Some Issues Regarding HB 160
By Evan Nappen, Esq.
Pro-Gun New Hampshire, Inc.
Corporate Counsel and Director
January 29, 2009
HB 160 is well intentioned, but there are issues with the bill as written.
They are as follows:
1) HB 160 States:
1 Physical Force in Defense of a Person. Amend RSA 627:4, II(d) to read as follows:
(d) Is likely to use any unlawful force in the commission of a felony against the actor within such actor's dwelling [or], its curtilage, or in any place where the actor has a right to be.
2 Physical Force in Defense of a Person. Amend RSA 627:4, 111(a) to read as follows:
(a) Retreat from the encounter, except that he or she is not required to retreat if he or she is within his or her dwelling [or], its curtilage, or in any place where he or she has a right to be, and was not the initial aggressor; or
Both proposed changes to the law leave in the law the words "dwelling" and "curtilage." Under the rules of statutory construction this is known as an ejusdem generis clause. The phrase means "of the same kind." This rule is generally accepted by most courts, and here is a sample: "that where general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." (Walling v. Peavy-Wilson Lumber Co. 49 F. Supp. 846, at 859.) In other words, for example, in a law banning the carrying of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to mean only dangerous weapons of the type listed, such as firearms, or perhaps even more narrowly, only handguns. The phrases "or in any place where the actor has a right to be" and "or in any place where he or she has a right to be" may be narrowly interpreted by the courts to mean only places such as dwellings and curtilages where one "has a right to be." This would, of course, defeat the purpose of the intended modification. In order to avoid this risk, the "dwelling" and "curtilage" language needs to be removed from the law.
2) Retreat is still required if one is in a place where one does not have "a right to be." This is understandable as to stopping wrongdoers from availing themselves of this defense. However, if a person is inadvertently in a place where he does not have "a right to be" and defends himself with deadly force, he still must retreat from violent criminal attack. (For example, inadvertently standing outside of a crosswalk, or in an illegally parked car because the meter expired.)
3) Raising Self Defense in New Hampshire initially places a relatively small burden of proof on a defendant to give the State notice of the defense and show "some evidence" to support a rational finding in favor on the defense, for the jury to consider the defense. (See State v. Vassar 154 NH 371) The State then has to disprove it "beyond a reasonable doubt." The current burden could be eased further for a defendant by putting a presumption in the law.
4) The section to be amended is misidentified. The bill states: "Physical Force in Defense of a Person. Amend RSA 627:4, 111(a) to read as follows:" (Emphasis added) 627:4, 111(a) should read 627:4, III(a). There is no "111" in the law to modify. There is a "III" which I presume is what the sponsor meant to change.
Suggested amendments to address the above concerns:
Note: Matter added to current law appears in bold italics. Matter removed from current law appears [in brackets.]
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to physical force in defense of a person.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1. Physical Force in Defense of a Person. Amend RSA 627:4, II to read as follows:
II. A person is presumed to be justified in using deadly force upon another person when he reasonably believes that such other person:
2. Physical Force in Defense of a Person. Amend RSA 627:4, II(d) to read as follows:
(d) Is likely to use any unlawful force in the commission of a felony against the actor [within such actor's dwelling or its curtilage,] in any place where the actor reasonably believes he or she has a right to be.
3. Physical Force in Defense of a Person. Amend RSA 627:4, III (a) to read as follows:
(a) Retreat from the encounter, except that he or she is not required to retreat if he or she is [within his dwelling or its curtilage,] in any place where the actor reasonably believes he or she has a right to be, and was not the initial aggressor; or
4. Effective Date. This act shall take effect January 1, 2010.