Chapter 10.08
JUSTIFICATION
Sections:
10.08.020 Use of force—Lawful when.
10.08.030 Homicide—Excusable when.
10.08.040 Justifiable homicide—By public officer.
10.08.050 Justifiable homicide—By person not public officer.
10.08.090 Intoxication—Mental state determination.
10.08.100 Detaining person for shoplifting investigation—Reasonable grounds defense.
10.08.110 Use of force on children.
10.08.010 Definitions.
In this chapter, unless a different meaning is plainly required:
A. “Necessary” means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.
B. “Homicide” is the killing of a human being by the act, procurement or omission of another, death occurring within three years and a day, and is either (1) murder, (2) manslaughter, (3) excusable homicide, or (4) justifiable homicide. (Ord. 1145-85 § 18, 1985)
10.08.020 Use of force—Lawful when.
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
A. Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting him or her and acting under his or her direction;
B. Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody;
C. Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;
D. Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on legal property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person’s presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public;
E. Whenever used in a reasonable and moderate manner by a parent or his or her authorized agent, a guardian, master, or teacher in the exercise of lawful authority, to restrain or correct his or her child, ward, apprentice, or scholar;
F. Whenever used by a carrier of passengers or his or her authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to his personal safety;
G. Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to himself or herself or another, or in enforcing necessary restraint for the protection of his or her person, or his or her restoration to health, during such period only as is necessary to obtain legal authority for the restraint or custody of his or her person. (Ord. 1145-85 § 19, 1985)
10.08.030 Homicide—Excusable when.
Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent. (Ord. 1145-85 § 20, 1985)
10.08.040 Justifiable homicide—By public officer.
Homicide is justifiable when committed by a public officer, or person acting under his or her command and in his or her aid, in the following cases:
A. In obedience to the judgment of a competent court;
B. When necessary to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty;
C. When necessary in retaking an escaped or rescued prisoner who has been committed, arrested for, or convicted of a felony; or in arresting a person who has committed a felony and is fleeing from justice; or in attempting, by lawful ways or means, to apprehend a person for a felony actually committed; or in lawfully suppressing a riot or preserving the peace. (Ord. 1145-85 § 21, 1985)
10.08.050 Justifiable homicide—By person not public officer.
Homicide is also justifiable when committed either:
A. In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or
B. In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is. (Ord. 1145-85 § 22, 1985)
10.08.060 Duress defense.
A. In any prosecution for a crime, it is a defense that:
1. The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or she or another would be liable to immediate death or immediate grievous bodily injury; and
2. That such apprehension was reasonable upon the part of the actor; and
3. That the actor would not have participated in the crime except for the duress involved.
B. The defense of duress is not available if the crime charged is murder or manslaughter.
C. The defense of duress is not available if the actor intentionally or recklessly places himself in a situation in which it is probable that he will be subject to duress.
D. The defense of duress is not established solely by a showing that a married person acted on the command of his or her spouse. (Ord. 1145-85 § 23, 1985)
10.08.070 Entrapment defense.
A. In any prosecution for a crime, it is a defense that:
1. The criminal design originated in the mind of law enforcement officials, or any person acting under their direction; and
2. The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.
B. The defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime. (Ord. 1145-85 § 24, 1985)
10.08.080 Insanity defense.
To establish the defense of insanity, it must be shown that:
A. At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
1. He or she was unable to perceive the nature and quality of the act with which he or she is charged; or
2. He or she was unable to tell right from wrong with reference to the particular act charged.
B. The defense of insanity must be established by a preponderance of the evidence. (Ord. 1145-85 § 25, 1985)
10.08.090 Intoxication—Mental state determination.
No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of offense, the fact of his intoxication may be taken into consideration in determining such mental state. (Ord. 1145-85 § 26, 1985)
10.08.100 Detaining person for shoplifting investigation—Reasonable grounds defense.
In any criminal action brought under the ordinances of the city by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer, by the owner of the mercantile establishment, or by the owner’s authorized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit theft or shoplifting on such premises of such merchandise. As used in this section, “reasonable grounds” shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a “reasonable time” shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise. (Ord. 1145-85 § 27, 1985)
10.08.110 Use of force on children.
A. It is the policy of this city to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children.
However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child. Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child’s parent or guardian for purposes of restraining or correcting the child.
B. The following actions are presumed unreasonable when used to correct or restrain a child:
1. Throwing, kicking, burning, or cutting a child;
2. Striking a child with a closed fist;
3. Shaking a child under age three;
4. Interfering with a child’s breathing;
5. Threatening a child with a deadly weapon; or
6. Doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. The age, size and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate. This list is illustrative of unreasonable actions and is not intended to be exclusive. (Ord. 1806-91 § 1, 1991)