Self Defense Laws

 

~ It's not surprising that most people do not know the self-defense and defense of property laws, and when you can legally use force up to and including deadly force in the state of Utah. It's not something an average citizen knows, but it is something that is very important to know. ~

Disclaimer

Content on this page is copyrighted and is being used with expressed permission from Author and Attorney Mitch Vilos, from his book Self-Defense Laws of All 50 States: 2nd Edition. No information contained herein can be used without prior authorization from the Author.

This is the ONLY place you can find the entire Utah chapter (pages 389 to 400) of this book online. It is very important to purchase his book and read it. Especially information covered in Chapters 3, 4 and 7 which talk about legal traps.

** Laws have changed since the publication of this book (2013). Because it is important to know, we have also included the current law.

The legislature has made changes to Utah’s self-defense laws in 2011 and early 2012.
[Before 2012, Utah’s civil immunity statute may have been the most protective in the nation. Now it is hands down the most protective. Before this year’s amendment, a person injured or killed by someone defending his home or property could recover civil damages if he proved he was “clearly retreating” and “had not committed a felony.” Now, the injured person or his heirs, if he was killed, must prove that he wasn’t committing any crime when injured. Stated another way, a person who is injured or killed committing a crime cannot recover civil damages against a person defending life or property. Nevertheless, like under the old law, if the injured person ceases all criminal activity and is “clearly retreating,” when he gets shot in the back of the head at 800 yards by your 45-90, either he or his heirs will probably be able to sue you.

Warning!: Just because you can’t be sued by someone committing a crime, doesn’t mean you can’t be prosecuted for murder!
Example: You whack a 4 year old stealing your kid’s tricycle. Under this new law, barring any constitutional challenges, you can’t be sued. However, killing someone over a trike is murder. You WILL be prosecuted. Furthermore, just because the civil liability immunity statute protects you from civil lawsuits, doesn’t mean that a court can’t force you to pay full restitution under the criminal laws of the state.

The bold in the body of the bill shows this year’s additions to the statute and the strikeouts show what was deleted.]

WARNING! As of right now, these new statutes have not been tested in the courts of this state. The Courts don’t always uphold what legislatures enact. You DON’T want to be THE “test case.” For the most part, Utah's lawmakers have refused to disarm or tie the hands of the innocent so that they cannot defend themselves. Utah is the only state that has unequivocally established the right of public school teachers with concealed firearm permits to carry concealed weapons in class, from kindergarten through college, to protect themselves and their students. Self-reliance and trusting law-abiding citizens are two values that pervade Utah's self-defense laws making them among the most protective in the country.

Key:          §     Commentary           §     Original statute, case, or jury instructions


[ Defense of Self and Others ]
UTAH CODE ANNOTATED § 76-2-402 Force in defense of person - Forcible felony defined

[ Non-Deadly Force ]
(1) (a) A person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person against another person's imminent use of unlawful force. [ This first sentence applies to the use of non-deadly force. You can use as much non-deadly force as reasonably necessary to stop the progression of unlawful force against you or another person ]

[ Deadly Force ]
(1) (b) A person is justified in using force intended or likely to cause death or serious bodily injury only if the person reasonably believes that force is necessary to prevent death or serious bodily injury to the person or a third person as a result of another person's imminent use of unlawful force, or to prevent the commission of a forcible felony. [ You can’t use deadly force unless you reasonably believe there is an immediate threat of being seriously injured or killed. You may also use deadly force to prevent (but not avenge) the commission of a forcible felony. Forcible felonies are defined below. This applies as well to defense of third persons. ]

[ Exceptions to Justifiable Self-Defense ]
(2) (a) A person is not justified in using force under the circumstances specified in Subsection (1) if the person: [ you cannot claim self defense if you . . . ]

[ Provocation ]
(i) initially provokes the use of force against the person with the intent to use force as an excuse to inflict bodily harm upon the assailant;
[ provoke someone so you can have an excuse to hurt them . . . ]

[ Committing Felony or Unlawful Act ]
(ii) is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or [ you're committing a felony, like an armed robbery, duh! ]

[ Initial Aggressor ] [ Combat by Agreement ]
(iii) was the aggressor [ you started it ] or was engaged in a combat by agreement, [ “meet me behind Wal-Mart at high noon!.” ], unless

[ Exception to the Exceptions ]
the person withdraws from the encounter and effectively communicates to the other person his intent to do so [ “Hey, I didn’t mean it, I’m sorry, I'm now retreating, pleeeeeeze let me go in peace.” ] and, notwithstanding, the other person continues or threatens to continue the use of unlawful force.

(b) For purposes of Subsection (2)(a)(iii) the following do not, by themselves, constitute "combat by agreement"
(i) voluntarily entering into or remaining in an ongoing relationship; [ Marrying or living with that violent bum (your parents warned you  was a creep!) doesn’t make it combat by agreement. However, our research tends to show that when you put the worthless dopebag out of his misery while he's sleeping or in a drunken stupor, you will almost ALWAYS be arrested and prosecuted and probably convicted of something, manslaughter, if not murder. ] or

(ii) entering or remaining in a place where one has a legal right to be. [ It’s not combat by agreement just because you didn’t retreat from a place you have the right to be like your place, the grocery store, mall, on a public street. ]

[ No Duty to Retreat ]
(3) A person does not have a duty to retreat from the force or threatened force described in Subsection (1) in a place where that person has lawfully entered or remained, except as provided in Subsection (2)(a)(iii). [ You don’t have to retreat unless you provoked the fight, are committing a felony or dueling by agreement. ]

[ Use of Deadly Force to Prevent Serious Felonies ]
(4) (a) For purposes of this section, a forcible felony includes aggravated assault, mayhem, aggravated murder, murder, manslaughter, kidnapping, and aggravated kidnapping, rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a child, aggravated sexual abuse of a child, and aggravated sexual assault as defined in Title 76, Chapter 5, Offenses Against the Person, and arson, robbery, and burglary as defined in Title 76, Chapter 6, Offenses Against Property.

(b) Any other felony offense which involves the use of force or violence against a person so as to create a substantial danger of death or serious bodily injury also constitutes a forcible felony.

(c) Burglary of a vehicle, defined in Section 76-6-204, does not constitute a forcible felony except when the vehicle is occupied at the time unlawful entry is made or attempted.
[ If your assailant(s) is (are) doing any of these things (except burglary of a non occupied vehicle), you can defend yourself or others with deadly force. See definitions below. Keep in mind that although you can use deadly force to STOP the progression of a sexual assault on a child, you may NOT legally use deadly force to AVENGE the sexual abuse of a child. ]

(5) In determining imminence or reasonableness under Subsection (1), the trier of act may consider, but is not limited to, any of the following factors:
(a) the nature of the danger; [ did assailant have an AK-47 or a chalk eraser? ]

(b) the immediacy of the danger; [ man pointing a gun at you (immediate danger) or knife at 100 yards (not so immediate)? ]

(c) the probability that the unlawful force would result in death or serious bodily injury; [ 98 pound Elvis impersonator threatening to slap you with the palm of his hand for helping to fund California’s Proposition 8 (improbable serious injury) versus a 350 pound muscle-bound professional wrestler swearing an oath to crush you with the barbers chair he just ripped out of the floor for brushing up against his tattoo with a permanent marker (probable injury or death). ];

(d) the other's prior violent acts or violent propensities [ although this clause seems to suggest you would have to know about your assailant’s violent traits, at least one clever Utah attorney has used it to introduce the assailant’s criminal record into evidence to show that the assailant criminal was likely the aggressor where there was no independent eye witness. The court allowed this even though the defendant could not have known of the victims' violent tendencies because he didn’t know them from Adam. However, the court also instructed the jury that this evidence could only be used in helping them decide “who started it,” NOT whether defendant believed he was facing an imminent threat. ]; and

(e) any patterns of abuse or violence in the parties' relationship. [ the abusive relationship – again, this almost always results in at least arrest and prosecution UNLESS the abused gets OUT of the relationship, OUT of the same household AND he attacks her in HER OWN NEW HOME! She should report to the police EVERY act of abuse or threat of abuse in the past and get a court order telling him to stay the HECK away from her and off the premises of her new home. Only then do the favorable presumptions take effect as she defends her “habitation” (see discussion below). ]

** Utahcarrylaws addition - Law Changed On 5/14/2019

76-2-402. Force in defense of person -- Forcible felony defined.
(1) As used in this section:
(a) "Forcible felony" means aggravated assault, mayhem, aggravated murder, murder, manslaughter, kidnapping and aggravated kidnapping, rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a child, aggravated sexual abuse of a child, and aggravated sexual assault as defined in Title 76, Chapter 5, Offenses Against the Person, and arson, robbery, and burglary as defined in Title 76, Chapter 6, Offenses Against Property.
(b) "Forcible felony" includes any other felony offense that involves the use of force or violence against an individual that poses a substantial danger of death or serious bodily injury.
(c) "Forcible felony" does not include burglary of a vehicle, as defined in Section 76-6-204, unless the vehicle is occupied at the time unlawful entry is made or attempted.
(2) (a) An individual is justified in threatening or using force against another individual when and to the extent that the individual reasonably believes that force or a threat of force is necessary to defend the individual or another individual against the imminent use of unlawful force.
(b) An individual is justified in using force intended or likely to cause death or serious bodily injury only if the individual reasonably believes that force is necessary to prevent death or serious bodily injury to the individual or another individual as a result of imminent use of unlawful force, or to prevent the commission of a forcible felony.
(3) (a) An individual is not justified in using force under the circumstances specified in Subsection (2) if the individual:
(i) initially provokes the use of force against another individual with the intent to use force as an excuse to inflict bodily harm upon the other individual;
(ii) is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony , unless the use of force is a reasonable response to factors unrelated to the commission, attempted commission, or fleeing after the commission of that felony ; or
(iii) was the aggressor or was engaged in a combat by agreement, unless the individual withdraws from the encounter and effectively communicates to the other individual the intent to withdraw from the encounter and, notwithstanding, the other individual continues or threatens to continue the use of unlawful force.
(b) For purposes of Subsection (3)(a)(iii) the following do not, alone, constitute "combat by agreement":
(i) voluntarily entering into or remaining in an ongoing relationship; or
(ii) entering or remaining in a place where one has a legal right to be.
(4) Except as provided in Subsection (3)(a)(iii):
(a) an individual does not have a duty to retreat from the force or threatened force described in Subsection (2) in a place where that individual has lawfully entered or remained; and
(b) the failure of an individual to retreat under the provisions of Subsection (4)(a) is not a relevant factor in determining whether the individual who used or threatened force acted reasonably.
(5) In determining imminence or reasonableness under Subsection (2), the trier of fact may consider:
(a) the nature of the danger;
(b) the immediacy of the danger;
(c) the probability that the unlawful force would result in death or serious bodily injury;
(d) the other individual's prior violent acts or violent propensities;
(e) any patterns of abuse or violence in the parties' relationship; and
(f) any other relevant factors.

** End Change

[ Threatening Deadly Force ]
U.C.A. § 76-10-506 Threatening with or using dangerous weapon in fight or quarrel

(1) As used in this section, "threatening manner" does not include:

(a) the possession of a dangerous weapon, whether visible or concealed, without additional behavior which is threatening; or

(b) informing another of the actor's possession of a deadly weapon in order to prevent what the actor reasonably perceives as a possible use of unlawful force by the other and the actor is not engaged in any activity described in Subsection 76-2-402 (2)(a).

(2) Except as otherwise provided in Section 76-2-402 and for those persons described in Section 76-10-503, a person who, in the presence of two or more persons, draws or exhibits a dangerous weapon in an angry and threatening manner or unlawfully uses a dangerous weapon in a fight or quarrel is guilty of a class A misdemeanor.

(3) This section does not apply to a person who, reasonably believing the action to be necessary in compliance with Section 76-2-402, with purpose to prevent another's use of unlawful force:

(a) threatens the use of a dangerous weapon; or

(b) draws or exhibits a dangerous weapon.

[ § U.C.A. 76-10-506 was amended during the 2010 session of the Utah legislature and became effective on May 11. The changes simply clarify existing law. Carrying a firearm on your hip is not a threat; it’s simply cowboy. Informing someone you have a gun is not a crime unless you start a fight or agree to fight as described in Utah’s self-defense statute. A concealed firearms permit holder who accidentally displays his gat when reaching for the Doritos on the top self at Smith’s is not committing a crime. ]

[ This law allows a citizen under some circumstances, to draw his gun, and threaten deadly force if necessary to prevent a simple assault. It does NOT, however, allow you to shoot at or shoot an unarmed person. The concept of reasonable and necessary applies to this law because of the reference to Utah’s self-defense statute, § U.C.A. 76-10-402 above. If you threaten someone with a deadly weapon for foolish reasons, you will be prosecuted. Examples would be when a person cuts in front of you at a jazz game entrance or some kid trespasses on your lawn to retrieve his soccer ball. Although, in our opinion, Utah law has always permitted a reasonable and necessary threat of deadly force to prevent a simple assault, police and prosecutors have almost NEVER believed it. Those who have drawn firearms on unarmed assailants have either been charged with brandishing or, if the weapon was pointed at the assailant’s body, with aggravated assault, a felony. We suspect it will take a long time for police and prosecutors to swallow this concept. It will be several years before this law is interpreted by the Utah Supreme Court. Don’t become the first ten test cases unless you want to contribute heavily to the Utah Criminal Defense Attorney Hawaii Vacation Fund. ]

** Utahcarrylaws addition - Law Changed On 5/14/2019

76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
(1) As used in this section:
(a) "Dangerous weapon" means an item that in the manner of its use or intended use is capable of causing death or serious bodily injury. The following factors shall be used in determining whether an item, object, or thing is a dangerous weapon:
(i) the character of the instrument, object, or thing;
(ii) the character of the wound produced, if any; and
(iii) the manner in which the instrument, object, or thing was exhibited or used.
(b) "Threatening manner" does not include:
(i) the possession of a dangerous weapon, whether visible or concealed, without additional behavior which is threatening; or
(ii) informing another of the actor's possession of a deadly weapon to prevent what the actor reasonably perceives as a possible use of unlawful force by the other and the actor is not engaged in any activity described in Subsection 76-2-402(3)(a).
(2) Except as otherwise provided in Section 76-2-402 and for an individual described in Section 76-10-503, an individual who, in the presence of two or more individuals, and not amounting to a violation of Section 76-5-103, draws or exhibits a dangerous weapon in an angry and threatening manner or unlawfully uses a dangerous weapon in a fight or quarrel is guilty of a class A misdemeanor.
(3) This section does not apply to an individual who, reasonably believing the action to be necessary in compliance with Section 76-2-402, with purpose to prevent another's use of unlawful force:
(a) threatens the use of a dangerous weapon; or
(b) draws or exhibits a dangerous weapon.
(4) This section does not apply to an individual listed in Subsections 76-10-523(1)(a) through (f) in performance of the individual's duties.

** End Change

[ Defense of Special Places – Habitation ]
U.C.A. § 76-2-405 Force in defense of habitation

[ "Habitation" is not defined in this chapter but it is defined in Chapter 6 of the Utah’s Criminal Code which states, "for the purpose of this chapter (meaning chapter 6 not chapter 2) ‘Habitable structure’ means any building, vehicle, trailer, railway car, aircraft, or watercraft used for lodging or assembling persons or conducting business whether a person is actually present or not,” It’s unclear whether a definition expressly intended for one chapter in the Utah Code is binding in another chapter. A similar Georgia statue also defines habitation as including vehicles and workplaces. Ga Code 16-3-24.1. It's these kinds of unanswered questions that burn the money of the people whose cases have to be appealed. However, we certainly concluded that “habitation” means your home or temporary home. ]

(1) A person is justified in using force against another when and to the extent that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if:

(a) the entry is made or attempted in a violent and tumultuous manner, surreptitiously, or by stealth [ e.g., breaking or sneaking into your house ], and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence [ notice that this only requires a reasonable fear of an “assault” or “personal violence” rather that “force likely to cause serious bodily injury or death.” ] to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence; or [ Under the general self-defense statute, before deadly force can be used, you must be facing an imminent threat of serious bodily injury, death, or a forcible felony (see self-defense statute 76-2-402, above). In your own home, you are only required to have a reasonable fear of being assaulted (a threat accompanied by an immediate show of force, such as when someone raises a fist at you or approaches you with no weapon, but threatens to hurt you). Fortunately, the law doesn’t require you to make the fine distinction whether your attacker’s intent is to harm you severely or slightly; any reasonable fear of harm justifies the use of deadly force on your part in your home. We would argue vigorously that any intruder in your home who refuses to show his empty hands immediately upon command or keeps coming at you despite your command to, “Stop right there!” creates an immediate fear of assault or personal violence in the mind of any reasonable person. ]

(b) he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.

[ Notice, section (b) purports to not require a forcible felony like in the general self-defense statute, but rather any felony is enough. This is what it says, but beware of the "caution" in chapter 4 under the heading "Use of Deadly Force to Prevent Serious Felonies." In that section we cautioned you about the Supreme Court case Tennessee v. Garner which held that the state statute permitting the use of deadly force to apprehend unarmed, non-dangerous suspects was unconstitutional. Since then at least a couple of states have held their "fleeing felon" statutes do not give a person the right to use deadly force against an unarmed, non-dangerous felon committing a non-violent felony. This portion of Utah's "defense of habitation" statute is somewhat different than the statutes in the states just referred to. However if a person is in your home committing a non-violent felony, and it is absolutely clear to you that this person is not there to hurt anyone, you should not use deadly force. For example, you catch a burglar about to walk out your front door with your new LCD flat screen. He is wearing a swimsuit so you know he is unarmed. He weighs 120 pounds soaking wet and when he sees your Winchester 1300 defender with heat shield and pistol grip, he drops the TV, gets on his knees and begs you not to kill him, holding his hands high in the air showing you he has no weapon. You recognize him as the fifteen-year old kid who lives two houses down from you. Are you going to test the ballistics of your new 12 gauge rifled slugs or are you going to hold him for the police? If he panics and bolts, are you going to shoot him in the back as he runs out the door without the LCD? If you do, you will spend 50 times more than your LCD is worth, paying attorneys to defend you in the criminal and civil cases brought against you. You would probably be convicted of murder under those facts. ]

[ This section does not require a violent or secretive entry or the use of a dangerous weapon by the assailant. Deadly force is justified if (1) you reasonably believe the entry is for the purpose of committing a felony involving force or violence, and (2) the force you use is necessary to prevent the commission of the crime. ]

[ Presumption of Reasonableness in Special Places ]
(2) The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of  committing a felony.

[ If a guy who resembles Jack Nicholson thrusts a shining ax through your front door with an “I’m home” look on his face, cackling like the Joker, you would probably be justified in pumping enough .357’s into his diabolical presence to knock him off the porch and onto your front sidewalk. Would you have to drag his bloody corpse back onto your interior white carpet to prove justification? NO! Notice the statute says, “entry made or attempted.” You don't need to haul an appropriately-dealt-with felon into your home after you ventilate his bad-boy bod during an attempt. You think CSI wouldn’t notice the “skid marks” on your textured white Saxony anyway? That would be tampering with evidence, a felony in and of itself. It would suggest a guilty conscience. Don’t EVER tamper with the evidence!

Now let's suppose “Jack” makes it into your living room before your fourth shot severs his spinal cord above the arms and he is lying helplessly, paralyzed from the neck down screaming how he is going to, “Sue yer @#*@##,” that he is going to tell the cops you shot him on the public sidewalk, and only then did he attack you with the ax to try to defend himself – “You started it!” Dead men tell no tales - Right? Well, yes, but WRONG ANSWER! Notice the statute says, “force necessary to prevent the assault or felony.” He's down and helpless. At this point you have prevented the commission of any assault or felony and any ADDITIONAL force would be considered EXCESSIVE FORCE. Let CSI do their job and they will prove he is lying about what happened. If there is conflicting evidence like this – he says, you say – you won’t be able to talk your way out of an arrest. If you try to, you may very well talk your way right into prison. Shut up and let your lawyer handle it from that point on. Tell the police that you would like to talk to them, but you would like to talk to a lawyer first. If they persist, politely tell them it is improper for them to try and question you now that you have asserted your right to council. Please read Chapter 14, carefully, Statements Made after a Defensive Incident.

If you execute someone to prevent them from testifying, you will have committed murder, obstructing justice and probably fifteen other heinous crimes that will insure your residence at the Big House adjacent to Widow Maker Mountain (uh, which is closer to Brokeback Mountain than most of us want to think.) The law does NOT give you justification to kill or execute (even though the ocular cavity “failure drill” shot is almost 99.9999% likely to kill). The law only gives you authority to STOP THE PROGESSION of deadly force. Once the deadly threat is no longer present, you must halt your use of deadly force. Comprehende?

Finally, while reading EVERY self-defense law in the country, we discovered that the two states, Nevada and Georgia, have nearly identical phrase to Utah's home defense statute that reads, ". . . assaulting or offering personal violence to any person, dwelling, or being in the habitation . . . ." Nevada and Georgia's laws leave out the comma between "person" and "dwelling" which changes the meaning considerably. The statutes of those two states only allow you to use deadly force in defense of a person dwelling or being in the habitation (presumably living in or visiting). The Utah statute purports to justify the use of force in defense not only persons but the dwelling and "beings" as well. "Being" is not defined in the Justification section of the code. Its dictionary definition includes "something that actually exists." Does this mean you can use deadly force to prevent an assault on your cactus plant, your dog? If you do, you will be inviting a district attorney to prosecute you for murder in order to "clarify the law." But we'd rather have the comma than not; it gives your attorney an additional possible defense, "he was defending his purebred Collie puppies!" We'll refer to it as our "warm, fuzzy defense." ]

[Defense of Persons on Real Property ]
U.C.A. § 76-2-407 Deadly force in defense of persons on real property.

[ This statute relating to the defense of persons on real property has wording similar to the home-defense statute and was undoubtedly passed to expand the legal protection of the home-defense statute to the borders of your real estate. CAUTION: IT HAS NEVER BEEN INTERPRETED by an appeals court as of this time and there is nothing exactly like this in any other state. YOURS could be the first American-dream-ruining test case if you pop a person like a prairie dog at 400 yards for jumping your perimeter fence with a Howa on his Honda. Contrary to what some uninformed souls may believe, this statute DOES NOT give justification to shoot persons simply trespassing. Acting on the threat “Trespassers will be shot; survivors will be prosecuted!” is a sure-fired pass to Purgatory (if you live near St. George)! ]

(1) A person is justified in using force intended or likely to cause death or serious bodily injury against another in his defense of persons on real property other than his habitation if:

(a) he is in lawful possession of the real property;

(b) he reasonably believes that the force is necessary to prevent or terminate the other person's trespass onto the real property; [ We wonder if the hapless defendant in the Fillmore case (Chapter 2) who allegedly told his X-girlfriend that he could "kill trespassers" was mislead by this subsection? He denied saying this, but if he believed it, he certainly was not aware of the other conditions in (c) and (d) that had to be met. By following the two young men down the road, away from the cabin community, there could not have possibly been a reasonable belief that the use of deadly force was necessary to prevent an assault or offer of personal violence on anybody's real property; the two kids were on a public road at the time of the shooting! ]

(c) the trespass is made or attempted by use of force or in a violent and tumultuous manner; and [ but notice there is an “and” here which means all four  elements, (a) - (d) must apply before a person can use deadly force in defense of persons on real estate. ]

(d) (i) the person reasonably believes that the trespass is attempted or made for the purpose of committing violence against any person on the real property and he reasonably believes that the force is necessary to prevent personal violence; or

[ Paragraph (1) is probably the most expansive provision of this code section. It allows you to use deadly force against a trespasser who poses an imminent threat of “personal violence” to someone on the real estate. This is clearly a lower threshold than the requirement in the self-defense statute (402) and paragraph (1)(d)(ii) below, both of which require an imminent threat of death or serious bodily injury or a forcible felony. So your daughter’s boyfriend drives his monster truck through your wrought iron gate and text messages the threat that he is coming to spank her butt black and blue for dating another guy. Does that mean you can drill his hulking haunches with your new Barrett .50 BMG as his big wheels cross the creek over the bridge between the white-fenced corral and the thoroughbred stables? I guess we will have to wait to find out, but in the meantime, mortgage the farm and the horses before you give me a call to defend your case. I'll remain concerned about the potential impact on the jury of the crime scene photos and whether the use of a Barrett was necessary. IKNOW, he didn't suffer! ]

(ii) the person reasonably believes that the trespass is made or attempted for the purpose of committing a forcible felony as defined in Section 76-2-402 that poses imminent peril of death or serious bodily injury to a person on the real property and that the force is necessary to prevent the commission of that forcible felony.

(2) The person using deadly force in defense of persons on real property under Subsection (1) is for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the trespass or attempted trespass is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or for the purpose of committing a forcible felony.

U.C.A. § 76-2-406 Force in defense of property
[ You can’t use deadly force to protect your property like you can to protect persons ON your property. Although arson and burglary could technically be called property crimes, the justification for the use of deadly force against these forcible felonies is the risk of harm to humans, not property. ]

(1) A person is justified in using force, other than deadly force, against another when and to the extent that the person reasonably believes that force is necessary to prevent or terminate another person's criminal interference with real property or personal property:
(a) lawfully in the person's possession;
(b) lawfully in the possession of a member of the person's immediate family; or
(c) belonging to a person whose property the person has a legal duty to protect.
(2) In determining reasonableness under Subsection (1), the trier of fact shall, in addition to any other factors, consider the following factors:
(a) the apparent or perceived extent of the damage to the property;
(b) property damage previously caused by the other person;
(c) threats of personal injury or damage to property that have been made previously by the other person; and
(d) any patterns of abuse or violence between the person and the other person.
[ You cannot use deadly force to protect property. I have had clients arrested for threatening deadly force to prevent a simple assault or to protect property. In all these cases the desired result was achieved. The “bad guy(s)” left without further trouble. And most of the people have “Squeaked by” with a dismissal, not-guilty verdict or misdemeanor. Nevertheless, attorney fees are NOT pretty (well, to me they stinketh not). This statute should be amended to make it clear that a person can defend his property by threatening deadly force as follows:

• [ A person is justified in threatening or using force, other than the use of deadly force. ]
[ Before 2012, Utah's civil immunity statute may have been the most protective in the nation. Now it is hands down the most protective. Before this year's amendment, a person injured or killed by someone defending his home or property could recover civil damages if he proved he was "clearly retreating" and "had not committed a felony." Now, the injured person or his heirs, if he was killed, must prove that he wasn't committing any crime when injured. Stated another way, a person who is injured or killed committing a crime cannot recover civil damages against a person defending life or property. Nevertheless, like under the old law, if the injured person ceases all criminal activity and is "clearly retreating," when he gets shot in the back of the head at 800 yards by your 45-90, either he or his heirs will probably be able to sue you. 

Warning!: Just because you can't be sued by someone committing a crime, doesn't mean you can't be prosecuted for murder! Example: You wack a 4 year old stealing your kid's tricycle Under this new law, barring any constitutional challenges, you can't be sued. However, killing someone over a tike is murder. You WILL be prosecuted. Furthermore, just because the civil liability immunity statute protects you from civil lawsuits, doesn't mean that a court can't force you to pay full restitution under the criminal laws of the state. ]

The bold in the body of the bill shows this year’s additions to the statute and the strikeouts show what was deleted. (this was as of 2010)

[ Civil Liability ]
U.C.A. § 78B-3-110 Defense to civil action for damages resulting from commission of crime.

(1) A person may not recover from the victim of a crime for personal injury or property damage if the person:

(a) the person entered the property of the victim or the victim's family with criminal intent and the injury or damage was inflicted by the victim or occurred while the person was on the victim's property; or

(b) the person committed a crime against the victim or the victim's family, during which the damage or injury occurred.

(2) The provisions of Subsection (1) do not apply if the person can prove by clear and convincing evidence that :(a) the person's actions did not constitute a felony; and crime.
(b) the person's culpability was less than the person from whom recovery is sought.

(3) Subsections (1) and (2) apply

(3) Subsection (1) applies to any next-of-kin, heirs, or personal representatives of the person if the person acquires a disability or is killed.

(4) Subsections (1), and (2), and (3) do not apply if the person committing or attempting to commit the crime has clearly retreated from the criminal activity.

[ Other Issues - Citizens Arrest ]

U.C.A. § 76-2-403 Force In Arrest
Any person is justified in using any force, except deadly force, which he reasonably believes to be necessary to effect an arrest or to defend himself or another from bodily harm while making an arrest. [ The “except deadly force” clause creates a vicious legal trap for anyone using a firearm when attempting to arrest someone committing a crime. If the person you are attempting to arrest pulls a weapon or refuses to stop when coming at you and you use deadly force, the police and prosecutor could point to this clause as a reason to put you in jail. For this reason, it is suggested you just call the police an avoid trying to make an arrest yourself. If your assailant pulls a weapon, yes, you have the Defense-of-persons statute above to point to. BUT the prosecutor can also point to this statute. When there is a conflict of statutes that can be applied, the case is ripe for arrest and prosecution. It will cost you a bundle. It is strongly recommended AGAINST going after a fleeing felon. Be a keenly observant witness and then let the police do their job. ]

[ Helpful Definitions Relating To Utah Self-Defense Statutes ]

• Bodily injury – [ means physical pain, illness, or any impairment of physical condition. ] U.C.A. § 76-1-601(3).

• Serious bodily injury – [ means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the  function of any bodily member or organ, or creates a substantial risk of death. ] U.C.A. § 76-1-601(11).

• Substantial bodily injury – [ means bodily injury, not amounting to serious bodily injury, that creates or causes protracted physical pain, temporary disfigurement, or temporary loss or impairment of the function of any bodily member or organ. ] U.C.A. § 76-1-601(12)

   Felonies Mentioned -

• Aggravated assault - [ Intentionally causing serious bodily injury or using a dangerous weapon likely to cause death or serious bodily injury. ] U.C.A. § 76-5-103.

• Aggravated kidnapping - [ Kidnapping while using a deadly weapon, holding someone for ransom. ] U.C.A. § 76-5-302.

• Aggravated murder - [ Killing another person under a host of aggravated circumstances defined in U.C.A. 76-5-202 including sexual assault of a child, killing for money, killing while kidnapping, poisoning, torturing, etc. ] U.C.A. 76-5-202

• Arson – [ Damaging, by fire or explosive, property of another or doing so with the intention of defrauding an insurer. ] U.C.A. § 76-6-102.

• Burglary – [ Entering or remaining unlawfully in a building or any portion of a building with the intent to commit a crime. ] U.C.A. § 76-6-202-204.5.

• Kidnapping – [ Everyone knows what this is. ] U.C.A. § 76-6-203.

• Manslaughter – [ Recklessly but not intentionally killing another. ] U.C.A. § 76-5-205.

• Mayhem – [ Cutting off or disabling a member of the body or slitting someone’s nose, ear or lip. ] U.C.A. § 76-5-105.

• Murder – [ Intentional killing of another person. ] U.C.A. § 76-5-203.

• Rape – [ When an actor has sexual intercourse without consent from the other person. This applies even if the actor is married to the victim. Caution: for the reasons described in the Domestic Abuse section above, if you claim you shot your husband because he raped you, you will still be arrested and vigorously prosecuted. ]

• Other Sex Crimes Related to Rape (non-consensual violent crimes)
[ The titles of the following sex crimes describe in sufficient detail the nature of the sicko crimes. The term “aggravated” usually means a weapon was used to commit the crime, the victim was seriously injured or was kidnapped: ]

• Forcible sodomy, U.C.A. § 76-5-403.
• Object rape, U.C.A. § 76-5-402.2.
• Object rape of a child, U.C.A. § 76-5-402.3.
• Sexual abuse of a child, U.C.A. § 76-5-404.1.
• Aggravated sexual abuse of a child, U.C.A. § 76-5-404.1
• Aggravated sexual assault, U.C.A. § 76-5-405.
• Rape of a child, U.C.A. § 76-5-402.1.
• Robbery – [ Taking or attempting to take personal property of another in his possession or immediate possession, against his will, by force or fear. ] U.C.A. § 76-6-301, 302

Disclaimer Reminder

Content on this page is copyrighted and is being used with expressed permission from Author and Attorney Mitch Vilos, from his book Self-Defense Laws of All 50 States: 2nd Edition. No information contained herein can be used without prior authorization from the Author.

This is the ONLY place you can find the entire Utah chapter (pages 389 to 400) of this book online. It is very important to purchase his book and read it. Especially information covered in Chapters 3, 4 and 7 which talk about legal traps.

You can purchase this book for $29.95 at most gun stores, on his website https://mitchvilos.com, and it's also available for $9.99 on Google Play and iTunes.

Keep up to date and get involved in discussions on his Facebook page.

 

For Legal Advice Contact

James D. "Mitch" Vilos

Concentrating In Personal Injury And Firearms Law