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Is Using Deadly Physical Force Justified When someone is Stealing Property from My Home in Arizona?

Posted by attorney Jeremy Geigle

Oscar Cerna was charged with second-degree murder after shooting and killing 43-year-old Ephram Merrit-Esquivel, whom he caught stealing a go-kart from his yard.

Cerna was awakened by his dog barking, and when he looked out his window, he saw Esquivel rolling his go-kart away from his house. Cerna then got his rifle and fired two shots at the Esquivel, killing him.

Apparently, theft has become common in the Sheffield area of Kansas City, and neighbors defending Cerna agree that citizens should be able to protect their property. According to prosecutors, because Esquivel was fleeing the property, he was not an immediate threat. In the months leading to the incident, Cerna had been targeted by Hispanic gangs who damaged and stole from his home, which may have influenced his reaction on the day of Esquivel’s killing.

Cerna is currently in jail in lieu of $250,000 cash-only bond.

In Arizona, the use of deadly physical force against another person is justified, according to A.R.S. 13-405, as follows:

  1. When a reasonable person would believe that using deadly physical force is immediately necessary to protect themselves against another person’s use or attempted use of unlawful deadly physical force.

Use of physical force is not justified in response to verbal provocation alone, nor is it justified to resist an arrest (even if the arrest is unlawful), unless the physical force used by the police officer exceeds that allowed by the law.

In Arizona, is using deadly physical force justified if another person is actively stealing your property from your home? Not exactly. Unless it can be proven that you reasonably believed that your life was in danger because of the intruder’s use of physical force, the use of deadly physical force cannot be justified in Arizona. If you do witness someone stealing property from your home, and the thief is not armed with a weapon and they are fleeing your property, try and get a good look at the intruder and call the police immediately.

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