Can self defense be used to justify an assault?

11/15/2007 - Category:Criminal - Assault - State: AZ #12319

Full Question:

If you are invited into someones home and while your there a person is confronted on a burglary he did and retaleates by pulling a gun, in turn my boyfriend hits him in the head with a flashlight out of fear of my life. What kind of grounds can he base his self defense on when the courts turn it into aggravated assault?

Answer:

The following are Arizona statutes:

13-401. Unavailability of justification defense; justification as defense
A. Even though a person is justified under this chapter in threatening or using physical force or deadly physical force against another, if in doing so such person recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.
B. Except as provided in subsection A, justification, as defined in this chapter, is a defense in any prosecution for an offense pursuant to this title.
13-403. Justification; use of physical force
The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
1. A parent or guardian and a teacher or other person entrusted with the care and supervision of a minor or incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary and appropriate to maintain discipline.
2. A superintendent or other entrusted official of a jail, prison or correctional institution may use physical force for the preservation of peace, to maintain order or discipline, or to prevent the commission of any felony or misdemeanor.
3. A person responsible for the maintenance of order in a place where others are assembled or on a common motor carrier of passengers, or a person acting under his direction, may use physical force if and to the extent that a reasonable person would believe it necessary to maintain order, but such person may use deadly physical force only if reasonably necessary to prevent death or serious physical injury.
4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon that person to the extent reasonably necessary to thwart the result.
5. A duly licensed physician or a registered nurse or a person acting under his direction, or any other person who renders emergency care at the scene of an emergency occurrence, may use reasonable physical force for the purpose of administering a recognized and lawful form of treatment which is reasonably adapted to promoting the physical or mental health of the patient if:
(a) The treatment is administered with the consent of the patient or, if the patient is a minor or an incompetent person, with the consent of his parent, guardian or other person entrusted with his care and supervision except as otherwise provided by law; or
(b) The treatment is administered in an emergency when the person administering such treatment reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.
6. A person may otherwise use physical force upon another person as further provided in this chapter.
13-404. Justification; self-defense
A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force.
B. The threat or use of physical force against another is not justified:
1. In response to verbal provocation alone; or
2. To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or
3. If the person provoked the other's use or attempted use of unlawful physical force, unless:
(a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and
(b) The other nevertheless continues or attempts to use unlawful physical force against the person.
13-406. Justification; defense of a third person
A person is justified in threatening or using physical force or deadly physical force against another to protect a third person if:
1. Under the circumstances as a reasonable person would believe them to be, such person would be justified under section 13-404 or 13-405 in threatening or using physical force or deadly physical force to protect himself against the unlawful physical force or deadly physical force a reasonable person would believe is threatening the third person he seeks to protect; and
2. A reasonable person would believe that such person's intervention is immediately necessary to protect the third person.
13-411. Justification; use of force in crime prevention; applicability
A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of arson of an occupied structure under section 13-1704, burglary in the second or first degree under section 13-1507 or 13-1508, kidnapping under section 13-1304, manslaughter under section 13-1103, second or first degree murder under section 13-1104 or 13-1105, sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, child molestation under section 13-1410, armed robbery under section 13-1904 or aggravated assault under section 13-1204, subsection A, paragraphs 1 and 2.
B. There is no duty to retreat before threatening or using physical force or deadly physical force justified by subsection A of this section.
C. A person is presumed to be acting reasonably for the purposes of this section if the person is acting to prevent the commission of any of the offenses listed in subsection A of this section.
D. This section is not limited to the use or threatened use of physical or deadly physical force in a person's home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be.
13-413. No civil liability for justified conduct
No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter.
13-417. Necessity defense
A. Conduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person's own conduct.
B. An accused person may not assert the defense under subsection A if the person intentionally, knowingly or recklessly placed himself in the situation in which it was probable that the person would have to engage in the proscribed conduct.
C. An accused person may not assert the defense under subsection A for offenses involving homicide or serious physical injury.


11/15/2007 - Category: Assault - State: AZ #12319

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