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LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 300
Introduced by Slama, 1; Albrecht, 17; Bostelman, 23; Brewer, 43; Briese,
41; Clements, 2; Dorn, 30; Erdman, 47; Friesen, 34;
Gragert, 40; Hansen, B., 16; Hughes, 44; Linehan, 39; Lowe,
37; Murman, 38; Sanders, 45.
Read first time January 12, 2021
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, 28-1411, 28-1412,
3 28-1413, 28-1414, 28-1415, 28-1416, and 29-439, Reissue Revised
4 Statutes of Nebraska; to define terms; to change provisions relating
5 to justifications for the use of force; to provide for presumptions;
6 to harmonize provisions; and to repeal the original sections.
7 Be it enacted by the people of the State of Nebraska,
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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 5 of this
4 act, unless the context otherwise requires:
5 (1) Actor means any person who uses force in such a manner as to
6 attempt to invoke the privileges and immunities afforded such actor by
7 sections 28-1406 to 28-1416 and section 5 of this act, except any duly
8 authorized law enforcement officer of the State of Nebraska or its
9 political subdivisions;
10 (2) Assent means consent, whether or not it otherwise is legally
11 effective, except assent to the infliction of death or serious bodily
12 injury;
13 (3) Bodily injury has the same meaning as in section 28-109;
14 (1) Unlawful force shall mean force, including confinement, which is
15 employed without the consent of the person against whom it is directed
16 and the employment of which constitutes an offense or actionable tort or
17 would constitute such offense or tort except for a defense such as the
18 absence of intent, negligence, or mental capacity; duress; youth; or
19 diplomatic status; not amounting to a privilege to use the force;
20 (2) Assent shall mean consent, whether or not it otherwise is
21 legally effective, except assent to the infliction of death or serious
22 bodily harm;
23 (4) (3) Deadly force means shall mean force which the actor uses
24 with the purpose of causing or which the actor he knows to create a
25 substantial risk of causing death or serious bodily injury harm.
26 Purposely firing a firearm in the direction of another person or at a
27 vehicle in which another person is believed to be constitutes deadly
28 force. A threat to cause death or serious bodily injury harm, by the
29 production of a weapon or otherwise, so long as the actor's purpose is
30 limited to creating an apprehension that the actor he will use deadly
31 force if necessary, shall not constitute deadly force;
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1 (4) Actor shall mean any person who uses force in such a manner as
2 to attempt to invoke the privileges and immunities afforded him by
3 sections 28-1406 to 28-1416, except any duly authorized law enforcement
4 officer of the State of Nebraska or its political subdivisions;
5 (5) Dwelling means shall mean any building or structure, though
6 movable or temporary, or a portion thereof, which is for the time being
7 the actor's home or place of lodging; and
8 (6) Motor vehicle means every self-propelled land vehicle, not
9 operated upon rails, except self-propelled chairs used by persons who are
10 disabled, electric personal assistive mobility devices as defined in
11 section 60-618.02, and bicycles as defined in section 60-611. A motor
12 vehicle shall be considered to be the actor's motor vehicle if the actor
13 is lawfully present in or on the motor vehicle, whether as an operator or
14 passenger;
15 (7) (6) Public officer means shall mean any elected or appointed
16 officer or employee of the State of Nebraska or its political
17 subdivisions, except any duly authorized law enforcement officer of the
18 State of Nebraska or its political subdivisions; .
19 (8) Reckless means acting with respect to a material element of an
20 affirmative defense when the actor disregards a substantial and
21 unjustifiable risk that the material element exists or will result from
22 the actor's conduct. The risk must be of such a nature and degree that,
23 considering the nature and purpose of the actor's conduct and the
24 circumstances known to the actor, its disregard involves a gross
25 deviation from the standard of conduct that a reasonable person would
26 observe in the actor's situation;
27 (9) Serious bodily injury has the same meaning as in section 28-109;
28 and
29 (10) Unlawful force means force, including confinement, which is
30 employed without the consent of the person against whom it is directed
31 and the employment of which constitutes an offense or actionable tort or
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1 would constitute such offense or tort except for a defense such as the
2 absence of intent, negligence, or mental capacity; duress; youth; or
3 diplomatic status; not amounting to a privilege to use the force.
4 Sec. 2. Section 28-1407, Reissue Revised Statutes of Nebraska, is
5 amended to read:
6 28-1407 (1) Conduct which the actor reasonably and in good faith
7 believes to be necessary to avoid a harm or evil to the actor himself or
8 to another is justifiable 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 5 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 the
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
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1 war; or
2 (e) Any other provision of law imposing a public duty.
3 (2) Sections 28-1409 to 28-1416 and section 5 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 reasonably and in good faith believes the actor's
13 his conduct to be required or authorized by the judgment or direction of
14 a competent court or tribunal or in the lawful execution of legal
15 process, notwithstanding lack of jurisdiction of the court or defect in
16 the legal process; and
17 (b) When the actor reasonably and in good faith believes the actor's
18 his conduct to be required or authorized to assist a public officer in
19 the performance of the officer's his duties, notwithstanding that the
20 officer exceeded the officer's his legal authority.
21 Sec. 4. Section 28-1409, Reissue Revised Statutes of Nebraska, is
22 amended to read:
23 28-1409 (1) Subject to the provisions of this section, and of
24 section 28-1414, and section 5 of this act, the use of force upon or
25 toward another person is justifiable when the actor reasonably and in
26 good faith believes that such force is immediately necessary for the
27 purpose of protecting the actor himself against the use of unlawful force
28 by such other person on the present occasion.
29 (2) The use of such force is not justifiable under this section to
30 resist an arrest which the actor knows is being made by a peace officer,
31 although the arrest is unlawful.
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1 (3) The use of such force is not justifiable under this section to
2 resist force used by the occupier or possessor of property or by another
3 person on the occupier's or possessor's his behalf, when where the actor
4 knows that the person using the force is doing so under a claim of right
5 to protect the property, except that this limitation shall not apply if:
6 (a) The actor is a public officer acting in the performance of the
7 officer's his duties or a person lawfully assisting the officer him
8 therein or a person making or assisting in a lawful arrest;
9 (b) The actor has been unlawfully dispossessed of the property and
10 is making a reentry or recapture justified by section 28-1411; or
11 (c) The actor reasonably and in good faith believes that such force
12 is necessary to protect the actor himself against death or serious bodily
13 injury harm.
14 (4) The use of deadly force shall not be justifiable under this
15 section unless the actor reasonably and in good faith believes that such
16 force is necessary to protect the actor himself against death, serious
17 bodily injury harm, kidnapping, or sexual intercourse compelled by force
18 or threat, nor is it justifiable if:
19 (a) The actor, with the purpose of causing death or serious bodily
20 injury harm, provoked the use of force against the actor himself in the
21 same encounter; or
22 (b) The actor knows that the actor he can avoid the necessity of
23 using such force with complete safety by retreating or by surrendering
24 possession of a thing to a person asserting a claim of right thereto or
25 by complying with a demand that the actor he abstain from any action
26 which the actor he has no duty to take, except that:
27 (i) The actor shall not be obliged to retreat from the actor's his
28 dwelling, or place of work, or motor vehicle, unless the actor he was the
29 initial aggressor or is assailed in the actor's his place of work by
30 another person whose place of work the actor knows it to be; and
31 (ii) A public officer justified in using force in the performance of
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1 the officer's his duties, or a person justified in using force in the
2 officer's his assistance, or a person justified in using force in making
3 an arrest or preventing an escape shall not be obliged to desist from
4 efforts to perform such duty, effect such arrest, or prevent such escape
5 because of resistance or threatened resistance by or on behalf of the
6 person against whom such action is directed.
7 (5) Except as required by subsections (3) and (4) of this section, a
8 person employing protective force may estimate the necessity thereof
9 under the circumstances as such person reasonably and in good faith he
10 believes them to be when the force is used, without retreating,
11 surrendering possession, doing any other act which such person he has no
12 legal duty to do, or abstaining from any lawful action.
13 (6) The justification afforded by this section extends to the use of
14 confinement as protective force only if the actor takes all reasonable
15 measures to terminate the confinement as soon as the actor he knows that
16 the actor he safely can do so, unless the person confined has been
17 arrested on a charge of crime.
18 Sec. 5. (1) Subject to section 28-1414 and except as provided in
19 subsection (2) of this section, when the actor is lawfully present in the
20 actor's dwelling, place of work, or motor vehicle there shall be a
21 rebuttable presumption that the actor held a reasonable and good faith
22 belief that the use of force, including deadly force, is immediately
23 necessary for the protection of the actor or a third person from death or
24 serious bodily injury when:
25 (a) The person against whom such force is used:
26 (i) Is in the process of unlawfully and forcibly entering, or had
27 unlawfully and forcibly entered, such dwelling, place of work, or motor
28 vehicle; or
29 (ii) Had unlawfully and forcibly removed or is attempting to
30 unlawfully and forcibly remove the actor or a third person, without the
31 consent of the person being removed, from such dwelling, place of work,
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1 or motor vehicle; and
2 (b) The actor knows or reasonably and in good faith believes that
3 such unlawful and forcible entry or removal is occurring or had occurred.
4 (2) The presumption provided for in this subsection shall not apply
5 if:
6 (a) The person against whom force is used had the right to be
7 present in the dwelling, place of work, or motor vehicle. A person does
8 not have the right to be present in such place if it would be a violation
9 of (i) a domestic violence protection order, harassment protection order,
10 or sexual assault protection order or (ii) another written court order of
11 which the person had actual knowledge;
12 (b) The person being removed without consent referred to in
13 subdivision (1)(a)(ii) is a child or grandchild, or otherwise in the
14 lawful custody or under the lawful guardianship of the person against
15 whom the force is used;
16 (c) The actor is engaged in any other criminal offense that involves
17 the use or threat of physical force or violence against any individual
18 other than the use of force as justifiable under sections 28-1406 to
19 28-1416 and this section.
20 (d) The actor is attempting to avoid arrest for any criminal offense
21 that involves the use or threat of physical force or violence against any
22 individual;
23 (e) The actor is using the dwelling, place of work, or motor vehicle
24 to further any criminal offense that involves the use or threat of
25 physical force or violence against any individual other than the use of
26 force as justifiable under sections 28-1406 to 28-1416 and this section;
27 (f)(i) The person against whom the force is used is a peace officer
28 who enters or attempts to enter a dwelling, place of work, or motor
29 vehicle in the lawful performance of the officer's official duties and
30 (ii) the officer identified himself or herself as otherwise required by
31 law or the actor knew or reasonably should have known that the person was
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