Use of deadly force in defense of others is the topic we are currently discussing with our Affiliated Attorneys. Here is the question under discussion—
Under your state’s law may someone (not personally threatened with deadly force) use deadly force to stop the in-progress and/or imminent commission of certain crimes? What crimes? Must the crime actually be occurring or imminent, or would deadly force be lawful if the intervenor only believed that one of such crimes was occurring or was imminent?
So many affiliated attorneys responded that we needed three installments to present all of their commentary. This is the third and final installment.
Robert S. Apgood
Carpelaw PLLC
2400 NW 80th St., #130, Seattle, WA 98117-4449
206-624-2379
The lawful use of force in Washington State is governed primarily by three statutes: RCW 9A.16.040, which regulates use of a deadly weapon by a public officer, peace officer, or person aiding a public officer or peace officer, RCW 9A.16.020 and 9A.16.050, which regulate the lawful use of force by a civilian. For the purposes of this month’s question, I will focus only on the latter two.
RCW 9A.16.020 provides:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction;
(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody;
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;
(4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public;
(5) Whenever used by a carrier of passengers or the carrier's authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to the offender's personal safety;
(6) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person.
The curious language in the statute is the preamble “is not unlawful when…” The statute doesn’t really say that the conduct described is “lawful.” Rather, it treats the enumerated situations in the negative, possibly implying that the use of force is generally “unlawful” except in the very specific circumstances described in the statute. With that caution in mind, let’s look at the list and examine each exception.
“(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction.” This exception is fairly self-explanatory, and echoes a similar provision in RCW 9A.16.040. If it’s a cop, or a cop asks a civilian for assistance, the use of force is permitted.
“(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody.” This exception starts to get a bit more interesting. Basically, the exception says that you, a civilian, have the right to use force when making a citizen’s arrest of someone who has committed a felony. However, the exception places a limited license on that use of force and permits it only when you are delivering the arrested individual to a public officer.
“(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.”
In this scenario, if you are about to be hurt by someone, or someone else is about to be injured by someone and you are coming to that person’s aid, you may use only that amount of force as is necessary to prevent that harm. Similarly, if someone is about to commit a malicious trespass (“malicious” means with an evil intent) or a malicious interference with land or personal property in your possession, you may use only the amount of force necessary to prevent that trespass or harm. The important factor here is that the land or personal property must be in your possession. The statute apparently does not allow you to use force to protect someone else’s land or personal property.
“(4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public…”
Similar to exception number three, if you are in lawful possession of a building or land, and someone unlawfully enters into that building or upon that land, you may use force to detain that person, but only for so long as is reasonable, and only in a manner that allows you to determine why that person entered the building or upon the land. Also, it must be apparent to a reasonable person that the building or land was not generally open to the public. A private residence is not generally open to the public, nor is a warehouse or other secure storage facility, and a reasonable person would not believe that they were. On the other hand, a store or restaurant, or even a private park that charges admission to allow members of the public to use it, would likely be considered open to the general public and force could not be used to detain someone who enters there.
“(5) Whenever used by a carrier of passengers or the carrier’s authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to the offender’s personal safety;”
This type of provision is common in the laws of many states and harkens back to the common law that came into being back in the days when trains were the primary mode of transportation for moving people over great distances. It continues as good law because it is applicable to bus and light rail transportation, and continues to be applicable to boats, as it was in eras gone by. Essentially, it says that if someone is being rowdy or threatening on a train or bus or similar transportation, the carrier may use that amount of force necessary to eject the hooligan from the train, bus or boat. However, the force used may not put the hooligan’s safety in jeopardy (“Get off the boat! Now!”). Of note, the carrier may enlist the aid of other passengers to effect the ejection.
“(6) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person.” This, also, is quite similar to number 3. However, it is specifically aimed at preventing mentally ill, mentally incompetent, and mentally disabled persons from injuring anyone (including themselves). It also extends the privilege to those who seek to impose restraints on the mentally infirm. These rights may be exercised only for as long as it takes, and only to the degree necessary, until legal authority is obtained to restrain the mentally infirm person.”
Now comes the really interesting law. RCW 9A.16.050 informs us: “Homicide is justifiable when committed either:
(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.”
This law says that if you, your husband, wife, parent, child, brother, or sister, or anyone in your presence, is threatened with a great personal injury, or even if you reasonably believe that someone intends to commit a great personal injury on one of you, and you believe that one of you is in imminent danger of that great personal harm, it is lawful to kill that person. Moreover, if you reasonably believe that the wrongdoer intends to commit a felony and that there is imminent danger that the felony is about to be committed, or the wrongdoer commits a felony in your presence, or upon or in your home, and you are there at the time, you can kill him. Yep. That’s what the law says. In actual practice, if you blow away someone committing a felony that isn’t going to injure you or yours (such as selling narcotics or stealing your car), you’re likely going to face some pretty uncomfortable consequences.
Michael W. Maurizio
Maurizio & Sharpe
PO Box 1849, 1508 W. Main St., Marion IL 62959
618-998-1515
http://www.mauriziolaw.com
This is the question presented broken down into sections and my responses:
Under your state's law may someone (not personally threatened with deadly force) use deadly force to stop the in-progress and/or imminent commission of certain crimes? Yes they can.
What crimes? Any crime that involves the use of unlawful force. However the force used during the intervention must not be in excess.
Must the crime actually be occurring or imminent, or would deadly force be lawful if the intervenor only believed that one of such crimes was occurring or was imminent? See the elements of defense listed below. In short, my opinion is that the unlawful force must be in process, actual battery or assault with ability to fulfill that threat, at the time of the intervention by a third person.
In Illinois, this is covered by statute. I have provided a copy of this statute:
720 ILCS 5/7-1
Formerly cited as IL ST CH 38 ¶ 7-1
5/7-1. Use of force in defense of person
§ 7-1. Use of force in defense of person.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of “aggressor” set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
As stated in the statute, a person is justified to use the appropriate force in defense of themselves or others that is being used against them or another. If there is a prosecution of a person for acting pursuant to this statute, it is an affirmative defense that must be pled and the State must overcome that defense during the prosecution.
Elements of defense of self defense are that force is threatened against a person, that person threatened is not aggressor, that danger of harm is imminent, that force threatened is unlawful, that the person threatened must actually believe that danger exists and that use of force is necessary to avert danger and that the kind and amount of force which he uses is necessary, and that the above beliefs are reasonable; a further principle involved when a defendant uses deadly force limits use of deadly force to those situations in which threatened force will cause death or great bodily harm or the force threatened is a forcible felony.
I hope this accurately addresses your question.
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We extend a heartfelt “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month when we introduce a new topic.
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