Attorney Question of the Month
Use of deadly force in defense of others is a slippery slope with which armed citizens must come to terms as their training and subsequent beliefs mature beyond the stage at which many feel they can and would use a gun with impunity to stop commission of a crime. On this topic, we asked our Affiliated Attorneys—
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 responses–some quite lengthy–came in that we will break responses to this question into several segments. For now, here are some of the responses–
Daniel L. Hawes
Virginia Legal Defense
PO Box 100, Broad Run, VA 20137
Under Virginia law, “stopping a serious felony in progress” is an affirmative defense to any charge arising out of the use of force in appropriate circumstances. “In progress” is an important phrase, it can’t be a felony about to happen, or one that has been completed. You can’t shoot bad guy while he’s walking away from the crime and you don’t know what’s in a person’s mind before he commits an overt act.
The phrase, “serious felony,” as of today, means one of five enumerated felonies so identified by the Virginia Supreme Court: rape, robbery, murder, arson, and burglary. The reason force, including deadly force, is justified in such circumstances is the presumption that the felon is engaged in behavior likely to be a serious threat to human life, whether or not some specific person is within the zone of danger.
You don’t have to know, for example, that granny’s sleeping on the third floor of a frame house while Johnny Firebug is pouring gasoline into the basement window. The house could be empty, but the threat to unspecified occupants justifies the use of force. There are folks who feel abduction and especially abduction with intent to defile would be considered “serious felonies“ by the Court but that case hasn’t come up for trial, yet.
PO Box 66609, Houston, TX 77266
Generally speaking, deadly force may be used in Texas to defend someone else.
The threat must be imminent and actual, not just a fear that someone will come and do harm.
This is a carefully guarded answer as the circumstances have to be analyzed in each case.
There was a case in Houston, Texas where a man shot someone on his neighbor’s lawn. The shooter was not indicted. This was a controversial shooting and might have a different result in a different Texas county.
The Texas Legislature just ended its 2015 session and many bills are awaiting action by the Governor. I do not know what, if any, legislation may have been passed in 2015.
Donald P. Day
Law Office of Donald P. Day, LLC
3375 E Tamiami Trail, Ste. 200, Naples, FL 34112
Florida does allow the use of force in the defense of others. Florida may also allow a third party to use force to stop the commission of a violent offense. The question for the Court to address in these types of cases in Florida is whether the person who intervened reasonably believed, based on the circumstances, great bodily harm or death was imminent.
The force that can be lawfully used will depend on the potential harm to the victim. For instance, if someone were to witness a robbery where the robber was stealing a candy bar from a local 7-11, a citizen could not shoot the robber claiming that the clerk working in the store was in some kind of danger. Under those facts there is no evidence that the clerk was facing imminent death or great bodily harm.
In short, Florida is very fact specific in determining whether the use of force is proper. In simple terms the intervener should place themselves in the shoes of the victim. If the intervener would believe they are facing death or great bodily harm if they were in the victim’s shoes then the use of force may be justified depending on the facts.
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
In Maine, at least for criminal law purposes, the answer is provided in 17-A MRSA section 108 (http://www.mainelegislature.org/legis/statutes/17-A/title17-Asec108.html):
2. A person is justified in using deadly force upon another person:
A. When the person reasonably believes it necessary and reasonably believes such other person is:
(1) About to use unlawful, deadly force against the person or a 3rd person; or
(2) Committing or about to commit a kidnapping, robbery or a violation of section 253, subsection 1, paragraph A, against the person or a 3rd person
Thus, the three specific “deadly force” crimes are kidnapping, robbery (not just theft) and “gross sexual assault via compulsion.”
All three can be justified on a “reasonable belief” (as opposed to “in fact”) basis. Note also that one must believe that he/she cannot resolve the situation without deadly force. Thus, where a small man attempts to rob an old woman, and a much larger man wants to stop it, the larger man probably cannot shoot, unless the little robber has a weapon.
Also, Maine (like NH) adheres to the rule that simply threatening deadly force is not, itself, deadly force. Thus, you could produce a firearm and demand the robber to stop in many more cases than one could actually shoot. Also, though generally a bad idea, the “warning shot” may be non-deadly force if fired in a direction other than in the direction of a person.
The theft/robbery distinction is important, because in Maine, deadly force cannot be used to prevent what is merely a theft. However, a theft can become robbery via the use or threat of force against anyone present, with the intent described in the robbery statute.
Finally, in defense of premises, section 104, one can use deadly force on a reasonable belief basis to prevent an arson (http://www.mainelegislature.org/legis/statutes/17-A/title17-Asec104.html):
2. A person in possession or control of premises or a person who is licensed or privileged to be thereon is justified in using deadly force upon another person when and to the extent that the person reasonably believes it necessary to prevent an attempt by the other person to commit arson.
Also, under 104, SOME criminal trespasses of dwellings may generate justification for deadly force:
3. A person in possession or control of a dwelling place or a person who is licensed or privileged to be therein is justified in using deadly force upon another person:
A. Under the circumstances enumerated in section 108; or [1975, c. 740, §26 (NEW).]
B. When the person reasonably believes that deadly force is necessary to prevent or terminate the commission of a criminal trespass by such other person, who the person reasonably believes:
(1) Has entered or is attempting to enter the dwelling place or has surreptitiously remained within the dwelling place without a license or privilege to do so; and
(2) Is committing or is likely to commit some other crime within the dwelling place.
So, FIVE specifically named crimes. The final one is much like common law “burglary” of a dwelling. It is the only one specifically requiring a demand or warning.
Attorney at Law
148 E. Grand River, Ste. 106, Williamston, MI 48895
In response to your question, in Michigan a person may use “deadly force” not only in self defense, but in defense of others, as well. The person asserting self defense/defense of others does not have to be correct, merely have an honest and reasonable belief that they are acting in self defense or the defense of others. I am including the statue on Deadly Force and the Jury Instruction for your convenience.
780.972 Use of deadly force by individual not engaged in commission of crime; conditions.
(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.
(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.
Michigan Criminal Jury Instructions: 7.21 Defense of Others—Deadly Force
(1) The defendant claims that [he / she] acted lawfully to defend ___________. A person has the right to use force or even take a life to defend someone else under certain circumstances. If a person acts in lawful defense of another, [his / her] actions are justified and [he / she] is not guilty of [state crime].
(2) You should consider all the evidence and use the following rules to decide whether the defendant acted in lawful defense of another. Remember to judge the defendant’s conduct according to how the circumstances appeared to [him / her] at the time [he / she] acted.
(3) First, at the time [he / she] acted, the defendant must not have been engaged in the commission of a crime.
(4) Second, when [he / she] acted, the defendant must have honestly and reasonably believed that ___________ was in danger of being [killed / seriously injured / sexually assaulted]. If [his / her] belief was honest and reasonable, [he / she] could act at once to defend ___________, even if it turns out later that the defendant was wrong about how much danger ___________ was in.
(5) Third, if the defendant was only afraid that ___________ would receive a minor injury, then [he / she] was not justified in killing or seriously injuring the attacker. The defendant must have been afraid that ___________ would be [killed / seriously injured / sexually assaulted]. When you decide if [he / she] was so afraid, you should consider all the circumstances: [the conditions of the people involved, including their relative strength / whether the other person was armed with a dangerous weapon or had some other means of injuring ___________ / the nature of the other person’s attack or threat / whether the defendant knew about any previous violent acts or threats made by the attacker].
(6) Fourth, at the time [he / she] acted, the defendant must have honestly and reasonably believed that what [he / she] did was immediately necessary. Under the law, a person may only use as much force as [he / she] thinks is needed at the time to protect the other person. When you decide whether the force used appeared to be necessary, you may consider whether the defendant knew about any other ways of protecting ___________, but you may also consider how the excitement of the moment affected the choice the defendant made.
(7) The defendant does not have to prove that [he / she] acted in defense of ___________. Instead, the prosecutor must prove beyond a reasonable doubt that the defendant did not act in defense of ___________.
But please note, that Michigan does not allow the use of deadly force to stop any other crimes, e.g. simple assault, domestic violence, drug deals, robbery, larceny, etc., only the crimes which cause the person to believe either they or another are in imminent danger of death, great bodily injury, or sexual assault.
We extend a heartfelt “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for more of the answers we received to this question.
Click here to return to July 2015 Journal to read more.