In late July the news was full of reports that rioters and other protesters had attacked citizens and law enforcement officers with lasers that can permanently damage vision. Some reports predicted Federal officers interdicting rioters in Portland, OR would suffer permanent blindness although the story moderated somewhat in the early days of August when word came out that the officers suffering eye damage were recovering after “suffering days-long blindness.”
Internet forums and social media continue to boil over with discussion of and suggestions about shooting rioters who aim lasers at a person’s eyes. Some of the discussion spilled over temporarily to the Network’s Facebook page. Because of the intense fear created by rioters' use of lasers to blind those who oppose them, we sought knowledgeable responses from our Network affiliated attorneys to this question:
If attacked by a person aiming a high-intensity laser at the eyes, does fear of permanent eye damage justify shooting the person wielding the laser?
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
In Georgia, you can use deadly force to prevent death or great bodily injury. It would be up to a jury to decide if being blinded permanently is great bodily injury, but I would think it would be. But I also note that you can be blinded by lasers that are not visible to the naked eye, and it takes less than a second for serious, permanent eye damage to occur.
Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580
New York is a retreat with safety jurisdiction, so if retreat can be done safely, retreat is required. Since a laser in this instance cannot do any damage unless it contacts the eyes, the victim can turn around and make a safe retreat.
The real question of interest is what happens when no retreat is possible, and the aggressors make known their intention, or their intention otherwise is clear: to blind the victim. As example, the victim must fend off blows from surrounding attackers, one of whom is trying to blind the victim with a laser. Obviously, the victim cannot defend himself while keeping his eyes closed.
Blinding is a serious physical injury for deadly force purposes, so under these circumstances I would feel rather confident arguing that deadly force had to be used against the laser villain. But without such extreme circumstances, deadly force should not be used.
In Tennessee, the use of deadly force is not permitted under TCA 39-11-611 unless there is imminent threat of death or serious bodily injury. Since there does not appear to be reports of the laser attacks causing death (other than perhaps as incidental to temporary or permanent blindness or obstructed vision), the question becomes whether the laser can and does cause “serious bodily injury.” The term “serious bodily injury” is defined in the statutes. Tennessee Code Annotated § 39-11-106 defines the term:
(36) “Serious bodily injury” means bodily injury that involves:
(A) A substantial risk of death;
(B) Protracted unconsciousness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement;
(E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty; or
(F) A broken bone of a child who is twelve (12) years of age or less.
Looking at this list, the most relevant consideration might be under subpart “E” if there is clear medical proof that such lasers would cause the protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty. If medical experts would agree that such lasers do cause the type of harm that by statutory definition causes or creates an imminent risk of serious bodily harm, then that consideration might be met.
But there are other considerations under Tennessee law before one can resort to deadly force. There are, unfortunately, a number of statutory issues that are relevant such as where was the potential located, was the potential victim in her home or another place that was under her dominion, was the potential victim engaged in any illegal activity, did the potential victim have a duty to retreat, and others. The answers to these other factors are also important to evaluating under Tennessee law whether deadly force is justified.
Finally, you always have to be aware that the decision to use deadly force often has to be made in a matter of seconds. On the other hand, the evaluation of that choice in the legal system will often take months if not years of hindsight and critical evaluation particularly if a death is involved.
Kelly & Chapman
PO Box 168, Portland, ME 04101
In Maine, yes. There's both a direct and an indirect reason why.
1) In Maine, the definition of “deadly force” includes “serious bodily injury.”
“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. https://www.mainelegislature.org/legis/statutes/17-A/title17-Asec2.html#:~:text=Dangerous%20weapon.,death%20or%20serious%20bodily%20injury.
2) In a “one on one” situation, if someone is attempting to blind you, knowing you have a firearm, it is the same argument as regarding tasers. If they can incapacitate you, they get your firearm, with which they can end your life.
Is the eye damage permanent? Possibly relevant to item 1 but irrelevant to item 2. Also, there's no way to tell until time has passed. Trust someone trying to blind you with a laser? Among other things, that violates the actual, real rules of war. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule86
"I wasn't gonna' let him blind me, maybe permanently" would seem to resonate with a jury. That would be especially true for law enforcement dealing with multiple arsonists chanting, “Kill the pigs, fry 'em like bacon.” One could reasonably anticipate not being allowed to go to a hospital and recover once being incapacitated.
On the other hand, use of a “blinding laser” would be deadly force, but possibly JUSTIFIED deadly force, under the right circumstances.
Bottom line: the use of blinding lasers is a basis for reasonably believing a bunch of things that would justify deadly force. Blinding lasers, even in a military environment–indeed especially in a military environment–usually violate the international rules of war.
Derek M. Smith
Law Offices of Smith and White, PLLC
717 Tacoma Ave. S., Suite C, Tacoma, WA 98402
This is a fairly straightforward question but it’s difficult to answer. As with many of these “It depends” is almost certainly the best response. So what exactly is the scenario:
1. You’re driving your kids to school, some protesters come up suddenly and one tries to blind you with the laser as they surround the car.
2. You’re walking down the street by yourself and a protest is occurring 100 yards away and you see a guy with a laser trying to blind you.
3. You’re standing in front of your business during a protest to protect it and you see someone with a laser trying to blind you.
All three are going to get different responses from me depending on: what is your ability to take the shot, how likely do you think you will suffer permanent injury, who are you protecting, what else is around the protester that might get hit, and what is your ability to avoid the laser? I guess, ultimately, it comes down to this old paraphrased adage: is it better to be judged by 12 [and incarcerated for up to the rest of your natural life] than be [ here insert a) slightly inconvenienced, b) really inconvenienced by, or c) very and critically inconvenienced] by moving head/body to avoid laser. I can see a scenario where replying with deadly force might be authorized, but remember that, unlike some justified shootings, you are almost certainly going to have to go to court to justify your potentially, or actual, lethal response to this threat and this means justifying the difference between a bullet's and a laser's impact.
And as a final note, firing a round(s) in the air to scare people is almost never a justified response no matter what ex vice presidents say.
Jeffrey F. Voelkl, Esq., LL.M.
Robshaw & Voelkl, P.C.
5672 Main Street, Williamsville, NY 14221
In New York State, a person may use deadly physical force upon another individual when, and to the extent that, he/she reasonably believes it to be necessary to defend himself/herself from what he/she reasonably believes to be the use or imminent use of [unlawful] deadly physical force by such individual.
Some of the terms used in this definition have their own special meaning in our law. I will now give you the general meaning of the following terms: “deadly physical force” and “reasonably believes.”
DEADLY PHYSICAL FORCE means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.
Serious physical injury means impairment of a person’s physical condition which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
The determination of whether a person REASONABLY BELIEVES deadly physical force to be necessary to defend himself/herself from what he/she reasonably believes to be the use or imminent use of deadly physical force by another individual requires the application of a two-part test.
That test applies in the following way: First, the defendant must have actually believed that the person pointing the laser was using or was about to use deadly physical force against him/her, and that the defendant’s own use of deadly physical force was necessary to defend himself/herself from it.
Second, a “reasonable person” in the defendant’s position, knowing what the defendant knew and being in the same circumstances, would have had those same beliefs.
Thus, under our law of justification, it is not sufficient that the defendant honestly believed in his own mind that he was faced with defending himself/herself against the use or imminent use of deadly physical force. An honest belief, no matter how genuine or sincere, may yet be unreasonable.
To have been justified in the use of deadly physical force, the defendant must have honestly believed that it was necessary to defend himself/herself from what he/she honestly believed to be the use or imminent use of such force by (specify), and a “reasonable person” in the defendant’s position, knowing what the defendant knew and being in the same circumstances, would have believed that, too.
Based upon the foregoing law, it would be extremely difficult in New Yok to justify the use of deadly force upon a person pointing a laser into another person’s face. The above explanation is a very general overview of New York law. Each case is extremely fact specific oriented and there are numerous caveats and exceptions.
Kevin L. Jamison
2614 NE. 56th Terrace, Kansas City, MO 64119
After Texas passed its license to carry law the first self-defense case was a man attacked by a much larger man. The defender was punched in the eye which detached the retina. The defender drew and fired. He was found not guilty because the attacker had detached his retina. This was damage to an organ. Deadly force was therefore appropriate.
I fail to see the difference in burning someone’s retina.
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.
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