This month’s topic is continued from last month when we introduced a question we are currently being asked by Network members who are concerned, as are so many, with exposure to the coronavirus. We greatly appreciated our affiliated attorneys’ comments on the following:

With the threat of contracting the COVID-19 virus on everybody’s minds, members are asking what is the appropriate response to someone threatening them with exposure to COVID-19? May an armed citizen legally use deadly force to stop such a threat?

Benjamin M. Blatt
P O Box 221, South Bend, IN 46601

Given the statutory framework, it is questionable whether or not such a threat could ever reasonably constitute a threat of serious bodily injury or a forcible felony for which lethal force is a reasonable response.

The relevant statutes to consider are:

  1. Indiana Code 35-41-3-2 which permits the use of lethal force to prevent serious bodily injury or the commission of a forcible felony;
    2. IC 35-31.5-2-138 which defines a forcible felony as a felony which involves the use or threat of force against a human being or in which there is imminent danger of bodily injury to a human being. (Note that this statute does not use the term “serious bodily injury,” a heightened injury level); and
  2. IC 35-42-2-1 which describes when battery by bodily waste may or may not constitute a felony. In Indiana, battery, save for the modifying circumstances in this statute, is by itself a misdemeanor if the victim is not hurt or suffers only minor pain.
  3. The short answer is, it is going to depend on a number of circumstances, but, in general, some definitive guidance can be made. If the act is merely threatened, and the person making the threat has no reasonable means of carrying out the threat, for example threatening to spit on you from 30 feet away or on the other side of a door, it would be unreasonable to use any force. If the person in fact spits on you, it will, in most circumstances, only be a misdemeanor offense, for which lethal force is not a reasonable response. You may or may not fall within the matrix of persons which turn the battery into a felony as described here:, but if you are a public safety official acting in their official capacity, or if you are acting to protect a child under 14 from the actions of an adult, then, in those limited circumstances, the battery would, with certainty, constitute a forcible felony for which IC 35-41-3-2 permits the REASONABLE use of lethal force.

That is not to say “go ahead and shoot” if someone threatens to or is about to spit on your kid, however. You have to be able to reasonably articulate that lethal force was the only way of preventing the act, and that's likely to be a tough sell.

So, in general, while the legal answer is “it depends,” the legal advice is: That’s probably a very bad idea. If you think you’ve been exposed, seek immediate medical attention and report the incident to law enforcement.

Jonathan Rapel
Castillo Harper, APC
6848 Magnolia Ave., Ste 100, Riverside, CA 92506

The short answer to this question is no, and here is why. The law in California does allow for the use of deadly force in the defense of oneself and/or the defense of another. However, this legal defense to homicide (or attempted homicide in the event the perpetrator is injured and not killed) is not an absolute right and must be justified. How does the law determine the taking of a person’s life (i.e. the use of deadly force) to be justified? The answer is heavily dependent on the facts and circumstances surrounding the deadly encounter but can be broken down into general rules that an armed individual can use as a guide if and when the use of deadly force is permissible.

California law allows for the use of deadly force in the defense of an individual when the person using the deadly force reasonably believes that they or someone else are in imminent danger of being killed or will suffer great bodily injury. Additionally, the person defending themselves or another person must have reasonably believed at the time that the immediate use of deadly force was necessary to defend against the perceived threat. And the final element of the defense is a person cannot use any more force than reasonably necessary to defend against the danger.

Let’s take this one step at a time. The individual exhibiting the force must have believed there was imminent danger of death or great bodily injury to himself or someone else. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. Imminent, like many other legal terms, is defined by courts not dictionaries. For example, in People v. Aris the jury requested clarification of the term imminent. In response, the trial court instructed “imminent peril, means that the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with” (People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr. 167]).

It is clear from similar court rulings that the use of deadly force is only legally justifiable when the threat of death or serious injury is exhibited by the perpetrator in the form of an assault, battery, robbery, or other objectively obvious threat of physical harm. The threat of suffering grave illness, or even death, from a contagion such as COVID-19 would probably not constitute an immediate threat which would justify the use of deadly force.

The next prong that must be satisfied for the defense is the reasonable belief that the immediate use of deadly force was necessary to defend against the danger. This is fancy way of saying that the person who pulled the trigger felt like they needed to do so in order to prevent death or serious injury to themselves or to another person. The reasonableness of the use of deadly force must be evaluated from both a subjective and objective view. It may not be subjectively unreasonable for a person, especially someone who is in the “at-risk” group, or who has a family member who is susceptible to the disease and likely to suffer life threatening complications, to feel that a diagnosis of COVID-19 may in fact be a death sentence. However, the analysis for reasonableness does not end here.

The objective reasonableness of the use of force also must be determined in order for the deadly force to be justified. A finder of fact, most often times a jury, must consider what a reasonable person in a similar situation with similar knowledge would have believed at the time. Would a reasonable person feel like contracting the COVID-19 virus might lead to imminent death or serious injury? Statistics available at this early stage of the pandemic suggest that the mortality rate is still quite low, somewhere less than 5%. Of course, the mortality rate could be significantly higher if you are immunocompromised and/or over the age of 65. It may be a tough sell for a defense attorney to convince a jury that a reasonable person would feel contracting the coronavirus would be a life-threatening event when statistics show that the virus is not deadly in most cases.

The final prong of the self-defense doctrine is that the use of force used was no more than reasonably necessary to defend against the danger. California law does not require you to retreat from the threat of physical harm, what is commonly referred to as the stand your ground doctrine. However, the use of force must always be a reasonable response to the perceived threat. In other words, could an alternative use of force have been used to defeat the threat of harm. The use of deadly force should always be the choice of last resort when confronting a threat of physical violence, whether it’s a bad guy wielding a deadly weapon or in this case a virus.

Keith H. Rutman, Esq.
Attorney at Law
501 West Broadway # 1650, San Diego, CA. 92101

Generally speaking, you cannot use deadly force to respond to a less-proportionate threat. Absent knowledge that the “cougher” has tested positive for COVID-19, shooting such a person would expose you to manslaughter or murder charges. If you have to go out of your home, a mask is better protection than a gun in this circumstance.

A big “Thank You!” to our affiliated attorneys for their very detailed contributions to this interesting discussion. Please return next month when we ask our affiliated attorneys for their thoughts on a new topic.

To read more of this month's journal, please click here.