Violation of a Washington no-contact order is generally a gross misdemeanor. In some circumstances, however, it can be elevated to a class C felony if the violation includes an assault. Defense of property can be an affirmative defense to assault. The Washington Supreme Court has recently reviewed a case in which the defendant sought a jury instruction on defense of property as an affirmative defense to felony violation of a no-contact order.
According to the Court’s opinion, the defendant checked his car after thinking he saw someone near it. His phone and other items were missing. The defendant saw his former girlfriend walking down the street. There was a no-contact order prohibiting the defendant from coming near or having any contact with her at the time. He followed her and tried to take her purse to retrieve his phone. A witness testified to seeing a man hit a woman, then lift her off the ground and slam her back down. According to the appeal court’s opinion, the defendant denied hitting her.
The defendant was charged with felony violation of a no-contact order predicated on assault. He requested a jury instruction on defense of property. The judge, however, found he “was acting offensively, not defensively…” and was not entitled to the instruction. The jury convicted the defendant, and he appealed, arguing he had been improperly denied the jury instruction. The appeals court affirmed, finding the defendant was not entitled to the defense because he used force to try to recover the property, not prevent its theft.