Posted on April 30, 2020 in Defense Strategies
Can someone face criminal charges for defending themselves against a person who said they had Coronavirus and was threatening them? During this global-pandemic the threat of acquiring COVID-19 is very scary. Some would argue that it is just as scary as being attacked by someone with a weapon. After all, according to health experts, COVID-19 can lead to major health problems like pneumonia and organ failure, and it can also cause issues like shortness of breath and fever. So what happens if you are out for a walk, doing your best to comply with social distancing rules, and you are accosted by a person who threatens you that he has COVID-19 and that he is going to breathe on you, touch you, and spit in your face and give it to you?
Can you protect yourself? And since you are not going to want to touch them, how can you protect yourself? Can you use a gun, a knife, a taser? The answer to the first question is yes . . . you can protect yourself if you act reasonably. The answer to if you can use a weapon . . . it depends. In Arizona under Arizona Revised Statutes § 13-404 and § 13-405 it allows an individual to claim that he/she was justified in using physical force to defend against or prevent an assault. Self-defense, however, must be reasonable under the circumstances at the time of the altercation. In short, this means that the mind state of the individual using self-defense must be such that if another person placed himself/herself in that same situation, they would have acted in the same manner. Additionally, you cannot use or threaten physical force against another person in response to a verbal provocation alone. That means that it is not enough for him to say he is going to breathe on you and give you COVID-19 for you to use physical force against him.
Essentially, it is a question of whether a reasonable person would think that you would need to use physical force or a threat of force to protect yourself from someone else’s use of unlawful force. In this case if the person says that he is going to breathe, or touch, or spit on you than he is threatening to assault you, but if he stays over six feet away from you and doesn’t come any closer, if you run at him and punch him in the face it is probably not justified and you can yourself be charged with assault. However, if he starts coming toward you to a point where any reasonable person would think he is going to spit on you then, it is okay to punch him. You may be the one who gets arrested, but you will have a strong self-defense argument in court. Depending on your size, his size, and a few other factors you will probably be okay using a taser, pepper-spray, or other non-deadly weapon to protect yourself in that situation as well as long as your attorney can convince the judge or jury that a reasonable person would have done the same.
How about using a deadly weapon like a gun, a knife, or a baseball bat for self-defense in this scenario? How about just or flashing the weapon to defend yourself from the guy?
Arizona Revised Statutes § 13-405 provides for the use of deadly physical force in self-defense. If you would be justified in using force pursuant to Arizona Revised Statutes § 13-404 then you may use deadly physical force when “and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful physical force. So to use deadly physical force, for example by drawing a gun on the attacker or even shooting them, you must reasonably believe that the other person was using or attempting to use deadly physical force against you and your use of force is immediately necessary. Again, the question is always whether you acted reasonably.
Here, unless the guy has an actual deadly weapon like a gun himself, as scary as the idea of getting COVID-19 can be, you are not likely going to be justified in shooting, stabbing, or hitting him with a bat because (1) you don’t know for sure if he actually has COVID-19, so you don’t know if his force is potentially deadly or not, and (2) because even if he does have it, you’re not going to get sick and/or die immediately if he touches you. Even under the current circumstances it will probably be difficult to convince a jury it was reasonable to shoot, stab, or bludgeon him with a bat.
How about just flashing the gun or verbally telling him to “get back I have a gun!” Arizona’s “Defensive Display of a Firearm” statute under ARS 13-421 covers the following actions: (1) verbally informing another person that he is in possession of a firearm; exposing or displaying a firearm in order to protect that person from unlawful physical force or deadly physical force; and placing the person’s hand on a firearm while the firearm is contained in a pocket, purse or other means of containment or transport. In our scenario I think a great majority of people would believe this is reasonable to do it defensively display a firearm as detailed in the rule.
Every situation is different and if you find yourself charged with a crime after defending yourself you should get an attorney experienced and knowledgeable in Arizona’s self-defense statutes to help you answer. The attorneys at AZ Defenders have significant knowledge and experience with self-defense and cases of self-defense where a person gets charged with a crime for exercising their right. Call to schedule a consultation to find the best way to defend your self-defense case.