If I am threatened by a hunter with a firearm do I have the right to defend myself by deadly force?
Full Question:
Answer:
Self-defense is the right to use reasonable force to protect oneself or members of the family from bodily harm, or to a lesser extent, one's property, from the attack of an aggressor, if the defender has reason to believe he/she/they is/are in danger. Self-defense is a defense to a criminal charge or to tort liability. To establish the defense, the person must be free from fault or provocation, must have no means of escape or retreat, and there must be an impending peril. The force used in self-defense may be sufficient for protection from apparent harm (not just an empty verbal threat) or to halt any danger from attack, but cannot be an excuse to prolong the attack or use excessive force. Self-defense cannot include killing or great bodily harm to defend property, unless personal danger is also involved.
Trespassing as it relates to real estate law means entering onto land without consent of the landowner. There are both criminal and civil trespass laws. Criminal trespass law is enforced by police, sheriffs, or park rangers. Civil trespass requires that the landowner initiate a private enforcement action in court to collect any damages for which the trespasser may be responsible, regardless of whether a crime has been committed. Traditionally, for either type of trespass, some level of intent is required. Thus, the trespasser must not simply unwittingly traverse another's land but must knowingly go onto the property without permission. Knowledge may be inferred when the owner tells the trespasser not to go on the land, when the land is fenced, or when a "no trespassing" sign in posted. A trespasser would probably not be prosecuted if the land was open, the trespasser's conduct did not substantially interfere with the owner's use of the property, and the trespasser left immediately on request.
In order to recover damages for trespass, some damage, no matter how slight, must be caused. If the trespass is with an illegal intent, it is a crime. Trespass may also be a civil wrong (tort), such as interfering with an owner or tenant's use of the property by dumping waste or removing trees on the property. In addition to damages, a court may grant an injunction prohibiting any further continuing, repeated or permanent trespass.
A hunting license is not a license to trespass, but state laws treat hunters differently when it comes to trespassing. Some states have laws that specifically address trespassing while hunting, and others rely simply on the general trespassing statutes of the state. In about half of the states posting is not required to prevent trespassing; that is, it is against the law for hunters to trespass on private property without the landowner's permission even if the land is not posted. Where posting is required, some states have laws specifying how to post land. In some states, trespass while in possession of a firearm is a felony punishable by imprisonment for up to five years and/or a fine up to $5,000. A few states have laws that address hunters trespassing to retrieve dogs or wounded animals. In most states, however, hunters may not retrieve dogs or wounded animals if they cannot legally hunt.
The following are Arkansas statutes:
5-2-607. Use of deadly physical force in defense of a person.
(a) A person is justified in using deadly physical force upon another
person if the person reasonably believes that the other person is:
(1) Committing or about to commit a felony involving force or
violence;
(2) Using or about to use unlawful deadly physical force; or
(3)
(A) Imminently endangering the person's life or imminently about to
victimize the person as described in § 9-15-103 from the continuation of
a pattern of domestic abuse.
(B) As used in this section, "domestic abuse" means the same as defined
in § 9-15-103.
(b) A person may not use deadly physical force in self-defense if he or
she knows that he or she can avoid the necessity of using deadly physical
force with complete safety:
(1)
(A) By retreating.
(B) However, a person is not required to retreat if the person is:
(i) In the person's dwelling or on the curtilage surrounding the
person's dwelling and was not the original aggressor; or
(ii) A law enforcement officer or a person assisting at the direction
of a law enforcement officer; or
(2) By surrendering possession of property to a person claiming a
lawful right to possession of the property.
(c) As used in this section, "curtilage" means the land adjoining a
dwelling that is convenient for family purposes and habitually used for
family purposes, but not necessarily enclosed, and includes an
outbuilding that is directly and intimately connected with the dwelling
and in close proximity to the dwelling.
5-13-204. Aggravated assault.
(a) A person commits aggravated assault if, under circumstances
manifesting extreme indifference to the value of human life, he or she
purposely:
(1) Engages in conduct that creates a substantial danger of death or
serious physical injury to another person; or
(2) Displays a firearm in such a manner that creates a substantial
danger of death or serious physical injury to another person.
(b) Aggravated assault is a Class D felony.
(c) The provisions of this section do not apply to:
(1) A law enforcement officer acting within the scope of his or her
duty; or
(2) Any person acting in self-defense or the defense of a third party.
5-39-203. Criminal trespass.
(a) A person commits criminal trespass if he or she purposely enters or
remains unlawfully in or upon:
(1) A vehicle; or
(2) The premises of another person.
(b) Criminal trespass is a:
(1) Class B misdemeanor if the vehicle or premises involved is an
occupiable structure; or
(2) Class C misdemeanor if otherwise committed
5-39-304. Notice to cease entering — Further entrance.
(a) The owner, agent, lessee, or assignee of any land, including farm,
timber, or otherwise, may notify any person by certified mail, deliver to
addressee only or by notice served by any official authorized to serve
process to cease any trespass or to stay off the premises of any property
belonging to the owner, his or her agent, or assignee.
(b) Notice shall specify the land by description containing section,
township, and range.
(c) Any person receiving notice shall immediately cease any trespass or
entrance upon the described land of the owner.
(d) Any further entrance or trespass by the person receiving the notice
is considered a criminal trespass and the person is guilty of a Class C
misdemeanor.
5-39-305. Criminal trespass on land located in unincorporated area.
(a)
(1) A person shall not enter without written permission of the owner
or lessee upon another person's land located outside the boundary of any
city or town if that land is either:
(A) Lawfully posted;
(B) Crop land; or
(C) Enclosed with a fence sufficient under § 2-39-101 et seq.
(2) The posting of land is not a requirement under this section.
(b)
(1) Any person who violates this section is deemed guilty of a
violation and is subject to a fine not to exceed one hundred dollars
($100).
(2) However, a violation of this section is a Class B misdemeanor if
the property was posted pursuant to the laws of this state.
(c) It is an affirmative defense to a prosecution that:
(1) The person did not knowingly enter upon another person's land;
(2) The person was a guest or invitee;
(3) The person was required to enter upon the premises of another
person for a business reason or for health and safety reasons;
(4) The person was authorized by law to enter upon the land; or
(5) The privately owned land was made open to the public.
(d)
(1) This section does not apply to public land.
(2) This section does not apply to a law enforcement officer in the
line of duty.
(e) Nothing in this section repeals any law concerning posting of land
or trespass.
5-73-120. Carrying a weapon.
(a) A person commits the offense of carrying a weapon if he or she
possesses a handgun, knife, or club on or about his or her person, in a
vehicle occupied by him or her, or otherwise readily available for use
with a purpose to employ the handgun, knife, or club as a weapon against
a person.
(b) As used in this section:
(1) "Club" means any instrument that is specially designed, made, or
adapted for the purpose of inflicting serious physical injury or death by
striking, including a blackjack, billie, and sap;
(2) "Handgun" means any firearm with a barrel length of less than
twelve inches (12") that is designed, made, or adapted to be fired with
one (1) hand; and
(3)
(A) "Knife" means any bladed hand instrument that is capable of
inflicting serious physical injury or death by cutting or stabbing.
(B) "Knife" includes a dirk, sword or spear in a cane, razor, ice
pick, throwing star, switchblade, and butterfly knife.
(c) It is a defense to a prosecution under this section that at the
time of the act of carrying a weapon:
(1) The person is in his or her own dwelling, place of business, or on
property in which he or she has a possessory or proprietary interest;
(2) The person is a law enforcement officer, correctional officer, or
member of the armed forces acting in the course and scope of his or her
official duties;
(3) The person is assisting a law enforcement officer, correctional
officer, or member of the armed forces acting in the course and scope of
his or her official duties pursuant to the direction or request of the
law enforcement officer, correctional officer, or member of the armed
forces;
(4) The person is carrying a weapon when upon a journey, unless the
journey is through a commercial airport when presenting at the security
checkpoint in the airport or is in the person's checked baggage and is
not a lawfully declared weapon;
(5) The person is a licensed security guard acting in the course and
scope of his or her duties;
(6) The person is hunting game with a handgun that may be hunted with a
handgun under rules and regulations of the Arkansas State Game and Fish
Commission or is en route to or from a hunting area for the purpose of
hunting game with a handgun;
(7) The person is a certified law enforcement officer; or
(8) The person is in a motor vehicle and the person has a license to
carry a concealed weapon pursuant to § 5-73-301 et seq.
(d)
(1) Any person who carries a weapon into an establishment that sells
alcoholic beverages is guilty of a misdemeanor and subject to a fine of
not more than two thousand five hundred dollars ($2,500) or imprisonment
for not more than one (1) year, or both.
(2) Otherwise, carrying a weapon is a Class A misdemeanor.