ARIZONA STATE SENATE
Forty-seventh Legislature, Second Regular Session
FINAL AMENDED
FACT SHEET FOR S.B. 1145
self-defense; home protection
Purpose
An emergency measure, justifying threatening or using force against others in prescribed instances, establishes a presumption for when a person is acting reasonably when using justifiable force, alters the burden of proof when a justification defense is presented and specifies that the justification for use of force in crime prevention statute is not limited to use of force in specific areas.
Background
A justification is a lawful reason for a person’s acts or omissions, excusing conduct that may otherwise be unlawful. Arizona law codifies many of these justification defenses including self-defense, defense of others or property, use of force in crime prevention and duress (A.R.S. Title 13, Chapter 4).
Use of force justification laws are affirmative defenses that must be raised by a defendant who is charged with using force. The defendant must prove any affirmative defense by a preponderance of the evidence (A.R.S. § 13-205). In other words, the defendant must prove that it was more likely than not that he or she justifiably used the force. If the defendant meets this burden of proof, the justification laws excuse his or her conduct.
However, there is one exception, the justification for use of force in crime prevention statute. Statute provides that a person is presumed to be acting reasonably, or justifiably, if the person is threatening or using force to prevent the commission of certain offenses like kidnapping, child molestation or aggravated assault (A.R.S. § 13-411.C.). None of the other justification defenses contain this presumption. Senate Bill 1145 extends this presumption to other specified actions.
The justification for use of force in crime prevention statute has been found to have a limited scope because of the stated legislative intent of the use of defense statutes. This legislative declaration of policy was added in 1983 and states that the homes of Arizona residents are being burglarized and violated, and that it is the legislature’s intent to establish policy giving notice that a person’s home, it contents and residents must be respected. The Arizona courts have found that the defense is available only when a home, it contents, or the residents therein are being protected by the use or threatened use of physical force or deadly physical force against another. Thus, the Court of Appeals has found that this statute does not apply to a woman using force against another person to prevent a sexual assault in that other person’s residence. See State v. Barraza, 209 Ariz. 441, 104 P.3d 172 (App. 2005). Senate Bill 1145 removes these portions of the legislative declaration of policy.
There is no anticipated fiscal impact associated with this legislation.
Provisions
1. Stipulates that justification defenses are not affirmative defenses.
2. Specifies that justification defenses describe conduct that if not justified would constitute an offense, but if justified does not constitute criminal or wrongful conduct.
3. Requires that if the defendant presents a justification defense, the state must prove beyond a reasonable doubt that the defendant did not act with justification.
4. Specifies an “affirmative defense” is a defense offered that attempts to excuse, rather than justify, criminal actions.
5. Justifies threatening to use or using physical force or deadly physical force against another if all of the following apply:
a) the person reasonably believes himself or another person to be in imminent peril of death or serious bodily injury.
b) the person against whom the force is threatened or used is in the process of unlawfully or forcefully entering, or had unlawfully and forcibly entered, a residential structure or occupied vehicle, or had removed or was attempting to remove another person against the other person’s will from the residential structure or occupied vehicle.
6. Presumes, if the person is acting against another person who unlawfully or forcefully enters or entered the person’s residential structure or occupied vehicle, that the person is acting reasonably for the purposes of the following justification defenses:
a) justification for use of force in defense of a residential structure or occupied vehicles.
b) justification for self-defense.
c) justification for use of deadly physical force.
d) justification for defense of a third person.
e) justification for use of physical force in defense of premises.
f) justification for use of physical force in defense of property.
7. Prohibits the presumption from applying if:
a) the person against whom the force was used has the right to be in or is a lawful resident of the residential structure or occupied vehicle and an order of protection or injunction against harassment has not been filed against that person.
b) the person against whom the force was used is the parent of grandparent or has legal custody of a child or grandchild sought to be removed from the residential structure or occupied vehicle.
c) the person who uses force is engaged in an unlawful activity or is using the residential structure or occupied vehicle to further an unlawful activity.
d) the person against whom the force was used is a law enforcement officer who enters or attempts to enter a residential structure or occupied vehicle in the performance of official duties.
8. Specifies that if justified to threaten or use force in defense of a residential structure or occupied vehicle, a person has no duty to retreat before threatening or using physical force or deadly physical force.
9. Specifies that the justification for use of force in crime prevention statute is not limited to justifiable force used in a person’s home, residence, place of business, land the person owns or leases, conveyance or any other place in Arizona where a person has a right to be.
10. Removes legislative declarations of policy, which state for the self-defense statutes, the legislature finds that the homes of Arizona residents are being burglarized and violated, and that it is the legislature’s intent to establish policy giving notice that a person’s home, it contents and residents must be respected.
11. Requires the court to award reasonable attorney fees, costs, compensation for lost income and all expenses incurred by a defendant in the defense of any civil action based on justified defensive conduct if the defendant prevails in the civil action.
12. Provides definitions.
13. Makes technical and conforming changes.
14. Becomes effective on signature of the Governor, if the emergency clause is enacted.
Amendments Adopted by Committee
1. Removes justification defenses from the category of affirmative defenses.
2. Alters the burden of proof for justification defenses.
3. Expands the presumption of reasonableness.
4. Prohibits the presumption from applying to all law enforcement officers regardless if the officer identifies himself as an officer.
Amendments Adopted by Committee of the Whole
1. Adds the emergency clause.
2. Makes technical changes.
Amendments Adopted by the House of Representatives
1. Added the provisions specifying that the justification for use of force in crime prevention statute is not limited to use of force in specific areas.
2. Recodifies the provision relating to attorney fees and compensation to a different statutory section.
3. Provides definitions.
4. Makes technical and conforming changes.
Senate Action House Action
JUD 2/13/06 DPA 7-1-0-0 JUD 3/16/06 DPA 6-3-0-0
3rd Read 3/6/06 28-0-2-0 3rd Read 4/18/06 41-15-4-0
Final Read 4/19/06 26-1-3-0
Signed by the Governor 4/24/06
Chapter 199
Prepared by Senate Research
May 22, 2006
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