DEFENSE OF SELF & OTHERS S.B. 1046 & 1185 and H.B. 5142, 5143, 5153, & 5548: ENROLLED ANALYSIS

Senate Bills 1046 and 1185 (as enrolled) House Bills 5142, 5143, 5153, and 5548 (as enrolled) Sponsor: Senator Alan L. Cropsey (S.B. 1046) Senator Ron Jelinek (S.B. 1185) Representative Tom Casperson (H.B. 5142) Representative Rick Jones (H.B. 5143) Representative Leslie Mortimer (H.B. 5153) Representative Tim Moore (H.B. 5548) Senate Committee: Judiciary House Committee: Judiciary

Date Completed: 7-17-06

RATIONALE

Michigan law regarding a person’s right to individual, without a duty to retreat, use deadly force in self-defense is not if he or she were not engaged in the expressed in statute, but is embodied in the commission of a crime and honestly as interpreted by . and reasonably believed that force According to a 2002 Supreme was necessary to prevent imminent Court case (People v Riddle, 467 Mich 116), death, bodily harm, or sexual assault. a person has the right to use deadly force in -- Specify that an individual could use self-defense if he or she honestly and less-than-lethal force against reasonably believes that using such force is another individual, without a duty to necessary because he or she is in danger of retreat, if he or she were not imminent death or great bodily harm. engaged in the commission of a Generally, a person acting in self-defense crime and honestly and reasonably has a duty to retreat from the attack if he or believed that force was necessary in she can do so safely, but retreat is never defense against the other individual’s required in the person’s own home, nor is imminent unlawful use of force. retreat required in the case of a sudden and -- State that, except as provided above, fierce violent attack or if the person honestly the proposed Act would not modify and reasonably believes the attacker is the common law with regard to the about to use a deadly weapon. Some duty to retreat before using deadly people believe that the right to defend force or force other than deadly against an attack, and the circumstances force. under which force is justified in self-defense -- Provide that the proposed Act would or the defense of others, should be codified not diminish self-defense rights and that a person defending himself, herself, available under the common law. or another should not have to retreat when he or she is anywhere he or she has a legal Senate Bill 1046 and House Bill 5153 right to be. would create new acts, Senate Bill 1185 and House Bill 5548 would amend the CONTENT Revised Judicature Act, and House Bill 5142 would amend the Code of Criminal House Bill 5143 would create the “Self- Procedure, to do all of the following: Defense Act” to do all of the following: -- Establish a rebuttable presumption in -- Specify that a person could use a civil or criminal case that a person deadly force against another who used force in compliance with

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the proposed Self-Defense Act had an The bill specifies that, except as provided honest and reasonable belief that above, it would not modify Michigan’s imminent death, sexual assault, or common law in existence on October 1, great bodily harm would occur if 2006, regarding the duty to retreat before certain conditions existed, and using deadly force or force other than deadly specify circumstances under which force. The bill also states that it would not the presumption would not apply. diminish an individual’s right to use force, in -- Specify that a duty to retreat before self-defense or defense of another using deadly force would not apply if individual, as provided by Michigan’s an individual were in his or her own common law in existence on that date. dwelling or within the curtilage of that dwelling. Senate Bill 1046 -- Provide that an individual who used force in compliance with the Under the bill, it would be a rebuttable proposed Self-Defense Act would presumption in a civil or criminal case that commit no crime in using that force. an individual who used deadly force or force -- Establish civil immunity for a person other than deadly force in compliance with who used force in compliance with the proposed Self-Defense Act had an the proposed Self-Defense Act. honest and reasonable belief that imminent -- Require a court to award attorney death of, sexual assault of, or great bodily fees and costs to a person sued for harm to himself or herself or another using force, if that use of force were individual would occur, if both of the in compliance with the proposed following applied: Self-Defense Act and the person were immune from civil liability (as -- The person against whom force was used provided above). was in the process of breaking and entering a dwelling or business premises The bills are tie-barred and would take effect or committing , had broken on October 1, 2006. and entered a dwelling or business premises or committed home invasion House Bill 5143 and was still present in the dwelling or business premises, or was unlawfully Under the proposed Self-Defense Act, an attempting to remove another individual individual who had not or was not engaged from a dwelling, business premises, or in the commission of a crime could use occupied vehicle against his or her will. deadly force against another person, -- The individual using force honestly and anywhere he or she had the legal right to reasonably believed that the person was be, with no duty to retreat, if the individual engaging in conduct described above. honestly and reasonably believed that the use of deadly force was necessary to The rebuttable presumption would not apply, prevent either of the following: however, if any of the following circumstances existed: -- The imminent death of, or imminent great bodily harm to, himself or herself or -- The person against whom force was used, another individual. including an owner, lessee, or titleholder, -- The imminent sexual assault of himself or had the legal right to be in the dwelling, herself or another individual. business premises, or vehicle and there was not an injunction for protection from An individual who had not or was not domestic violence or a written pretrial engaged in the commission of a crime also supervision order, a probation order, or a could use force, other than deadly force, parole order of no contact against that against another individual anywhere he or person. she had the legal right to be, with no duty to -- The individual removed or being removed retreat, if he or she honestly and reasonably from the dwelling, business premises, or believed that the use of that force was occupied vehicle was a child or grandchild necessary to defend himself or herself or of, or was otherwise in the lawful custody another individual from the imminent of or under the lawful guardianship of, unlawful use of force by another individual. the person against whom force was used.

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-- The individual who used force was Senate Bill 1185 engaged in the commission of a crime or was using the dwelling, business The bill would require the court to award the premises, or occupied vehicle to further payment of actual attorney fees and costs to the commission of a crime. an individual who was sued for civil damages -- The person against whom force was used for allegedly using deadly force or force was a peace officer who had entered or other than deadly force against another was attempting to enter a dwelling, person, if the court determined that the business premises, or vehicle in the individual used force in compliance with the performance of his or her official duties in proposed Self-Defense Act and that the accordance with applicable law. individual was immune from civil liability under Section 2922b of the Revised The presumption also would not apply if the Judicature Act (which House Bill 5548 would person using the force had a history of enact). domestic violence as the aggressor and the individual against whom force was used House Bill 5142 were his or her spouse or former spouse, an individual with whom he or she had a dating The bill specifies that, in cases in which the relationship, an individual with whom he or proposed Self-Defense Act did not apply, she had a child in common, or a resident or Michigan’s common law would apply, except former resident of his or her household. that the duty to retreat before using deadly force would not be required if an individual The bill would define “dwelling” as a were in his or her own dwelling or within the structure or shelter that is used permanently curtilage of that dwelling. or temporarily as a place of abode, including an appurtenant structure attached to that “Dwelling” would mean a structure or shelter structure or shelter. “Business premises” that is used permanently or temporarily as a would mean a building or other structure place of abode, including an appurtenant used for the transaction of business, structure attached to that structure or including an appurtenant structure attached shelter. to that building or other structure. “Vehicle” would mean a conveyance of any kind, House Bill 5153 whether or not motorized, that is designed to transport people or property. The bill specifies that an individual who used deadly force or force other than deadly force “Domestic violence” would mean that term in compliance with the proposed Self- as defined in the domestic violence Defense Act and who had not or was not prevention and treatment Act, i.e., the engaged in committing a crime at the time occurrence of any of the following acts by a he or she used force, would commit no person that is not an act of self-defense: crime in using that force.

-- Causing or attempting to cause physical If a prosecutor believed that a person used or mental harm to a family or household force that was unjustified under the Self- member. Defense Act, the prosecutor could charge -- Placing a family or household member in the person with a crime arising from the use fear of physical or mental harm. of force and, at the time a warrant was -- Causing or attempting to cause a family issued, at the time of any preliminary or household member to engage in examination, and at the time of any trial, involuntary sexual activity by force, would have to present to the judge or threat of force, or duress. magistrate evidence that established that -- Engaging in activity toward a family or the person’s actions were not justified under household member that would cause a the Self-Defense Act. reasonable person to feel terrorized, frightened, intimidated, threatened, House Bill 5548 harassed, or molested. The bill specifies that an individual who used deadly force or force other than deadly force in self-defense or the defense of another in compliance with the proposed Self-Defense

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Act would be immune from civil liability for permissible, to exercise deadly force against damages caused to either of the following by the attacker” (emphasis in original). the use of that force: The Court further held that “a person is -- The individual against whom the use of never required to retreat from a sudden, force was authorized. fierce, and violent attack; nor is he required -- Any individual claiming damages arising to retreat from an attacker who he out of injury to or the death of the reasonably believes is about to use a deadly individual against whom the use of force weapon” (emphasis in original). The Court was authorized, based on his or her stated that, “under such circumstances a relationship to that individual. reasonable person would, as a rule, find it necessary to use force against force without Proposed MCL 600.2922c (S.B. 1185) retreating. The violent and sudden attack Proposed MCL 768.21c (H.B. 5142) removes the ability to retreat.” Proposed MCL 600.2922b (H.B. 5548) Also, according to Riddle, “regardless of the BACKGROUND circumstances, one who is attacked in his dwelling is never required to retreat where it In People v Riddle (467 Mich 116), the is otherwise necessary to exercise deadly Michigan Supreme Court discussed the force in self-defense” (emphasis in original). principles of self-defense, the duty to Since “a person’s dwelling is his primary retreat, and the applicability and scope of place of refuge”, the Court held that when “a the so-called “castle doctrine”. The person is in his ‘castle,’ there is simply no defendant was convicted of second-degree safer place to retreat” (emphasis in in the Third Circuit Court (Wayne original). The Court declined to extend the County) but appealed on the ground that the common law by applying this “castle jury was not given an instruction that a doctrine” to outlying areas within the person has no duty to retreat from the curtilage of the home; rather, it limited the threat of force while in his or her own doctrine’s application to the home and its dwelling. Since the shooting occurred in the attached appurtenances, such as a garage, backyard outside the defendant’s house, and porch, or deck. Even though other courts not in the dwelling itself, the trial court have extended the castle doctrine to other declined to give the jury that instruction. areas, the Riddle Court concluded that The Court of Appeals affirmed, holding that “there is simply no basis in the case law of the defendant had a duty to retreat if safely this state, contemporaneous with the possible before exercising deadly force enactment of our initial murder statute, to unless he was inside his dwelling or an justify extending the rule in this manner”. inhabited outbuilding within the curtilage (the area of land surrounding a dwelling). In addition, the Court ruled that, “Michigan law imposes an affirmative obligation to The Supreme Court affirmed the conviction retreat, where safely possible, in one narrow (but vacated the Court of Appeals decision in set of circumstances: where a defendant— part). The Supreme Court reaffirmed the who is not in his ‘castle’—is voluntarily common-law principles that existed in engaged in mutual, nondeadly combat that Michigan when the State’s “murder statute” escalates into sudden deadly violence” was enacted in the first Penal Code in 1846. (emphasis in original). According to the The Court held that, as a general rule, the Court, this was the only situation in which taking of another’s life in self-defense is English common law imposed upon a justifiable if the person “honestly and defender an affirmative duty to retreat, and reasonably believes that he is in imminent Michigan adhered to this rule at the time the danger of death or great bodily harm and murder statute was codified. that it is necessary for him to exercise deadly force”. The necessity element of ARGUMENTS self-defense normally requires the person to try to avoid the use of lethal force, if he or (Please note: The arguments contained in this she can do so safely and reasonably. “If it is analysis originate from sources outside the Senate possible to safely avoid an attack then it is Fiscal Agency. The Senate Fiscal Agency neither supports nor opposes legislation.) not necessary, and therefore not

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Supporting Argument in using that force in compliance with the The ability of a person to defend himself or Self-Defense Act, House Bill 5153 would herself against physical attack is a guard against overzealous prosecution of a fundamental right. Indeed, Article I, Section person who used force to repel an attacker. 6 of the Michigan Constitution cites defense If a prosecutor believed a person claiming of self in its declaration of the right to keep self-defense did not act within the and bear arms. The situations under which constraints of the Self-Defense Act, the the use of deadly force is justifiable in self- prosecutor could investigate and pursue defense are not spelled out in the charges but would have to overcome the Constitution or in statute, however, but rebuttable presumption in Senate Bill 1046 derive from the common law as interpreted and present evidence to that effect at each in case law. The bills essentially would stage of the criminal proceedings, as House codify existing case law that interprets the Bill 5153 would require. common law right of a person to defend himself or herself with deadly force. Similarly, under House Bill 5548, an Consistent with the Riddle decision, House individual who used force in self-defense or Bill 5143, the proposed Self-Defense Act, defense of another in compliance with the would allow a person to use deadly force if Self-Defense Act would not be civilly liable he or she honestly and reasonably believed for damages caused to the person against that death, great bodily harm, or sexual whom the use of force was authorized or to assault may be imminent. In addition, anyone claiming damages arising out of House Bill 5142 would codify the “castle injury to or the death of the person against doctrine” described in Riddle by providing whom force was used, based on their that the duty to retreat before using deadly relationship. This would insulate crime force would not apply to the dwelling of the victims from frivolous lawsuits filed by their individual using force in self-defense. The attackers based on the victims’ actions in bill also would extend that doctrine to the protecting themselves. People who act in curtilage of the dwelling, which would be self-defense should not have to spend the consistent with the majority of jurisdictions time or money to go to court, or experience employing the castle doctrine. the stress of doing so, to justify their actions Response: The bills would go well in protecting themselves or others. beyond the traditional self-defense rights laid out in case law. If the legislation To qualify for the rebuttable presumption actually were codifying case law, it would and the criminal and civil immunity, the specify that necessity was always required in person using force would have to have done the use of deadly force in defense of self or so in compliance with the Self-Defense Act, others; that there was a general duty to which includes a requirement that the retreat from use of deadly force; that retreat person using force was not otherwise was not necessary in the case of a sudden, committing a crime. Thus, the bills contain fierce attack; and that retreat was never safeguards against criminals’ manipulation required in the case of an attack in the of the system to claim self-defense for dwelling of the person being attacked. actions against their victims or rivals. Response: The rebuttable Supporting Argument presumption and civil and criminal immunity The bills would offer new protections to provisions are not needed. Prosecutors crime victims who act in self-defense or testified before the Senate Judiciary defense of others. By enacting a rebuttable Committee that great deference routinely is presumption in a civil or criminal case that given to people acting in self-defense, and an individual who used force in defense of nobody who appeared before the committee himself or herself or another had an honest could identify a prosecutorial abuse in which and reasonable belief that imminent death, someone acting legitimately in self-defense sexual assault, or great bodily harm would was charged with a crime. Indeed, in a occur under certain circumstances, Senate recent highly publicized case in Detroit, the Bill 1046 would ensure that a person was Wayne County prosecutor opted not to file a not easily exposed to criminal or civil liability murder charge against the man who shot for self-defense actions. and killed the rapper known as “Proof” because he acted in self-defense after Proof In addition, by establishing that an shot the man’s cousin. individual would not be committing a crime

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In addition, Michigan’s civil justice system use of force. Moreover, Dr. Sweet and his includes sufficient safeguards against family members were exonerated and the frivolous lawsuits, and the bills’ proponents woman in the jar-of-pennies case apparently did not contend that Michigan has had a prevailed as well. problem with civil actions against those acting in self-defense. In addition, far from protecting victims of crime from retribution for acting in self- Opposing Argument defense, the bills could insulate criminals The bills would go too far in extending self- from prosecution and civil liability for their defense protections that have long been actions. At least two prosecutors expressed available under the common law. The duty concerns about so-called “murder by to retreat, except in the defender’s home invitation”, in which someone asks a person (the castle doctrine) or in the face of a to his or her home, kills the person, and sudden and fierce attack, is a hallmark of makes it appear as if he or she had been that common law doctrine. The bills breaking in and the killing was justifiable essentially would eliminate this duty by self-defense. Also, prosecutors and a providing an exception for any location representative of the domestic violence where the defender has a legal right to be. prevention and treatment board raised This would include locations, such as a concerns about domestic abusers’ being able crowded neighborhood street, a shopping to claim their actions were in self-defense. mall concourse, or a children’s playground, where using deadly force to intervene on The common law right to act in self-defense, another person’s behalf likely would escalate particularly in one’s own home, has long an already dangerous situation and could been recognized in Michigan and the Riddle result in injury or death to innocent decision provides sufficient protections to bystanders. ensure that those who honestly and reasonably believe they are threatened by Also, the definitions of “dwelling” and physical harm may use force in response to “vehicle” in Senate Bill 1046, the rebuttable that threat. The bills simply are not needed. presumption legislation, are so broad as to Response: The Riddle Court’s encompass such things as a tent and a interpretation of the exception from the duty bicycle. Under that bill, a person to retreat is too narrow, not even conceivably could be justified in using deadly encompassing the yard or unattached force against someone who did something buildings (such as a garage or barn) on the as minor as entering the person’s camping grounds of a defender’s home. A person tent uninvited or attempting to steal the defending himself or herself or another from bike the person was riding. imminent peril should be free to meet force with force when necessary, regardless of the There have been no cases in Michigan location. suggesting a need for the bills’ broadened protections against criminal and civil liability While there may not have been an for those who use force in self-defense or abundance of criminal or civil cases in defense of others. In testimony before the Michigan against people who used force in Senate Judiciary Committee, proponents of self-defense, the bills would serve to the measures frequently referred to the mid- preempt the possibility of such prosecution 1920s case of Dr. Ossian Sweet, an African or litigation. While the defendants prevailed American man who defended himself and his in the two cases described above, those family from a crowd of white protestors parties still had to hire attorneys and go gathering outside of Dr. Sweet’s home in a through court proceedings. previously all-white Detroit neighborhood after someone threw a brick through a The bills would not protect criminals or window of the house. Some also relayed encourage criminal behavior. The self- anecdotal recollections of a Lansing-area defense authorization and protections would case in which a woman apparently was sued not apply if the person using force were after hitting an intruder in her home with a committing a crime, and the rebuttable jar of pennies. None, however, could cite presumption in Senate Bill 1046 would not recent cases in which people acting in self- apply to a person who had a history of defense were prosecuted for their actions or domestic violence and used force in a sued for injuries or death caused by their domestic situation. Also, the “murder by

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invitation” scenario is as likely to occur handgun licensure Act to require that a under current law as it would be under the license to carry a concealed weapon be bills. issued if certain criteria are met. That law did not result in widespread misuse of Opposing Argument firearms and neither would this legislation. The bills essentially would eliminate any duty to retreat before using force in an act Opposing Argument of self-defense or defense of others. As Senate Bill 1185 would require the court to such, the legislation would undermine the award the payment of actual attorney fees common law concept of necessity in the use and costs to an individual who was sued for of force for self-defense. In the Riddle civil damages for allegedly using force in opinion, the Michigan Supreme Court stated, compliance with the Self-Defense Act, if the “If it is possible to safely avoid an attack court determined that the individual was then it is not necessary, and therefore not immune from civil liability under House Bill permissible, to exercise deadly force against 5548. In written testimony submitted to the the attacker” (emphasis in original). Senate committee, the State Bar of Michigan Response: In a footnote to that expressed a serious concern regarding the opinion, the Court noted that the majority of provisions for the award of court costs and jurisdictions employing the castle doctrine attorney fees, which are the equivalent of have extended it to the curtilage “loser pay” provisions, something the Bar surrounding the home and that several has historically opposed. The Bar believes jurisdictions have extended the doctrine to that judicial discretion is an important numerous areas beyond the dwelling, consideration in self-defense cases. “The including cars, businesses, and the homes of determination of whether the conditions third parties. While the Riddle Court described in the bill apply to a particular declined to expand the castle doctrine, the situation and whether an individual acted Court said, in the footnote, “Thus, we leave reasonably in using force and is entitled to it to the Legislature to decide whether there the immunity granted by the bill is very fact- are other places in which a defendant’s specific…The imposition of a ‘loser-pays’ failure to retreat cannot be considered as a condition on top of the presumption and factor in determining whether it was immunity provisions of the bill could serve to necessary for him to exercise deadly force in discourage the true victim in situations self-defense.” involving some ambiguous circumstances from bringing a meritorious case.” Michigan Opposing Argument judges generally have the authority to award The bills could foster a “just shoot” attitude attorney fees and costs if the plaintiff brings that could lead to vigilantism or, at least, a frivolous claim. According to the Bar, “It careless use of dangerous weapons in is important to be able to maintain this public. A Detroit Free Press editorial discretion, and to avoid a mandatory system characterized the legislation as that precludes judicial review of a specific “unnecessary, imprudent and even case and circumstances.” dangerous”, and suggested that Michigan law should not prohibit lawsuits in self- Opposing Argument defense cases, whose merits are properly By authorizing force in the face of a decided in court (“Deadly Defense”, 2-27- perceived threat, without any duty to 06). The editorial agreed with the president retreat, the bills would conflict with lessons of the Prosecuting Attorneys Association of that a civil society teaches its children. Michigan that the law should discourage, Many parents, schools, religions, and rather than encourage, violent community organizations stress avoiding confrontations. confrontation, but the bills suggest that the Response: The bills would not proper response to a potentially dangerous encourage people to act recklessly or take situation is to elevate conflict by meeting the law into their own hands, but merely force with force, even if an avenue of retreat would provide needed protections to those is available. who find themselves in situations requiring the use of force to defend themselves or Legislative Analyst: Patrick Affholter others. The same sort of “wild west” scenarios were forecast by opponents of Public Act 381 of 2000, which amended the

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FISCAL IMPACT

Senate Bill 1046 and House Bills 5142, 5143, and 5153

The bills would have an indeterminate fiscal impact on State and local government. There are no data to indicate how many individuals have been convicted of crimes for using defensive force. , , , , , and other states have enacted similar legislation, but too recently to determine if there was any fiscal impact. To the extent that the bills would provide criminal immunity not already defined in law for individuals who use defensive force, these individuals would avoid conviction. State and local governments would incur reduced incarceration costs.

Senate Bill 1185 and House Bill 5548

The bills would have no fiscal impact on State or local government.

Fiscal Analyst: Lindsay Hollander Stephanie Yu

A0506\s1046ea This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.

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