Use of Force Law

Discussion in 'General Self Defense' started by Tgace, Sep 2, 2004.

  1. jks9199

    jks9199 Administrator Staff Member

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    I need more info, like what the mechanism of death was. On the surface, with what is here... manslaughter is reasonable. I could see murder in the second depending on specifics like a blindside attack without any warning.

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  2. Tez3

    Tez3 Sr. Grandmaster

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    The trial started yesterday and they haven't got to the medical evidence yet, nothing has been released prior to this as the media isn't allowed to report on it before trial. The only details so far are that he was punched and collapsed.
     
  3. PhotonGuy

    PhotonGuy Senior Master

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    Well you shouldn't be convicted if its self defense although self defense does require that you use a proportional level of force to the attacker, which can cause complications in court.

    As for the student that I know of who was convicted of a felony, this was in NJ and he was driving home when he accidentally cut off a pickup truck. The truck started following him and was still following him when he was a couple of blocks from his house and it was at this point he pulled over and got out of his car to confront whoever was driving the truck since he didn't want the driver of the truck knowing where he lived. The truck pulled up behind him and this big guy got out and came running at him. The student sidestepped him and kneed him in the stomach and then hit him in the mouth with a ridge hand and knocked some of his teeth out. As a result the student had to make two court appearances, was fined, sued, had to pay for the truck driver's teeth and during his second appearance he had a lawyer with him so he was able to avoid any prison time but he still ended up getting a felony conviction which will be for him with life and will severely limit his rights as an American citizen, including the possibility of holding down a job.

    So this student was convicted of a felony even though it was the truck driver that came running at him. This was in NJ where they're usually quite harsh about any use of force.
     
  4. gpseymour

    gpseymour Sr. Grandmaster

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    I'd guess in that case his problem was that he stopped to confront the guy, rather than driving past his home. He wasn't in any imminent danger until he stopped and got out.
     
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  5. oftheherd1

    oftheherd1 Senior Master

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    That, and his next problem was going to court without a lawyer. It doesn't matter how right you think you are or in fact actually are. A judge or jury is only supposed to consider what is in front of them. If you can't articulate well, your lawyer should help you with that, keeping you truthful and in the bounds of the law. He will also know best how to question the other person to your advantage.
     
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  6. jks9199

    jks9199 Administrator Staff Member

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    Sounds to me like his lawyer got him to take a plea. Maybe he thought it made sense financially -- fighting a charge is NOT cheap.

    But, I'm kind of confused. Your friend was "fined, sued, and had to" make restitution. A fine is criminal; suing is civil. I think you may be conflating two separate acts in the play. It's quite possible to be found not guilty of an offense, or in the specific instance of self defense to be found to have been justified and thus acquitted -- but still found liable in civil court. The two proceedings are separate, with hugely different burdens of proof and rules.
     
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  7. oftheherd1

    oftheherd1 Senior Master

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    There are some confusions there for sure. I hadn't thought of the lawyer suggesting a plea. If there was that much wrong the friend's relating his side of the story, it may have been a good idea for the criminal part, especially if at the first hearing he made statements that made him look bad (even if he wasn't). That testimony would then be admissible in a civil case and because the burden of proof is so much less, he may have been lucky if all he had to pay was for never inexpensive dental work.

    Just one more reason to get a lawyer involved as soon as possible if you are going to court accused of a crime.
     
  8. jks9199

    jks9199 Administrator Staff Member

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    Doesn't have to have been much wrong with the case. I know of a case that I think had a pretty strong argument that he only left the scene of an accident because he would have gotten his *** beat if he stayed, and ended up taking a plea because the defendant simply didn't have the money to fight it at length. Same thing happens in civil cases; sometimes the deepest pockets "wins" because the other side can't afford to fight.

    By the way... here's a little more reading on one state's malicious wounding charge..
     
  9. PhotonGuy

    PhotonGuy Senior Master

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    He did go to court with a lawyer during his second court appearance.
     
  10. PhotonGuy

    PhotonGuy Senior Master

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    There are cases of people getting off in criminal court and still being found liable in civil court but in his case he was found guilty both criminally and civilly. He was able to get off from going to prison since he had a lawyer during his second appearance but he still was convicted and has a record.
     
  11. PhotonGuy

    PhotonGuy Senior Master

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    That's why its good to have insurance that will cover you for such legal expenses.
     
  12. Psilent Knight

    Psilent Knight Blue Belt

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    My attitude concerning self defense and use of force laws is simple; to hell with those laws and to hell with the rotten scoundrels who make them.
     
  13. Tez3

    Tez3 Sr. Grandmaster

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    The burden of proof is different in civil courts to that in a criminal court.

    Yeah they all say that until they are needing the protection of said laws then it's a miraculous change of mind....
     
  14. mrt2

    mrt2 Green Belt

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    I am a criminal defense lawyer, so I do deal with issues of self defense in my practice. I suspect the situation is a lot closer to a 50/50 proposition than what your friend told you. And in my experience, in 50/50 situations, authorities tend to charge the winner of the fight and give the loser a pass. I have seen this a couple of times over the years. So my advise to folks is, walk away from 50/50 type situations as they don't end well. I once worked on an appeal of a case where a guy who was something of a self taught martial artist stabbed and cut two drunk guys during a confrontation. He was armed with a knife, the two drunk guys were not. He went to trial and the judge ruled that he was not entitled to claim self defense, and the guy got 10 years in prison. On the other hand, I once represented a woman who felt threatened by a larger man, and during a confrontation with him, hit him with a blunt object to protect herself. The jury acquitted her, but she did have to go to trial.

    First of all, you are only hearing one side of the story, which may not be accurate. Your friend might not have been so innocent as he claims in the behavior that preceded the fight. If your friend provoked the confrontation, he is likely not entitled to claim self defense. And his lawyer might have so informed him, which is why your friend took a plea deal.

    And even given the facts you relate leaves me with some questions. Like your friend getting out of his car to confront the driver of the truck. This strikes me as a foolish move. Even if you are a skill martial artist, you are confronting an unknown threat. What if the driver of the truck was armed? You say your friend chose to stop a few blocks from his house. Why not drive to the nearest police station? Or stop in a busy public place and just stay in the car?. Also, did your friend have access to a cell phone? Did he call the police to alert them to the situation before he confronted the driver of the truck? These are all actions that had he done them would clearly show he was attempting to defuse the situation and then, if your friend was forced to knock the guy's teeth out, would show that despite his best efforts, he had no choice but to use force. I suspect that because he didn't do those things, he doesn't have clean hands, which is why he had to take a conviction.
     
    Last edited: Mar 25, 2018
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  15. TheArtofDave

    TheArtofDave Green Belt

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    The 2017 Florida Statutes
    [​IMG]

    Title XLVI
    CRIMES Chapter 776
    JUSTIFIABLE USE OF FORCE View Entire Chapter
    CHAPTER 776
    JUSTIFIABLE USE OF FORCE
    776.012 Use or threatened use of force in defense of person.
    776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.
    776.031 Use or threatened use of force in defense of property.
    776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.
    776.041 Use or threatened use of force by aggressor.
    776.05 Law enforcement officers; use of force in making an arrest.
    776.051 Use or threatened use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition.
    776.06 Deadly force by a law enforcement or correctional officer.
    776.07 Use of force to prevent escape.
    776.08 Forcible felony.
    776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.
    776.09 Retention of records pertaining to persons found to be acting in lawful self-defense; expunction of criminal history records.
    776.012 Use or threatened use of force in defense of person.—
    (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
    (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
    History.—s. 13, ch. 74-383; s. 1188, ch. 97-102; s. 2, ch. 2005-27; s. 3, ch. 2014-195.
    776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.—
    (1) A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use:
    (a) Nondeadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force; or
    (b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
    (2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:
    (a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
    (b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
    (3) The presumption set forth in subsection (2) does not apply if:
    (a) The person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
    (b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used or threatened; or
    (c) The person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity; or
    (d) The person against whom the defensive force is used or threatened is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
    (4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
    (5) As used in this section, the term:
    (a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
    (b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
    (c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
    History.—s. 1, ch. 2005-27; s. 4, ch. 2014-195; s. 1, ch. 2017-77.
    776.031 Use or threatened use of force in defense of property.—
    (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
    (2) A person is justified in using or threatening to use deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
    History.—s. 13, ch. 74-383; s. 1189, ch. 97-102; s. 3, ch. 2005-27; s. 5, ch. 2014-195.
    776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—
    (1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
    (2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.
    (3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
    (4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
    History.—s. 4, ch. 2005-27; s. 6, ch. 2014-195; s. 1, ch. 2017-72.
    776.041 Use or threatened use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
    (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
    (2) Initially provokes the use or threatened use of force against himself or herself, unless:
    (a) Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant; or
    (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.
    History.—s. 13, ch. 74-383; s. 1190, ch. 97-102; s. 7, ch. 2014-195.
    776.05 Law enforcement officers; use of force in making an arrest.—A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:
    (1) Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest;
    (2) When necessarily committed in retaking felons who have escaped; or
    (3) When necessarily committed in arresting felons fleeing from justice. However, this subsection shall not constitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and, when feasible, some warning had been given, and:
    (a) The officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or
    (b) The officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.
    History.—s. 13, ch. 74-383; s. 1, ch. 75-64; s. 1, ch. 87-147; s. 54, ch. 88-381; s. 1191, ch. 97-102.
    776.051 Use or threatened use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition.—
    (1) A person is not justified in the use or threatened use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
    (2) A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest or execution of a legal duty is unlawful and known by him or her to be unlawful.
    History.—s. 13, ch. 74-383; s. 1192, ch. 97-102; s. 1, ch. 2008-67; s. 8, ch. 2014-195.
    776.06 Deadly force by a law enforcement or correctional officer.—
    (1) As applied to a law enforcement officer or correctional officer acting in the performance of his or her official duties, the term “deadly force” means force that is likely to cause death or great bodily harm and includes, but is not limited to:
    (a) The firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and
    (b) The firing of a firearm at a vehicle in which the person to be arrested is riding.
    (2)(a) The term “deadly force” does not include the discharge of a firearm by a law enforcement officer or correctional officer during and within the scope of his or her official duties which is loaded with a less-lethal munition. As used in this subsection, the term “less-lethal munition” means a projectile that is designed to stun, temporarily incapacitate, or cause temporary discomfort to a person without penetrating the person’s body.
    (b) A law enforcement officer or a correctional officer is not liable in any civil or criminal action arising out of the use of any less-lethal munition in good faith during and within the scope of his or her official duties.
    History.—s. 13, ch. 74-383; s. 1, ch. 99-272; s. 9, ch. 2014-195.
    776.07 Use of force to prevent escape.—
    (1) A law enforcement officer or other person who has an arrested person in his or her custody is justified in the use of any force which he or she reasonably believes to be necessary to prevent the escape of the arrested person from custody.
    (2) A correctional officer or other law enforcement officer is justified in the use of force, including deadly force, which he or she reasonably believes to be necessary to prevent the escape from a penal institution of a person whom the officer reasonably believes to be lawfully detained in such institution under sentence for an offense or awaiting trial or commitment for an offense.
    History.—s. 13, ch. 74-383; s. 7, ch. 95-283; s. 1193, ch. 97-102.
    776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
    History.—s. 13, ch. 74-383; s. 4, ch. 75-298; s. 289, ch. 79-400; s. 5, ch. 93-212; s. 10, ch. 95-195.
    776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.—
    (1) It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony. The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence.
    (2) For the purposes of this section, the term “forcible felony” shall have the same meaning as in s. 776.08.
    (3) Any civil action in which the defense recognized by this section is raised shall be stayed by the court on the motion of the civil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a conviction in the criminal action would not form a valid defense under this section.
    (4) In any civil action where a party prevails based on the defense created by this section:
    (a) The losing party, if convicted of and incarcerated for the crime or attempted crime, shall, as determined by the court, lose any privileges provided by the correctional facility, including, but not limited to:
    1. Canteen purchases;
    2. Telephone access;
    3. Outdoor exercise;
    4. Use of the library; and
    5. Visitation.
    (b) The court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney; however, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the losing party is incarcerated for the crime or attempted crime and has insufficient assets to cover payment of the costs of the action and the award of fees pursuant to this paragraph, the party shall, as determined by the court, be required to pay by deduction from any payments the prisoner receives while incarcerated.
    (c) If the losing party is incarcerated for the crime or attempted crime, the court shall issue a written order containing its findings and ruling pursuant to paragraphs (a) and (b) and shall direct that a certified copy be forwarded to the appropriate correctional institution or facility.
    History.—s. 1, ch. 87-187; s. 72, ch. 96-388.
    776.09 Retention of records pertaining to persons found to be acting in lawful self-defense; expunction of criminal history records.—
    (1) Whenever the state attorney or statewide prosecutor dismisses an information, indictment, or other charging document, or decides not to file an information, indictment, or other charging document because of a finding that the person accused acted in lawful self-defense pursuant to the provisions related to the justifiable use of force in this chapter, that finding shall be documented in writing and retained in the files of the state attorney or statewide prosecutor.
    (2) Whenever a court dismisses an information, indictment, or other charging document because of a finding that the person accused acted in lawful self-defense pursuant to the provisions related to the justifiable use of force in this chapter, that finding shall be recorded in an order or memorandum, which shall be retained in the court’s records.
    (3) Under either condition described in subsection (1) or subsection (2), the person accused may apply for a certificate of eligibility to expunge the associated criminal history record, pursuant to s. 943.0585(5), notwithstanding the eligibility requirements prescribed in s. 943.0585(1)(b) or (2).
    History.—s. 10, ch. 2014-195.
     
  16. cborde

    cborde White Belt

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    I don't know if Louisiana has been added here, but:

    LA §14:19. Use of force or violence in defense
    LA §14:19. Use of force or violence in defense

    State: Louisiana

    Louisiana Revised Statutes (L.R.S.) 2016

    Title 14. Criminal Law

    §19. Use of force or violence in defense

    A.

    (1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:

    (a) When committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.

    (b)

    (i) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person using the force or violence reasonably believes that the use of force or violence is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.

    (ii) The provisions of this Paragraph shall not apply when the person using the force or violence is engaged, at the time of the use of force or violence in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.

    (2) The provisions of Paragraph (1) of this Section shall not apply where the force or violence results in a homicide.

    B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:

    (1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.

    (2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.

    C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.

    D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

    Acts 2006, No. 141, §1; Acts 2014, No. 163, §1.

    Updated: 7/12/2017
     

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