Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More

Criminal Law

I. Introduction

Do You see, understand, and can identify the color red? Everyone does. However, if a car is parked that edges into the pink or orange portion of the red continuum, is it red, pink or orange? You know it when You see it! But faced with the choice of making this “call” in the split second when the car speeds by we may all agree to disagree.

The use of force in response and to repel or terminate illicit force, including deadly force, falls within a continuum–lawful to unlawful. However, this “call” is not so trivial. Where to start? Within any state, the answer is with the penal definition of deadly force.

This varies from place to place, and requires some of the terms within the definition to have definitions. As a general rule of thumb, illicit use of “deadly force” to which deadly force may be used in response includes the notion the “victim” is at risk of serious bodily injury or death. What rises to this level is place and fact sensitive.

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Nevertheless, determining the legal definition of this term through statutes or cases is a proper place to start in any jurisdiction. Then the real factual or legal analysis begins. Are there other circumstances where (deadly) force may be applied? Yes. For the most part, a close look at the law in every state will reveal that deadly force may be lawfully–and a justification to what would otherwise be a crime equal to murder–applied in one of three situations.

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As the definition of deadly force hints at, one justification to use force, sometimes including deadly force, is with the illicit acts of a criminal that causes bodily injury. Where deadly force is the response, the bodily injury generally has to be one serious in nature.

A.        Serious Bodily Injury

The term “serious bodily injury” (SBI) is variously defined amongst the varying states. However, there are some significant commonalities to a criminal’s application of force to You and Your situation that may justify the use of deadly force to protect. Although perhaps self-apparent, serious bodily injury is not injury that is trivial in nature.

Slap to the Face. The nature and circumstance of serious bodily injury is illustrated by the example of walking down the street and a random person begins lightly slapping You. The exercise of deadly force in response, such as by drawing a lawfully possessed handgun and shooting this person in response to stop the slaps would be unjustified because no matter how many times slapped, it is unlikely this will cause serious bodily injury. However, a very slight change in fact and the situation is not nearly as clear. A 90-pound female is punched in the face by a 400-pound man. When he starts to punch her the second time, is she justified in using deadly force in response? It depends.

Generally, serious bodily injury has several hallmarks: it involves the real risk of death, disfigurement, loss of consciousness, or permanent or long-term impairment of a limb or organ. Again, however, in any given case, a slight change in the facts may make a difference between whether the person exercising the deadly force in response to the illicit act is deemed a “hero” or is going to prison.

B.        Dwelling and Curtilage

In a departure from the justification to use (deadly) force in response to an illegal act, a special place is carved out in the law for one’s home and in some cases, curtilage. Within any jurisdiction and set of jurors, the term may carry different meaning.

As a general notion, a person’s dwelling carries in its meaning a place where a person would feel comfortable conducting the most intimate acts of life, including showering, dressing and the like. This is a dwelling and may be temporary in some cases, such as a hotel, or movable, as may be the case with an RV or travel trailer.

In some states, deadly force may be used to stop or repel an unlawful entry into one’s dwelling. Nevertheless, the more removed the place is from the traditional notion of a dwelling, such as a home in a subdivision with the white picket fence and two children, the more likely the use of force is to be called into question.

Hotel and/or Hotel Room. A good example of what may be a dwelling (or not) is found in a hotel room. If a person is staying day by day or week-by-week, it is much more likely this place will be deemed a dwelling for this legal justification than a hotel room rented for a party. How this is legally characterized is what good lawyers address each day.

Curtilage is a more amorphous concept. This is an ancient term and refers to the necessary parts of the outside of a home that effectively sustain (by growing crops and raising livestock) its occupants. A small storehouse or pen of animals might as well be a part of the house because their theft or plunder would leave the family to starve in the winter months.

In the present day, the curtilage is narrowly defined to include the immediate environs on the outside of the home. However, for search and seizure purposes–when a search warrant is required or exigent circumstances, the courts typically provide more leeway to the curtilage. It is thus less likely any law enforcement activities leading to arrest would be suppressed as within the curtilage and need for a warrant.

C.        Forcible Felonies

One of the more vexing queries for the average citizen (i.e., a person who is not a lawyer or involved in law enforcement in some way) is to determine what felonies may be justification to use deadly force, and what felonies are not. As a technical matter, forcible felonies are those that have an element of bodily harm.

The distinction is best made by illustration. If You are in a bank and observe a fellow customer forging a check to cash, this is not a forcible felony. On the other hand, take the situation the pen the forger is using to obtain money he or she does not deserve is traded for a handgun to extract the money from the teller. This is a forcible felony.

More common examples of crimes that may have force as an element of the crime under state or federal law include the following:

  • Kidnapping
  • Car-jacking
  • Burglary
  • Rape
  • Robbery
  • Arson

It is important to note that not every state allows for the use of deadly force against every forcible felony. Some states only allow deadly force against certain forcible felonies, so it is important to know which forcible felonies count in Your state.

Minor Property Crime. Take the case of a motorist who is properly stopped for a red traffic signal. The car behind him, who has a driver who has a suspended license, and if caught again, will lose his right to obtain and hold a driver’s license for life, bumps this stopped motorist. In a moment of panic, the suspended driver flees. The motorist who is just another lawful member of society, suspecting damage to his car, gives chase. Ultimately, when the fleeing driver does not stop, the pursuing driver rolls down his window and begins firing at the fleeing driver who hit his car. When the chase leads into a residential neighborhood, several parents who are outside to welcome their children from the school bus call 911 in a panic and relay a car is chasing another and shooting at it. The driver who is shooting is subsequently stopped by the police and charged with criminal recklessness. The incensed driver relays he is the victim. The outcome? The driver is charged and convicted of a Class D felony for criminal recklessness for this behavior. The tables thus turned from victim to perpetrator. This is an operating environment for a deadly force case. A slight change in factual developments may result in a turn of the tides.

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Confused? Do You think these three (3) justifications to use (deadly) force are less than clear? Consider this in the operational environment: A night. And being awakened from a dead sleep. The supreme value placed on human life–and taking it without justification–is such that there is another layer of complexity to contend with and consider in any force situation.

The variables are any good reason why deadly force should not be exercised, some of which are more or less rooted in community values and standards. Some of the most common are enumerated and analyzed:

A.        Proportionality

As the title suggests, the use of (deadly) force must be a proportional response. Thus, a corporate officer who observes an employee transmitting trade secrets and who responds by shooting and killing the employee is not taking a proportional response under the American notion of law.

Make no mistake this is a felony, but it is not one that has an element of the crime involving force. If this corporate officer responds to an alarm and the employee is breaking in or in the workplace stealing this data after hours this may change the legal analysis and justification.

Like punishment for a crime, the justification to use deadly force must be proportional and exercised in the cases where society places the taking of a life in response to a crime on par with the crime and/or justified: (1) serious bodily injury or death; (2) breaking into a dwelling and or attack within the curtilage; (3) forcible felony.

It should also be noted that proportionality takes into consideration the relative size/weight/strength of the parties. For instance, a 90-pound woman using force against a 250-pound male attacker would be more proportional than an NFL linebacker using deadly force against a small, unarmed female aggressor. Proportionality considers the amount of force used compared to the level of threat posed by an attacker. The size and strength of the aggressor, whether they’re armed (and with what) are taken into account. The same aggressor would pose a greater threat to someone who is disabled, elderly, or otherwise incapable of resisting than they would pose to a strong, fit individual.

Here a proportional response, as a matter of law by societal value, may be the justification to use deadly force–namely to meet all of the elements of the crime for what would otherwise be a murder and be justified in doing so and not be criminally charged. In all states this varies.

B.        Immediacy

The variable of immediacy is one that trips up even sophisticated scholars in theoretical considerations of self-defense. Any of the circumstances noted where deadly force may be justified will expire with the passage of time. A homeowner who chases after the burglar and shoots him in the street in the back is unlikely to be legally justified to commit what would otherwise be a crime from manslaughter to murder.

The passage of time and the fact the burglar has already left and is outside the home and curtilage resets the justification clock to unjustified at some indeterminate point. At this threshold, the victim, if he or she exercises force, and deadly force in particular, becomes a criminal as well. The burglar may serve jail time for burglary. The murderer, well, will serve time for murder or a lesser included crime.

C.        Retreat

In some states, human life is held more sacred than the ordinary categories where self-defense, including deadly force, may be justified if the victim of the crime can retreat and fails to retreat to the wall. What this means is, if there is a safe way to leave or flee the crime, the victim must do so until he “hits a wall” or barrier where he or she can no longer safely do so. It is only at “the wall” that the justification to use deadly force becomes valid.

D.        Standing Your Ground

On the other hand, in a growing number of states, a victim does not have to retreat or take any action to avoid the crime being inflicted if it falls within one of the categories. In these cases, a victim who is attacked in any place they have a legal right to be (such as public areas) may use deadly force and be justified in doing so and standing his or her ground and not retreating. However, many of these statutory provisions also include the qualifier that the use of deadly force must be reasonable.

Open Lands. It is always difficult to set out an example that may overshadow the rule. However, with the “reasonableness” component of standing one’s ground, if that is the law of a jurisdiction You find yourself within, an example, even if extreme, may help Your educational development. Take a “victim” sitting in his or her bedroom, on a sunny day, reading. The French doors to this room are open and face a level panoramic prairie. At this moment, an overweight intruder yielding a baseball bat barges into the room. Would it be reasonable for the physically fit homeowner to shoot and kill the intruder if he or she merely had to turn and run outside to avoid the situation? If retreat is required in this state, or even if one can stand their ground, is this reasonable? No.

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IV. Standard Response

Over time, the stressors of life and death decisions have led to defaults to be engaged in where incomplete information is at hand. For police officers, these are known as standard operating procedures (“SOPs”). In the military, these are referred to as the rules of engagement (“ROEs”). This ensures the law is followed and the right decision made in most cases.

In the civilian world, where taking a life is taboo, no cognizable and generally understood and agreed upon set of rules or defaults exist. However, if You could have a frank and open discussion with a seasoned police officer, criminal defense attorney, or prosecutor, You would find indeed they could come up with a more or less agreeable set of such rules.

These, again, are defaults in any one given case, but could fail and lead to detention, arrest, and conviction. However, the person who plays the odds in any situation, including those that involve life and death (swerve and risk rolling the car, or hit the deer and risk intrusion into the passenger’s compartment and being kicked to death) prevails more often than not.

So, what are these rules You have never heard any talk about, and if they exist, when and how do You use and apply any such rules in a post-deadly-force encounter:

Rule #1: Aggressor Stopped.  Is the aggressor actually out of play and no longer a risk?  Or alternatively, does he or she have on body armor and may become re-engaged in a short period of time?

Rule #2: Situational Awareness/Control. Are You completely cognizant of the environment? Are there other aggressors? Are You in control and command of the situation or is this unknown?

Rule #3: Contact EMS.  Have You contacted emergency services? This is the key to protecting Yourself and mitigating any future unnecessary harm to the former criminal, now injured and/or dying.  However, You should take care to make no incriminating statements on recorded 911 calls. Relay facts: “Someone has been shot;” not, “I shot someone.”

Rule #4: First Aid and/or Retreat.  Should You provide aid or retreat?  This depends. There are a number of civilians and LEOs whose after-deadly-force actions, such as calling EMS or rendering aid (being aware of blood-borne pathogens), have saved the lives of the criminal. On the other hand, if the risk field, the situation You find Yourself in is unknown, such as with multiple assailants, should You leave the immediate scene, yet be available to point EMS to the injured?

Rule #5: Compliance with LEO Commands.  On balance, while making specific fact statements is not prudent, this is far different from failing to comply with lawful law enforcement commands, such as for identification? You must comply with law enforcement commands and directives, but not go so far as to make statements or give an account of what occurred.

Rule #6:Remain Silent and Demand Counsel. Resist human nature. The human experience is to explain acts or omissions. If You have exercised deadly force against an assailant, the correct way to proceed to a statistical legal certainty is to invoke the right to remain silent and demand an attorney, no matter what deal or leniency You are promised. The exercise of deadly force and its stress causes chemical changes in the body that impair the ability–Your ability–to make a complete and accurate statement.

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V. Conclusion

Carrying a handgun, or any firearm for that fact, and the specter of self-defense is a subject of contemplation/preparation, not mere reaction at the time at hand. As the old adage goes, “You will default to the mean, not rise to the occasion.” This could result in missing Your aggressor in an otherwise lawful (deadly) force situation and killing an innocent bystander and/or making a statement that is not accurate leading to Your arrest, prosecution, and incarceration: Only to be followed by a civil lawsuit.

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Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More