The Volokh Conspiracy

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Arkansas Law Allows Deadly Force Against "Pattern of Domestic Abuse"


I recently came across this, and thought it was worth noting.

[1.] Generally speaking, you can use deadly force against unlawful attack if you reasonably believe this is needed to avoid the risk of death, serious bodily injury, rape, or kidnapping. In many states, you can also defend against robbery, burglary, or arson. (In other states, you'd need to show that you were reasonably concerned that the robbery, burglary, or arson would pose the risk of death, serious bodily injury, rape, or kidnapping—likely easy in some cases, harder in others.)

[2.] When you're only reasonably worried about lesser harms—such as threats to property (e.g., from theft or trespass) or less serious physical assaults, you can use nondeadly force to defend yourself but generally not deadly force. You can't use deadly force to defend yourself against a slap or a punch, unless you reasonably fear it will lead to serious bodily injury.

[3.] But Arkansas law has an unusual feature, indeed perhaps a unique one, enacted in 1997 (emphasis added):

(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:

(1) Committing or about to commit a felony involving force or violence;

(2) Using or about to use unlawful deadly physical force; or

(3) Imminently endangering the person's life or imminently about to victimize the person as described in 9-15-103 from the continuation of a pattern of domestic abuse.

9-15-103(3) "Domestic abuse" [includes] … [p]hysical harm, bodily injury, assault [= purposely created apprehension of imminent physical injury, defined to include impairment of physical condition, infliction of substantial pain, or infliction of bruising, swelling, or a visible mark associated with physical trauma], or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members [including people in a dating relationship, as well as persons related by blood within the fourth degree of consanguinity, and persons who presently or in the past have resided or cohabited together] ….

This isn't limited to domestic abuse that has involved serious bodily harm in the past. It's not limited to spouses or lovers. In principle, it could allow deadly force in a fight between brothers or cousins (or perhaps even just former roommates) who have gotten in "a pattern of" fights in the past, so long as bruises or intended bruises were involved. Likewise, a man could use deadly force if his wife has had a pattern of slapping him in the past (leaving "a visible mark"), and appears ready to do that now (and same with the sexes reversed).

Doesn't seem quite right to me, but in any event it's an interesting and unusual provision, so I thought I'd mention it.