Attorney Question of the Month
Use of deadly force in defense of others is the topic we are currently discussing with our Affiliated Attorneys. Here is the question we started last month—
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 this is the second installment of the answers, which we will wrap up in the September edition of this journal.
Short Law Group P.C.
12755 SW 69th Ave., Ste. 200, Portland, OR 97223
Under Oregon law, an individual may respond with deadly force in three scenarios; when that individual reasonably believes that another person is committing or attempting to commit a felony involving the use/threatened use of physical force against a person, committing/attempting to commit a burglary of a home, or using/about to use deadly physical force against another person. That’s it: Physical force in felonious crimes, burglary, and deadly physical force. Of course, this view must be “reasonable.” In any event the perceived danger must be imminent (about to happen) to use this defense.
Eric W. Schaffer
Attorney at Law
Schaffer, Black & Flores P.C.
129 W. Patrick St., #5, Frederick, MD 21701
Maryland allows anyone to come to the aid of a third party without regard to the relationship between the defender and the person they are aiding. Deadly force will be lawful if the defender believes the person they are defending is in “immediate and imminent” danger of death or serious bodily harm, that belief is objectively reasonable, the defender uses no more force than reasonably necessary and the defender’s purpose was to aid the person being attacked and not to punish the attacker or avenge the victim. If all four of these factors are present then it is a complete defense to any murder or assault charges.
If the defender’s belief is not reasonable, or they use too much force then it will be considered incomplete self defense which will mitigate murder charges to involuntary manslaughter.
In Maryland you are not allowed generally as a third party to stop the in-progress of any specific crime or crimes. Rather the test is if the actions of the person committing that crime place the victim in “immediate and imminent” danger of death or serious bodily harm.
William J. Powell
Jackson Kelly PLLC
310 W. Burke St., Martinsburg, WV 25401
Under West Virginia law, one can use deadly force if the person you are protecting would have that right. However, it is important to be sure that the person you are protecting was in fear for her life or serious bodily harm, and would otherwise meet the self-defense criteria. Often times the intervener does not have all of the facts and puts his or herself at risk of prosecution.
Stephen (Matt) Whyte
Kirk Pinkerton, P.A.
1001 3rd Ave. W., Ste. 375, Bradenton, FL 34205
240 S. Pineapple Ave., 6th Fl., Sarasota, FL 34236
When I lecture to groups in Florida on the justifiable use or threat of use of force, I take a few extra moments to talk about the use of force or threat of use of force in defense of others, because the law can be difficult to interpret and apply. What may initially seem clear in one statute is mitigated, lessened, or limited in another statute. The way I put it when I lecture is to tell people, “if you are going to get involved in a situation that did not initially involve you, you’d better be sure you are picking the right dog in that fight.” If you wind up helping the “wrong” person, you may very well find yourself in serious trouble.
According to Florida law, a person can use deadly force or the threat of deadly force to prevent the imminent commission of certain felonies, known as “forcible felonies,” to others. However, one needs to be cautious in blindly applying the black-letter law, as there are exceptions to this justification, and this area of the law can become quite confusing.
Basic “self-defense” law in Florida (Section 776.012(2), Florida Statutes) states that a “person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” In Section 776.08, Florida Statutes, a “forcible felony” is defined as “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”
When read together, Sections 776.012(2) and 776.08 seem pretty straightforward in defining when a person is justified in using or threatening to use deadly force to prevent the imminent commission of a forcible felony to another. But, there are other statutes and case law (prior court decisions) that limit when such justification is legal. For example, Section 776.041 states that the justifications found in Chapter 776, regarding the justifiable use of force are not available “to a person who: (1) is attempting to commit, committing, or escaping after the commission of, a forcible felony; or (2) initially provokes the use or threatened use of force against himself or herself…” When one considers the general proposition that you only enjoy the same privileges as the person you are trying to help or defend, if the person you are trying to help was committing, attempting to commit, or escaping from the commission of a forcible felony or if they were the initial aggressor or provoked the use or threatened use of force, you may very well be unable to use the justifications found in Chapter 776.
To add to the confusion, there are exceptions to the exceptions stated in 776.041(2) which allow a person to use deadly force or the threat of deadly force even if they initially provoked the use or threatened use of force against themselves. However, these exceptions to the exceptions can be difficult to understand and nearly impossible to quickly and correctly apply in a real world scenario, especially if you were not a part of the initial problem. For example, Sections 776.041(2)(a) and (b) state that a person who initially provoked the use or threatened use of force against himself or herself may still be legally justified in using force or the threat of force if “(s)uch force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape the danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant” or if, “(i)n good faith, the person (initial aggressor) withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.” Try applying those exceptions to the exceptions in a matter of seconds when bullets may be flying.
As stated above, with the various statutes, exceptions, and exceptions to the exceptions, the use or threat of use of deadly force to prevent the imminent commission of a forcible felony against others can be a confusing area of the law, despite the initial appearance of being straight-forward, and the exercise of such force or threat of force should be employed with caution.
Despite what I hear from some who cite me the “letter of the law” in Florida, there are practical, common sense considerations when exercising the use or threat of use of deadly force to prevent the imminent commission of a forcible felony. For example, burglary is on the list of forcible felonies. Does this mean that one will be justified in using deadly force to prevent the imminent commission of EVERY burglary? While some have argued to me that this is true based on a literal reading of the statute book, the real world answer is an unqualified no. Could anyone reasonably believe that they would be justified in using deadly force to stop a person that is breaking into a neighbor’s car or an abandoned house in the neighborhood? These very well may be burglaries (and, as such, are defined as a forcible felonies) that are imminent or actually occurring, but, as a veteran of many criminal jury trials, I believe a jury would be hard-pressed to find such a shooting justified in either situation.
Another example of when practical, common sense considerations should be used in the use or threat of use of deadly force to prevent a forcible felony from occurring can be found in the “catch-all” part of the definition of forcible felony where it states that a forcible felony includes “any other felony which involves the use or threat of physical force of violence against any individual.” In Florida, a battery occurs when a person “actually and intentionally touches or strikes another person against the will of the other” or “intentionally causes bodily harm to another person.” So, a simple (misdemeanor) battery can occur with something as simple as an unwanted touch.
Under Florida law, there are certain classes of people who enjoy greater protection from unwanted or nonconsensual touching or physical contact, including but not limited to law enforcement officers, firefighters, emergency medical care providers, public transit employees, people over the age of 65, pregnant women, code inspectors, and sports officials (referees, umpires, and linesmen). For these classes of people, a simple, nonconsensual touching is reclassified from a first degree misdemeanor to a third degree felony. As we learned at the beginning of this article and again at the beginning of this paragraph, a forcible felony includes “any other felony which involves the use or threat of physical force or violence against any individual.” So, does this mean that a person will be justified in using deadly force to prevent EVERY imminent commission of a battery against a person in one of these protected classes? Again, the answer should be a resounding no. While Florida law may reclassify the nonconsensual touching of a person in these protected classes from a simple misdemeanor to a felony, I doubt a reasonable jury would find the use of deadly force justified for nothing more than a touch.
As for the question of whether the forcible felony must actually be occurring, Florida Standard Jury Instruction 3.6(f), Justifiable Use of Deadly Force, summarizes Florida law by stating that “(t)he danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of force. Based upon appearances, the defendant must have actually believed that the danger was real.” Thus, the danger does not have to be actual, but it will be incumbent on the defense to convince the jury that the defendant believed the danger was real and would have appeared so to a reasonably cautious and prudent person under the same circumstances.
Florida has long supported the right of citizens to defend themselves and others from the nefarious acts of predators who seek to do harm. While the basic rights of self defense and use of force (both deadly and non-deadly) have remained fairly constant in Florida for years, the finer points of these issues evolve and change over time. It is incumbent upon each and every responsible, law-abiding firearm owner to be aware of his or her responsibilities under Florida law–coupled with a healthy dose of common sense–when deciding whether to employ the use of deadly force or the threat of deadly force. As much as one practices their draw stroke from concealed carry to make it fast and clean, as much as one practices sight alignment to ensure a level, well-aimed firearm, and as much as one practices their trigger press to prevent jerking their shot off target, one must practice various scenarios where the use or threat of use of deadly force may be required. This practice includes not only mental preparation but also, when possible and available, physical practice under the watchful eye of trained professionals in a safe environment.
We extend a heartfelt “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for the final installment of answers to this question.
Click here to return to August 2015 Journal to read more.