This month’s topic is drawn from 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?

The responses were so numerous that we will share the first half of the responses this month and then wrap up the second half of these commentaries in the June edition of this online journal.

Thomas C. Watts III
Thomas C. Watts Law Corporation
8175 Kaiser Blvd, Ste. 100, Anaheim Hills, CA 92808

In a word, NO. There are three elements to consider (California):

  1. Reasonable belief in IMMINMENT death or great bodily harm to self or another;
  2. Reasonable belief that the immediate use of deadly force was necessary to defend against that danger; and
  3. No more force was used than was necessary to counter the danger.

The rule in California is the future harm is not sufficient, no matter how great or how likely the harm is believed to be.

James B. Fleming
P.O. Box 1569, Monticello, MN 55362

I would not recommend it. It is simply begging for an expensive defense to an almost inevitable prosecution, and later civil suit. Factors to be endlessly litigated would be–

  • A very low mortality rate;
  • The physical and medical condition of the shooter;
  • The efficacies of the means of exposure;
  • Ability to retreat (which is gonna come up, even in stand your ground jurisdictions, this is a unique situation not contemplated by that legislation);
  • Would this constitute a reasonable perception of imminent death or great bodily harm;
  • Would deadly force be deemed to be an objectively reasonable response by a jury;
  • And the unanswered question of whether exposure to the virus would be considered assaultive behavior in the jurisdiction in which the shooting takes place.

Being the test case for this is a really, really bad idea.

Emanuel Kapelsohn, Esq.
Lesavoy Butz & Seitz LLC
7535 Windsor Drive #200 Allentown, PA 18195
610-530-2700 - Home office 484-504-1345

Without giving legal advice, but merely to provide information for the reader’s consideration, here in Pennsylvania it’s a felony in the 3rd degree if an incarcerated prisoner assaults someone by using bodily fluids infected with a communicable disease, carrying a penalty equal to that of second degree murder, including the possibility of life without parole. With regard to non-prisoners, that is, people on the “outside,” in the 1990s there were several convictions for aggravated assault, which is causing or attempting “to cause serious bodily injury … under circumstances manifesting extreme indifference to the value of human life,” by biting or throwing human feces by a defendant who knew he had HIV. I know of no cases yet involving a defendant who knew himself/herself to be COVID-19 positive, but the analogy is obvious.

That being said, any individual faced with an “attacker” who may or may not be COVID-19 positive, or who may or may not actually be suffering visible symptoms – which may, to the layman, be indistinguishable from symptoms of the common cold or flu – needs to use a lot of common sense in evaluating the situation, and in attempting or considering avoidance or de-escalation before resorting to deadly force. It’s like the difference between shooting someone in a dark parking lot who is approaching you with an unlabeled jar of liquid held menacingly in his hand when there has been a recent rash of attacks in your town where acid has been thrown in people’s faces, compared to shooting someone in a restaurant who is approaching you with a glass of liquid in his hand. In either case, you’ll need to convince the police, the prosecutor, and/or the jury that, under the totality of the circumstances, it was reasonable for you to fear the liquid in the container was acid, not a harmless beverage. In the restaurant example, you’ll likely have a very, very hard time convincing anyone your fear was reasonable, especially if it turns out that the liquid in the glass was Diet Coke. And while a six foot “social distance” may be a good precaution for everyone to follow if possible, you’d better not think you can go around shooting, or even pointing your gun at, anyone who approaches you closer than that!

Finally, I’m discussing Pennsylvania law. Laws of this sort vary from state to state, and can also change in any state, including Pennsylvania, with the next court decision, or by a stroke of the legislature’s pen.

Derek M. Smith
Partner, Law Offices of Smith and White, PLLC
717 Tacoma Ave. S., Suite C, Tacoma 98402

Like any use of force, the short answer is “It depends.”

Self defense is always dependent on what exactly is being threatened, who is doing the threatening, who is being threatened, and whether another person would view the situation as possibly life threatening if they knew what the shooter knew (or in some states what a reasonable person in the shoes of the shooter knew) about the situation.

First, it should be crystal clear that if someone uses COVID-19 as a justification for self defense, no matter how justified that turns out to be when all is said and done, they should expect to be arrested and incarcerated for a time while this is going to be sorted out since there is no way that, even in the most self-defense friendly jurisdictions, this is going to be something that can be verified by the first responding officers/detectives. This is not like some other self-defense scenarios where if the shooting is clear cut, the officers often will not arrest the shooter at the scene, especially if it’s at home. So, the shooter should expect to be incarcerated–almost certainly in jail where, if the shooter justifiably feared COVID-19, some of the inmates are probably carriers or infected with COVID-19. So, just be prepared accordingly.

This is absolutely one situation where I would recommend anyone in the situation where they fear for their/loved ones lives because of COVID-19, they should just STAY HOME. If you (shooter) are okay with going outside, the threshold you have to meet to justify the use of force is fear of death/serious bodily injury, then you should know well that ANY use of force is going to be judged skeptically, no matter how justified in the end it turned out to be.

Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003

In this swirling ocean of uncertainty in which we now find ourselves, I feel that it is important that we remember that rules still apply – or at least they are supposed to! At the end of the day, a person’s use or threatened use of lethal force will be determined as reasonable or unreasonable by our system – inevitably a jury.

In order for that threat/use of lethal force to be deemed lawful, it must have been in response to an imminent threat to human life. In light of the medical facts that exposure to COVID-19 does not guarantee infection, and that infection does not guarantee illness, and that illness does not guarantee death (in fact, the numbers seem to indicate a very small percentage of fatal infections) I would prognosticate that the threat of or use of lethal force in response to such a threat would most likely be viewed as unreasonable, and therefore illegal.

I would liken the situation to someone swerving their car towards me in fast-moving traffic. Scary? For sure. Potentially dangerous? Certainly. An imminent threat to my life? Unlikely.

It is always wise to remember that, unless you’re a sociopath, you never want to shoot anyone. We all know that we may have no choice but to stop someone if we are in imminent fear for a human life, but I do not think this situation qualifies. I hope all of our members and their loved ones are safe, passing up on the opportunity to make out with strangers and washing their hands diligently!

John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
This email address is being protected from spambots. You need JavaScript enabled to view it.

In Maine, the statutory analysis suggests that, unless you are in a very rarified category of “at risk” person, you probably cannot use deadly force to prevent coronavirus exposure.

First, the statutory definition:

5. “Bodily injury” means physical pain, physical illness or any impairment of physical condition.

23. “Serious bodily injury” means a bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or loss or substantial impairment of the function of any bodily member or organ, or extended convalescence necessary for recovery of physical health.

8. “Deadly force” means physical force that a person uses with the intent of causing, or that a person knows to create a substantial risk of causing, death or serious bodily injury.

Spitting is definitely “physical force,” as is wiping fluids. Breathing probably is. The issues are: “Substantial risk of death,” “substantial impairment of the function of any bodily member or organ, or extended convalescence necessary for recovery of physical health,” and “a person knows to create a substantial risk of causing.”

Our Supreme Judicial Court has found it a jury question whether a “broken nose is “serious bodily injury” in State v. Carmichael, 405 A. 2d 732. Given the statistics regarding the percentage of coronavirus carriers who are completely asymptomatic, it is in fact difficult to say that coronavirus infection has even a high possibility of causing death or serious bodily injury in the average human.

However, the analysis doesn’t end there. A person is usually justified in shooting an attacker wielding an unloaded, inoperative or realistic look-alike toy firearm. The issue is the “reasonable belief” of the shooter. Given the press from the CDC and other outlets, it took me a couple of minutes to come up with this quote: “But I would say again that what we know is that this disease can be deadly.”

In Kenya, they are shooting some people for breaking quarantine. Here, they are arresting churchgoers. The headlines shriek about the horrors of coronavirus, and the mounting toll of the dead. Is a belief that the disease is deadly “unreasonable?” Clearly, not if you are elderly or immune compromised. However, if you are one of the lucky “recovered” people (and KNOW it), you are one of those who cannot reasonably fear the coronavirus.

A word about the often ignored piece of this–“reasonably believes it necessary.” If you can roll up a window, drive away or shut a door and frustrate the attack, you fail the second prong. However, this is one “attack” where a much smaller person can make good on his threat, despite taking a savage beating because of size disparity.

Conclusion: In many “model penal code” states, immune compromised and elderly persons likely will be justified, absent a means of safe avoidance of being spit on or sprayed with saliva. “Recovered” people should consider it NOT a threat of deadly force, because they’re safe and they know it. For the rest of us–it depends on what we think we can prove to a jury we “reasonably believed” about the attack.

A big “Thank You!” to our affiliated attorneys for their interesting contributions to this timely discussion. Please return next month when we share the second half of our affiliated attorneys’ commentaries on this topic.

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