Background
On September 24, 2023, Brent P. Lopez was working at a Lincoln, Nebraska community recreation center when his 12-year-old son was threatened by two teenage girls. Lopez intervened, a physical altercation ensued, and police cited Lopez for assaulting the girls. As Lopez and his son left, a crowd of 10–15 people in the parking lot shouted threats and taunts, including statements that they knew where he lived. Police subsequently released Lopez several blocks away. The next day, local media broadcast coverage of the altercation and videos circulated online. Lopez grew fearful of retaliation, kept his children home from school, and told police he had been “watching at the window all night” with a gun. Police conducted two welfare checks at his home over the following days and found no specific, credible threats directed at Lopez or his family.
On September 26, 2023, the Nebraska Department of Health and Human Services (DHHS) received a child-welfare report from the mother of Lopez’s children. DHHS caseworker Caden Dirks and a colleague drove a clearly marked state government vehicle to Lopez’s home to conduct an unannounced investigation. Both men were in casual clothes, unarmed, and Dirks carried only a zippered binder with visible paperwork and wore his DHHS badge on a lanyard. Lopez’s oldest son, who was not wearing his prescription eyeglasses, watched the men approach from across the street and believed one was holding a handgun at his side. The son ran inside and told Lopez: “Men are coming and they have a gun, and they’re coming towards the house.”
Without going to the door to assess the situation, Lopez opened the front door and fired two shots at the approaching men. Dirks was struck in the back of the leg, suffering a through-and-through gunshot wound requiring hospitalization and causing lasting pain. Lopez immediately recognized his error, apologized, and called 911. After a five-day jury trial, Lopez was convicted of two counts of attempted first degree assault and two counts of using a firearm to commit a felony. He was sentenced to consecutive prison terms totaling a substantial period of incarceration.
The Court’s Holding
The Nebraska Supreme Court, in a unanimous opinion authored by Justice Stacy, affirmed Lopez’s convictions and sentences on all counts. The court held that the district court correctly refused to instruct the jury on self-defense or defense of others. To warrant a self-defense instruction, a defendant must produce at least slight evidence that (1) he had a reasonable and good faith belief in the necessity of using deadly force and (2) the force was immediately necessary under objectively reasonable circumstances. The court agreed with the trial court’s dual rationale: Lopez was the initial—and only—aggressor against two unarmed, plainly identifiable government employees who made no threatening gestures, and his subjective fear, however genuine, was not objectively reasonable as a matter of law given the circumstances visible to him.
The court emphasized that Lopez relied entirely on his vision-impaired son’s mistaken belief that the binder Dirks carried was a firearm, and that Lopez knew his son was not wearing his eyeglasses. A person has no legal right to shoot another merely on suspicion that the other person is carrying a gun, and the mere display of an object that might be mistaken for a gun—without more—does not constitute the use of deadly force justifying a lethal response. Because no reasonable jury could find that each element of a justification defense had been met, the trial court properly declined to submit the instruction.
The court also rejected Lopez’s claims of excessive sentencing and ineffective assistance of trial counsel. Sentences imposed within statutory limits are disturbed only upon an abuse of discretion, and the court found none. On the ineffective assistance claims—including allegations that counsel failed to call certain witnesses and improperly advised Lopez to waive his right to testify—the court found that either the record conclusively refuted deficient performance, the claims lacked the specificity required for direct appeal review, or the record was insufficient to resolve them on direct appeal, leaving those claims available for postconviction proceedings.
Key Takeaways
- A self-defense or defense-of-others instruction is not warranted unless evidence supports both a subjective belief in the necessity of force and the objective reasonableness of that belief; courts may refuse the instruction as a matter of law when one element is unsupported by any evidence.
- A defendant who acts as the sole aggressor against unarmed, non-threatening individuals is not entitled to claim justification, even if he harbors genuine fear rooted in prior unrelated events.
- On direct appeal, ineffective assistance of counsel claims must be alleged with specific particularity describing the conduct complained of; generalized assertions of inadequate preparation or failure to call witnesses will not be addressed and risk procedural default in later postconviction proceedings.
- A defendant’s constitutional right to testify is personal and cannot be waived by counsel alone, but counsel’s tactical advice to waive that right supports an IAC claim only if counsel interfered with the defendant’s free choice or the advice was objectively unreasonable.
Why It Matters
This decision reinforces the boundaries of Nebraska’s self-defense doctrine in cases where a defendant’s fear, however sincerely felt, is grounded in prior events rather than in an objectively threatening situation unfolding at the moment force is used. The court’s analysis makes clear that courts—not juries—serve as the initial gatekeepers on whether evidence is legally sufficient to raise a justification defense, and that transferred fear from a separate incident days earlier cannot substitute for evidence of an immediate, objectively reasonable threat.
The decision also offers practitioners a detailed roadmap for preserving ineffective assistance of counsel claims on direct appeal in Nebraska. Counsel raising IAC on direct appeal must identify specific acts or omissions, explain why they were unreasonable, and demonstrate that the claim is resolvable on the existing record—or risk losing the claim to procedural bar in any subsequent postconviction motion.