Page:Schnarr v. State, 2018 Ark. 333.pdf/9

 force is necessary for any purpose justifying that use of physical force under subchapter six, first, it must be determined whether the defendant was reckless or negligent either in forming the belief that physical force was necessary or reckless or negligent in employing an excessive degree of physical force. Stated differently, if Schnarr was reckless or negligent in forming the belief that force was necessary, then, and only then, is the defense unavailable. If, however, Schnarr was not reckless or negligent in forming his belief, the defense is available. This is a decision for the jury. See Ark. Code Ann. §§ 5-1-102 and 5-1-111; ''Mo. R.R. Co.,'' 250 Ark. 1094, 469 S.W.2d 72 (("We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others." (quoting Jones, 128 U.S. 443)).

The State urges this court to read the following clause of section 5-2-614(a) in isolation: "the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state." However, to read the clause alone renders subsection (b) superfluous because subsection (a) would have precluded a justification defense for all crimes that require a reckless or negligent mental state, including third parties listed in subsection (b).

Further, the State takes the position that "no justification is required because if a defendant was acting reasonably, he would not be reckless." (Emphasis supplied.) This position is mistaken. The State ignores the word "if" in its argument. "If" requires the jury to make a finding. In other words, the denial of the justification is not triggered until the "if"—here, the culpability—is determined. Thus, the flaw in the State's position is in the timing