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.
The defendant petitioned for review by the Washington Supreme Court. He argued he could use defense of property as an affirmative defense pursuant to RCW 9A.16.020. This statute allows the use of force to attempt to prevent “malicious interference with real or personal property lawfully in his or her possession…”
The no-contact order prohibited the defendant from having contact with the woman and from “[c]ausing or attempting to cause physical harm, bodily injury, [or] assault.” The Court found that allowing a defense of property defense would be inconsistent with the order and undermine the legislative intent to protect domestic violence victims. Furthermore, the order placed sole responsibility to ensure he did not violate the order on the defendant, so he did not have the authority to pursue his former girlfriend when he thought she took his phone. The Court held the defendant was not entitled to the jury instruction because his conduct violated the no-contact order.
Three justices concurred in result only, agreeing that the defendant was not entitled to the jury instruction but disagreeing that the no-contact order precluded a defense of property defense altogether. The concurring opinion stated that the defense would not rewrite no-contact orders to allow assaults because the defense would only serve to rebut the assault element of the charge. Since assault merely elevates the charge, a defendant would still face charges for gross misdemeanor violation of a no-contact order.
Like the appeals court, the concurring opinion found the defense inapplicable here because the property had allegedly already been taken. The concurring opinion reasoned that, pursuant to the statute, the defense no longer applied when “the interference with the defendant’s property is complete.” At that point, the defendant is no longer “preventing” or “attempting to prevent” interference with the property. After the interference is complete, force would be used in the recovery of the property rather than prevention of interference. Furthermore, the statute requires the property being defended to be lawfully in the possession of the person purporting to defend it.
It is important for anyone restrained by a no-contact order to understand how powerful the order is. Even if the person protected by the order steals or damages property, the best option is to call the police and not take matters into your own hands. Failure to comply with the order can result in serious criminal charges.
If you are facing a situation that may lead to a no-contact order, you need an experienced Washington civil protection order attorney on your side. Whether you are seeking an order or defending against one, we can help you protect your rights and ensure you understand what is required. Call Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation.
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