evidence that the armed citizen intended to kill his/her attacker?

William O. “Bill” James, Jr. 
James Law Firm
1001 LaHarpe, Little Rock, AR 72201

The question of intent is a fact question that is left to the finder of fact. Often times cases that are not cut and dry or questionable in the mind of the prosecutor will be charged as MURDER leaving the “decision” as to what the citizen was thinking to the jury to decide.

Thomas F. Jacobs, Esq.
Law Offices of Thomas Jacobs
271 North Stone Avenue, Tucson, AZ 85701
This email address is being protected from spambots. You need JavaScript enabled to view it.

Armed citizen involved shootings that do not arise from criminal activity are uncommon. When they do occur, there is quite often an issue whether the shooting was initiated in self defense. The narrow question presented presumes that the shooting was conducted in self defense and, as such, is self-limiting.

In Arizona, as in most jurisdictions, “self defense” is what is known as an “affirmative defense.” An affirmative defense is one in which the underlying elements of the charge are admitted, but statutory justification renders the action non-criminal. Employment of a firearm in self defense necessarily involves threatening or using “deadly force.” Most self-defense statutes addressing use of deadly force require that such force be objectively reasonable and necessary to prevent another person’s unlawful use or threatened use of deadly force, such as assault with a deadly weapon/dangerous instrument against the person claiming self defense, or any other action that may result in serious physical injury or death of the person claiming self defense. There are other types of justification, including crime prevention, but this question addresses only self defense, therefore I will not address those other possible defenses or scenarios.

If we presume that the party charged with murder in this scenario was acting in self defense, his or her intent with respect to causing the death of the “victim” is irrelevant since the action is presumed justified by law. There are many scenarios in which a person may employ deadly force with intent to stop a crime or assault from occurring. In such cases, if such action is deemed justified under law, a court or jury would look past the issue of intent to kill, which is an element of first or second degree homicide.

If the prosecuting agency presented with the case makes the same presumption of justification (self defense) that is made in this question, there would likely be no murder charge in the first place; the case would not be issued as a criminal charge. If, on the other hand, the charge were issued without such presumption, it would be perfectly reasonable for the prosecution to fashion the charge as a homicide if someone was killed by someone else who shot them. If such shooting was not obviously merely reckless in nature, that is if the “victim” was intentionally shot, the charge of first or second degree murder is appropriate, regardless of subjective intent to kill vs. intent to prevent injury/crime, which would later be presented as an affirmative defense. Again, in an affirmative defense case, such as self defense, the elements of the charge are admitted (e.g. intent to kill). The question does not really address the issue of intent to kill vs. intent to injure, which would be the difference between aggravated assault that resulted in a death (where the charge might be manslaughter if death was not intended, but resulted anyway) v. homicide where death is the intended consequence. That is not a question that would be presented in a self defense or other justification case.

John R. Monroe
John Monroe Law, PC
156 Robert Jones Rd., Dawsonville, GA 30534-8527

In my state (Georgia), a self-defense shooting is almost always going to be either murder or no crime at all. This is because if it is a self-defense shooting, that means other possibilities (for example, accident) would not apply. The shooter actually intended to shoot. It is not necessary for the shooter to have an intent to kill. He only has to have the intent to shoot another human being. If he has that intent, and the shooting results in death, either the shooting was “justified” (i.e., self-defense) or it was murder.

Brendan K. Lahey
Lahey Law
502 W. Washington Street, South Bend, IN
574-232-9995 x225

In Indiana, juries get an instruction telling them that if someone fires a gun at another person, intent to kill may be inferred from that act.

James B. Fleming
PO Box 1569, Monticello, MN 55362

Prosecutors make charging decisions based upon what they think they can prove to a jury. To simply say, “Well, they can’t charge murder, there is no evidence of intent,” begs the question. Deadly force was used; the other fellow died as a result of the application of that force. So, the question of whether or not, there was intent to kill, along with the related question, was the defendant’s action to use deadly force, which resulted in the death, justifiable as self defense, are questions commonly left for a jury to decide.

In Minnesota, we have two companion statutes. Minn. State. Section 609.06 and 609.065. .Minn. Stat. § 609.06, subd. 1(3). States, “A person may use reasonable force when it is “used...in resisting or aiding another to resist an offense against the person.” The elements of self defense under section 609.06, subdivision 1(3), are (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of...bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

Minn. Stat. § 609.065 states that a person may intentionally take a life when it is “necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.”

The elements of self defense under this section are (1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm. (2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. (3) The defendant’s election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

But, in both cases, before the proper jury instruction can be provided to the jury, the defendant must provide “some evidence” to the court that he/she acted in self defense. This is known as the “burden of production” – not to be confused with the burden of proof. The accused bears the burden of production. The state always bears the burden of proof.

And, there are two different jury instructions involved.

JIG 7.05 states, “(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of . . . bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

JIG 7.06 states that the killing must have been done in the belief that it was necessary to avert death or grievous bodily harm AND (1) the absence of aggression or provocation; (2) an actual and honest belief of imminent danger of death or great bodily harm; (3) reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat.

So, if the court rules that the “some evidence burden is met (a burden of production – not proof) and the defendant has stated that he/she did not intend to kill then JIG 7.05 must be provided to the jury.

But, the prosecutor is not going to simply roll over and give up. They will continue to argue a deliberate and intentional killing.

Folks need to remember, this is not about “fair,” this is about reality.

This is one of the reasons why it is vitally important for the defender to assert the right to remain silent until their attorney is present. Words matter, choice of words matters to an incredible extent. Right after what is very likely the most traumatic event to ever take place in a person’s life is (as has been proven over and over again) not the time for that individual to be responsible for the careful choosing of their words used to describe the incident.


We extend a hearty “Thank you!” to our affiliated attorneys who contributed comments about this topic. Reader, please return next month when we discuss a new question with our affiliated attorneys.

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