New Hampshire’s Proposed Stand your Ground Bill has Problems

Our New Hampshire NFA Gun Trust Attorney has send in some information on HB 160 and some potential problems.

1) The language

(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,  its curtilage, or in any place where he or she has a right to be, and was not the initial aggressor; or  

could defeat the purpose of the intended modification.  In order to avoid the risk, the “swelling” and “curtilage” language should 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, what if one is inadvertently in a place where the person does not have “a right to be” and defends ones self with deadly force, that person 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 means to change.

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.

(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. Physical Force in Defense of a Person. Amend RSA 627:4, to add new section IV (a) to read as follows:

3 Effective Date. This act shall take effect January 1, 2010.