by Douglas Ankney

The Supreme Court of Arizona held that the word “person” in the state’s self-defense justification statute, A.R.S. § 13-404(A), applies only to a defendant’s conduct, not the victim’s as well.

Jordan Christopher Ewer and two others confronted two people identified as “Gilbert” and “Emily.” Ewer drew his gun, and Emily threatened to hit him with a golf club. The two groups threw rocks at one another. Ewer and his companions backed away from the scene. Emily and Gilbert pursued them, and Ewer fired in their direction. Gilbert was struck in the back and died at the scene. Ewer was charged with second degree murder.

Prior to trial, Ewer requested the jury be instructed using the Revised Arizona Jury Instructions (“RAJI”) for justified use of deadly force in self-defense – RAJI 4.04 and 4.05; defense of a third person – RAJI 4.06; and crime prevention – RAJI 4.11. The State proposed that the word “defendant” in each of the instructions be replaced by the word “person.” The State argued that the jury could apply the justification instructions to Gilbert’s conduct as well as to Ewer’s. Over Ewer’s objection, the trial court obliged the State’s requested modifications to the jury instructions.  

In its closing argument, the State informed the jury that the justification instructions applied equally to the conduct of Ewer and Gilbert and that “if [Gilbert’s] conduct was lawful, then [Ewer] is not justified.” The jury convicted Ewer on all counts, and he appealed.

The Court of Appeals (“COA”) concluded that the justification presumptions do not apply to the victim’s conduct and the State’s argument applying them to the victim was improper. Finding that the error was not harmless, the COA reversed and remanded for a new trial.

The Arizona Supreme Court granted review because the issue is of statewide concern and likely to recur. The Court observed “§ 13-404(A) states that ‘a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect [one]self against the other’s use or attempted use of unlawful physical force.’” While A.R.S. § 13-105(30) defines “person” as a “human being” (which could refer to either a defendant or a victim), RAJI 4.04 states the defense applies to a “defendant,” the Court stated.

To resolve this inconsistency, the Court “considers the context of § 13-404(A) and related statutes on the same subject to properly discern the statutory definition.” See Molera v. Hobbs, 474 P.3d 667 (Ariz. 2020). The Court’s “task in statutory construction is to effectuate the text if it is clear and unambiguous.” BSI Holdings, LLC v. Ariz. Dep’t of Transp., 417 P.3d 782 (Ariz. 2018). To do so, the Court interprets “statutory language in view of the entire text, considering the context and related statutes on the same subject.” Molera. (Note: although not expressly stated by the Court, this is a canon of statutory construction known as “in pari materia,” i.e., on the same subject)

In the related justification statutes of Title 13 of Arizona Revised Statutes, Chapter 4, “the use of ‘person’ clearly reflects a focus on an individual accused of a crime and subject to criminal prosecution.” See §§ 13-401 to -403 to -411. Section 13-401(A) “makes clear that a ‘person[’s]’ conduct is only justified for certain crimes and the defense ‘is unavailable in a prosecution’ for other crimes.” Likewise, § 13-401(B) states “justification, as defined in this chapter, is a defense in any prosecution for an offense pursuant to this title.”

Similarly, §§ 13-402 to -403 and -405 to -411 all use the word “person” in the “common, contextual theme” of providing “a putative defendant in a criminal prosecution with the ability to lawfully use physical force to protect oneself or a third person from the threatened unlawful use of force by another person, as well as the ability to use force to prevent another person from committing certain enumerated crimes,” the Court explained. Finally, A.R.S. § 205(A) states in pertinent part “if evidence of justification pursuant to [A.R.S. §§ 13-402 to -421] is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification.”

The Court determined from the context of the related statutes that the word “person” refers to a criminal defendant and not to a victim. Consequently, the Court concluded “because ‘person’ in § 13-404(A) applies to a defendant in a criminal prosecution, the trial court erred when it modified the standard RAJI justification instructions.”

The Court found additional error, stating “the prosecutor’s argument to the jury that ‘if [Gilbert’s] conduct was lawful, then [Ewer] is not justified’ was incorrect as a matter of law. Even if the victim’s conduct is justified, the defendant could still reasonably but mistakenly believe that use of force against the victim was necessary,” explained the Court. A.R.S. § 13-204(A)(2).

The Court concluded that the COA reached the right conclusion but had done so by relying on State v. Abdi, 248 P.3d 209 (Ariz. Ct. App. 2011). The Court disagreed with Abdi because the Abdi Court improperly relied on the legislative history in its interpretive analysis, which isn’t considered when the proper “legal interpretation can be determined from the plain statutory text and the context of related statutes.” See SolarCity Corp. v. Ariz. Dep’t of Revenue, 413 P.3d 678 (Ariz. 2018).  

Accordingly, the Court vacated paragraphs 17-21 of the COA’s opinion, reversed the trial court’s judgment, and remanded to the trial court for proceedings consistent with its opinion and the remainder of the COA’s opinion including vacatur of Ewer’s convictions and hold a new trial. See: State v. Ewer, 523 P.3d 393 (Ariz. 2023).