LB1269 LB1269
2024 2024
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 1269
Introduced by Hardin, 48; Albrecht, 17; Bostelman, 23; Brewer, 43;
Clements, 2; DeKay, 40; Erdman, 47; Halloran, 33; Hansen,
16; Holdcroft, 36; Ibach, 44; Lippincott, 34; Lowe, 37;
Meyer, 41; Murman, 38.
Read first time January 16, 2024
Committee: Judiciary
1 A BILL FOR AN ACT relating to crimes and offenses; to amend sections
2 28-1406, 28-1407, 28-1408, 28-1409, 28-1410, 28-1412, 28-1413,
3 28-1414, 28-1415, 28-1416, and 29-439, Reissue Revised Statutes of
4 Nebraska; to change provisions relating to the duty to retreat when
5 using force in self-defense or defense of another; to provide for
6 criminal and civil immunity when justifiable force is used in
7 defense of self or another; to harmonize provisions; and to repeal
8 the original sections.
9 Be it enacted by the people of the State of Nebraska,
-1-
LB1269 LB1269
2024 2024
1 Section 1. Section 28-1406, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 28-1406 As used in sections 28-1406 to 28-1416 and section 11 of
4 this act, unless the context otherwise requires:
5 (1) Unlawful force shall mean force, including confinement, which is
6 employed without the consent of the person against whom it is directed
7 and the employment of which constitutes an offense or actionable tort or
8 would constitute such offense or tort except for a defense such as the
9 absence of intent, negligence, or mental capacity; duress; youth; or
10 diplomatic status; not amounting to a privilege to use the force;
11 (2) Assent shall mean consent, whether or not it otherwise is
12 legally effective, except assent to the infliction of death or serious
13 bodily harm;
14 (3) Deadly force shall mean force which the actor uses with the
15 purpose of causing or which the actor he knows to create a substantial
16 risk of causing death or serious bodily harm. Purposely firing a firearm
17 in the direction of another person or at a vehicle in which another
18 person is believed to be constitutes deadly force. A threat to cause
19 death or serious bodily harm, by the production of a weapon or otherwise,
20 so long as the actor's purpose is limited to creating an apprehension
21 that the actor he will use deadly force if necessary, shall not
22 constitute deadly force;
23 (4) Actor shall mean any person who uses force in such a manner as
24 to attempt to invoke the privileges and immunities afforded the actor him
25 by sections 28-1406 to 28-1416 and section 11 of this act, except any
26 duly authorized law enforcement officer of the State of Nebraska or its
27 political subdivisions;
28 (5) Dwelling shall mean any building or structure, though movable or
29 temporary, or a portion thereof, which is for the time being the actor's
30 home or place of lodging; and
31 (6) Public officer shall mean any elected or appointed officer or
-2-
LB1269 LB1269
2024 2024
1 employee of the State of Nebraska or its political subdivisions, except
2 any duly authorized law enforcement officer of the State of Nebraska or
3 its political subdivisions.
4 Sec. 2. Section 28-1407, Reissue Revised Statutes of Nebraska, is
5 amended to read:
6 28-1407 (1) Conduct which the actor believes to be necessary to
7 avoid a harm or evil to the actor himself or to another is justifiable
8 if:
9 (a) The harm or evil sought to be avoided by such conduct is greater
10 than that sought to be prevented by the law defining the offense charged;
11 (b) Neither sections 28-1406 to 28-1416 and section 11 of this act
12 nor other law defining the offense provides exceptions or defenses
13 dealing with the specific situation involved; and
14 (c) A legislative purpose to exclude the justification claimed does
15 not otherwise plainly appear.
16 (2) When the actor was reckless or negligent in bringing about the
17 situation requiring a choice of harms or evils or in appraising the
18 necessity for the actor's his conduct, the justification afforded by this
19 section is unavailable in a prosecution for any offense for which
20 recklessness or negligence, as the case may be, suffices to establish
21 culpability.
22 Sec. 3. Section 28-1408, Reissue Revised Statutes of Nebraska, is
23 amended to read:
24 28-1408 (1) Except as provided in subsection (2) of this section,
25 conduct is justifiable when it is required or authorized by:
26 (a) The law defining the duties or functions of a public officer or
27 the assistance to be rendered to such officer in the performance of such
28 officer's his duties;
29 (b) The law governing the execution of legal process;
30 (c) The judgment or order of a competent court or tribunal;
31 (d) The law governing the armed services or the lawful conduct of
-3-
LB1269 LB1269
2024 2024
1 war; or
2 (e) Any other provision of law imposing a public duty.
3 (2) Sections 28-1409 to 28-1416 and section 11 of this act shall
4 apply to:
5 (a) The use of force upon or toward the person of another for any of
6 the purposes dealt with in such sections; and
7 (b) The use of deadly force for any purpose, unless the use of such
8 force is otherwise expressly authorized by law or occurs in the lawful
9 conduct of war.
10 (3) The justification afforded by subsection (1) of this section
11 shall apply:
12 (a) When the actor believes the actor's his conduct to be required
13 or authorized by the judgment or direction of a competent court or
14 tribunal or in the lawful execution of legal process, notwithstanding
15 lack of jurisdiction of the court or defect in the legal process; and
16 (b) When the actor believes the actor's his conduct to be required
17 or authorized to assist a public officer in the performance of such
18 officer's his duties, notwithstanding that the officer exceeded the
19 public officer's his legal authority.
20 Sec. 4. Section 28-1409, Reissue Revised Statutes of Nebraska, is
21 amended to read:
22 28-1409 (1) Subject to the provisions of this section and of section
23 28-1414, the use of force upon or toward another person is justifiable
24 when the actor believes that such force is immediately necessary for the
25 purpose of protecting the actor himself against the use of unlawful force
26 by such other person on the present occasion.
27 (2) The use of such force is not justifiable under this section to
28 resist an arrest which the actor knows is being made by a peace officer,
29 although the arrest is unlawful.
30 (3) The use of such force is not justifiable under this section to
31 resist force used by the occupier or possessor of property or by another
-4-
LB1269 LB1269
2024 2024
1 person on the occupier's or possessor's his behalf, if where the actor
2 knows that the person using the force is doing so under a claim of right
3 to protect the property, except that this limitation shall not apply if:
4 (a) The actor is a public officer acting in the performance of the
5 officer's his duties, or a person lawfully assisting the officer him
6 therein, or a person making or assisting in a lawful arrest;
7 (b) The actor has been unlawfully dispossessed of the property and
8 is making a reentry or recapture justified by section 28-1411; or
9 (c) The actor believes that such force is necessary to protect the
10 actor himself against death or serious bodily harm.
11 (4) The use of deadly force shall not be justifiable under this
12 section unless the actor believes that such force is necessary to protect
13 the actor himself against death, serious bodily harm, kidnapping or
14 sexual intercourse compelled by force or threat, nor is it justifiable
15 if:
16 (a) The actor, with the purpose of causing death or serious bodily
17 harm, provoked the use of force against the actor himself in the same
18 encounter; or
19 (b) In a case in which the actor believes that such force is
20 necessary to protect the actor against death or serious bodily harm, (i)
21 the person against whom deadly force is used is a peace officer acting in
22 the performance of such officer's official duties, (ii) the peace officer
23 identified himself or herself as such, and (iii) the actor knew or
24 reasonably should have known the person was a peace officer.
25 (b) The actor knows that he can avoid the necessity of using such
26 force with complete safety by retreating or by surrendering possession of
27 a thing to a person asserting a claim of right thereto or by complying
28 with a demand that he abstain from any action which he has no duty to
29 take, except that:
30 (i) The actor shall not be obliged to retreat from his dwelling or
31 place of work, unless he was the initial aggressor or is assailed in his
-5-
LB1269 LB1269
2024 2024
1 place of work by another person whose place of work the actor knows it to
2 be; and
3 (ii) A public officer justified in using force in the performance of
4 his duties or a person justified in using force in his assistance or a
5 person justified in using force in making an arrest or preventing an
6 escape shall not be obliged to desist from efforts to perform such duty,
7 effect such arrest or prevent such escape because of resistance or
8 threatened resistance by or on behalf of the person against whom such
9 action is directed.
10 (5) Except as required by subsections (3) and (4) of this section, a
11 person employing protective force may estimate the necessity thereof
12 under the circumstances as such person he believes them to be when the
13 force is used, without retreating, surrendering possession, doing any
14 other act which such person he has no legal duty to do, or abstaining
15 from any lawful action.
16 (6) The justification afforded by this section extends to the use of
17 confinement as protective force only if the actor takes all reasonable
18 measures to terminate the confinement as soon as the actor he knows that
19 the actor he safely can do so, unless the person confined has been
20 arrested on a charge of crime.
21 Sec. 5. Section 28-1410, Reissue Revised Statutes of Nebraska, is
22 amended to read:
23 28-1410 (1) Subject to the provisions of this section and of
24 section 28-1414, the use of force upon or toward the person of another is
25 justifiable to protect a third person when:
26 (1) (a) The actor would be justified under section 28-1409 in using
27 such force to protect the actor himself against the injury the actor he
28 believes to be threatened to the person whom the actor he seeks to
29 protect;
30 (2) (b) Under the circumstances as the actor believes them to be,
31 the person whom the actor he seeks to protect would be justified in using
-6-
LB1269 LB1269
2024 2024
1 such protective force; and
2 (3) (c) The actor believes that the actor's his intervention is
3 necessary for the protection of such other person.
4 (2) Notwithstanding subsection (1) of this section:
5 (a) When the actor would be obliged under section 28-1409 to
6 retreat, to surrender the possession of a thing or to comply with a
7 demand before using force in self-protection, he shall not be obliged to
8 do so before using force for the protection of another person, unless he
9 knows that he can thereby secure the complete safety of such other
10 person;
11 (b) When the person whom the actor seeks to protect would be obliged
12 under section 28-1409 to retreat, to surrender the possession of a thing
13 or to comply with a demand if he knew that he could obtain complete
14 safety by so doing, the actor is obliged to try to cause him to do so
15 before using force in his protection if the actor knows that he can
16 obtain complete safety in that way; and
17 (c) Neither the actor nor the person whom he seeks to protect is
18 obliged to retreat when in the other's dwelling or place of work to any
19 greater extent than in his own.
20 Sec. 6. Section 28-1412, Reissue Revised Statutes of Nebraska, is
21 amended to read:
22 28-1412 (1) Subject to the provisions of this section and of section
23 28-1414, the use of force upon or toward the person of another is
24 justifiable when the actor is making or assisting in making an arrest and
25 the actor believes that such force is immediately necessary to effect a
26 lawful arrest.
27 (2) The use of force is not justifiable under this section unless:
28 (a) The actor makes known the purpose of the arrest or believes that
29 it is otherwise known by or cannot reasonably be made known to the person
30 to be arrested; and
31 (b) When the arrest is made under a warrant, the warrant is valid or
-7-
LB1269 LB1269
2024 2024
1 believed by the actor to be valid.
2 (3) The use of deadly force is not justifiable under this section
3 unless:
4 (a) The arrest is for a felony;
5 (b) Such person effecting the arrest is authorized to act as a peace
6 officer or is assisting a person whom such person he believes to be
7 authorized to act as a peace officer;
8 (c) The actor believes that the force employed creates no
9 substantial risk of injury to innocent persons; and
10 (d) The actor believes that:
11 (i) The crime for which the arrest is made involved conduct
12 including the use or threatened use of deadly force; or
13 (ii) There is a substantial risk that the person to be arrested will
14 cause death or serious bodily harm if such person's his apprehension is
15 delayed.
16 (4) The use of force to prevent the escape of an arrested person
17 from custody is justifiable when the force could justifiably have been
18 employed to effect the arrest under which the person is in custody,
19 except that a guard or other person authorized to act as a peace officer
20 is justified in using any force, including deadly force, which such guard
21 or other person he believes to be immediately necessary to prevent the
22 escape of a person from a jail, prison, or other institution for the
23 detention of persons charged with or convicted of a crime.
24 (5) A private person who is summoned by a peace officer to assist in
25 effecting an unlawful arrest is justified in using any force which such
26 person he would be justified in using if the arrest were lawful, except
27 that such use of force is not justified if such person believes ;
28 Provided, that he does not believe the arrest is unlawful.
29 (6) A private person who assists another private person in effecting
30 an unlawful arrest, or who, not being summoned, assists a peace officer
31 in effecting an unlawful arrest, is justified in using any force which
-8-
LB1269 LB1269
2024 2024
1 such person he would be justified in using if the arrest were lawful, if:
2 (a) Such person He believes the arrest is lawful; and
3 (b) The arrest would be lawful if the facts were as such person he
4 believes them to be.
5 (7) The use of force upon or toward the pe