Defenses to Firearm Crimes

The attorneys at the AZ Defenders pride themselves in finding any and all weaknesses to the prosecution’s case and utilizing the absolute best possible legal defenses to each and every one of our clients’ charges to ensure them the absolute best outcome. Over the years our Phoenix firearm crimes defense attorneys have successfully utilized the following defenses to firearm crimes:

  • No proof of intent, negligence, or the other required mental state.
  • Affirmative Defenses including self-defense, defense of others, defensive firearm display, crime prevention, among others.
  • Suppression of evidence due to fourth, fifth, and/or sixth amendment violations by the government (including illegal searches, illegally forced confessions, right-to-counsel violations, and Miranda violations).

Important Definitions for Firearm Defenses

Physical Force: “force used upon or directed toward the body of another person and includes confinement, but does not include deadly force.” Ariz. Rev. Stat. Ann. § 13-105 (14)

Deadly Physical Force: “force that is used with the purpose of causing death or serious physical injury or in the manner of its use or intended use is capable of creating substantial risk of causing death or serious physical injury.” Ariz. Rev. Stat. Ann. § 13-105 (32).

Justification- Self-Defense:

Justified Acts

A person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful physical force.

Not Justified Acts

Threat or use of physical force against another is explicitly not justified in the following situations:

  • Being provoked verbally
  • Resisting arrest from a police officer (This is applicable to both lawful or unlawful arrests.

However, in the event that a police officer uses more force to effectuate the arrest than allowed by law, the law permits the use of physical force. )
Responding to physical force in which the person has provoked (Unless: “The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and despite these efforts, the other continues to use physical force.)

The use of deadly physical force is not justified if you are unlawfully in a place, or if you are engaged in an otherwise unlawful act.

Reasonableness

In a self-defense justification, the standard of reasonableness is different than in a crime prevention justification (see below). The courts have developed a test in which not only determines reasonableness, but also determines if you have used more force than necessary to end the altercation.

This test is “whether [the] defendant reasonably believed he was in personal danger and whether he used no more force necessary to defend himself.” State v. Manis, 95 Ariz. 27, 30 (1963).

Explanation of law in layperson’s terms: You can only use force to defend yourself if another reasonable person in the exact same position would use the same force in that same situation. You can’t use force just because someone verbally threatens you. You also can’t claim self-defense if you provoke the person first. Basically, you can’t punch somebody in the face just because they insult you, there has to be a reasonable threat first, and you are not allowed to be the one who picks the fight and then claim self-defense after the other persons tries to harm you. Also, remember if your attacker tries to retreat and you are no longer in danger, you can’t chase after them and keep using force. Plus, you can’t use physical force against a police officer who is legally arresting you, if you do they will charge you with resisting arrest.

Justification- Use of deadly physical force:

  1. A person is justified in threatening or using deadly physical force against another:
    • If such person would be justified in threatening or using physical force against the other under section 13-404, and
    • 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 deadly physical force.
  2. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act.

Explanation of law in layperson’s terms: Just like “self-defense,” under the law, you can only use deadly force (which includes using a firearm) if another reasonable person in the same position would use that deadly force in that same situation. All of the other rules for self-defense apply as well

Justification- Defense of a third person:

A person is justified in threatening or using physical force or deadly physical force against another to protect a third person if, under the circumstances as a reasonable person would believe them to be, such person would be justified under section 13-404 (see self-defense above) or 13-405 (see use of deadly force above) in threatening or using physical force or deadly physical force to protect himself against the unlawful physical force or deadly physical force a reasonable person would believe is threatening the third person he seeks to protect.

Explanation of law in layperson’s terms: Arizona law allows you to threaten or use physical force or deadly physical force in to protect a third person. You do not have to know them or have any sort of pre-existing duty to step in and protect another person. If the third party would be justified in using physical force or deadly physical force to protect themselves, you can use physical force or deadly physical force to protect them. While you are legally permitted step in to protect a third party, you do not have to if no other legal relationship, in which creates a legal duty, exists. Again, the use of deadly physical force is never justified in Arizona unless you are in an area you are legally allowed to be, and you are not otherwise engaging in an unlawful act.

Justification- Use of force in crime prevention:

“A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other’s commission of”:

  • Arson of an occupied structure
  • Burglary in the second or first degree
  • Kidnapping
  • Manslaughter
  • Second or first-degree murder
  • Sexual conduct with a minor
  • Sexual assault
  • Child molestation
  • Armed robbery
  • Aggravated assault if: (1) the person causes serious physical injury to another; or
    (2) the person uses a deadly weapon or dangerous instrument.

Reasonableness

The law states that for purposes of the crime prevention justification actions are reasonable “if the person is acting to prevent what the person reasonably believes is the imminent or actual commission of any of the offenses listed [above].” Ariz. Rev. Stat. Ann. § 13-411.

Whether or not an action is reasonable is ultimately up to the jury to decide.
To get a better idea of what the jury uses to make this “reasonableness” determination, here are some examples of jury instructions:

“The defendant is presumed to have acted reasonably if he undertook his action to prevent what he reasonably believed to be an imminent or actual [insert enumerated crime].” State v. Almeida, 238 Ariz. 77 (2015).
“The defendant is presumed to have acted reasonably if the defendant reasonably believed [he/she] was acting to prevent the imminent or actual commission of (list applicable enumerated crime[s] from A.R.S. § 13-411(A)).” RAJI, 4.10(4) (Criminal 4th).

Presumption of Reasonableness

If you are in a situation where you use force or deadly force in an effort to prevent one of the aforementioned crimes, there is a chance that you will still be charged with a crime. In this instance, it will eventually be up to a jury to determine if your actions were reasonable, as mentioned above.

The courts have held that “once a defendant presents a foundational showing of justification, the state must prove that the defendant’s act was not justified.” Almeida, 238 Ariz. 82. In other words, there is a presumption of reasonableness, but that presumption is rebuttable by the prosecutor.

This means that when it comes to the question of whether or not you acted reasonably, the jury should start off with the assumption that you have acted reasonably and keep that assumption unless the prosecutor is able to prove that that the act was indeed unreasonable.

The benefit of this presumption is that it makes it more difficult on the prosecutor.

“Immediately Necessary” 
The courts in Arizona have said that a crime need not actually be occurring at the time force is used to prevent the crime under this law. For example, if a person is breaking into your home, you don’t need to wait for him to begin to attack you or actually get into your house before you use force to stop him. State v. Taylor, 169 Ariz. 121, 122, 123 (1991).

However, a person is not permitted to use force or deadly force after a crime has already been committed and there is no danger of any of the aforementioned crimes being committed. State v. Anderson, 210 Ariz. 327 (2005).

No Duty to Retreat

As long as you are in an area where you have a legal right to be, and you are not engaging in criminal activity, you have absolutely no duty to retreat.

Applicable Locations
This section includes the use or threatened use of physical force or deadly physical force in:

  • a person’s home or residence
  • occupied motel/hotel room; State v. Hussain, 189 Ariz. 336 (App. 1997).
  • place of business
  • a person’s land (owned or leased)
  • any other place in this state where a person has a right to be.

Explanation of law in layperson’s terms: You are allowed to use force and/or deadly force if another reasonable person in the same situation would do so in order to prevent the crimes listed above. Please remember though, don’t be a vigilante and pull your gun on someone committing one of these crimes if you have the ability to call the police. There have been circumstances where people think that a crime is taking place and use physical force and are later found to not be justified and end up getting prosecuted themselves.

Justification -Use of physical force in defense of premises:

A person or his agent in lawful possession or control of premises is justified in threatening to use deadly physical force or in threatening or using physical force against another when and to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises. A person may use deadly physical force under subsection A only in the defense of himself or third persons as described in sections 13-405 (see Use of deadly force above) and 13-406 (see Defense of a third person above).

“Premises” means any real property and any structure, movable or immovable, permanent or temporary, adapted for both human residence and lodging whether occupied or not.

Explanation of law in layperson’s terms: If there is a trespasser in your home or other places listed as “premises” you can threaten to use or actually use deadly force, if a reasonable person in the same situation would do so.

Justification; use of physical force in defense of property:

A person is justified in using physical force against another when and to the extent that a reasonable person would believe it necessary to prevent what a reasonable person would believe is an attempt or commission by the other person of theft or criminal damage involving tangible movable property under his possession or control, but such person may use deadly physical force under these circumstances as provided in sections 13-405 (See Use of deadly force above) and 13-406 (See Defense of a third person above), and 13-411 (See Use of force in crime prevention above).

Explanation of law in layperson’s terms: If another reasonable person in the same scenario would use physical force to stop someone from stealing something in their immediate control (on your person- examples include the purse off your arm or the wallet from your pocket), then you can use physical force. You can only use deadly force if you do so as described in the following sections: 13-405 (See Use of deadly force above) and 13-406 (See Defense of a third person above), and 13-411 (See Use of force in crime prevention above).

Duress:

Conduct which would otherwise constitute a criminal offense is justified if a reasonable person would believe that he was compelled to engage in the proscribed conduct by the threat or use of immediate physical force against his person or the person of another which resulted or could result in serious physical injury which a reasonable person in the situation would not have resisted.

This defense is not available if the person intentionally, knowingly or recklessly placed himself in a situation in which it was probable that he would be subjected to duress, or for criminal offenses involving homicide or serious physical injury.

Explanation of law in layperson’s terms: If someone forces you to commit what would normally be a crime by threatening you or another with serious physical injury than you can use physical force, but it cannot cause serious injury or death to another person. Therefore, this defense will not justify actually shooting someone, but in some situations it could justify being forced to point a firearm at someone.

Justification- For prior Domestic violence victims:

If there have been past acts of domestic violence as defined in section 13-3601, subsection A against the defendant by the victim, the state of mind of a reasonable person under sections 13-404 (See Self-defense above), 13-405 (See Use of deadly force above), and 13-406 (See Defense of a third person above), shall be determined from the perspective of a reasonable person who has been a victim of those past acts of domestic violence.

Explanation of law in layperson’s terms: If you are forced to use physical or deadly force against your attacker who is the same person who has previously committed domestic violence offenses against you then the previous history of abuse will be factored into and possibly allow for a justification defense.

Justification- Use of force in defense of residential structure or occupied vehicle:

Notwithstanding any other provision of this chapter, a person is justified in threatening to use or using physical force or deadly physical force against another person if the person reasonably believes himself or another person to be in imminent peril of death or serious physical injury and the person against whom the physical force or deadly physical force is threatened or used was in the process of unlawfully or forcefully entering, or had unlawfully or forcefully entered, a residential structure or occupied vehicle, or had removed or was attempting to remove another person against the other person’s will from the residential structure or occupied vehicle.

A person has no duty to retreat before threatening or using physical force or deadly physical force pursuant to this section.

For the purposes of this section:

  1. “Residential structure” has the same meaning prescribed in section 13-1501.
  2. “Vehicle” means a conveyance of any kind, whether or not motorized, that is designed to transport persons or property.

A person is presumed to reasonably believe that the threat or use of physical force or deadly force is immediately necessary for the purposes of sections 13-404 through 13-408, section 13-418 and section 13-421 if the person knows or has reason to believe that the person against whom physical force or deadly force is threatened or used is unlawfully or forcefully entering or has unlawfully or forcefully entered and is present in the person’s residential structure or occupied vehicle.

For the purposes of sections 13-404 through 13-408, section 13-418 and section 13-421, a person who is unlawfully or forcefully entering or who has unlawfully or forcefully entered and is present in a residential structure or occupied vehicle is presumed to pose an imminent threat of unlawful deadly harm to any person who is in the residential structure or occupied vehicle.

The presumptions of this section do not apply if:

  • The person against whom physical force or deadly physical force was threatened or used has the right to be in or is a lawful resident of the residential structure or occupied vehicle, including an owner, lessee, invitee or titleholder, and an order of protection or injunction against harassment has not been filed against that person.
  • The person against whom physical force or deadly physical force was threatened or used is the parent or grandparent, or has legal custody or guardianship, of a child or grandchild sought to be removed from the residential structure or occupied vehicle.
  • The person who threatens or uses physical force or deadly physical force is engaged in an unlawful activity or is using the residential structure or occupied vehicle to further an unlawful activity.
  • The person against whom physical force or deadly physical force was threatened or used is a law enforcement officer who enters or attempts to enter a residential structure or occupied vehicle in the performance of official duties.

For the purposes of this section:

  1. “Residential structure” has the same meaning prescribed in section 13-1501.
  2. “Vehicle” means a conveyance of any kind, whether or not motorized, that is designed to transport persons or property.

Explanation of law in layperson’s terms: If a person breaks into your house and attacks you or tries to carjack you while you are inside of your car, then you can threaten to use or actually use physical force. And if the person has a deadly weapon than you can use deadly force to stop them. But remember, if you invite the person into your house or car than you cannot use the defense. Obviously, if an invited guest attacks you than the above defenses are still available to you.

Justification- Defense display of a firearm

The defensive display of a firearm by a person against another is justified when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force.

This section does not apply to a person who:

  • Intentionally provokes another person to use or attempt to use unlawful physical force.
  • Uses a firearm during the commission of a serious offense as defined in section 13-706 or violent crime as defined in section 13-901.03.

This section does not require the defensive display of a firearm before the use of physical force or the threat of physical force by a person who is otherwise justified in the use or threatened use of physical force.

For the purposes of this section, “defensive display of a firearm” includes:

  • Verbally informing another person that the person possesses or has available a firearm.
  • Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect the person against another’s use or attempted use of unlawful physical force or deadly physical force.
  • Placing the person’s hand on a firearm while the firearm is contained in a pocket, purse or other means of containment or transport.

Explanation of law in layperson’s terms: This is a relatively new justification defense that was developed to stop people from being from being convicted for trying to prevent dangerous road rage incidents from occurring. It allows an armed person to expose their firearm or say that they have a firearm to the person who attacks them. This justification allows you to display your firearm to stop someone who is already attacking you. However, you are not allowed to exposure your firearm just because you get mad at another driver for cutting you off and making you mad. The other driver would have to be trying to run you off the road first.

Another example would be if you are walking on the street and you have a concealed firearm and a random person attacks you with a machete or a baseball bat, you can exposure your firearm or yell at them that you have a gun to get them to stop coming at you. Remember though, be very careful to not actually point the gun at the person and/or actually fire the gun and expect to be able to use this defense. This statute does not currently allow for you to display a weapon in defense of others.

WARNING: justification defenses described above are NOT available in the following situation (Ariz. Rev. Stat. Ann § 13-401):

Injuring or Killing of a Third Party

If while threatening or using force/deadly force you recklessly injure or kill an innocent third party, the justification defense cannot be used for the third-party victim.

Reckless
Reckless is a mental state defined by the law and is defined in Arizona as an offense that occurs when: “a person is aware of and consciously disregards a substantial and unjustified risk that the result will occur or that the circumstances exist.” Ariz. Rev. Stat. Ann. § 13-105(10)(c).

By “substantial and unjustified risk” it is meant that the risk would have been recognized by a reasonable person, and that risk was simply disregarded. Also, if the risk is created by an intoxicated person, and that intoxicated person is unaware of the risk because they are intoxicated and acts recklessly with respect to that risk, they will have been found to have had a reckless state of mind for these purposes.

Explanation of law in layperson’s terms: If you are defending yourself, make sure no innocent bystander is hurt or killed, or you could be prosecuted for their injury or death.

Get in Touch with Our Firm Today

Remember these are only possible justifications to the firearm crimes listed above, and you will need a qualified attorney to help you to use them. If you are accused, arrested or charged with a Firearm Crime, please contact the AZ Defenders please contact AZ Defenders at (480) 456-6400 for a FREE consultation.

We are available to answer your questions 24 hours a day, 365 days a year.

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