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State v. Eggleston9/14/2001
. (The bracketed phrase was omitted in the second trial.)
Eggleston claims that this instruction was not supported by the evidence and that it denied him the ability to argue his theory of self-defense. The State argues to the contrary. We begin with the law.
No person has the right to defend against lawful force. See RCW 9A.16.020. The use of force is lawful whenever necessarily used by police officers in the performance of their legal duty. RCW 9A.16.020(1); State v. Hughes, 106 Wn.2d 176, 192, 721 P.2d 902 (1986). Serving a search warrant is a lawful duty. Chapter 10.79 RCW; State v. Richards, 136 Wn.2d 361, 371, 962 P.2d 118 (1998).
A citizen may defend against official force only when in actual danger of death or great harm. State v. Valentine, 132 Wn.2d 1, 20-21, 935 P.2d 1294 (1997). 'Official force' means force wielded by someone whom the citizen perceives to be a police officer. See State v. Bradley, 96 Wn. App. 678, 683, 980 P.2d 235 (1999), aff'd, 141 Wn.2d 731 (2000); see also State v. Westlund, 13 Wn. App. 460, 467, 536 P.2d 20, review denied, 85 Wn.2d 1014 (1975). A reasonable but mistaken belief of imminent danger is an insufficient justification for use of force against a law enforcement officer engaged in the performance of official duties. Valentine, 132 Wn.2d at 20-21; Bradley, 96 Wn. App. at 683. This is true even if an officer's actions in making an arrest or entry violate the Fourth Amendment. State v. McKinlay, 87 Wn. App. 394, 398, 942 P.2d 999 (1997), review denied, 134 Wn.2d 1014 (1998). Thus, to justify the use of force against a law enforcement officer engaged in the performance of official duties, a finding of actual danger of serious injury under an objective standard is required. Bradley, 96 Wn. App. at 685; see also Valentine, 132 Wn.2d at 20-21.
A person has the right to defend against force that is both unlawful and unofficial so long as that person subjectively believes that he or she is in danger of death or great harm and responds with only a reasonable degree of force. See State v. Bergeson, 64 Wn. App. 366, 370, 824 P.2d 515 (1992); see also RCW 9A.16.020(3). A person may also use necessary force to defend against trespass or malicious interference with real or personal property in their possession. RCW 9A.16.020(3); WPIC 17.02. 'Self-defense finds its basis in necessity and generally ends with the cessation of the exigent circumstances {that} gave rise to the defensive act.' State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993). Although actual danger need not be present, a defendant must show that aggressive or threatening behavior, gestures, or communication by the victim preceded the defendant's use of force in order to show that the defendant had reasonable grounds to believe there was imminent danger of great bodily harm. State v. Theroff, 95 Wn.2d 385, 390, 622 P.2d 1240 (1980); State v. Walker, 40 Wn. App. 658, 663, 700 P.2d 1168, review denied, 104 Wn.2d 1012 (1985). Homicide is justifiable when there is reasonable ground to believe that the victim intends to commit a felony or inflict great personal injury upon the slayer or a member of his or her family and there is imminent danger of such an act being accomplished. RCW 9A.16.050.
With this law in mind, we review the law pertaining to aggressor instructions. Aggression is not material when the victim uses lawful force, because the defendant has no right to respond with force. It is material when the defendant provokes the victim into using unlawful force. See State v. Brower, 43 Wn. App. 893, 901, 721 P.2d 12 (1986). When material, the element of aggression eliminates the defendant
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