?Castle Doctrine? under Current Iowa Law- Self Defense at Home, Business, and Work ?Castle Doct_rine? Under Iowa law, there is no requirement that a person justi?ed in using force against another retreat from their home, place of business, or place of employment as set out in Iowa Code Section 704.1: 704.1. Reasonable force "Reasonable force? is that force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss and can include deadly force if it is reasonable to believe that such force is necessary to avoid injury or risk to one's life or safety or the life or safety of another, or it is reasonable to believe that such force is necessary to resist a like force or threat. Reasonable force, including deadly force, may be used even if an alternative course of action is available if the alternative entails a risk to life or safety, or the life or safety of a third party, or requires one to abandon or retreat from one's dwelling or place of business or employment. 704.3. Defense of self or another A person is justi?ed in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force. The right not to retreat in these protected zones has also been recognized by the Iowa Supreme Court. See State v. Fisher, 246 918 (Iowa 1976)? A person is under no duty to retreat in or from his own dwelling, place of business, or place of employment. Everywhere else- no need to retreat if can?t do so safely: Even when you are not at home/work/business, current Iowa law does not require a person to retreat to avoid use of force if alternative action causes risk to your life or safety or that of another person you are protecting. See Iowa Code Section 704.1 above. . .there may be circumstances when the attempt to take an alternative course of action will pose a serious threat to one's safety. In such a situation, a party may use reasonable force, including deadly force, without first taking an available alternative course." State v. Rupp, 282 .W.2d 125 (Iowa 1979); State v. Fisher, 246 .W.2d 918 (Iowa 1976) (defendant could not reasonably retreat and still protect third person). The State, not the person charged, has the burden to prove beyond a reasonable doubt that person?s use of force was unjusti?ed: The State has the burden to prove the defendant's actions were not justified. State v. Thornton, 498 670 (Iowa 1993). When self-defense is raised, State must prove no self?defense beyond a reasonable doubt. State v. Beyer, 258 .W.2d 353 (Iowa 1977). Iowa County Attorneys Association Hoover State ?f?ce ?u?ding irr- Finer Elias Memes, iewa W339 ?i?eiephonei {are} eateries arts: (are) gamers .22 Statement re HF Sis-?Stand Your Ground" February 4, 2012 For at least 167 years, since 1843 when Iowa was yet a territory, Iowa law has provided each person a right to self defense in all circumstances. This includes the right to use deadly force when confronted by deadly force. (Territorial Law, Section 49.14, 1843). Each Iowan may also use deadly force in the defense of another person when that person is confronted with deadly force. In Iowa today a person can use deadly force against another ?if it is reasonable to believe that such force is necessary to avoid injury or risk to one's life or safety or the life or safety of Iowa Code Section 704.1 Iowa law has also long encompassed what is known as the ?Castle Doctrine.? Since at least 1883, Iowans have had no duty to retreat from their dwelling (State v. Middleham, 62 Iowa 150, 17 NW 446); and, since at least 1926, no duty to retreat from one?s place of business. (State v. Sipes, 202 Iowa 173, 209 NW 458). In all other locations the long-standing wisdom of Iowa Legislators and Courts is demonstrated in the Iowa law that first encourages non-violence, that is, de-escalation of conflicts, when a safe retreat can be made. (State V. Benham, 23 Iowa 154 (1867)). Iowans have remained safe with this wise policy. At the same time, citizens who have acted reasonably in defense of themselves or others, regardless of the location, have not been charged with commission of a crime. So, what is the problem? Current proponents of ?stand your ground? and ?meet force with force? legislation, such as HF 573, cannot point to even one actual case where Iowa law has been inadequate or unjust. The first duty of a Legislature is to refrain from changing a law for which a real problem cannot first be clearly identified and articulated. To do otherwise is unwise and reckless, especially when it overturns decades of clear, stable, and safety?promoting Iowa law. Instead, without the existence of any demonstrable problem, the drastic changes proposed in HF 573 will increase the danger to Iowans; they encourage escalation of violence in the face of a con?ict, rather than de-escalation. As trained law officers can tell you, ?shooting first and asking questions later? will not make any Iowan safer. The far?reaching effect of the proposed legislation is not limited to gun violence. Assaultive conduct of all kinds will be more difficult to prevent and to prosecute. Domestic abuse first comes to mind. Thanks to Legislative insight over the past 25 years, Iowa law has improved the safety of those who suffer abuse in domestic situations. However, if enacted, these new proposals will provide the abuser with a ready defense and will increase in?home violence, all to the detriment of the victims who are primarily women and children. Corwin R. Ritchie, Executive Director Page 2 Iowa County Attorneys Association Stand Your Ground Statement In addition, changing Iowa law in this manner will place law enforcement officers in greater danger and will put them in contradictory positions when confronted with violent situations, both in the home and out. This proposal sends the wrong message and will n_ot improve the protection of the ?Good Samaritan? who reasonably intervenes in a potentially deadly situation to defend another. Proponents cannot name one individual in Iowa who has done so and has then suffered any negative legal consequences. If HF 573 is enacted into law, it will benefit, quite simply, the ?bad guys?, the criminals. A recent true?life illustration: A shootout in the middle of the day in the middle of one of Iowa?s larger cities; one young man is killed. Both sides in the dispute fire shots, but n_ot the victim. This bill would provide criminals not just a very strong defense for their criminal acts, but immunity from prosecution. Is that what Iowans want, criminals going free? Will that make our citizens safer? We believe not. A law that has served Iowans well and safely should not be replaced with a law that encourages the escalation of violence and provides immunity to violent criminals. For Additional Information Contact: Corwin R. Ritchie Executive Director Iowa County Attorneys Association (515) 281-5428 W?stlaw. 282 125 (Cite as: 282 125) Supreme Court of Iowa. STATE of Iowa, Appellee, v. Jerry Dean RUPP, Appellant. No. 62194. Aug. 29, 1979. Defendant was convicted in the District Court, Page County, Harold L. Martin, J., of assault with intent to commit murder and possession of a firearm by a felon and he appealed. The Supreme Court, LeGrand, ., held that: (1) defendant was entitled to an instruction, in connection with his defense of justifi- cation, that he had a right to stand his ground without taking alternative action if, because of his fear of injury at the hands of the victim, the attempt to take alternative action would pose a serious threat, and (2) statute forbidding a convicted felon from transporting or possessing a firearm is neither overbroad nor an impermissible infringement on the right to bear arms. Affirmed in part and reversed and remanded in part. West Headnotes Criminal Law 110 @8340) 110 Criminal Law 110XX Trial Instructions: Requests 1101(834 Modification by Court 110k834(2) k. Necessity of giving in language of requests. Most Cited Cases Trial court is free to phrase instructions in its own Page 1 words as long as the instructions given fully and fairly advise the jury of the issues they are to decide and the law which is applicable. Homicide 203 W750 203 Homicide 203VI Excusable or Justifiable Homicide In General 203k750 k. In general. Most Cited Cases (Formerly 203k101) ?Justification? is a doctrine of law permitting one, under certain circumstances, to use force in defending himself. I.C.A. 704.1 et seq. Homicide 203 @3799 203 Homicide 203VI Excusable or Justifiable Homicide Self-Defense 20311798 Duty to Retreat or Avoid Danger 20311799 k. In general. Most Cited Cases (Formerly 203k109) Where the circumstances are such that the attempt to take an alternative course of action would pose a serious threat to one's safety, a party may use rea- sonable force, including deadly force, without first taking an available alternative course. I.C.A. 704.1, 704.2, subd. 3. Homicide 203 93791485 203 Homicide 203XII Instructions Excuses and ustifications 2031:1471 Self-Defense 203k1485 k. Duty to retreat or avoid 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 282 125 (Cite as: 282 125) danger. Most Cited Cases (Formerly 203k300(7)) Defendant who testified that he was in reasonable fear that the person whom he shot and killed had in? tended to do him serious injury and who gave detailed testimony of bad blood between the two and of several prior assaults by the victim and the victim's prior threats to kill him was entitled to an instruction that he had a right to stand his ground without taking alter- native action to avoid conflict because of his fear of injury or death at the victim's hands if he were to attempt to take alternative conduct. I.C.A. 704.1, 704.2, subd. 3. Weapons 406 6392930!) 406 Weapons 406V Prosecution Weight and Sufficiency of Evidence 406k289 Possession, Use, Carrying 406k293 Possession After Conviction of Crime 406k293(4) k. Existence or eligibility of prior conviction. Most Cited Cases (Formerly 406k17(4)) Where defendant had admitted his conviction of a felony, including the exact crime and date of convic- tion, there was no need for any formal proof of the prior crime in order for him to be convicted of pos- sessing a firearm as a convicted felon. I.C.A. 724.26. Weapons 406 Wrosa) 406 Weapons 4061 In General 406k102 Constitutional, Statutory, and Regu- latory Provisions 4D6k106 Validity 406k106(2) k. Vagueness and over? breadth. Most Cited Cases Page 2 (Formerly 4061(3) Statute prohibiting the possession or transporta- tion of a firearm by convicted felon is not overbroad because it brings within its prohibition those convicted of nonviolent as well as violent crimes. I.C.A. 724.26. Weapons 406 @1066) 406 Weapons 4061 In General 406k102 Constitutional, Statutory, and Regu- latory Provisions 406k106 Validity 406k106(3) k. Violation of right to bear arms. Most Cited Cases (Formerly 4061(3) Statute prohibiting the possession or transporta- tion of a firearm by a convicted felon does not im? permissibly infringe on the constitutional right to bear arms. I.C.A. 724.26; Amend. 2. Weapons 406 @107 (2) 406 Weapons 4061 In General 406k102 Constitutional, Statutory, and Regu- latory Provisions 406k107 Construction 406k107(2) k. Right to bear arms in general. Most Cited Cases (Formerly 406k1) The right to bear arms under the Second Amendment is not absolute; it is subject to reasonable regulation. Amend. 2; I.C.A. 724.26. *126 Richard G. Davidson, of Davidson Hemphill, Clarinda, for appellant. 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 282 .W.2d 125 (Cite as: 282 125) Thomas J. Miller, Atty. Gen., Selwyn L. Dallyn, Asst. Atty. Gen., and Gary Gee, County Atty, for appellee. Considered by D, P. I, and REES, HARRIS, ALLBEE, and JJ. D, Justice. This is an appeal from sentences on two guilty verdicts. The cases were tried together under separate counts of the same information. One was a charge of assault with intent to commit murder (3 707.11, Iowa Criminal Code) and the other was possession of fire? arms by a felon (s 724.26, Iowa Criminal Code). We reverse on the former and affirm on the latter. The events in question started with a drinking party at a tavern known as the Hi-Io Lodge. An ar? gument ensued between Curtis Sederburg and a third party, Bud Wolf, concerning change for a $10.00 bill in connection with paying off a bet. Defendant became embroiled in the dispute, which continued outside after the parties left the Hi-Io. The argument became more and more heated. The record is in dispute as to who was the aggressor. Eventually Sederburg started toward defendant, who produced a .38 caliber revolver and shot him. De- fendant ?ed the scene and was later arrested at his home. The two charges described above resulted. We discuss them separately, and we deal first with the assault. I. ASSAULT WITH INTENTION TO COMMIT MURDER. Defendant raises numerous objections to the instructions. He also requested his own instructions on almost every material issue. The trial judge re- jected them all but gave the substance of most in his own language. We have said a trial court is free to Page 3 phrase instructions in its own words as long as the instructions given fully and fairly advise the jury of the issues they are to decide and the law which is applicable. State V. Millspaugh, 257 513, 515 (Iowa 1977). We believe these instructions did that except on the issue of justification. The error there was both serious and prejudicial. It necessitates a reversal and a new trial. Defendant admitted he shot Sederburg. He claimed he was justified. As applicable in this case, justification or self-defense is a doctrine of the law permitting one, under certain circumstances, to use force in defending himself. See ch. 704, Iowa Crimi- nal Code. The force used must be reasonable; and force should be resorted to at all only as a last resort. We set out the relevant part of the applicable statute: 704.1 ?Reasonable force? is that force which a reasonable person, in like circumstances, would judge to be necessary to *127 prevent an injury or loss, and no more, except that the use of deadly force against another is reasonable only to resist a like force or threat. Reasonable force, including deadly force, may be used even if an alternative course of action is available if the alternative entails a risk to one's life or safety, . . . . (Emphasis added) The problem in this case arises because of the italicized portion of the statute, which recognizes there may be circumstances when the attempt to take an alternative course of action will pose a serious threat to one's safety. In such a situation a party may use reasonable force, including deadly force, Without first taking an available alternative course. See 3 Iowa Criminal Code, for definition of ?deadly force? as applicable here. 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 282 125 (Cite as: 282 125) Defendant claimed he was in reasonable fear that Sederburg intended to do him serious injury. He gave detailed testimony of bad blood between them, of several prior assaults by Sederburg, and of Seder- burg's threats to kill him. He insisted he was justified in shooting without first taking an alternative course of action. The trial court refused to include this element in the instruc- tions. The relevant portions of the instructions on justi- fication were as follows: You must find the defendant not guilty on grounds of justification unless the state has proved by evidence beyond a reasonable doubt any one of the following elements: 2. An alternative course of action was available as explained in (the following instruction.) The trial court then gave this instruction: With regard to element number 2 (Alternative Course of Action) . . . you are instructed that if a person is confronted with the use of unlawful force against himself, he is required to avoid the con- frontation by seeking and using an alternative course of action. Thus, if there is evidence that, as a reasonable person, the defendant could have avoided the use of unlawful force, he must have taken or used the alternative course of action before Page 4 he is justified in repelling the force used against him. We have, then, these circumstances. The jury could have found defendant used deadly force by discharging his pistol and wounding Sederburg; that he did not first take an available alternative action; and that he is therefore not entitled to the doctrine of jus- tification. But defendant argues he was not obliged to take alternative action because of the exception in the statute which excuses him from doing so if the alter- native involved a risk to his life or safety. Defendant's testimony becomes vitally important here and we set it out at length. 0. How long have you known Curtis Sederburg? A. Approximately since 1963. That would be 15 years. 0. And during the time describe that relationship. A. It's always been quarrelsome. Q. Can you explain some of those problems you might have had? A. It started back right after I got to know Curtis in 1963. Q. What happened then? A. We got into a fight up in Red Oak, Iowa. 0. And can you tell me what happened in general on that? A. After it was all over I ended up with a black 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 282 125 (Cite as: 282 125) and a fat lip. Q. What was your next relationship? A. Oh, it would be not until 1972. Q. And what was that? A. It was an incident at the Blue Spur Lounge in Shenandoah, Iowa. Q. Can you tell me about that? *128 A. Curtis came down, well, he come down with another guy and Curtis came down and he wanted to fight and he was hollering at me and they stopped him before he could get me; the bouncer to the place did, and asked him to leave and he didn't want to leave so they throwed him out. Q. What was the next occurrence? A. It was later on in 1972. Q. Okay, what was that? A. This was the time when he come down and I was down at the bar, . . . and he come in and I was just getting off my bar stool because I saw him come through the door and he knocked over the bar stool and once and I started to go down and he kicked me and tore the cartilage loose on the right side of my chest. Q. Did this disable you? A. Yes. Q. How? Page 5 A. I couldn't work. It tore all the cartilage loose in my chest so I had to be under doctor's care. Q. Did any Other incidents occur that you can think of? A. Yeah, there was another time after this that happened at Jim's Lounge in Shenandoah, Iowa. Q. Did anything unusual occur? A. He come up to the end of the bar where I was Standing up next to the owner of the bar and told me, you know, I wouldn't mind beating your head in. And says, killing you would be fun. Q. Do you know the general reputation of Curtis Sederburg? A. Yes. Q. In the community? A. I do. Q. Do you know his general reputation for tur- bulence, violence, bad temper? A. Yes, I do. Q. Do you have an opinion (as to his) general reputation for turbulence, bad temper, violence in the community of Shenandoah and quarrelsomeness be- fore the 14th day of February, 1978; yes or no? A. Yes. Q. And what is that opinion? A. It?s bad. 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 282 125 (Cite as: 282 125) Q. Now, in doing this (work as a narcotics agent) where was it necessary for you to frequent? A. Well, I was required to build cases against known drug and drug sellers. Q. Did anyone of these people ever find out about your position? A. Yes, they did. Q. And what were the results of this; people finding out? A. Well, there was supposedly a contract put out on me. This is the word that was on the streets and still is. Q. Did you hear this from anybody in particular? A. Well, I first heard it from Curt Sederburg. Q. What did Curtis Sederburg say to you about it? A. Curtis came and told me . . . . He says, there is a contract out on you and, you know, I might just collect that. Q. Did he make any threats to you later on, say, with or without a gun? A. Yes, he did. Q. Where was that? A. This was one time me and my little brother went down to the house; going down to drink some beer. It was in the *129 evening and when we walked in the house Curtis was standing out in the kitchen, Page 6 which was straight through the house, and he reached in this drawer and pulled a gun and he pointed it at me and told me, he says, see how easy it would have been? You would have never got to your gun. Q. He knew you had a gun? A. Yes. Q. Were there any threats made against you through a third party? A. Yes, there was. Q. And who was that? A. My mother. Q. And what was the nature of that? A. She came down and told me that Curtis had told her that if he got the chance he was going to take the gun away from me and stick it up me. Q. How apprehensive were you of Curtis Seder- burg? What did you think he might do? A. Well, it was really hard to say what Curtis would do. I was afraid he might kill me or he could seriously injure me; bodily. Q. What do you mean by serious injury? A. He could maim me; break an arm; break a leg. He could beat me senseless. Q. At any of these times when you had previous fights were you injured seriously? A. Yes, I was. 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 282 125 (Cite as: 282 125) 0. At that time were you fearful of your life? A Yes, I was. Q. What type of a fighter is Curtis from your own personal knowledge? A. Animalistic. Q. What went through your mind? What did you intend to do to him? A. I intended to stop him so he couldn't hurt me. I didn't intend to kill him. Q. And then what happened? A. Then I kind of moved back off because I knew Curtis was mad and he approached Bud and told him, he says, Take everything out of your pockets again and put it up on the hood there. There was a pickup sitting there and he says, Put it all up on the pickup and give me your billfold. Bud said, I told you I don't have your money. I said, Curtis, Why don't you let it go. The man does not have your money. And he says, Well, I am not going to and you mind your own damn business. And I says, Okay, I will. And I turned around and started to walk away and I was going to my car. I was heading home and Curtis was starting an argument with Bud and I turned around and looked at Bud and says, That's stupid. Turned around and Curt heard me, he said, I have had enough of your bullshit. I looked over my shoulder when he said this and he started for me. Q. And then what did you then do? Page 7 A. I then turned and I pulled my pistol. Q. Did you say anything to Curt at this time? A. Not at the particular time I did not. Q. When you say you pulled your pistol what did you do? A. I shot once in the air and I says, Curtis, don't come any further. I will use it Curtis to stop you. Q. And then what happened? A. He kept coming. Q. What did you do? A. I shot him. Q. Where? A. In the arm. The instructions, considered together, omit a critical element of defendant's defense his right to stand his ground without taking alternative action because of his fear of injury or death at Sederburg's hands. See Instruction No. 416, II Iowa Uniform Criminal Law Jury Instructions. Should defendant have backed away from the dispute at an earlier stage? Could he *130 have re- treated when Sederburg advanced upon him immedi- ately before the shooting? Was he justified as a rea- sonable person in fearing death or injury at Seder? burg's hands? These are questions the jury should have decided. The trial court told them to consider the prior threats and altercations between Sederburg and defendant in 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 282 125 (Cite as: 282 125) deciding if defendant acted as a reasonable person under the circumstances. The defect in the instructions is that the jury was not told any place the circum- stances under which defendant was legally entitled to use reasonable force without first taking alternative action. We hold this was reversible error and de- fendant is entitled to a new trial. 11. This brings us to the second charge against defendant violation of 724.26, which forbids a con- victed felon from transporting and possessing fire- arms. By agreement the issue concerning defendant's previous conviction of a felony was reserved for sep- arate determination if the jury first found, as it did, that he had transported and possessed such a weapon. Defendant raises these two objections to his con- viction on Count II: 1. There is no proof in the record to establish the previous felony conviction. 2. 724.26 is unconstitutional in violation of Amendments II and XIV to The Constitution of the United States. Defendant admitted his conviction of a felony, including the exact crime (uttering a forged instru? ment) and the date of conviction (1966). This obviated the necessity for any formal proof. See 8 622.17, Iowa Criminal Code. There is no merit to defendant's first proposition. Nor do we agree with his second com? plaint. He argues the statute is overbroad because it brings within its prohibition those convicted of non?violent as well as violent crimes. He also argues it impermissibly infringes on his constitutional right to bear arms. The right to bear arms under the second amendment is not an absolute one. It is subject to reasonable regulation. United States v. Miller, 307 US. 174, 178, 59 816, 818, 83 1206, 1209 Page 8 (1939); United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976); United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971), Vacated on other grounds, 404 US. 1009, 92 686, 687, 30 L.Ed.2d 657 (1972). The constitutional protection extends only to situations bearing some ?reasonable relationship to the preservation or efficiency of a well regulated mili? tia.? Cody v. United States, 460 F.2d 34, 37 (8th Cir), Cert. denied, 409 US. 1010, 93 454, 34 L.Ed.2d 303 (1972). This same argument was made and rejected in Marchese v. California, 545 F.2d 645, 647 (9th Cir. 1976): The right to bear arms, especially easily con- cealable handguns, is not the type of fundamental right to which the ?compelling state interest? standard applies. United States v. Synnes, 438 F.2d 764, 771 n.9 (8th Cir. 1971), vacated on other grounds, 404 US. 1009, 92 687, 30 L.Ed.2d 657 (1972). See e. People v. Camperlingo, 69 Cal.App. 466, 473, 231 P. 601, 604 (1924). Also, felons may belong to a suspect classifica- tion, but not in any sense that helps the petition? er. There is a legitimate interest in minimizing the felonious use of firearms, and a legislature reason- ably may decide that persons with criminal convic- tions have more of a tendency to commit a crime of violence than persons without criminal ords. United States v. Karnes, 437 F.2d 284, 289 (9th Cir), Cert. den., 402 US. 1008, 91 2189, 29 L.Ed.2d 430 (1971). We find no basis for the petitioner's attack on the statute. In that case the California statute, like ours, pro- hibited possession of handguns by one previously convicted of a nonviolent as well as Violent felony. Defendant is not entitled to relief on either of the constitutional arguments urged. The judgment on the 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 9 282 125 (Cite as: 282 125) conviction for illegal possession of a firearm is af- firmed. *1131 In summary we reverse as to Count I (assault with intent to commit murder) and remand for a new trial. We affirm as to Count II (illegal possession of firearms.) REVERSED AND REMANDED AS TO COUNT AFFIRMED AS TO COUNT 11. Iowa, 1979. State v. Rupp 282 125 END OF DOCUMENT 2015 Thomson Reuters. No Claim to Orig. US Gov: Works. H. JUSTIFICATION (SELF DEFENSE) 1. Statute 3. Definition. person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or other from any imminent use of unlawful force." Iowa Code sec. 704.3. "Justification as a defense is two-pronged: an admission that a prescribed act was done, and the establishment of an exculpatory excuse that takes the act out of the criminal law State v. Jeffries, 313 508 (Iowa 1981). b. What ?justification? Iowa Code Ch. 704 codifies: (1) Defense of self or another: Iowa Code sec. 704.3. (2) Defense of property: Iowa Code sec. 704.4 (3) Aiding another in the defense of property: Iowa Code sec. 704.5 (4) Resisting forcible felony: Iowa Code sec. 704.7 (5) Escape from place of confinement (for officer use): Iowa Code sec. 704.8 (6) Physician ceasing medical attention on one declared dead: Iowa Code sec. 704.9 (7) Compulsion: Iowa Code sec. 704.10 (8) Police activity (evidence gathering): Iowa Code sec. 704.11 (9) Use of force in making arrest: Iowa Code sec. 704.12 2. Self defense The ?test of justification is both subjective and objective. The actor must actually believe that he is in danger and that belief must be a reasonable one.? State v. Elam, 328 314 (1982). 3. Elements (1) Belief of danger. Person must actually and honestly believe he is in imminent danger. Danger need not be real but may be thought real in the person's mind, acting as a reasonably prudent person under the circumstances. Actual physical assault is not required. State v. Cruse, 228 28 (Iowa 1975); State v. Jackson, 223 229 (Iowa 1974) (defendant may act on "apparent" as well as actual danger): person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defense oneself or another from any imminent use of unlawful force." State v. Rains, 574 904 (Iowa 1998) (2/18/98) (no substantial evidence to support self-defense instruction where officer's use of force began only after defendant drove away, dragging or suspending the investigating officer from the car.) Victim need not actually be armed. The defense is not dependent upon whether the victim was actually armed. State v. Johnson, 298 293, 296 (Iowa 1980). (2) Reasonable grounds for belief. Defendant must have had reasonable grounds for that belief. Defendant [is] therefore required to show an actual, reasonable fear under the circumstances which [he or she] faced." State v. Elam, 328 314 (Iowa 1982) (trial court did not abuse discretion in refusing to admit testimony that defendant was "extremely weary" and "unusually prone to fear"). Defendant who assaulted two store emptoyees after they stopped him for stealing meat was not entitled to self-defense instruction: (1) defendant could not reasonably have believed that his acts were necessary to defend against the imminent use of unlawful force; and (2) the level of force used by the employees was not "unlawful." State v. Ceaser, 585 192 (Iowa 1998) (9/23/98) (employees' actions did not exceed that authorized by statute under Iowa Code section 808.12(1) [detention and search of suspected shoplifter by merchant's employee] and Iowa Code section 704.4 [use of reasonable force to prevent interference with possession or other right to property]). (3) Reasonableness of force. The force used must be have been reasonable. Reasonable force is that force which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss and can include deadly force if (1) it is reasonable to believe that such force is necessary to avoid injury or risk to one's life or safety or the life or safety of another; (2) it is reasonable to believe that such force is necessary to resist a like force or threat; (3) if an available alternative course of action entails a risk to life or safety or the life or safety of a third party; or (4) the alternative course of action requires one to retreat from one's dwelling or place of business. Iowa Code sec. 704.1; State v. Harris, 222 462 (Iowa 1974) (use of deadly force). Defendant who attempted to strike police officer investigating complaint of fighting by someone matching defendant?s description, after officer grabbed defendant?s arm when defendant refused to remove his hands from his pockets, was NOT justified in attempting to strike the officer. A reasonable person in similar circumstances would not deem that the attempted attack was ?necessary to prevent an injury or loss? as required by the justification statute, 704.3. (reversing Court of Appeals opinion) State v. Bedard, 668 598 (Iowa 9/4/2003 Alternative course of action. Where a defendant has established a factual basis for a justification defense, the trial court must, in its instructions on "reasonable force" (sec. 704.1), explain to the jury that an alternative course of action need not be pursued if the jury finds that such an alternative would have entailed a risk to defendant's life or safety and that the defendant reasonably believed such at the time. That is, "there may be circumstances when the attempt to take an alternative course of action will pose a serious threat to one's safety. In such a situation, a party may use reasonable force, including deadly force, without first taking an available alternative course." State v. Rupp, 282 125 (Iowa 1979); State v. Fisher, 246 918 (Iowa 1976) (defendant could not reasonably retreat and still protect third person). Risk to life or safety. A killing of an assailant is onlyjustified as self-defense, where the killer believed he was in imminent danger of "death or great bodily harm" from the assailant. Although the law has justified killings to prevent the commission of a violent and forcible felony (murder, robbery, arson, rape, etc.), not every felony will justify the taking of human life. State v. Harris, 222 462 (Iowa 1974) (Denial of defense request for instruction that defendant could kill if she believed she was in danger of "some other felony" was proper). Retreat from one's own dwelling or place of business or employment. A person is under no duty to retreat in or from his own dwelling, place of business, or place of employment. Iowa Code sec. 704.1; State v. Fisher, 246 918 (Iowa 1976) b. Exceptions to defense: when not available. (1) Participation in crime. The defense of justification is not available to one who is participating in a forcible felony, or riot, or duel. Iowa Code sec. (2) Provocator with intent. Defense not available to one who initially provides the use of force against oneself, with the intent to use such force as an excuse to inflict injury on the assailant. Iowa Code sec. (3) Provocator generally. Iowa Code sec. Defense of justification not available to one who initially provokes the use of force against oneself by one's unlawful acts, unless: Such force is grossly disproportionate to the provocation, and is so great that the person reasonably believes that the person is in imminent danger of death or serious injury. Example. State v. Cruse, 228 28 (Iowa 1975) (slayer must not be aggressor in provoking or continuing difficulty resulting in homicide). The person withdraws from physical contact with the other and indicates cIearly to the other that the person desires to terminate the conflict but the other continues or resumes the use of force. c. Notice. In order to restore right of self-defense to the person who provoked or commenced hostilities, he must attempt in good faith to withdraw, and in some manner make known his intention to the adversary. The gist of withdrawal or attempted withdrawal is notice to the adversary. Notice may consist of either conduct or words sufficient to furnish reasonable grounds for adversary to recognize intention to call off hostilities. State v. Dunson, 433 676 (Iowa 1988); State v. Huemphreus, 270 457 (Iowa 1978). d. Notice required. "If defendant intended to rely upon the defense of self-defense, the defendant shall, within the time for filing pretrial motions, file written notice of such intention." Iowa R. Cr. P. e. Burdens of proof. (1) Burden of going forward. An instruction on self-defense is not required unless the evidence, from any source, taken as a whole, raises a substantial issue of self-defense. State v. Rains, 574 904 (Iowa 1998); State v. Ceaser, 585 192 (Iowa 1998); State v. Dunson, 433 676 (Iowa 1988) (despite defendant being initial aggressor, there was substantial evidence (1) that the "victim's" use of responsive force was grossly disproportionate to defendant's initial assault, and (2) that defendant had withdrawn from any further fracas after his initial attack); State v. Fisher, 246 918, 920-21 (Iowa 1976); State v. Vick, 205 727, 731 (Iowa 1973) (in prosecution for assault with a rifle, defendant testified he shot the rifle, ?but never intimated that in doing so he acted in self-defense,? nor was there ?the slightest hint defendant was ever threatened or felt intimidated?) (2) State's burden of proof. The State has the burden to prove the defendant's actions were not justified. State v. Thornton, 498 670 (Iowa 1993). When self-defense is raised, State must prove no self-defense beyond a reasonable doubt. State v. Beyer, 258 353 (Iowa 1977). (3) May be proved by direct or circumstantial evidence. The State's evidence to disprove self-defense may be either direct or circumstantial. State v. Overstreet, 243 880 (Iowa 1976). (4) What state must show In order to prove that there was no justification, the State must prove: The defendant was the provocateur in initiating or continuing the difficulty which resulted in the act The defendant did not believe he or she was in imminent danger of death or injury and that the use of force was not necessary to save him or her He or she did not have reasonable grounds for such belief; or The force used was unreasonable. State v. Mayes, 286 387 (Iowa 1979). Instructions. (1) Questions of fact and law. What facts justify self-defense is a question of law for the trial court. Existence of such facts is a question for the jury. If evidence is conflicting, or such that different inferences might be drawn, issue should be submitted to the jury to determine circumstances at time of confrontation. State v. Beyer, 258 353 (Iowa 1977). (2) Deadly force when applicable. The instruction on deadly force, where the use of deadly force is reasonable ?if it is reasonable to believe that such force is necessary to avoid injury or risks to one?s life or safety,? cannot be amended to the ?use of deadly force is reasonable only to resist a similar force or threat.? State v. Stallings, 541 855 (Iowa 1995) (error to use I Iowa Criminal Jury Instruction 400.15 (1988) rather than I Iowa Criminal Jury Instruction 400.6 (1991)). (3) Examples of when defense inapplicable. Defendant, who was among those storming victim's house and participating in assaults upon occupants after shot was fired from house, was not entitled to directed verdict on defense of justification. State v. Rubino, 602 558 (Iowa 1999) (11/17/99). (4) Justification defense error in not making offer of proof] allowing admission of evidence in support of. Reversible error to instruct the jury on justification but disallow defendant?s evidence in support thereof; namely, that she was afraid more harm would befall at the hands of the victim, and why, by stopping than by continuing to drive with the victim on her hood. State v. Begey, 672 747 (Iowa 12/17/2003). Defense of others a. Notice. Not required by rule. b. Statute/components. person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend another from any imminent use of unlawful force." Iowa Code sec. 704.3. This statute codifies the common law defense set out in State v. Menilla, 177 Iowa 283, 158 NW. 645 (1916). (1) Limitation on situations in which force can be used. In aiding a third party, a person can only use such reasonable force in lawful resistance as the person attacked could have in protecting himself. Sandman v. Hagan, 261 Iowa 560, 154 113 (1967). (2) When not applicable. A defendant is not entitled to justification (defense of property) instruction relative to "entry" element of burglary charge where no evidence existed that defendant had any knowledge of threats to his property prior to entry. State v. Peck, 539 170 (Iowa 1995). c. Instruction. Iowa Crim. Jury Instr. Nos. 400.3, 400.4, 400.5, 400.6. Defense of property a. Notice not required. b. Statute/elements. person is justified in the use of reasonable force to prevent or terminate criminal interference with the person's possession or other right in property. Nothing in this section authorizes the use of any spring gun or trap which is left unattended and unsupervised and which is placed for the purpose of preventing or terminating criminal interference with the possession of or other right in property." Iowa Code sec. 704.4. This statute codifies the common law defense, subject to the limitation of "reasonable force" as defined in Iowa Code sec. 704.1. (1) Applicable to retain property or prevent its injury, not to recover it. The justification defense of property under Iowa Code sec. 704.4, which justifies the use of reasonable force to prevent or terminate criminal interference with a person's possession or other right in property, is not available as a defense where: (1) the defendant has at an earlier time been deprived of possession of his or her property by a wrongful taking; (2) the wrongful taking was committed out of the defendant's presence; and (3) the defendant attempts by the use of force to recover the property, although the property is elsewhere. The purpose of section 704.4 "is to prevent the imposition of a penalty upon a person who out of necessity is acting to retain his property or prevent its injury. Thus, the purpose of the statute is not to recover property but to prevent wrongful interference with it." State v. Nelson, 329 643 (Iowa 1983) (the victim's return of part of the property, after threats were made, did not "restart the timetable of the crime so that defendant could 'prevent or terminate' its occurrence"). Instruction. Iowa Crim. Jury Instr. Nos. 400.7, 400.9, 400.10. Aiding another in defense of property a. Statute. person is justified in the use of reasonable force to aid another in the lawful defense of the other person's rights in property or in any public property." Iowa Code sec. 704.5. b. Instruction. Iowa Crim. Jury Instr. 400.8, 400.9, 400.10. cl Notice. Not required by rule. Resisting a forcible felony a. b. Notice not required. Statute. person who knows that a forcible felony is being perpetrated is justified in using, against the perpetrator, reasonable force to prevent the completion of that felony." Iowa Code sec. 704.7. C. Instruction. Iowa Crim. Jury Instr. No. 400.11.