Home Table of Contents

WPIC 17.04 Lawful Force—Actual Danger Not Necessary

11 WAPRAC WPIC 17.04Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 17.04 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

December 2021 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 WPI Committee is unaware of any cases that address this issue.

Because self-defense is evaluated from the viewpoint of a reasonable person who knows and sees everything the defendant knows and sees, an “act on appearances” instruction must be given “to clarify that a defendant's reasonable belief, not actual danger, is all that is required.” State v. Freeburg, 105 Wn.App. 492, 503–504, 20 P.3d 984 (2001). See also State v. Janes, 121 Wn.2d 220, 850 P.2d 495 (1993) (evaluating the evidence from the standpoint of a reasonably prudent person in defendant's shoes includes “all the facts and circumstances known to the defendant,” including defendant's experiences and perceptions).

The Note on Use states that this instruction should be used with WPIC 17.02 (Lawful Force—Defense of Self, Others, Property) when appropriate. This instruction applies to the use of non-deadly force, as opposed to deadly force. See WPIC 16.07 (Justifiable Homicide—Actual Danger Not Necessary).

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 (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 February 2019.]

End of Document