Wednesday, August 3, 2011

Justifiable Use of Force and You

Recently here in Iowa, in the town where I work and spend a heck of a lot of time, a man has been charged with assault and going armed with intent after chasing a trespasser off his property, had that been all there was to it, no problem. But the homeowner before chasing off the trespasser retrieved a handgun from his home and confronted the trespasser. The trespasser fled and the homeowner gave chase, left his property and then fired a warning shot at the trespasser after he had failed to adhere to commands to stop.

Here's where things get nasty.

In Iowa, you are allowed to use reasonable force to protect property, reasonable force includes deadly force. However the following bits of Iowa code apply.

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.
[C51, §2773; R60, §4442; C73, §4112; C97, §5102; C24, 27, 31, 35, 39, §12921; C46, 50, 54, 58, 62, 66, 71, 73, 75, 77, §691.1; C79, 81, §704.1; 81 Acts, ch 204, §2]
“Dwelling” defined, see §702.10

704.2 Deadly force.
The term “deadly force” means any of the following:
1. Force used for the purpose of causing serious injury.
2. Force which the actor knows or reasonably should know will create a strong probability that serious injury will result.
3. The discharge of a firearm, other than a firearm loaded with less lethal munitions and discharged by a peace officer, corrections officer, or corrections official in the line of duty, in the direction of some person with the knowledge of the person’s presence there, even though no intent to inflict serious physical injury can be shown.
4. The discharge of a firearm, other than a firearm loaded with less lethal munitions and discharged by a peace officer, corrections officer, or corrections official in the line of duty, at a vehicle in which a person is known to be.
As used in this section, “less lethal munitions” means projectiles which are designed to stun, temporarily incapacitate, or cause temporary discomfort to a person without penetrating the person’s body.

704.4 Defense of property.
A 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.

704.7 Resisting forcible felony.
A 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.

702.11 Forcible felony.
1. A “forcible felony” is any felonious child endangerment, assault, murder, sexual abuse, kidnapping, robbery, arson in the first degree, or burglary in the first degree.
2. Notwithstanding subsection 1, the following offenses are not forcible felonies:
a. Willful injury in violation of section 708.4, subsection 2.
b. Sexual abuse in the third degree committed between spouses.
c. Sexual abuse in violation of section 709.4, subsection 2, paragraph “c”, subparagraph (4).
d. Sexual exploitation by a counselor, therapist, or school employee in violation of section 709.15.
e. Child endangerment subject to penalty under section 726.6, subsection 6.
f. Assault in violation of section 708.2, subsection 4.

713.3 Burglary in the first degree.
1. A person commits burglary in the first degree if, while perpetrating a burglary in or upon an occupied structure in which one or more persons are present, any of the following circumstances apply:
a. The person has possession of an explosive or incendiary device or material.
b. The person has possession of a dangerous weapon.
c. The person intentionally or recklessly inflicts bodily injury on any person.
d. The person performs or participates in a sex act with any person which would constitute sexual abuse under section 709.1.
2. Burglary in the first degree is a class “B” felony.
3. For purposes of determining whether the person should register as a sex offender pursuant to the provisions of chapter 692A for violations of subsection 1, paragraphs “a”, “b”, or “c”, the fact finder shall make a determination as provided in section 692A.126.

724.30 Reckless use of a firearm.
A person who intentionally discharges a firearm in a reckless manner commits the following:
1. A class “C” felony if a serious injury occurs.
2. A class “D” felony if a bodily injury which is not a serious injury occurs.
3. An aggravated misdemeanor if property damage occurs without a serious injury or bodily injury occurring.
4. A simple misdemeanor if no injury to a person or damage to property occurs.

702.16 Reckless.
A person is “reckless” or acts recklessly when the person willfully or wantonly disregards the safety of persons or property.

708.1 Assault defined.
An assault as defined in this section is a general intent crime. A person commits an assault when, without justification, the person does any of the following:
1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
3. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.
Provided, that where the person doing any of the above enumerated acts, and such other person, are voluntary participants in a sport, social or other activity, not in itself criminal, and such act is a reasonably foreseeable incident of such sport or activity, and does not create an unreasonable risk of serious injury or breach of the peace, the act shall not be an assault.
Provided, that where the person doing any of the above enumerated acts is employed by a school district or accredited nonpublic school, or is an area education agency staff member who provides services to a school or school district, and intervenes in a fight or physical struggle, or other disruptive situation, that takes place in the presence of the employee or staff member performing employment duties in a school building, on school grounds, or at an official school function regardless of the location, the act shall not be an assault, whether the fight or physical struggle or other disruptive situation is between students or other individuals, if the degree and the force of the intervention is reasonably necessary to restore order and to protect the safety of those assembled.

708.8 Going armed with intent.
A person who goes armed with any dangerous weapon with the intent to use without justification such weapon against the person of another commits a class “D” felony.
To make a long story short, The guy saw someone trespassing, which is not 1st degree burglary, grabs a gun, goes out to confront him with a gun, the buy bolts, the home owner gives chase leaving his property, and then fires a warning shot into the ground when someone almost 7 yards away "takes an athletic stance"

At no point was he A: Defending property. B. Defending himself or another. C. Acting to prevent a forcible felony.

The trespasser at no time demonstrated ability, or opportunity to put the home owner in jeopardy from a reasonable person's perspective of the situation. Going armed with intent will probably be dropped as he will probably plea down to the assault charge which if the article (which I think made a mistake as "aggravated assault" does not appear in the Iowa code) is correct in the chain of events.

I'll ask around and see what the deal is with this, I'm actually surprised I didn't hear about this sooner....

As to the intent of the trespasser, I doubt he was looking to pick flowers, but as someone who recently went looking for a lost pet in the neighborhood...stuff happens and sometimes truth is stranger than fiction.

We'll see how this one pans out but it doesn't look good for the homeowner.

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