Our appellate courts are beginning to issue decisions concerning the impact of the General Assembly’s 2011 changes to North Carolina law on self-defense. A case earlier this summer addressed whether a defendant has a duty to retreat before using deadly force in self-defense in a place where he or she has a “lawful right to be.” See State v. Bass, ___ N.C. App. ___, 802 S.E.2d 477, temp. stay and rev. granted, ___ N.C. ___, 800 S.E.2d 421 (2017). In Bass, the Court of Appeals held that the defendant did not have a duty to retreat and further had the right to have the jury instructed that he did not have a duty to retreat. Continue reading
Tag Archives: self-defense
So say two statutes enacted by the General Assembly in 2011 as part of its revision of North Carolina’s self-defense law. G.S. 14-51.2(e) and G.S. 14-51.3(b) both state that a person who uses force as permitted by those statutes—in defense of home, workplace, and vehicle under the first statute and in defense of self or others under the second statute—“is justified in using such force and is immune from civil or criminal liability for the use of such force . . . .” What does this protection mean in criminal cases? No North Carolina appellate cases have addressed the self-defense immunity provision. This blog post addresses possible implications. Continue reading →
Suppose John is facing a deadly assault and fears that he will be killed or suffer great bodily harm. John has a firearm but, rather than shoot his assailant, he fires a warning shot. The shot goes awry, strikes John’s assailant, and kills him. May John rely on self-defense if charged with murder? The answer may be surprising. Continue reading →
North Carolina law prohibits a person who has been convicted of a felony from possessing a firearm. The prohibition, set forth in G.S. 14-415.1, contains narrow exceptions, such as for antique firearms. The question has arisen in several cases whether a person with a prior felony conviction may possess a firearm if necessary to defend himself or others—in other words, whether the person may rely on a justification defense. Continue reading →
I am working on a new edition of the self-defense book I wrote in 1996. As in the story of Rip Van Winkle, a lot has changed in twenty years. Most notably, the General Assembly adopted new statutes in 2011 on self-defense and related defenses. This blog post addresses one of those provisions, in G.S. 14-51.4, which disqualifies a person from relying on self-defense while committing, attempting to commit, or escaping from the commission of a felony. North Carolina appellate courts have not yet considered the meaning of this provision. Cf. State v. Rawlings, ___ N.C. App. ___, 762 S.E.2d 909 (2014) (felony disqualification did not apply to case in which defendant’s offense predated enactment of provision, and court expressed no opinion on proper construction of provision). Continue reading →
George Zimmerman, a neighborhood watch volunteer in Sanford, Florida, recently shot and killed Trayvon Martin, an unarmed black 17-year-old who was walking through Zimmerman’s neighborhood. Martin was returning from a convenience store to the home of his father’s fiancee. The shooting has been in the news so much, and has stirred such strong emotions, that I am reluctant to wade into it, but the case raises at least two interesting legal issues.
I’ll start by noting that there are two competing narratives about what happened. Those who believe that Zimmerman was a vigilante who approached, assaulted, and then shot Martin emphasize (1) that Zimmerman contacted police upon seeing Martin, then, even though the dispatcher told him that “we don’t need you to do that,” chose to follow Martin, (2) that Martin was talking on his cell phone to his girlfriend, and told her that he was being followed and that he was afraid, and (3) that Martin carried nothing more threatening than a bag of Skittles. ABC News has a story here that confirms most of those facts.
However, the Sanford police did not charge Zimmerman with a crime, apparently accepting Zimmerman’s very different version of events. The New York Times reports here that Zimmerman told the police after the shooting that he had failed to locate Martin and was returning to his vehicle when Martin confronted him, punched him, and then repeatedly slammed his head into the sidewalk. There is at least some evidence corroborating Zimmerman’s claims. The Orlando Sentinel reports here that a witness “told police he saw Zimmerman on the ground with [Martin] on top, pounding him,” and that Zimmerman was crying for help. Zimmerman’s lawyer says that Zimmerman suffered a broken nose. Paramedics treated Zimmerman at the scene of the incident, though Zimmerman declined to go to the hospital. A police report states that the back of Zimmerman’s clothes were wet and stained as if he had been struggling on his back on the ground.
I don’t know enough about the case to have an opinion about which narrative is more plausible. The case is being investigated by a Florida grand jury, so perhaps we will have more information soon. However, the case did get me thinking about the following legal issues.
- The significance of stand your ground laws. The Martin/Zimmerman case has led to a tremendous amount of discussion about Florida’s stand your ground law, which allows a person who is threatened with deadly force to respond with deadly force without a duty to retreat. A few examples of criticism of the law spurred by this case are here, here, and here. North Carolina now has a similar statute, as my colleague John Rubin discussed here. But it’s pretty clear that this case has nothing to do with whether Zimmerman could stand his ground or had a duty to retreat. If the vigilante version of the facts is true, then Zimmerman was the aggressor, didn’t face a deadly threat, and can’t claim self-defense even under the stand your ground law. If Zimmerman’s version of the facts is true, he was on the ground getting a brutal beating, and had no opportunity to retreat. For a more detailed analysis along the same lines, see Professor David Kopel’s discussion here. More generally, I suspect that the impact of stand your ground laws is quite limited, for two reasons. First, such laws apply only when a person is threatened with deadly force, and it is usually not possible to retreat safely from situations in which deadly force is being threatened, so the laws apply to a small universe of cases. Second, even before the recent wave of statutory stand your ground laws, often accompanied by expanded gun rights, most states rejected a duty to retreat. John’s prior post suggests that North Carolina generally did not impose a duty to retreat.
- Should affirmative defenses be considered when determining probable cause? When I teach new magistrates about making probable cause determinations, I generally teach them to disregard possible defenses unless a defense is a slam dunk. My reasoning has been (1) that the burden is on the defendant to establish an affirmative defense, (2) that he or she will have an opportunity to do so in court, and (3) that magistrates generally are not trained in the law of affirmative defenses. But the police in the Zimmerman case declined to arrest Zimmerman because they concluded that he was protected by an affirmative defense, namely, self defense. And law professor Eugene Volokh argues here that officers were correct to consider the defense, as probable cause “should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed.” That got me thinking further about how strong the evidence of an affirmative defense needs to be before an officer or a magistrate may or must consider it. I went looking for case law. I didn’t find anything in North Carolina, and cases elsewhere don’t quite agree. Here is what I found:
- Holman v. City of York, 564 F.3d 225 (3rd Cir. 2009) (holding that an arresting officer was not required to consider the defense of necessity when assessing probable cause for trespass because that would present “daunting issues . . . [and] countless factual permutations,” and citing a previous case reaching a similar conclusion about the statute of limitations defense; the court stopped short of holding that officers need never consider affirmative defenses)
- Fridley v. Horrighs, 291 F.3d 867 (6th Cir. 2002) (summarizing Sixth Circuit law as precluding arrest when an officer conclusively knows that an affirmative defense applies to a suspect’s conduct, though officers are not required to investigate possible affirmative defenses)
- Pickens v. Hollowell, 59 F.3d 1203 (11th Cir. 1995) (“[P]olice officers have no responsibility to determine the viability of a statute of limitations defense when executing a valid arrest warrant. The existence of a statute of limitations bar is a legal question that is appropriately evaluated by the district attorney or by a court after a prosecution is begun, not by police officers executing an arrest warrant.”)
- State v. Reid, 988 P.2d 1038 (Wash. Ct. App. 1999) (stating that “[a]t the time of arrest, the officer cannot know and it would be unreasonable to require him to estimate the likelihood of success of a potential affirmative defense,” that “an affirmative defense is properly a matter for the ultimate trier of fact,” and that therefore a court may not consider affirmative defenses when assessing the legality of an arrest in the context of a motion to suppress, and citing similar cases from two other states)
I’m inclined to stick to the idea that affirmative defenses shouldn’t be considered unless they’re slam dunks, which seems to be pretty close to what Fridley says. But I’m open to persuasion, so let me know if you’re aware of additional authority or think I’ve got it wrong.
[Editor’s note: John is the author of The Law of Self-Defense in North Carolina, an in-depth analysis of North Carolina’s approach to the use of defensive force. It’s available for purchase here.]
North Carolina law recognizes various circumstances in which a person may lawfully use force against the threat of harm. Through decades of decisions, the North Carolina appellate courts have recognized the right to defend oneself, other people, and one’s home and property, among other interests, and have developed rules on when those rights apply and amount to a defense to criminal charges. New G.S. 14-51.2, 14-51.3, and 14-51.4 address several of the circumstances in which a person may use defensive force. The statutes restate the law in some respects and broaden it in others. The courts will have to examine their procedures closely to give effect to the new statutory language. The new statutes are part of S.L. 2011-268 (H 650), which applies to offenses committed on or after December 1, 2011. (That legislation also revised several other statutes to expand the right to own, possess, and carry a gun, which Jeff discussed in a previous post.)
For example, the new defensive-force statutes recognize the right to use deadly force against a forcible, unlawful intrusion into a motor vehicle. The courts therefore will need to develop new jury instructions to reflect this right. If faced with such a threat, a person often would have the right to use deadly force under existing doctrines as well—namely, the right to defend oneself and any other vehicle occupants and to prevent the commission of a dangerous felony. A person would have the right to raise these defenses and have the jury instructed on them, in addition to the new defense of motor vehicle, in light of the general principle that a person may rely on multiple defenses that arise from the evidence and on the statement in new G.S. 14-51.2(g) that the statute “is not intended to repeal or limit any other defense that may exist under the common law.”
To take another example, the courts will have to incorporate into their procedures the new statutory presumption of lawfulness, applicable to the use of deadly force against a forcible intrusion into a home, motor vehicle, or workplace. The law has allowed a person to use deadly force against such intrusions, but the courts will have to consider the new presumption in evaluating whether the State has offered sufficient evidence to withstand a motion to dismiss by the defendant and, in cases that go to the jury, will have to give appropriate instructions explaining the presumption. The following summary highlights the key provisions of the new statutes; it does not attempt to address all of the issues the courts will need to consider.
New G.S. 14-51.2 modifies defense of habitation, called defense of home in the statute; explicitly recognizes a comparable defense for the workplace; and adopts a new defense involving motor vehicles. All involve defending against forcible intrusions into those areas under the circumstances described in the statute. Most important, the statute creates a presumption of lawfulness in the sense that if a lawful occupant of a home, motor vehicle, or workplace uses deadly force against an intruder and meets the other conditions in the statute, the occupant is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself, herself, or another. The statute states that the new presumption is rebuttable and does not apply in five detailed instances, as when “the person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.” The act repeals G.S. 14-51.1, which modified the common law version of defense of home to allow deadly force to terminate as well as prevent entry by an intruder. Repealed G.S. 14-51.1 also stated that a person has no duty to retreat from an intruder into the home. New G.S. 14-51.2 restates these principles for defense of home, motor vehicle, and workplace cases.
New G.S. 14-51.3 addresses the right to use deadly and nondeadly force to defend oneself and others. The statute appears to track the courts’ approach to these rights in most respects, but it may introduce new principles or at least clarify existing ones. For example, the statute states that a person is justified in using deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself, herself, or others. The statute does not limit this principle to cases involving a home, motor vehicle, or workplace. Under current law, a person has no duty to retreat in comparable circumstances (that is, when a person is faced with a felonious assault), but the statute’s express statement of the principle may require the court to instruct the jury about it in all cases.
New G.S. 14-51.4 describes the circumstances in which a person is not entitled to rely on the defenses in new G.S. 14-51.2 and G.S. 14-51.3—for example, when a person is the aggressor by initially provoking the use of force against himself or herself. Again, these circumstances are similar in many respects to those recognized under current law, but differences exist, requiring close comparison of the statute to existing doctrines.
Over the next few weeks I will be working on a longer bulletin about the implications of the new statutes for defensive force cases. If you have any thoughts about the changes, please let me know.
I posted yesterday about one of the recent Court of Appeals decisions. At the risk of going back to the well, I want to highlight another of those cases today. (I’ve got something else in mind for tomorrow.)
In State v. Revels, available here, the defendant was convicted of second-degree murder. She appealed, claiming that the trial court had erred in failing to instruct the jury on self-defense and imperfect self-defense. The fact were as follows. The defendant and her husband split up and the husband took up with another woman, who eventually became the victim. The defendant and the victim had at least one run-in prior to the murder, and then, one night when both the defendant and the victim were out “cruising” — which I didn’t know people still did — they ran into each other at a gas station.
The two “began fighting, hitting each other with their fists and pulling each other’s hair.” The defendant was winning the fight when the victim pushed her into the back seat of the car the victim had been riding in. None of the witnesses saw what happened in the back seat, but shortly, the victim stumbled back out of the car, followed by the defendant, who was swinging a bloody knife. The victim had been stabbed three times, including once in the heart, and she died of her wounds. A key dispute at trial concerned the origins of the knife. The man the defendant was dating at the time of the stabbing testified that the defendant regularly carried a knife and that it looked just like the murder weapon. The defendant’s husband, who had reconciled with the defendant after the defendant fatally stabbed the victim, i.e., his girlfriend, testified that the knife was actually his knife, and that the victim had borrowed it from him shortly before the murder.
The defendant requested jury instructions on perfect and imperfect self-defense. Her argument was that “neither woman had a knife before defendant was pushed into the back seat of the car. . . . [B]ecause [the victim] had been riding in the back seat, it is reasonable to infer that [she] had left the knife in the back seat, pushed defendant into the back seat so that [she] could get the knife, and then [she] used the knife on defendant,” at which point the defendant took the knife away from her and stabbed her in self-defense. The trial judge denied the request for instructions, and the Court of Appeals affirmed.
It affirmed for two reasons. First, it found the defendant’s evidence of self-defense to be too speculative. Assuming that the knife was the victim’s, the court ruled that it was sheer speculation that the victim had left the knife in the back seat, and sheer speculation that the victim, as opposed to the defendant, reached for the knife first. Second, the court held, “even if [the victim] did introduce the knife into the fight, the evidence is undisputed that defendant received only a small cut on her index finger before she took the knife away from [the victim]. There is no evidence that defendant, having disarmed [the victim], then actually and reasonably believed that she needed to stab [the victim] multiple times, resulting in her death.”
The first part of the holding strikes me as reasonable, though not inarguable, and by itself, it provides a fully adequate basis for the court’s disposition of the case. The second part of the holding, though, strikes me as implausible. Assume, arguendo, that the defendant had introduced evidence that the victim pulled the knife out from under the backseat and attacked the defendant with it, but that the defendant was able to wrestle the knife away from the victim. Does/should the law really require the defendant, in that circumstance, to gently set the knife aside and continue with the fight? If I were attacked by someone my own sex, about my own age, and as far as the court’s opinion suggests, about my own size and strength, and if that person pushed me into the backseat of a car and drew out a knife, and if I were so fortunate as to be able to wrestle the knife away from that person, I’d use it. The court cites State v. Hayes, 130 N.C. App. 154 (1998), in support of its conclusion that the defendant wasn’t justified in using the knife, but that’s not very convincing. In Hayes, the defendant’s wife attacked him with a bat while they were in the garage. He took the bat from her, killed her, and then claimed self-defense. He was denied a self-defense instruction, because the court determined that after he took the bat away from his wife, the defendant was no longer in mortal danger. But Hayes is unlike Revels because in Hayes, the victim was a female, while the defendant was a male, suggesting a strength differential, and because in Hayes the space was not so enclosed, creating more options for casting the weapon far from the fray.
I’m interested in your views about this part of the Revels holding. I’d particularly like to hear from some law enforcement officers: if you were attacked in close quarters by somebody more or less your physical match, wielding a knife, and you took it away, what would you do? What would you expect the consequences of your action to be?