WPIC 21.02 Reimbursement of Defense Costs—Self-Defense Reimbursement—Concluding Instruction

This is the written concluding instruction for cases in which the defendant is seeking indemnification or reimbursement from the State pursuant to RCW 9A.16.110 for the exercise of self-defense. It should be read and provided to the jury in the same manner as are all written instructions.

Do not use this instruction if the defendant is only seeking reimbursement indemnification or reimbursement pursuant to RCW 9A.16.046 for the justified use of force. In that situation, use WPIC 21.04 (Reimbursement of Defense Costs—Justified Force Reimbursement—Concluding Instruction) for cases involving a police officer's claim for indemnification or reimbursement under RCW 9A.16.046 for justified use of force.

Use bracketed material as applicable. If a crime is referenced in this instruction that has not previously been defined for the jury, the court may wish to consider adding a definition of that crime in accord with the WPIC definition. For example, if the self-defense is offered to robbery, also use WPIC 37.50 (Robbery—Definition).

Use WPIC 21.01 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Oral Introductory Instruction) with this instruction.

Use WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement) with this instruction.

RCW 9A.16.110.

This instruction, which was formerly identified as WPIC 17.06.01, has been revised and renumbered for this edition. At paragraph 1, the instruction now lists the situations in which the statute permits reimbursement for defense costs arising out of self-defense. At paragraph 4, the instruction now includes the definition of self-defense, utilizing RCW 9A.16.010 and language previously found in WPIC 17.02. Changes have been made to reflect 2019 legislation. See discussion at WPIC 21.00 (Reimbursement of Defense Costs—Introduction).

This instruction should only be used in cases in which defendant is claiming self-defense reimbursement under RCW 9A.16.110, and should not be used for reimbursement indemnification or reimbursement under RCW 9A.16.046 for the justified use of force. See WPIC 21.00 (Reimbursement of Defense Costs—Introduction).

Indemnification and reimbursement pursuant to RCW 9A.16.110 is only available in a specific subset of self-defense cases: when a person protects “by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.” RCW 9A.16.110(1). Certain other “lawful” uses of force, such as reasonable physical discipline, RCW 9A.16.100, the expelling of a person for failing to obey lawful and reasonable regulations regarding the conduct or passengers, RCW 9A.16.040(5), and restraining a mentally ill, incompetent or mentally disabled person for his or her protection and for the protection of others, RCW 9A.16.040(5), will not support an award under RCW 9A.16.110.

RCW 9A.16.110 is an exception to the general rule that each party to a case is responsible for his or her own attorney fees. The statute provides that no person may be placed in legal jeopardy for protecting, by any reasonable means necessary, himself of herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of certain listed crimes. The statute further provides that a defendant whose actions are found justified in such cases shall be indemnified or reimbursed by the state of Washington. The indemnification or reimbursement is an award of reasonable costs for loss of time, legal fees, or other expenses incurred by the defendant.

An award of reasonable costs is not an independent cause of action. The determination of an award shall be “by the judge or jury at the discretion of the judge in the criminal proceeding” and must be based upon a finding that the defendant's claim of self-defense was sustained by a preponderance of the evidence. See WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement) and 190.075 (Special Verdict Form—Justified Force Reimbursement) for an example of the process that might be used in this event.

In State v. Manuel, 94 Wn.2d 695, 619 P.2d 977 (1980), the Washington Supreme Court found that RCW 9.01.200 (recodified as RCW 9A.16.110) “contemplates” an objective determination that the person's actions were justified and that a “full determination of the facts” is required, which in a given case may include consideration of evidence that might be inadmissible in a criminal trial but admissible in a civil proceeding. Also see State v. Watson, 55 Wn.App. 320, 777 P.2d 46 (1989).

Municipal courts. The reimbursement procedure of RCW 9A.16.110 applies only when the state of Washington is the prosecuting authority. It does not apply to prosecutions in municipal courts. The only remedy available for a defendant who successfully defends on a claim of self-defense in a municipal court is to seek reimbursement directly from the Legislature pursuant to RCW 4.92.040. City of Seattle v. Fontanilla, 128 Wn.2d 492, 505–06, 909 P.2d 1294 (1996). Because of the availability of this remedy, even in municipal prosecutions, use of the special verdict form of WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement) may be appropriate.