Network Affiliated Attorney Steven M. Harris (Florida) brought to our attention a recent Florida appellate decision granting pretrial self-defense immunity, Smith v. State, available here: https://1dca.flcourts.gov/content/download/2436123/opinion/Opinion_2022-3034.pdf
From the facts of Smith, Attorney Harris asked his fellow Network Affiliated Attorneys to explore the following questions. The responses were numerous and we believe members will share our interest in the discussion that follows.
For a law enforcement officer or nonsworn, is there any caselaw or jury instruction (Federal or your state) which recognizes the unique and deadly nature of the threat presented by an attempted firearm disarm? Is there an independent statutory basis to independently assert deadly force justification? For example, that the disarm is the attempted commission of a robbery (unlawful taking of the firearm by force).
What arguments would you present in defense of an LEO or armed citizen who used deadly force to prevent being disarmed?
Jerome M. Brown, Esquire
1628 JFK Blvd., Ste. 1000, 8 Penn Ctr., Philadelphia, PA 19107
215-568-0607
https://jeromebrownlaw.com/
I would make the following argument:
Like in the Florida case, in PA you have to be able to retreat and not have provoked the situation. In your home, you have the right to defend yourself under the Castle Doctrine so in your home, this right would be inviolate. If [you’re] a law enforcement officer, and someone tried to take your weapon, it would be reasonable to presume that the perpetrator was trying to take your weapon and use it against you. If they continued to attack after unsuccessfully trying to take your weapon, you could reasonably believe that the person intended to bring you harm.
On the street, if an armed citizen was being robbed, usually at gunpoint and you pulled a weapon to defend yourself, then you could reasonably assume that the person trying to take the weapon from you, would be attempting to use it against you. If the person or persons, attempting to disarm then tried to run away, and did not also have a weapon, you would not be justified in shooting them. However, if they or an accomplice had a weapon and tried to disarm you, then you could reasonably believe that they were going to harm you and you could defend yourself.
John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
207-780-6500
Maine has no special statute for “disarm” or “attempted disarm” cases. However, the usual “Model Penal Code” justification language in c. 5, sections 107 and 108 produce a similar result. In short, if you reasonably believe deadly force is necessary to prevent being disarmed and shot with your own firearm, you may shoot. NOTE: there is a poorly thought-out statute that attempted to address taser-disarm situations in “criminal use of electronic weapons.”
Here is the leading “disarm” case. I handled this case for the officer and the town with the Attorney General’s office. https://scholar.google.com/scholar_case?case=9106566457469163133&q=Jackson+b.+Town+of+Waldoboro&hl=en&as_sdt=4,105,119,145
In Jackson v. Town of Waldoboro, Gregori Jackson ambushed and attempted to kill Zach Curtis, my client. From the decision:
“As Officer Curtis reached down, Mr. Jackson jumped him, knocking Officer Curtis onto his back and landing on top of him. At that point, Mr. Jackson was physically dominating Officer Curtis from his position on top. Mr. Jackson began striking Officer Curtis in the head with his fist and elbow. Mr. Jackson also began choking Officer Curtis by placing his forearm across his throat. As they struggled, Officer Curtis felt Mr. Jackson pulling at his handgun in his holster.
“Officer Curtis used his hand to attempt to keep the gun in the holster and away from Mr. Jackson. Mr. Jackson then screamed: ‘Give me your gun, give me your fucking gun.’ Mr. Jackson also stated that he was not going to jail and that he ‘didn’t care what it took.’ Mr. Jackson repeated these statements five-to-ten times during the struggle with Officer Curtis.
“Officer Curtis believed he was going to lose consciousness from being choked; he also believed that if Mr. Jackson were to gain control of his gun, it would be used against him. At that point, Officer Curtis believed his life was in danger. Mr. Jackson eventually succeeded in pulling Officer Curtis’ gun out of its holster and was briefly able to gain control of the gun. Officer Curtis was able to get his gun back, but Mr. Jackson continued to wrestle with him for control of it. As Officer Curtis and Mr. Jackson wrestled on the ground, the slide on his semiautomatic handgun was racked back and forth enough times to eject four unfired rounds out of the gun and onto the ground around them.
“Officer Curtis now feared that he was going to be rendered unconscious as a result of the continued blows to his head being delivered by Mr. Jackson; he also knew, based on Jackson’s prior statements and actions, that he wanted to gain control of the gun. While Mr. Jackson was still on top of him and continuing to strike him in the head, Officer Curtis believed that he was in imminent danger of losing his own life. As such, Officer Curtis made the decision to use deadly force. As Mr. Jackson and Officer Curtis struggled on the ground, Officer Curtis got control of his gun and pressed it into Mr. Jackson’s side and fired. Mr. Jackson did not seem to react. With Mr. Jackson still on top of him, Officer Curtis fired several more shots in rapid succession. Mr. Jackson instantly ceased his attack on Officer Curtis, and Officer Curtis then stopped firing upon realizing that the threat to him had ceased.”
Here’s what the US District Court decided:
“Thus, given these extreme circumstances and the clear, imminent threat, the Court concludes a rational jury could, ‘without serious question,’ find that the force used by Curtis was not ‘so disproportionate as to offend the Fourth Amendment.’ Morelli, 552 F.3d at 23; see also Estate of Bennett, 548 F.3d at 175 (‘While the result is tragic, we cannot conclude that the officers’ actions were so deficient that no reasonable officer in their position would have made the same choices under these circumstances.’). The conclusion that the force exerted by Officer Curtis was reasonable under the circumstances means that Plaintiffs’ Section 1983 claim fails due to lack of a constitutional violation. Likewise, a similar analysis of the reasonableness of Curtis’ actions by the Court readily yields the conclusion that Curtis also is entitled to qualified immunity for his use of deadly force.”
This is not carte blanche for every “gun grab.” Where the assailant is a weak, stupid person who has not yet attained control of the gun, and the gun is well holstered on the person of a six-foot defensive tactics instructor, that cop / deputy / trooper would not “reasonably” believe deadly force is needed to break the assailant’s fingers, scrub his face on the ground and cuff him for processing. As with many “unarmed” assailant situations, the analysis will depend on the relative size and body habitus of the parties, the degree of surprise to the officer, and how far along in the “disarm” process the offender has gotten in his attempt to get the gun. Michael Sandford’s attempted assassination of then-candidate Trump in 2016 was such an event. https://www.cnn.com/2016/06/19/politics/trump-rally-gun-police-officer/index.html
This image clarifies why it was not necessary for the officer to rough up Sandford to thwart his half-witted attempt at political murder. https://i.guim.co.uk/img/media/28dc9beccdeaeae86e61c84ab4469a91cdb6e45f/0_277_3546_2127/master/3546.jpg?width=465&dpr=1&s=none
Cole B. Combs
Cole Combs Law Firm PLLC
5600 Bell St., Ste. 105, #298 Amarillo, TX 79109
806-318-8899
https://www.texaslawcole.com/
For a law enforcement officer or nonsworn individual, is there any caselaw or jury instruction (Federal or your state) which recognizes the unique and deadly nature of the threat presented by an attempted firearm disarm? Is there an independent statutory basis to independently assert deadly force justification? For example, that the disarm is the attempted commission of a robbery (unlawful taking of the firearm by force).
In Texas, not particularly.
What arguments would you present in defense of an LEO or armed citizen who used deadly force to prevent being disarmed?
The same argument as any other use of deadly force. Texas Penal Code Sec. 9.32(a)(1)(B) permits the use of deadly force to prevent the imminent commission of (among other things) a robbery, or armed robbery as applicable.
Robbery under Tex. Pen. Code Sec. 29.02 means that someone is trying to commit a theft, and at the same time intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
This is subject to a reasonable belief that force is at all immediately necessary under Sec. 9.31 generally. I can’t imagine a jury anywhere that wouldn’t think deadly force was immediately necessary in that circumstance, especially if you drag a half dozen cops onto the stand and ask each of them how they would react to someone trying to forcibly disarm them. Any of them who didn’t agree that deadly force was required would look like lying morons in front of a jury.
Donald O. Chesworth
Tully Rinckey PLLC
400 Linden Oaks Suite 110, Rochester, NY 14625
585-899-1423
https://www.tullylegal.com/
The New York law is set forth in Article 35 of the Penal Law. The basic rule is that one can use deadly physical force in self defense or to defend others. The statute has a number of exceptions to the general rule but none that would allow a police officer or an individual to use deadly force to prevent the use of such force unless it meets the requirements of self defense or the defense of another. The standard of the reasonable man is always involved in the decision.
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A big “Thank You!” to our affiliated attorneys for their contributions to this interesting and educational discussion! Please return next month for additional responses.