When is Deadly Force Authorized?

date: June 11, 2018
.300BLK 10.5″ – PISTOL

A lot of people keep a firearm in their home for defense. Some of those people will spend countless hours debating which caliber rifle is best for home defense. Or should you just use a shotgun? If you carry a pistol you probably spend a lot of time thinking about which caliber is better to carry. The debate over which is better, a 380, 9mm, 40 cal., or 45 acp is never ending. Not to mention which make and model of firearm is better, M&P, Bersa, Anderson? But how much time do you spend thinking about what happens if you need to use your firearm? When it comes to carrying a pistol, knowing when to use it is probably as important as knowing how to use it. Knowing when you are legally allowed to use your firearm in self defense can keep you out of prison.

What is deadly force?

The United States Code of Federal Regulations has a section on energy that contains a definition of deadly force. A deadly force definition is in the energy regulation section because it outlines the security measures for nuclear facilities and deadly force is authorized when defending nuclear facilities.

United States Code 1047.7 –

  • Deadly force means: That force which a reasonable person would consider likely to cause death or serious bodily harm.Sig Sauer P938 9mm Pistol

 

This definition doesn’t make any distinction about where the force comes from. The important thing is that the force can “cause death or serious bodily harm”. A vehicle, a knife, a baseball bat or even a rock, can all be used to create deadly force. While these other items get used every day and are not associated with deadly force, anytime a pistol gets used, and it’s not on a target range, it is deadly force. The only question is: Was the deadly force justified?

When is Deadly Force Authorized?

Every state has it’s own laws on when you can use deadly force. Some states have “stand your ground” laws and some states use the “Castle Doctrine”. It would be hard to come up with one rule or set of rules that covers every situation. The same US Code that has a definition of deadly force also has some rules for when it can be used:

United States Code 1047.7

(a) Deadly force means that force which a reasonable person would consider likely to cause death or serious bodily harm. Its use may be justified only under conditions of extreme necessity, when all lesser means have failed or cannot reasonably be employed. A protective force officer is authorized to use deadly force only when one or more of the following circumstances exists:

  • Self-Defense. When deadly force reasonably appears to be necessary to protect a protective force officer who reasonably believes himself or herself to be in imminent danger of death or serious bodily harm.
  • Serious offenses against persons. When deadly force reasonably appears to be necessary to prevent the commission of a serious offense against a person(s) in circumstances presenting an imminent danger of death or serious bodily harm (e.g. sabotage of an occupied facility by explosives).
  1. Additional Considerations Involving Firearms. If it becomes necessary to use a firearm, the following precautions shall be observed:

(1) A warning, e.g. an order to halt, shall be given, if feasible, before a shot is fired.

(2) Warning shots shall not be fired.

(There are three more sections to this code that cover nuclear facilities you can read the whole regulation at the link.)

Rules are Different for Police and Private Citizens

Punisher Lower

The rules for using deadly force are different for private citizens and police officers. Police officers can use deadly force when they are trying to enforce the law and the circumstances allow it. Private citizens can use deadly force in self-defense or in defending another person’s life, if the circumstances allow it.

Police officers can use deadly force when it is a reasonable choice given the circumstances at the time. The circumstances that are considered are: how severe the crime was, how much of a threat the suspect poses, and if the suspect resists or flees.

Private citizens do not have the reasonableness rule. For a private citizen to use deadly force legally, they must prove that a felony occurred or was occurring and that the crime could have resulted in death or serious bodily harm. Just assuming a felony crime occurred and someone might get killed or suffer bodily harm is not a good enough reason.

State Laws

Individual states have their own laws regarding private citizens using deadly force. The laws fall into three general categories:

  1. Stand Your GroundCitizens are not required to retreat from the situation before using deadly force. This law is not limited to your property (home, office, etc.).
  2. Castle Doctrine: This type of law is limited to real property, such as your home, yard, or private office. There is no requirement to retreat and use of deadly force against intruders is legal in most situations. In some states, like Missouri and Ohio, personal vehicles are included.
  3. Duty to RetreatThis law requires the citizen to retreat from the situation if they feel threatened. Deadly force can only be used as a last resort and may not be used if you are safe inside your house.

You should make sure you know which category your state’s laws fall under. If you are traveling and carrying a pistol, you should check what the law is for the states you will be traveling through. Here is a link to the FindLaw.com page that lists the states that have passed “stand your ground” laws.

Stand Your Ground

If you ever need to shoot someone, you will have to prove that it was legal and in self-defense or defense of another person. If you are in a state that has a stand your ground law, there are more situations where deadly force can be used in self-defense:

  1. You are walking down a sidewalk and someone confronts you with a knife, steel pipe, or baseball bat and demands you give them your wallet. You could try to run away or draw your pistol. If you draw your pistol and the attacker turns and runs, then you can’t shoot them because your life is no longer threatened. If they continue to assault you, then you can shoot them in self-defense and probably not go to jail.
  2. You are waking down a sidewalk and someone confronts you with a pistol. You draw your pistol and they run away before you can shoot them. You are not legally allowed to shoot them. If you shoot them immediately before they can react, it is self-defense because you can assume they meant to cause you bodily harm or kill you. Warning shots are not required and should not be given.
  3. You are walking into a store and someone comes running out past you and you realize they robbed the place. You are not legally allowed to shoot them if they are running away because no one’s life is in danger.
  4. You walk into a store and an armed robbery is in progress. The thief has a gun pointed at the employee. Using deadly force and shooting the thief is legal because the employee’s life is threatened.

In a “stand your ground” state the basic idea that you can use deadly force to defend yourself or someone else against bodily harm or death applies. If you are threatened with deadly force, you can use deadly force to defend yourself.

Castle Doctrine

The castle doctrine evolved from a common law theory that a person could use deadly force to defend their home. Seems like common sense. Each state has its own version of castle doctrine laws but they all tend to follow similar guidelines. There are four conditions that must be met to use a Castle Doctrine Defense:

  1. You must be inside your home. It can be an apartment, a house, or a mobile home, but you must be inside. (As I mentioned above, in some states you can be inside your personal vehicle.) Shooting someone while standing in front of your house will not satisfy this requirement. People have tried to use the Castle Doctrine defense for shooting someone in their yard and it was rejected by the court.
  2. The attacker must be trying to enter your house unlawfully or have already entered your house unlawfully. You cannot use the Castle Doctrine defense if you invited the person into your home, even if you are trying to make them leave.
  3. Using deadly force must be a reasonable option. Some states presume that if a person is attempting to break into or has broken into your house, they intend to commit violence. In these states, proving use of deadly force was reasonable is much easier than other states. In states that don’t have this presumption you must prove that you were in actual danger of death or bodily injury. These states also do not allow the use of deadly force to protect property.
  4. Duty to retreat. This part of the Castle Doctrine also varies by state. Some states do require you to run to another part of your house or run from your house. (In my opinion, the duty to retreat goes against the entire idea that I can defend my castle.) You should make sure you know where your state stands on duty to retreat.

Duty to Retreat

If you live in a state that requires you to retreat, you should move to another state. The duty to retreat says that you must run away from an aggressor to a safe place. To legally use deadly force in a “duty to retreat” state, you must prove that you acted reasonably.

Acting reasonably includes:

  1. You tried to avoid conflict.
  2. You ran away or tried to run away.
  3. You demonstrated that you did not intend to fight.

Each of these steps gives an attacker more opportunities to kill you or cause you bodily harm. The only way to be safe and not go to jail in a “duty to retreat” state, is to never be anywhere that someone might attack you. You can be attacked anywhere so relocating is probably your best option.

Final Thoughts

Most people will never need draw their pistol and use deadly force to defend themselves from an attacker, but you should still know what the law is in your state. Knowing the law could be the difference between going to jail and staying free. If you get convicted of using your firearm in a crime, even if it was self-defense, it will be a felony, and then you won’t be able to legally own a pistol. That being said, if your life or a loved one’s life is threatened, shoot to kill then hire a good lawyer.