Newsgroups: bit.listserv.politics
Date:         Tue, 25 Aug 1992 15:35:18 -0700
From:         Andy Freeman <andy@SAIL.STANFORD.EDU>
Subject:      Re: Deadly Force

Jamie writes:
>My impression is that you may legally use deadly force to
>protect your person, but not your property.

>But this is only an impression. I don't have statute at hand.

It's a complicated question and "the answer" depends on details
and jurisdictions.

The general rule is that one may use deadly force to stop an immediate
threat of death or grave bodily harm.  There's no obligation to take
damage first or to use non-lethal force first and the "reasonable man"
comes in somewhere.

Figuring out HOW that rule applies can be tricky.  (It isn't in most
cases, so don't be confused by the following discussion of
complications.  Most people have a good understanding of almost all of
the important cases.)  Some of the complication arises from the
concept of an immediate threat.

For example, AFTER an attack, when the perp is walking away, there's
no immediate threat, even if he says he'll come back if you call the
police.  Arguably that should apply even if he says that he's walking
into the next room to get a weapon and will come back to finish the
job (or even to get a drink) but it might not; DAs are political.

If one can retreat, arguably there's no immediate threat.  Therefore,
most/all states have a retreat obligation in some circumstances but
while some have one in almost all circumstances, others explicitly
reject it (by statute) in those same circumstances, or at least appear
to.  However, it isn't that simple.

Let's take a home intrusion example.  In CA, a violent home intruder
(entry by violence and no legit reason to be there, with these details
known to the occupant) is rebuttably PRESUMED to be a threat and
there's no retreat obligation.  That presumption can be rebutted by
evidence.  (That kind of law is often called a "make my day" law, but
that's just a distortion, a rhetorical club.  It is an explicit
statement of a "castle doctrine".)  In MA, there's no such presumption
(although the threat can be established by evidence) and the resident
is obligated to retreat if that's "reasonable".  I don't know whether
or not a threat to another justifies staying and using lethal force in
MA.

The reason I bring up "threat to another" is that one can use legally
deadly force on behalf of another, but it has to be on behalf of
someone who could use it him\herself.  Things can get complicated when
there's a retreat rule involved and remember about threats.

Does rape constitute grave bodily harm?  In CA, it does, but it may
not in other jurisdictions.  I'm not sure what difference it makes though.
It is reasonable to think that someone who's threatening force to rape
is a threat to cause other injury or death no matter what they say.

During rape, as opposed to before, things should get strange.
Arguably, the only threat at that point (ignoring disease/pregnancy)
is injury afterwards; no action can stop the rape from happening
(because it already has) and it isn't clear that the additional injury
associated with continuing justifies deadly force.  IN PRACTICE, it is
unlikely that this will really come up because DAs are political
creatures and we can still apply the "yeah right, he was just going to
rape her and go on about his biz" defense.

I bring up DA discretion (twice) because it does matter.  Women are
treated differently than men even though battered women's syndrome
usually isn't accepted.  (It extends the concept of immediate threat
based on characteristics of the battered person.)

Things get strange with property.  Very few jurisdictions even appear
to allow the use of deadly force to protect it, but every jurisdiction
allows armed bank and armored car guards.  (The "castle doctrine" is
about a threat to person; one of the ways to rebut it is to point out
that the dead burglar was on his way out the door with the TV, so it
isn't about property even though it applies where most people have
most of their property.)  It sure looks like a contradiction to me,
but I'm not interested enough to do the relevant research.

BTW - Tampering with evidence is a bad idea.  If found out, you're
usually worse off than you would have been otherwise, and they're
pretty good at detecting it if they're interested.  (If they're not
interested, tampering can't help.)  In other words, don't drag the
body into the house and don't put a knife in a dead person's hand.
(Unarmed people can be a justifiable threat so if you think your case
depends on whether or not the attacker had a weapon, you probably
don't have a case.)

-andy
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