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WPIC17.04Lawful Force—Actual Danger Not Necessary

Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 17.04 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Washington State Supreme Court Committee on Jury Instructions
Part IV. Defenses
WPIC CHAPTER 17. Lawful Force—Charges Other than Homicide
WPIC 17.04 Lawful Force—Actual Danger Not Necessary
A person is entitled to act on appearances in defending [himself] [herself] [another], if [he] [she] believes in good faith and on reasonable grounds that [he] [she] [another] is in actual danger of injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
NOTE ON USE
Use this instruction with WPIC 17.02 (Lawful Force—Defense of Self, Others, Property) when appropriate.
Do not use this instruction when self-defense is asserted in the context of resisting an unlawful or excessive force arrest. See the Comment to WPIC 17.02.01 (Lawful Force—Resisting Detention).
Use bracketed material as applicable.
COMMENT
This instruction has its origin in case law. See State v. Penn, 89 Wn.2d 63, 568 P.2d 797 (1977); State v. Miller, 141 Wash. 104, 250 P. 645 (1926); State v. Dunning, 8 Wn.App. 340, 506 P.2d 321 (1973). In Miller, the court stated:
If the appellants, at the time of the alleged assault upon them, as reasonably and ordinarily cautious and prudent men, honestly believed that they were in danger of great bodily harm, they would have the right to resort to self-defense, and their conduct is to be judged by the condition appearing to them at the time, not by the condition as it might appear to the jury in light of the testimony before it.
The appellants need not have been in actual danger of great bodily harm, but they were entitled to act on appearances; and if they believed in good faith and on reasonable grounds that they were in actual danger of great bodily harm, although it afterwards might develop that they were mistaken as to the extent of the danger, if they acted as reasonably and ordinarily cautious and prudent men would have acted under the circumstances as they appeared to them, they were justified in defending themselves.
State v. Miller, 141 Wash. at 105–06.
This instruction applies not only to self-defense but also to the use of force to protect third persons from apparent injury. See State v. Penn, 89 Wn.2d 63, 568 P.2d 797 (1977) (a person may defend another when the defender reasonably believes that the other person is in danger even though such belief may be later shown to have been erroneous).
It is not clear whether this instruction applies when a person erroneously uses force to defend against an apparent property offense. The committee is unaware of any cases that address this issue.
It is not reversible error to refuse a mistaken belief instruction, when under the self-defense instruction given, counsel is free to argue that “the defendant's reasonable belief that he was in danger could properly be a mistaken belief.” State v. Kidd, 57 Wn.App. 95, 99–100, 786 P.2d 847 (1990). In Kidd, however, the self-defense instruction specifically stated that “the use of force toward the person of another is lawful when used by a person who believes that he is about to be injured by someone and when the force is not more than necessary.” State v. Kidd, 57 Wn.App. at 100. Also see WPIC 17.02 (Lawful Force—Defense of Self and Others).
The Note on Use states that this instruction should be used with WPIC 17.02 when appropriate. This instruction applies to the use of non-deadly force, as opposed to deadly force. See WPIC 16.07.
It is error to substitute the phrase “great bodily harm” for the word “injury” in the instruction. State v. Kyllo, 166 Wn.2d 856, 863–64, 215 P.3d 177, 181 (2009). Under RCW 9A.16.020, one can use self-defense to prevent any assault, regardless of whether the assault threatened great bodily harm. See State v. L.B., 132 Wn.App. 948, 135 P.3d 508 (2006).
[Current as of December 2015.]
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