NRS 200.120 “Justifiable homicide” defined; no duty to retreat under certain circumstances. 1. Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. 2. A person is not required to retreat before using deadly force as provided in subsection 1 if the person: (a) Is not the original aggressor; (b) Has a right to be present at the location where deadly force is used; and (c) Is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used. [1911 C&P § 129; RL § 6394; NCL § 10076]—(NRS A 1983, 518; 2011, 265)]
So, what do I have to demonstrate before I shoot you? Under the terms of the Nevada statute it must be obvious my target intends to assault me or “to offer personal violence.” Here’s the first part wherein this gets to be a tricky question. Who decides if I am in great danger of assault? Is it enough for me to declare that I feared for my safety in general, or must I fear for my very life? It really doesn’t get more subjective than this. The statutes continue:
“NRS 200.130 Bare fear insufficient to justify killing; reasonable fear required. A bare fear of any of the offenses mentioned in NRS 200.120, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person and that the party killing really acted under the influence of those fears and not in a spirit of revenge. [1911 C&P § 130; RL § 6395; NCL § 10077]”
This answers part of the question — my “bare fear” alone is insufficient to justify my use of deadly force. The challenge must “excite the fears of a reasonable person…” We move closer to specificity in another portion of Nevada’s statutes:
“NRS 200.170 Burden of proving circumstances of mitigation or justifiable or excusable homicide.The killing of the deceased named in the indictment or information by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified, or excused in committing the homicide. [1911 C&P § 134; A 1951, 524]”
There is plenty of room for questions in this portion. Now, there are two subjective components added to the mix. The burden of proof rests with the defendant to prove the homicide was “justified,” BUT the local prosecutor can declare the act “manslaughter,” or can “excuse” it as self defense. Do we have a situation here in which a local District Attorney may determine that my fears are those excited in a “reasonable person?” Those who don’t believe this part of the issue can be fraught with unexpected consequences haven’t read about the John McNeil case in Georgia. What is self defense?
“NRS 200.200 Killing in self-defense. If a person kills another in self-defense, it must appear that: 1.The danger was so urgent and pressing that, in order to save the person’s own life, or to prevent the person from receiving great bodily harm, the killing of the other was absolutely necessary; and 2.The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given. [1911 C&P § 137; RL § 6402; NCL § 10084]”
If my shots are to be justified because they were “absolutely necessary,” then how do we differentiate between “bare fear” and “the excitement of fear in a reasonable person?”
We could now be in Ipse Dixit territory. Are my fears reasonable because I assert that they were?
Assume for a moment that my living room lights are on in the wee hours of the morning, a situation my neighbors rightly perceive as unusual. My neighbor does not have a key to my home. However, my neighbor, returning to his home from a night shift notices the lights, stops and knocks on my door … Now what?
In the time it might take for me to get “the gun” and load it, does the neighbor reasonably fear that I may have already come to some harm from accident or illness? Does he attempt to enter “surreptitiously” to confirm my safety? In this instance are my “excited fears” sufficient justification for firing off a couple of rounds? Or, does the law require that I secure some identification, as in “Who’s there?”
Common sense would dictate I ask that question at least once, but it appears that all the statutes require is that my fears are those of a reasonable person, excited and fearing for my personal safety. Ipse Dixit?
Any time the standard is that of a “reasonable person,” we’re in for some controversy. Who is: a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability? [FarLex]
What’s “average care, skill, and judgment” at 2:00 AM? Or, what’s the “reasonable” fear of an individual member of Gang A who has been threatened verbally or by gesture by an individual member of rival Gang B?
Somewhere along the line, we do need to take into consideration some sociological facets of the problem of what constitutes a reasonable fear adequate to explain a series of actions.
Bare fear being inadequate to substantiate claims for the justifiable use of deadly force in Nevada, is that “bare fear” enhanced to a level of “reasonableness” if the alleged intruder is African American? Is a young male African American? Would four young African American men loitering around my property be grounds for an old white women to grab the Remington? Four young Native Americans? Four young Mexican Americans? Four young anybodies? That they are young is enough to escalate my fears from “bare” to “reasonable?”
Fear and the Numbers
What is it, exactly that I am to fear? How about a burglary, there are, on average, about 3.7 million of them each year —
Between 2003 and 2007, approximately 2.1 million household burglaries were reported to the FBI each year on average. Household burglaries ending in homicide made up 0.004% of all burglaries during that period. […] Serious injury accounted for 9% and minor injury accounted for 36% of injuries sustained by household members who were home and experienced a violent crime during a completed burglary. Most household members who were present during a violent burglary (92%) were not injured. [BJS]
If there is only a 0.004% chance the burglary will end up as a homicide, and 92 out of 100 burglaries result in no one getting hurt, then is it “reasonable” for me to confront a burglar with deadly force? A quick look at the second line in the BJS graphic would support the contention that burglaries aren’t necessarily going to create violence.
The non-violent nature of burglaries may very well be the result of a minority of burglars being armed in the first place. The BJS reports (pdf) 61% arrived at their selected target unarmed. Updated results paint an even less grim picture of Burglary in America:
“The rate of household burglary decreased 56% from 1994 to 2011, from a peak of 63.4 victimizations per 1,000 U.S. households in 1994 to 27.6 victimizations per 1,000 households in 2011. From 1994 to 2011, the rate of completed burglary decreased by at least half across households headed by persons of all races and Hispanic origin.” [BJS]
Not only am I likely to remain Burglar Free, but my odds of being burglarized are actually declining. Should a reasonable person, one acting with average care, skill, and judgment, be so fearful of a home invasion burglary that the use of deadly force is a rational consideration?
For those espousing the We’re Going to Hell in a Handbasket philosophy, the numbers on homicides aren’t going to be all that comforting either —
“The (U.S.) homicide rate rose again in the late 1980s and early 1990s to another peak in 1991 of 9.8 per 100,000. The homicide rate declined sharply from 9.3 homicides per 100,000 in 1992 to 4.8 homicides per 100,000 in 2010. The number of homicides reached an all-time high of 24,703 homicides in 1991 then fell rapidly to 15,522 homicides by 1999.” [BJS pdf]
Better still, it’s kept falling. There’s a graphic for that too:
Now, would an average person exercising due care, skill, and judgment conclude that the number of homicides in reality (as compared to television melodramas) supports the notion that deadly force is a requisite for personal protection? Is the “reality” different for a person whose perceptions are ‘stuck’ in the 1960-1990 era from those who are more cognizant of homicide trends in the last two decades?
Fearing Fear Itself
If the overall trends in home-invasion burglaries and the decline in the national homicide rate don’t really justify a rational person’s focus on the necessity of using deadly force, then what might?
Let’s posit good old fashioned FEAR. If I FEAR a home invasion burglary — one in which I am present — even though the statistics indicate I am very likely not to be victimized in this way — and I fear being killed — although the statistics don’t demonstrate any increasing number of homicide victims — then I’d probably advocate for Stand Your Ground laws. However, what I have to do in order to assume this stance is to ignore the statistical reality around me. Would that be the course for an average citizen applying care, skill, and judgment?
Have I no duty to de-escalate a confrontation even if I no longer have a legal duty to retreat? What would an average, reasonable, person have to do in order to apply the requisite care, skill, and judgment in an altercation? How much credence should my local district attorney give to my Ipse Dixit assertion that my actions were “justified” under the law?
If I am, in reality, not likely to have my home invaded, or to have my person assaulted, then does the Stand Your Ground law make me any safer? When comes the point at which my “bare fear” becomes justified in the eyes of a local district attorney as having escalated from “bare” to “excited fear in a reasonable person?” Further, what factors (age, ethnicity, etc.) can be inserted into my formula for what constitutes a reasonable level of fear?
It’s tempting to ignore the Stand Your Ground law as an anachronistic sop to ALEC and the firearms industry, but the questions it poses are entirely too dangerous to dismiss out of hand.