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Lawyers agree that residents have rights on lethal force

Staff Report
December 09. 2012 2:09AM

New Hampshire deadly force law
The law regarding the use of deadly force in self-defense is RSA 627:4:II. It states:
"A person is justified in using deadly force upon another person when he reasonably believes that such other person:
(a) Is about to use unlawful, deadly force against the actor or a third person;
(b) Is likely to use any unlawful force against a person present while committing or attempting to commit a burglary;
(c) Is committing or about to commit kidnapping or a forcible sex offense; or
(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."

The law also states that merely displaying a firearm in response to "a threat which would be considered by a reasonable person as likely to cause serious bodily injury or death to the person or to another" is not a criminal act.

At a community meeting in Bedford Thursday, a resident asked the police chief under what circumstances a resident could use lethal force against a burglar.

"Say you're asleep, you hear a noise, glass breaks, you hear somebody in there, you know they don't belong," said the resident, who didn't provide his name. "Are you expected to ascertain whether they're armed if you have the ability to take them out legally?"

Joking that he's not a lawyer but has been accused of being one, Chief John Bryfonski sidestepped the question, saying it's inappropriate for him to provide a legal opinion.

"The RSA is there," Bryfonski said. "I think that folks should read it. Understand it. If they don't fully understand the aspects of the use of force or deadly physical force by a civilian . . . then you should seek your own legal guidance."

The meeting was called a week and a half after an assault at an upscale Bedford home. Dr. Eduardo Quesada and his wife, Sonia, were both hurt in the attack, which occurred after they entered their home. Quesada, an anesthesiologist at Elliot Hospital in Manchester, was in critical condition and remains hospitalized. His wife was released last week.

Citing crime data, Bryfonski said Bedford is the second-safest town in the state. But the home invasion has some residents on edge. A Wallace Road resident who lives a stone's throw from the Quesada house expressed fears on Monday.

"The only thing I got is my right to bear arms," said the man, who asked that his name not be used, "and I've been sticking to that heavily."

State law says deadly force may be used if another person is about to commit a kidnapping, rape, or use any unlawful force in the commission of a felony against the victim.

Chichester-based Attorney Mark Sisti said if someone breaks into a house, a felony has already been committed. "You can reasonably believe . . . you have the right to utilize deadly force," he said. "Oh yes you do.

"You don't have to negotiate with a burglar. And you're under absolutely no duty to run in your own home."

Sisti represented Moultonborough farmer Ward Bird, whose sentence was commuted in early 2012 following a conviction for threatening with a deadly weapon. Asked whether he himself owns a firearm, Sisti said, "I think just about everybody in the state of New Hampshire does. It's a common thing."

Concord attorney Penny Dean, an advocate of gun rights, said she cautions people that the problem isn't the law, it's police and prosecutors interpreting the law.

"When you get arrested, you get to raise it as a shield at trial. But the Legislature intended this for you to not be arrested in the first place," she said. "I tell people that, yes, you can defend yourself in this state. But you'd better be ready to defend yourself in court, too."

Dean said the interpretation of the use of deadly force by prosecutors is often inconsistent and often sides with criminals rather than with people defending themselves. She said police, prosecutors and judges seem to want people, in the throes of a panicked situation, to make rational, calm decisions while being attacked.

"If you see someone with a knife in your house, they want you to reasonably determine if he's going to kill you or just cut you," she said. "Do you want to sit there and debate it with (the attacker)?"

The problem, she said, is that the presence of an arrest is a stain on a person's reputation, even if they are acquitted.

"There's a financial cost and a social cost," she said. "Think about it. Would you like to not be charged? Or are you fine with saying, 'Oh, I can just raise this at trial?'"

She said she has defended "innocent" people who are asked by police why they were in a certain place or acted the way did, rather than focusing on the person who broke into the house to begin with. She likened today's use of home defense laws to how rape victims decades ago "were asked why they were walking in a certain area or dressed a certain way. They're blaming the victim instead of blaming the criminal who attacked the victim."

But Sisti said the perception has to be somewhat reasonable in order to be protected by the law. "Just because somebody's on your property to do a legitimate thing doesn't give you the right to shoot them."

"If a little kid selling brownie cookies comes to your door and knocks and it's 7 at night and you didn't invite them, but the kid is there for innocent reasons on your property, you may not want her there, that doesn't give you the right to display a firearm or use threats to keep them off the property," he said. "But if at 7 p.m., your door is busted open by an unknown human being that you didn't invite, you can reasonably come to the conclusion that you are in harm's way."

Dean agreed.

"Is Hulk Hogan being attacked by a grandmother who can barely walk and has a screwdriver saying she's going to poke him in fear for his life? Maybe not," she said. "But what about the grandmother encountering three young punks holding screwdrivers?"

But the Bird case resulted in a law that removes the mere display of a firearm from the definition of criminal threatening.

Some home defense enthusiasts believe in shooting to kill, given the inability of a dead person to sue. Sisti said if guns are used properly, then there shouldn't be a problem of a civil lawsuit.

"In all honesty, that's just silly stuff," he said. "This isn't the Wild West, this isn't Crazyville. Firearms are for people to protect themselves, you don't have to flaunt them."

Greg Dupont served 10 years in the Army and works as a security guard in Nashua. He said the right to defend oneself against imminent harm is unequivocal, "whether or not the lethal force is a roll of dimes wrapped in hockey tape, something sharp and pointy tucked into the thoracic cavity, or a couple of .38 hollow points."

Though he keeps multiple weapons within reach of his bed, he said resorting to violence is a last resort.

"Behave yourself and respect others," Dupont said. "You're probably going to go further than if you didn't."

"There is no black and white, every scenario has to be analyzed through the lens of reasonableness," Sisti said. "I know people want to know a bright line. There isn't such a bright line on the extreme ends."

Union Leader Correspondent Simn Ros and Staff Writers Timothy Buckland and Bill Smith contributed to this report.

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