It Could Happen Here, but it would be more difficult?

A person in Nevada could float a “Stand Your Ground” defense in our courts, but it would be more difficult than the Florida statute allows.   This doesn’t prevent the map from looking like Nevada is one of those places in which your child could be shot if armed only with Skittles and Iced Tea, or because he confronted a person who was verbally abusive about the car stereo; or your husband could be shot dead for launching a theater carton of pop-corn.

Stand Your Ground MapIt isn’t comfortable being the same color as Florida.  However, there are three elements required in Nevada: (1) The individual claiming the defense may not be the original aggressor; (2) The individual claiming the defense must have a legal right to be present where the lethal force was used; and (3) The individual claiming the defense must not be in the act of committing a crime.  [NRS 200.120]  These have been elements since time out of mind, but there was an amendment in the 2011 legislative session:

“Under existing case law, there is no duty to retreat before using deadly force if the person using deadly force is not the original aggressor and reasonably believes that he or she is about to be killed or seriously injured. (Culverson v. State, 106 Nev. 484 (1990)) This bill provides that under the defense of justifiable homicide there is no duty to retreat if the person using deadly force: (1) is not the original aggressor; (2) has a right to be present at the location where deadly force is used; and (3) is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used.”  [NVLeg] (emphasis added)

There is a feature of the Florida statute which creates the kind of confusion that in turn makes their Stand Your Ground law problematic.  In Nevada if there are no witnesses (left) to determine if the killing was justified then that question is left to a jury.  Under the Florida statute once the person says the magic words “I Was Terrified For My Life,” there is no prosecution allowed, the individual is supposedly immune. [LVSun]  Little wonder Florida has had such high profile problems.

The Bare Fear Problem

“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.”

In short, Nevada requires more than the recitation of the Florida “I Was Terrified” mantra. Not that some haven’t tried to water down the Nevada statutes.  There have been some proposals to amend NRS 200.130, such as AB 288 in the 2009 session, and AB398 offered in 2007 which would have replicated the Florida issues by allowing a “bare fear” defense.  AB 70 introduced in the 2013 legislative session would have expanded the law to address assaults on drivers, and changed the “shall not be” standard to “is not.”  None of these bills emerged from committee.  However, the fact that these dilutions and emendations haven’t been enacted doesn’t necessarily mean that we are free of the kinds of issues associated with all such Stand Your Ground laws.

Who’s being reasonable?  The use of lethal force doesn’t apply only in cases in which a homeowner thinks an armed burglar is approaching — it also applies in cases of domestic violence and when the shooting is done by a member of law enforcement.  The concept of “reasonable fear” also occurs in questions of involuntary civil commitment processes, and also in immigration cases in which a person is seeking asylum.   How do we define fear, and apply that definition to a case in which lethal force is used?

“Typically courts have distinguished between standards of reasonableness by characterizing them as either objective or subjective. An objective standard of reasonableness requires the fact finder to view the circumstances surrounding the accused at the time they used force from the standpoint of a hypothetically reasonable and prudent person. Under the subjective standard, the issue is not whether the circumstances surrounding the accused use of force would be sufficient to create in the mind of a reasonable and prudent person the belief that the use of force is necessary, but rather whether the circumstances are sufficient to induce in the mind of the accused a reasonable belief that he must use force to defend himself.” [ABSFW]

It’s nuanced, but the difference is crucial.  There is a difference between being in a situation in which an ordinary reasonable person would be afraid, and making a judgment as to whether the situation is sufficient in itself to cause fear in an ordinary reasonable person.   The objective version places the emphasis on the immediate situation, the subjective version places the emphasis on the person who might be induced to believe the situation is dangerous.

What we can hope is that the objective standard is applied in cases arising under NRS 200.120/200.130.  The subjective standard could all too easily be used to excuse blasting one’s way through a dark alley.

What we can hope is that the law isn’t used to excuse the behavior of a person acting on “prejudice and predisposition” rather than a reasonable fear in a reasonable person.

Both of these hopes can be better realized if the “bare fear” proposals continue to meet an appropriately fate in legislative committee file drawers.  This would not completely remove all the ingredients necessary for a truly horrific case in Nevada courts, but it would make such cases more difficult for the ‘predisposed’ and the ‘prejudiced.’

*References and recommended reading:  Nevada Bar, “Elements of a Self Defense Claim in Nevada Courts,” Michael Giles, February 12, 2014.  (Can be downloaded as PDF file) “Not Standing on Solid Ground,” Nevada Progressive, April 2, 2012.  “Nevada Kill At Will?,” Desert Beacon, July 21, 2013.   Runion v. State, No. 32441, December, 2000 Caselaw. Culverson v. State, 1979, Justia. “Trayvon Martin case has some looking at Nevada’s new self-defense law,” Las Vegas Sun, April 1, 2012.  “Nevada’s ‘stand your ground’ law goes back 140 years.” LVRJ, April 4, 2012. “The 24 States That Have Sweeping Self-Defense Laws Just Like Florida’s,” ProPublica, March 22, 2012. Las Vegas Tribune, Deadly Force Policing in Nevada, September 11, 2013. Alex A. Kamman, Credible vs. Reasonable Fear, November 4, 2013. ABSWF, “Measuring Reasonable Fear,” September 2009. OP/ED Las Vegas Sun, “Stand Your Ground law is not a license for vigilantism,” March 29, 2012.

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