From more than one hundred years, the Nevada Supreme Court has held that a person who is attacked has a right to defend themselves without any requirement that the person being attached try and flee or retreat. Although Nevada law now recognizes the right of a person to defend himself if attacked, it was not until 1983 that Nevada enacted specific laws regarding one’s right to stand his or her ground. Today, with more questions than answers regarding what constitutes Crimes of Violence, a person’s Right to Open Carry, and whether Medical Marijuana Cardholders are allowed to own Firearms, there are many questions regarding self-defense and stand your ground. Some of the most common questions are answered below.
When can a person rely on self-defense?
The answer to when a person can assert a claim of self-defense is tricky, because Nevada’s written law does not specifically say when self-defense applies. Instead, Nevada’s law says, “[i]n addition to any other circumstances recognized as justification at common law, the infliction or threat of bodily injury is justifiable, and does not constitute mayhem, battery or assault, if done under circumstances which would justify homicide.”
A plain reading of the law leads to more questions than answers. What are “other circumstances?” What about your circumstances? Understanding self-defense is very fact and situation specific, which is why you should always work with an experienced criminal defense team like The Wright Law Group, P.C. to understand how to best defend you if you have had to act in self-defense.
That said, acting in self-defense is generally defined as being permissible if the person needing to exercise self-defense (1) was not an aggressor in the altercation, (2) was facing an immediate threat of bodily harm, and (3) used no more force than what was reasonably necessary to defend against the threat of bodily harm.
Do I have to try and run away before I fight back?
No. Nevada is among the states that recognize a victim’s right to “stand your ground” if being attacked. In Nevada, any act of self-defense must be reasonable under the circumstances to be considered lawful. What is reasonable always depends on the circumstances of each case. A slight change in the facts from one case or another can affect whether a person can claim self-defense. For example:
Mike and Sara get into an argument while watching a hockey game at a local bar. Sara yells at Mike and kicks him. Still angry, Sara picks up her drink glass and throws it at Mike. In response, Mike ducks, pushes Sara and runs from the bar before Sara throws something else at him. In this example, Mike pushing Sara is a reasonable use of force to stop Sara. Note too, that Mike had no obligation to run from the bar before pushing Sara. Sara throwing a glass at Mike is a circumstance that could result in Mike suffering serious bodily harm. So, Mike was within his rights to defend himself.
Now, consider the same bar fight with different facts. This time, Mike is enraged that Sara threw a glass at him, and he responds by grabbing Sara by the hair and pulling her out of the bar. Once outside, Mike continues to punch and kick Sara until she is badly beaten, bruised, and bloody. Other patrons pull Mike off Sara and keep them separated while the bar owner calls police. In this instance, Mike’s response is likely unreasonable because he used more physical force than was necessary to protect himself from Sara.
In both cases, Mike was within his rights to defend himself, but in the second scenario, Mike took his response beyond what was necessary to protect himself. In the second scenario, Mike’s self-defense claim will probably fail. Finding the right balance between standing your ground and not using more force than is necessary is always a complicated analysis and is something you should discuss with an experienced criminal defense attorney right away.
Is it self-defense if I kill someone?
It can be, but only in certain circumstances. In Nevada, a self-defense killing is known as a justifiable homicide. A homicide is considered justified if (1) the danger was urgent, (2) the victim or person needing self-defense was not the aggressor, (3) the person claiming self-defense is doing so in a place where he/she is allowed to be, and (4) the person claiming self-defense was not engaged in other criminal conduct at the time the deadly force was used.
Additionally, in trials where self-defense is at issue, the jury is instructed that a self-defense killing can be lawful if a reasonable person in the same situation would have also feared for his/her life and safety. However, the law also says that a “bare fear” of being hurt is insufficient to justify killing in self-defense. Likewise, a killing out of revenge is not considered a justifiable homicide or self-defense.
Consider two more examples: Ryan is jogging in a nearby park when Terry approaches him. Terry pulls out a knife and demands that Ryan surrender his wallet and cell phone. Ryan, scared, picks up a nearby tree branch and hits Terry in the head, killing him. In this case, Ryan’s killing of Terry is a justifiable homicide because Terry was presented with an urgent threat to his safety, and any reasonable person in the same position would also fear for his/her safety.
Now, assume the same facts, except this time, Terry is not armed. Terry merely jumps in front of Ryan and demands money. If Ryan picks up the nearby tree branch and kills Terry, Ryan probably does not have any legal justification to kill Terry, because Terry has not shown or even threatened any serious bodily harm or death to Ryan. Much like self-defense that does not result in death, the controlling question in any justifiable homicide is one of reasonableness under the circumstances.
Self-Defense in cases of Home Invasion
Like many states, Nevada has a “castle doctrine.” Under the castle doctrine, if a homeowner kills an intruder, then it is almost always considered a justifiable homicide. One scenario where such a killing would not be considered justified is if the home was not occupied at the time of the home invasion.
For example, Josh and Lauren are at home asleep one night when Brian uses a bat to break open a living room window. Josh, hearing the sound of broken glass, runs to the living room gun in hand, sees Brian, and shoots him. In this instance, the house was occupied by Josh and Lauren, and Brian committed a burglary which is a felony. Josh shooting Brian would be a justifiable homicide and a valid use of the castle doctrine.
Now, imagine a slightly different scenario. This time, Josh and Lauren are down the street at a neighbor’s house for an afternoon cook out. While walking back home, Josh sees in the living room window that someone is inside. Josh, goes inside the house, grabs the nearest kitchen knife, and stabs Brian. In this case, Josh does not have a legal right to go into the house and kill Brian. Because the house was not occupied at the time when Brian forced his way inside, the castle doctrine would not apply. Much like the laws on justifiable homicide, the castles doctrine only applies when there is an immediate threat of seriously bodily harm or death. Because Josh and Lauren were not in the house when Brian broke in, there is no immediate threat to Josh or Lauren’s personal safety. As such, Josh stabbing Brian would not be considered a justifiable homicide.
These same examples can be applied to situations involving vehicles. If a person inside his/her vehicle faces an imminent threat of bodily harm or death, then the owner of the vehicle may use self-defense, including a justifiable homicide, to protect his or herself. If on the other hand, someone comes out of a store to see that their car is being vandalized, the owner of the vehicle cannot use deadly force to protect his or her car from further damage. Self-defense and justifiable homicide are limited to protecting people, not tangible property such electronics in one’s house or a car.
Can I act in self-defense to protect someone else?
Usually, yes. Nevada’s self-defense laws extend to the protection of another person so long as there is still an imminent threat. Nevada law does not make a distinction between acting in self-defense for one’s self and acting in self-defense of another person. For example, Megan is waiting in line at the bank when the person in front of her points a gun at the bank teller and demands money. Megan reaches in her purse and pulls out her own gun, shooting the would-be bank robber dead. The police arrive and decide not to arrest Megan for shooting the robber, because she acted in lawful defense of the bank teller, who would have reasonably feared being shot by the robber. In this example, it is irrelevant that the robber never pointed the gun at Megan. Since the bank teller was facing an immediate physical threat, Megan was justified in defending the bank teller.
What happens if I wasn’t allowed to act in Self- Defense? Will I get Arrested?
When a person honestly, but unreasonably, acts in self-defense (or acts in defense of another), he or she may still be subject to arrest or criminal conviction. This is often known as an imperfect self-defense. Nevada law does not recognize imperfect self-defense as a valid defense to any crime. Consider this example:
Susan and Jessica attend the same gym, and often attend the same work out classes. One day, Susan told Jessica to stop using her exercise bike in spin class. Susan told Jessica that if she caught her on her bike again, she would beat Jessica up after class. Scared and shaken, Jessica hits Susan in the face with her water bottle. In this instance, Jessica’s act of self-defense is imperfect and not reasonable, because Jessica was not in any immediate threat of physical danger. Although Jessica might have honestly believed that she was in danger, she was not facing any immediate risk. In this instance, Jessica could likely face Assault and Battery charges against Susan.
How do I prove self-defense?
The hardest part of claiming self-defense is understanding that self-defense is what the law refers to as an “affirmative defense.” This means that the defendant must admit that he or she acted in a certain way in order to defend against a risk of imminent physical harm. Consider one of our earlier examples again:
Recall that Ryan was jogging in a nearby park when Terry appeared with a knife and demanded that Ryan surrender his wallet and phone. Ryan, scared, picked up a nearby tree branch and hit Terry in the head, killing him. If Ryan gets arrested for Terry’s death and wants to claim self-defense, Ryan will have to testify that he was running in the park when Terry appeared with the knife and demanded his money. Ryan will have to admit that he grabbed the tree branch and hit Terry on the head in order to avoid being stabbed by Terry. This initial burden to establish that Ryan was acting in self-defense is Ryan’s burden to prove.
Nevada law goes on to say that after Ryan has made the claim that his actions were done in self-defense, the burden of proof then shifts to the prosecutor to prove that Ryan was not acting in self-defense. Understanding this burden, and the resulting burden shift is complicated. This further demonstrates why you should talk to an experienced criminal defense attorney right away if you have been involved in a self-defense incident.
Aside from the facts and circumstances of a violent encounter, claiming self-defense is a complex legal question, because in many cases, a defendant will have to testify in order to claim self-defense. Any time a criminal defendant testifies, there are risks that you should discuss with your criminal defense attorney. If a defendant has been convicted of prior felonies, or if the defendant is under investigation for some other, unrelated incident, it can be risky to have a defendant testify in support of a self-defense claim. In some cases, having the defendant testify may be too great a risk, and self-defense may not be the best approach, particularly if it comes at the risk of having the defendant arrested or charged for some other offense.
If you or someone you know has been involved in violent altercation, call The Wright Law Group, P.C. today! Our attorneys have years of experience, and we understand the laws regarding self-defense. We will evaluate your unique facts and circumstances and provide you with the best possible defense. Our consultations are always free and confidential; and if you are a member of the United States Concealed Cary Association (USCCA), you may be eligible for assistance with attorney’s fees. The Wright Law Group, P.C. is proud to be approved defense counsel for members of USCCA who have used their weapons in self-defense. Don’t wait! Call us now at (702) 405 – 0001.