WPIC 190.075 Special Verdict Form—Justified Force Reimbursement

This special verdict is to be used for cases in which a defendant who is a peace officer is seeking justifiable force reimbursement under 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 190.07 (Special Verdict Form—Self-Defense Reimbursement) for cases involving a defendant's claim for reimbursement under RCW 9A.16.110 for self-defense.

Use this special verdict with WPIC 21.04 (Reimbursement of Defense Costs—Justified Force Reimbursement—Concluding Instruction).

Use the bracketed material as applicable. Only use either questions 1a and 2a, or questions 1b and 2b, depending on the court's decision about burden of proof. See discussion below.

It may be necessary to hold a separate fact-finding hearing on the reimbursement issue following the return of verdict. See Comment below.

RCW 9A.16.046. This is a new instruction for this edition reflecting this statute, effective February 4, 2019, which permits reimbursement or indemnification for the justified use of force by a peace officer.

In limited circumstances, a peace officer may choose to seek reimbursement under both RCW 9A.16.110 and RCW 9A.16.046. (This might arise when there is a question 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), WPIC 21.02 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Concluding Instruction), WPIC 21.03 (Reimbursement of Defense Costs—Justified Force Reimbursement—Oral Introductory Instruction), and the verdict form WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement) with this instruction.

The statute authorizes a peace officer to seek to recover their reasonable defense costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense if they are found not guilty by reason of justifiable homicide or deadly force under RCW 9A.16.040, or by reason of self-defense, for actions taken while on duty or otherwise within the scope of his or her authority as a peace officer. RCW 9A.16.046.

The statute calls upon the original fact-finder (jury or the court if the trial was to the bench) to determine whether (1) “the defendant was on duty or otherwise acting within the scope or his or has authority as a peace officer,” and (2) the finding of not guilty was based upon justifiable homicide, justifiable use of deadly force, or self-defense. RCW 9A.16.046(4). If the jury answers “yes” to both questions, then the judge determines the amount of the defendant's award. RCW 9A.16.046(2). After an award is made, the defendant must act to collect the court's award according to the process established by RCW 4.92.040. For additional discussion on this topic, see the Comment to WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement).

The statute, RCW 9A.16.046(4), sets forth a special verdict form. For clarity, and because force under this statute is not limited to homicide, this proposed verdict form uses slightly different language than the statutory version. No change to the statute is intended.

Burden of proof. Because the language of RCW 9A.16.046 is significantly similar to RCW 9A.16.110, the WPI Committee recommends that careful consideration be given to whether the legislatively-proposed verdict form should be further modified to place the burden of proof on the defendant, or otherwise be altered in light of State v. Manuel, 94 Wn.2d 695, 619 P.2d 977 (1980), State v. Watson, 55 Wn.App. 320, 777 P.2d 46 (1989), and State v. Anderson, 72 Wn. App. 253, 863 P.2d 1370 (1993). See the expansive Comment to WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement) (describing case law and announced procedures applicable to claims for reimbursement under RCW 9A.16.110).

After consulting the attorneys, the judge should select one of the questions 1a and 2a or 1b and 2b, in light of the decision that the court makes concerning the correct burden of proof.

Municipal court actions. A municipal court does not have jurisdiction to order reimbursement in a prosecution for violation of a municipal ordinance, because the State, the only entity which would be obligated to pay under the statute, is not a party to such an action. City of Seattle v. Fontanilla, 128 Wn.2d 492, 909 P.2d 1294 (1996). Nonetheless, a municipal court, upon request, may still wish to instruct the jury using WPIC 21.03 (Reimbursement of Defense Costs—Justified Force Reimbursement—Oral Introductory Instruction) and WPIC 21.04 (Reimbursement of Defense Costs—Justified Force Reimbursement—Concluding Instruction) and use this special verdict form to establish the factual predicate required by RCW 4.92.040 (see Comment to WPIC 21.02).

See also additional discussion in Comment to WPIC 190.07 (Special Verdict—Self-Defense Reimbursement).