WPIC 21.04 Reimbursement of Defense Costs—Justified Force 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.16.046.

Do not use this instruction if the defendant is only seeking reimbursement pursuant to RCW 9A.16.110 for self-defense. Use WPIC 21.02 (Reimbursement of Defense Costs—Self Defense Reimbursement—Concluding Instruction) for cases involving a defendant's claim for reimbursement under RCW 9A.16.110 for self-defense.

Use bracketed material as applicable.

Use WPIC 2.16 (Peace Officer-Definition) with this instruction. Also use WPIC 2.13 (Malice—Maliciously—Definition) with this instruction.

Use WPIC 21.03 (Reimbursement of Defense Costs—Justified Force Reimbursement—Oral Introductory Instruction) with this instruction.

Use WPIC 190.075 (Special Verdict Form—Justified Force Reimbursement) with this instruction.

RCW 9A.16.046 and RCW 9A.16.040(3) and (4). This instruction is new for this edition. Reimbursement for defense costs under RCW 9A.16.046 is only available to a peace officer under the circumstances provided by statute.

Both RCW 9A.16.046 and .040 were enacted in 2019. Laws of 2019, Chapter 4, § 3 (effective February 4, 2019)). RCW 9A.16.046 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 a peace officer who uses deadly force in self-defense or when authorized by RCW 9A.16.040, and is acquitted based upon a finding of justifiable homicide, justifiable use of deadly force, or self-defense shall be indemnified or reimbursed by the state of Washington. RCW 9A.16.046(1). While the statute, RCW 9A.16.046, uses the phrase “deadly force;” in the civil context, force not necessarily deadly is generally inclusive. See 42 USC 1983, and cases arising. For this reason, the word “deadly,” as a modifier to the word “force,” is placed in brackets in this instruction.

RCW 9A.16.040(3) and (4) provides that a peace officer shall not be held liable for use of force without malice and under circumstances where a reasonable peace officer, based upon all of the facts, circumstances and information available at the time, would have believed that the use of force was necessary to prevent death or serious physical harm to the defendant or another individual. This language is contained within the instruction.

In limited circumstances, a peace officer may choose to seek reimbursement under both RCW 9A.16.110 and RCW 9A.16.046. (This might when there is an issue as to whether the officer was acting within the scope of his/her duties as a peace officer.) In such cases, the court needs to carefully integrate information from WPIC 21.01 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Oral Introductory Instruction), 21.02 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Concluding Instruction), and 21.03 (Reimbursement of Defense Costs—Justified Force Reimbursement—Oral Introductory Instruction) with this instruction, and the verdict forms WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement) and 190.075 (Special Verdict Form—Justified Force Reimbursement).

An award of reasonable costs is not an independent cause of action. RCW 9A.16.046(1). The determination of an award shall be by the judge, RCW 9A.16.046(2), and must be based upon a finding that the defendant's claim of self-defense or justification was sustained by a preponderance of the evidence. See discussion in Comments to WPIC 21.02 (Reimbursement of Defense Costs—Self Defense—Concluding Instruction) and in WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement).

Burden of Proof. The justified force reimbursement statute, RCW 9A.16.046, is silent regarding the burden of proof or the procedure to be followed in the reimbursement phase. Bracketed material in paragraph 4 of this instruction places the burden of proof upon the defendant. This language is consistent with State v. Anderson, 72 Wn.App. 253, 863 P.2d 1370 (1993). Anderson held that a person seeking reimbursement of self-defense expenses under RCW 9A.16.110 must prove lawful self-defense by a preponderance of the evidence. State v. Anderson, 72 Wn. App. at 260. The bracketed language regarding burden of proof is also consistent with RCW 10.16.110. See also Comment to WPIC 21.02 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Concluding Instruction).

Municipal courts. The reimbursement procedure of RCW 9A.16.046 applies only when the state of Washington is the prosecuting authority. It does not apply to prosecutions in municipal courts. In such a situation, the only remedy available for a defendant who successfully defends on a claim of justified force is to seek reimbursement directly from the Legislature pursuant to RCW 4.92.040. Cf. City of Seattle v. Fontanilla, 128 Wn.2d 492, 505-06, 909 P.2d 1294 (1996) (municipal court lacks jurisdiction to order reimbursement pursuant to RCW 9A.16.110, because the State, the only entity which would be obligated to pay under that statute is not a party to a prosecution for violation of a municipal ordinance). Because of the availability of this remedy, even in municipal prosecutions, use of WPIC 190.075 (Special Verdict Form—Justified Force Reimbursement) may be appropriate.