Nevada Assembly members Fiores, Hambrick, and Oscarson have sponsored AB 70, the ALEC/NRA “Castle Doctrine” statute for consideration in the 2013 session of the Nevada Legislature. It’s important to note the “castle” part because Nevada law (NRS 200.120) already defines justifiable homicide as a defense of a person’s home or residence. Section 1 of the Fiores, Hambrick, Oscarson bill would extend this to a defense of one’s motor vehicle. But, wait – it gets more like Texas by the minute.
The LCB’s summary informs us: “Section 2 of this bill establishes a presumption that the killing is justifiable under the standard set forth in NRS 200.130 if the person killing: (1) knew or had reason to believe that the person who was killed was entering unlawfully and with force, or attempting to enter unlawfully and with force, the habitation or property of another; (2) knew or had reason to believe that the person who was killed was committing or attempting to commit a felony; and (3) did not provoke the person who was killed.”
The NRA’s representative Marion Hammer, presented model language for the Castle Doctrine to ALEC in August 2005, at a meeting in Grapevine, Texas, and the proposal gets even more impetus from the Lone Star State:
“Section 3 also enacts a provision, based upon Texas law, which provides that a person is immune from civil liability for using force which is intended or likely to cause death or bodily injury if the person was justified in using such force under the applicable provisions of Nevada criminal law. (Texas Civil
34 Practice and Remedies Code, § 83.001)”
There are many good things coming from Texas — their grape fruit is good — but this isn’t one of them.
#1. The proposed statute unnecessarily expands the justification for the use of deadly force. Current law states: “It is presumed that the circumstances were sufficient to excite the fears of a reasonable person and that the person killing really acted under the influence of those fears and not in a spirit of revenge…” This is, frankly speaking, almost too broad already. Words like “substantial bodily harm,” and “great bodily harm,” and “excite the fears” have much more precise meanings in law than they do in conversation. [NuJournal] Are my “fears excited” when a person approaches my motor vehicle with ‘something’ in hand? If the ‘something’ is concealed from my view am I being reasonable in presuming it is a hand gun of some type? Or, what happens after I blast away only to discover to my horror that the ‘something’ was a squeegee?
#2. The Castle Doctrine has the potential to turn an otherwise prosecutable act into a justifiable one. Montana has some experience with this problem.
“Brice Harper, 24, gunned down Dan Fredenberg, 40, in his garage. Fredenberg, 40, was coming over to confront Harper about having an affair with his wife, Heather Fredenberg. Harper cut the encounter short by shooting him dead and a prosecutor has declared that the shooting cannot be prosecuted given the state’s Castle doctrine or “Make My Day” law.” [Turley]
The Flathead County attorney Ed Corrigan declared that Montana’s “castle doctrine” law allowed Harper to use lethal force. He found that it was justified for Harper to run into the bedroom and retrieve his gun and return and shoot the unarmed man as self-defense: “Given his reasonable belief that he was about to be assaulted, Brice’s use of deadly force against Dan was justified.” [Turley]
Under the provisions of NRS 41.095, it will be presumed that if someone enters my residence I can shoot away under the assumption I feared for my life, or feared bodily harm? Is the spouse’s obvious anger sufficient cause for my presumption I am about to be physically assaulted? Do I have any obligation to THINK - before I shoot – that the person lacks the capacity to harm me? Or, may even lack the intent to bruise any part of me other than my ears and ego? While the former “duty to retreat” may be too exclusive for modern minds, it doesn’t seem too much to ask that I behave as a ‘reasonable person,’ and determine that the individual confronting me has both the intent and the capability of doing me harm?
And, now the ALEC/NRA representatives in the Nevada Legislature have proposed yet another venue in which I can shoot first and ask questions later. Unfortunately, the answers to those questions may not be anything like what I intended.