§ 28-1409 — Use of force in self-protection

Nebraska § 28-1409

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) Subject to the provisions of this section and of section 28-1414 , the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(2) The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.
(3) The use of such force is not justifiable under this section to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(a) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
(b) The actor has been unlawfully dispossessed of the property and is making a reentry or recapture justified by section 28-1411 ; or
(c) The actor believes that such force is necessary to protect himself against death or serious bodily harm.
(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
(5) Except as required by subsections (3) and (4) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.

Legislative History

Source: Laws 1972, LB 895, § 4; R.R.S.1943, § 28-836, (1975). Annotations: 1. Elements 2. Evidence 3. Jury instructions 4. Lawful force 5. Unlawful force 6. Miscellaneous 1. Elements A defendant's use of deadly force in self-defense is justified if a reasonable ground existed under the circumstances for the defendant's belief that he or she was threatened with death or serious bodily harm, even if the defendant was actually mistaken about the extent of the danger. State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011). To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of using force and the force used in defense must be immediately necessary and justified under the circumstances. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003). A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993). In order for the self-defense justification to be applicable, (1) the belief that force is necessary must be reasonable and in good faith, (2) the force must be immediately necessary, and (3) the force used must be justified under the circumstances. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990). The use of deadly force shall not be justifiable unless the actor believes such force is necessary to protect himself against death or serious bodily harm, nor is it justifiable if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter or the actor knows that he can not avoid the necessity of using such force with complete safety by retreating. State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986). While the violation of department policy may be evidence that the degree or nature of force used was unlawful, section 28-1413 ultimately requires the court to make a determination that the force used was not forbidden by section 28-1408 or this section. State v. Jackson, 26 Neb. App. 727, 923 N.W.2d 97 (2019). When one is attacked within one's dwelling, the right to defend oneself and the privilege of nonretreat should apply equally, regardless of whether the attacker is a cohabitant or an unlawful entrant. State v. White, 20 Neb. App. 116, 819 N.W.2d 473 (2012). Pursuant to subsection (4)(a) of this section, to deprive a defendant of the defense of self‑defense, the defendant's provocation must be with the intent that the defendant will then cause death or serious bodily injury to the one that the defendant provoked, and it must all occur in the same encounter. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001). 2. Evidence Under subsection (5) of this section, evidence of victims' violent or aggressive behavior which occurred 4 months after defendant shot them was not relevant to the circumstances as defendant believed them to be the night he shot them. State v. Allison, 238 Neb. 142, 469 N.W.2d 360 (1991). 3. Jury instructions A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998). Jury instruction requiring, as an element of self-defense, that "before using deadly force the defendant either tried to get away or did not try because he reasonably did not believe he could do so in complete safety," was not erroneous under this section. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992). A defendant is entitled to an instruction on self-defense if there is any evidence to support it; this is true even if the defendant does not testify. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990). A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983). Defendant is entitled to have jury instructed on his theory of self-defense if there is any evidence to support it. State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981). The defendant, who was charged with third degree domestic assault, testified that his girlfriend pushed him against a door and prevented him from leaving the residence. He then pushed the girlfriend off of him, causing her to fall and suffer an injury. The defendant was entitled to self-defense instruction, and any conflicting evidence was for the jury to decide. State v. Bedford, 31 Neb. App. 339, 980 N.W.2d 451 (2022). 4. Lawful force The policy underlying this section supports its application in situations where a suspect has resisted a pat-down search, even where that pat-down search is later found to be unconstitutional. State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). This section provides no defense when a defendant uses force against another's lawful force. State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990). Use of force was prohibited where person being arrested knew that arrest was being made by a peace officer. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987). The use of deadly force is justifiable when the actor believes that such force is necessary to protect himself or herself against death or serious bodily harm unless the actor knows that he or she can avoid the necessity of using such force with complete safety by retreating. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001). Pursuant to this section, if a defendant is justified in using force toward an individual, the defendant is justified in the force employed which mistakenly strikes the actual victim. State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999). 5. Unlawful force Record did not establish that victim used "unlawful force" against the defendant. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989). 6. Miscellaneous The excuse of self-defense is applied to the threatening behavior of "another person", not to a generalized group of actors. State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).