Network Affiliated Attorney Steven M. Harris (Florida) brought to our attention a recent Florida appellate decision granting pretrial self-defense immunity, Smith v. State, available here: https://1dca.flcourts.gov/content/download/2436123/opinion/Opinion_2022-3034.pdf
From the facts of Smith, Attorney Harris asked his fellow Network Affiliated Attorneys to explore the following questions.
For a law enforcement officer or nonsworn, is there any caselaw or jury instruction (Federal or your state) which recognizes the unique and deadly nature of the threat presented by an attempted firearm disarm? Is there an independent statutory basis to independently assert deadly force justification? For example, that the disarm is the attempted commission of a robbery (unlawful taking of the firearm by force).
What arguments would you present in defense of an LEO or armed citizen who used deadly force to prevent being disarmed?
The responses were numerous and we believe members will share our interest in the discussion that started last month at https://armedcitizensnetwork.org/august-2024-attorney-question.
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza Ste 201, Valley Stream, NY 11580
212-482-8830
https://www.thegunlawyer.net/
A quick review of New York caselaw did not reveal any specific cases addressing “attempt to disarm” as a basis for a self-defense claim, though various self-defense efforts have failed where criminals tried to use self defense as an argument against people who tried to disarm the criminals (See People v. King, 178 A.D.3d 853, 116 N.Y.S.3d 44 [3 Dept. 2014]).
One thing is certain about arguing that an attempt to disarm represented a deadly threat to you: The case absolutely will be fact specific. The precise facts of the situation at issue will yield the legal result, because there is no rule which says that lawfully you can shoot anyone who tries to disarm you.
Example: Good Samaritan sees you point a gun at a person, and assumes that you are the bad guy. You shoot the good Samaritan as he tries to disarm you. The good Samaritan did not know that the other person was reaching for his own weapon, and that you were acting in self defense. The good Samaritan dies from your gunshot wound. Likely you will be charged with a crime, and what the jury will say is unknown.
In a different example, a criminal pulls a knife on you, and you pull your gun. The criminal grabs for your gun and you fire. Different facts, and likely different outcome.
Thus, the events that occurred before the attempt to disarm will make all the difference in your case.
Roland S. Harris IV, Esq.
Cohen|Harris LLC
40 York Road - 4th Floor, Towson, MD 21204
888-585-7979
https://cohenharris.com/
In Maryland, on its face, this legal question is simple to answer, but factually it’s a mess.
Maryland breaks use of force into four categories: Self-Defense
Defense of Others
Defense of Habitation
and Defense of Property. A person is not allowed to use deadly force in defense of property, without exception in Maryland.
This writing will focus on self defense since that seems the form most applicable to the current question. A person may use deadly force if the user is not the aggressor, the user actually believed they were in danger of immediate and imminent bodily harm, that the belief was reasonable, and they use no more force than is reasonably necessary. There is no duty to retreat prior to the use of deadly force only if the route of escape is unclear or unknown, the user is in their own home, if they are lawfully arresting the “victim” or the user is the victim of a robbery.
Robbery in the State of Maryland is the taking of property by force or threat of force from a person's immediate possession. So, on its face, if a “robber” grabs the gun of a user one could argue no need to retreat and deadly force acceptable if the other factors weigh in favor of the user.
In reality, during a struggle there can be instances where a "robber" is separated from the firearm and the question becomes can the user use deadly force against a likely unarmed person. A judge or jury would have to decide if the user’s belief that the danger was imminent and immediate was reasonable, and that can change from one second to the next in a struggle and from one judge or jury to the next when the case is in the courtroom. Also, many times "victims" claim that the gun was drawn unlawfully to start with, and they attempted to slap it down or get it away from the user to protect themselves when they were shot which makes the whole thing even more messy.
If one finds themselves in a situation where they have used deadly force to defend themselves from an attempted disarmament it is imperative that they speak with an attorney before speaking with the police. These types of situations are very often not clear-cut events and can turn on what seem like minor details. A lawyer cannot tell a person what to say but they can make sure that the user is aware of the specific facts relevant to their event that must be reported, either to the investigating police officers or the judge or jury, in order to assert self defense.
Adam Wood
Wood Law Offices, PLLC
1213 Culbreth Dr. Ste. 431, Wilmington, NC 28405
704-565-3164
In both North and South Carolina, there is no duty to retreat if you are on your own property or any other place where you have the lawful right to be (so-called “Stand Your Ground” jurisdictions). You must, however, demonstrate that the use of deadly force was reasonable under the circumstances. In North Carolina, N.C. Pattern Jury Instruction 308.45 states that if circumstances create a reasonable belief in a person of ordinary firmness that an assault was necessary to protect from imminent death or great bodily harm, and this belief existed in the defendant's mind at the time, the assault would be justified by self defense. Moreover, there is a presumption of reasonableness in using deadly force in the case of a forcible entry of one's home (or other dwelling), automobile, or workplace (N.C. Gen. Stat. 14-51.2).
Similarly, the South Carolina Protection of Persons and Property Act, as interpreted in State v. Glen (2019), extends self-defense rights beyond the home, automobile, or business. The elements of self-defense in South Carolina include (1) the defendant not being at fault (not the instigator/aggressor), (2) the defendant being or believing they were in mortal danger, (3) if based on a belief, a reasonable person also believing deadly force was necessary under the same circumstances, and (4) the defendant having no other reasonable means to avoid the danger. (Even though the hypothetical involves civilians, exceptions exist if the "attacker" is a law enforcement officer who has properly identified themselves.)
In a situation like Smith v. Florida, where an attacker repeatedly strikes and attempts to disarm the defendant, any reasonable person would be justified in fearing for their life and using deadly force to protect themselves. In both North and South Carolina, you should and likely would be found immune from prosecution, but that does not mean that you won't be prosecuted (these are affirmative defenses/claims of immunity so you would need to raise those arguments to a judge).
If you find yourself in a similar situation, contact the police immediately to let them know that you were involved in a self-defense incident and a person needs medical care at your location. Distance yourself from the location of the shooting to the best of your ability and get to a safe location. When police arrive, place your firearm on the ground near you, raise your hands to show that you are not holding any weapons, let them know that you were the one who placed the call and that you have placed your firearm on the ground and are, therefore, not a threat to their safety. You should not make any statements about the incident to anyone (especially not to law enforcement, other first responders, or hospital staff if you have to go to the hospital, too) until you have spoken with an attorney. Even if you were completely in the right, with your adrenaline rushing, thoughts racing, and likely being traumatized by the experience, you can say the wrong things and your words can easily be misinterpreted and then used against you.
Nabil Samaan
Law Office of Nabil Samaan
6110 Auburn Folsom Road, Granite Bay, CA 95746
916-300-8678
When using lethal force, you enter the world of factual analysis. The premise of the questions is that disarming is an act that would reasonably put someone in fear of deadly harm or substantial injury. I think the first question is if the firearm was presented legally in the first place. If the answer is yes that means there was a fear of death and the conduct that results from that conduct would logically be a continuation of that legal conduct.
However, if the weapon was presented illegally it gets more interesting. A weapon presented illegally is a crime, but when there is an intervening action that is the disarming, the analysis is factual.
Was the person disarming law enforcement?
Was the disarming done by a known felon that had already threatened to kill?
So long as the fear of great bodily harm or death is continuing through factual events there will be a good defense to avoiding and defending against disarming.
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we will explore a new question.