MONTANA SHOOTING SPORTS ASSOCIATION
 ALLOWABLE USES OF LETHAL FORCE

Anyone owning firearms must contemplate, and may someday face, the issue of using lethal force.  This topic has several dimensions, including legal, moral, psychological and tactical.  Each of these dimensions is sufficient in scope to justify book-length treatment.

It is expected that the aware and studied gun owner must know something about all of these subjects.  However, the material here will attempt to deal, in brief, only with the legal dimension of application of lethal force.  Before exploring the legal issues, it is necessary to at least touch the other bases.

Many excellent books have been written concerning this whole area of discussion.  Two of the best, both of which will be cited in the following material, are:  In the Gravest Extreme, by Massad F. Ayoob, 1980 (Gravest Extreme, P.O. Box 122, Concord, New Hampshire 03301, $7.75) and Armed & Female, by Paxton Quigley, 1989 (St. Martin's Press, 175 Fifth Avenue, New York, New York 10010, $4.50).  Serious and responsible gun owners are urged to obtain and read both of these books (especially Armed & Female, regardless of the gender of the reader).

Before the discussion of lethal force that follows, it is desirable to clarify the position of the Montana Shooting Sports Association (MSSA) concerning this issue.  Without reservation, MSSA supports the right of every person to choose to not be a victim of crime or personal or violent assault.  Would-be assailants have many tactical advantages, including surprise, choice of time and location of attack, and, in many cases, size, strength and experience in interpersonal combat (muggers seldom mug the 6' 5", 250 lb. karate black belt).  Personal firearms, used by law-abiding people to defend themselves, tend to neutralize the natural advantages of the assailant, and empower the targeted victim to be able to choose whether or not to actually be a victim.

MSSA does not advocate that every person must own and use firearms.  We do not advocate vigilante justice.  We do insist that, for many, lawful ownership and intelligent use of a firearm is a perfectly reasonable approach to providing for one's own personal protection.  We also urge that those who choose to own and use a firearm for personal protection should be well-informed, sensible and safe.

"The statistics are more than frightening.  Only four criminals go to prison for every hundred reported crimes.  And the FBI estimates that 60 percent of all crimes are not even reported.  For every hundred prisoners with life sentences, twenty-five are freed before their third year; forty-two are out by their seventh year; and people acquitted of murder by reason of insanity spend an average of only five hundred days in the mental hospitals before being released."  (Armed & Female, P. 4)

"Over half of all robbery victims are attacked, and female robbery victims are more likely than men to be attacked and injured.  Also, one in twelve robbery victims experiences serious injuries, such as rape, knife or gunshot wounds, broken bones, or being knocked unconscious."  (Armed & Female, P. 21)

"Although hard to believe, the D.C. Supreme Court (Warren vs. District of Columbia) has upheld the decision that police are not responsible for the safety and defense of the individual citizen.  The police and other law-enforcement agencies are responsible for the safety and protection of the general population in the districts they serve.  That means that, if your life is threatened by a trespasser, an intruder in your home, and you summon the police, there is no legal requirement for the police or sheriff to respond to your call."  (Armed & Female, P. 64)

"So the situation is this:  the police cannot completely defend us from predator crime; the courts cannot keep the predators off the streets or otherwise occupied in noncriminal activities; and the gun is the most effective deterrent to crime available."  (Armed & Female, P. 108)

"... if you can bear to undertake the attendant responsibilities, you should know that finding a gun in the hand of a potential victim is one of the most feared and avoided incidents a felon can imagine - feared and avoided even more than the police."  (Armed & Female, P. 47)

SAFETY:  No reasonable person can own or use firearms (or automobiles, for that matter) without strict attention to safety.  The ONE CARDINAL RULE of gun safety is:  Never point a firearm at anything you don't intend to shoot, whether the firearm is loaded or unloaded (especially unloaded), whether the firearm is assembled or in parts, whether it is old or new, whether it is holstered or free.  Never point a firearm at anything you don't intend to shoot.

If you should, through carelessness or inattention, point any firearm, even momentarily, at another person (unless in a defensive situation) you owe that person your immediate, grovelling, and abject apology.  You have put the other person's life at risk and you should humbly beg forgiveness.

"If it can be proven that you were negligent or reckless in firing the wild shot, you are liable for damages, and for conviction under the criminal code.  And nothing is more negligent than shooting a deadly weapon at one person and hitting another."  (Gravest Extreme, P. 129)

PSYCHOLOGICAL:  It is rare for anyone to be involved in the justified use of lethal force (giving or receiving) without having been affected or changed by the experience.  Depending upon the situation and personality of the person involved, the effect may be profound.  Know in advance that actually using lethal force may have a psychological cost attached.  The balancing factor is that the psychological cost of using lethal force may be only a fraction of the psychological cost of NOT using lethal force, should such use become necessary.

"The taking of a human life is an emotionally shattering act; a normal person who terminates a fellow man's existence suffers second only to the deceased and his loved ones.  You will see the latter at the coroner's inquest, and if you do not know in your heart that you HAD to shoot, you will see their faces in your sleep for the rest of your life."  (Gravest Extreme, P. 44)

TACTICS:  It is not enough to simply have the means to apply lethal force defensively.  One MUST be capable of applying lethal force effectively.  This ability requires training, practice and forethought.  The practice and forethought must be ongoing.

"The ability to use your gun effectively is not only an asset, but indeed a responsibility.  You must become sufficiently adept to be sure (a) that you will not endanger standers-by with wild shots, and (b) that you can neutralize an armed, violent offender before he terminates innocent lives.  The handgun is the most difficult firearm to shoot accurately and rapidly; skill comes only with practice." (Gravest Extreme, P. 47)

MORAL:  The moral issues surrounding use of lethal force cannot be ignored.  Since our laws are a reflection of the moral code of our society, following the law will tend to keep a person on reasonably safe moral ground.  Notwithstanding this assurance, the moral values of the person involved, or the moral ingredients of the situation, may require conduct more restrained than even the law allows.  Better to think through the moral consequences of lethal force before the need arises, and before snap decisions are required.

"Better you should avoid entirely a situation that could place you in a perilous situation from which you dare not extricate yourself with the full force at your command, for fear of moral error or public criticism."  (Gravest Extreme, P. 70)

"The man who wears a gun carries with it the power of life and death, and therefore the responsibility to deport himself with greater calm and wisdom than his unarmed counterpart, whose panic or misjudgment in crisis situations will have less serious consequences."  (Gravest Extreme, P. 81)

"... the privilege of killing in self-defense derives from 'the universal judgment that there is no social interest in preserving the lives of aggressors at the cost of those of their victims,' as one of the great twentieth-century legal analysts, Herbert Wechsler, said.  And we can conclude from the reasonable-or-prudent-man test that it is the privilege of the innocent to use lethal force to interrupt or prevent any attack that is perceived to threaten death or bodily harm."  (Armed & Female, P. 118)

LEGAL PARAMETERS OF LETHAL FORCE

There are several factors that will control, in the final event, in just what circumstances a person may justifiably use lethal force.  The primary ingredients are what the Montana Constitution says, what Montana statutory law (the laws passed by the Legislature) says, what Montana case law (rulings by courts) says, what the local prosecutor will prosecute, and what circumstances will cause a jury to vote to convict a person accused of having illegally used lethal force.

First, the Montana Constitution.  Article II of the Montana Constitution is called the "Declaration of Rights".  This article is comparable to the "Bill of Rights" in the U.S. Constitution.  Section 12 of Article II contains Montana's right to keep and bear arms.  Section 12 says:

"Section 12.  Right to bear arms.  The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called into question, but nothing herein contained shall be held to permit the carrying of concealed weapons."

Concerning concealed weapons, this constitutional provision does not, in itself, either grant or prohibit carrying concealed weapons.  It does declare that carrying concealed weapons is not within the constitutional reservation of the right to keep and bear arms, in Montana.

Thus, to keep and bear arms in defense of self, person or property is a RIGHT in Montana.  Just what is a right?  Black's Law Dictionary, 5th Edition, offers one definition of "Right" as:  "Rights are defined generally as 'powers of free action.'  And the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law."  Also in this context, "A power, privilege, or immunity guaranteed under a constitution, statutes or decisional laws, or claimed as a result of long usage."

Certainly, the right to defend oneself is thought by most legal scholars to a "God-given", inalienable, or "natural" right.  Black's defines "Natural rights" as: "Those which grow out of nature of man and depend upon his personality and are distinguished from those which are created by positive laws enacted by a duly constituted government to create an orderly civilized society."  Thus, natural rights are those rights that exist prior to the reservations of rights in constitutions.

Natural rights are recognized in Montana law.  The Montana Codes Annotated (MCA; a collection those laws passed by the Legislature), at 1-2-104, says:  "Preference for construction favoring natural right.  When a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted."

Before turning to the laws of Montana, it would be useful to look at the term "defense", which is used in the Montana Constitution.  It is worth citing Black's entire definition of "Self-defense":

"The protection of one's person or property against some injury attempted by another.  The right of such protection.  An excuse for the use of force in resisting an attack on the person, and especially for killing an assailant.  The right of a man to repel force by force even to the taking of life in defense of his person, property or habitation, or of a member of his family, against one who manifests, intends, attempts, or endeavors by violence or surprise, to commit a forcible felony.  Essential elements of 'self-defense' are that a defendant does not provoke difficulty and that there must be impending peril without convenient or reasonable mode of escape.  The law of 'self-defense' justifies an act done in the reasonable belief of immediate danger, and, if an injury was done by the defendant in justifiable self-defense, he can never be punished criminally nor held responsible for damages in a civil action.  Baltimore Transit Co. v. Faulkner, 179 Md. 598, 20 A.2d 485, 487.

"A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force.  One who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonable believes: (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger.  It may be reasonable to use nondeadly force against the adversary's nondeadly attack (i.e., one threatening only bodily harm), and to use deadly force against his deadly attack (an attack threatening death or serious bodily harm), but it is never reasonable to use deadly force against his nondeadly attack."

Blacks Law Dictionary is NOT THE LAW in Montana, but it does contain authoritative definitions to help us understand terms and concepts used in the law.

What do the Montana laws say about use of lethal force?  Most of the Montana law concerning allowable use of lethal force is found in Title 45 of MCA.  The effective laws are found at 45-3-101, 102, 103, 104, and 105, and are recited here in full:

"45-3-101.  Definitions.  (1)  'Forcible felony' means any felony which involves the use or threat of physical force or violence against any individual.
(2)  'Force likely to cause death or serious bodily harm' within the meaning of this chapter indicates but is not limited to:
(a) the firing of a firearm in the direction of a person, even though no purpose exists to kill or inflict serious bodily harm; and
(b) the firing of a firearm at a vehicle in which a person is riding."

"45-3-102.  Use of deadly force in defense of person.  A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force.  However, he is justified  in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another or to prevent the commission of a forcible felony."

"45-3-103.  Use of force in defense of an occupied structure.  A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon an occupied structure.  However, he is justified in the use of force likely to cause death or serious bodily harm only if:
(1)  the entry is made or attempted in violent, riotous, or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon or offer of personal violence to him or another then in the occupied structure; or
(2)  he reasonably believes that such force is necessary to prevent the commission of a forcible felony in the occupied structure."
 

"45-3-104.  Use of force in defense of other property.  A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with either real property (other than an occupied structure) or personal property lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect.  However, he is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent the commission of a forcible felony."

"45-3-105.  Use of force by an aggressor.  The justification described in 45-3-102 through 45-3-104 is not available to a person who:
(1) is attempting to commit, committing, or escaping after the commission of a forcible felony; or
(2) purposely or knowingly provokes the use of force against himself, unless:
(a) such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant; or
(b) in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force."

(Editor's Note: "The classic rule is that the right of self-defense begins when the deadly danger begins, ends when the danger ends, and revives when the danger returns." (Gravest Extreme, P. 15))

Some definitions may be useful here.  "Tortious" (torshess) as used in 45-3-104 means: wrongful.  "Occupied structure" is defined at 45-2-101(40) as meaning "any building, vehicle, or other place suitable for human occupancy or night lodging of persons or for carrying on business, whether or not a person is actually present."  "Real property" is land.  "Personal property" is anything of value, from money to possessions, even including secret formulae and private electronic impulses (45-2-101(54)).

Finally, Montana has a body of laws concerning Human Rights, found in Title 49, which contains one relevant section, as follows:

"49-1-103.  Right to use force.  Any necessary force may be used to protect from wrongful injury the person or property of one's self, of a wife, husband, child, parent, or other relative or member of one's family, or of a ward, servant, master, or guest."

Case law, that is, court decisions, will not be discussed here, because such decisions only comment upon, but do not modify, the laws that have been cited here, and because the current status of case law is usually in flux.
 

This is the end of the citations of Montana law on the subject of allowable uses of lethal force.  THE REMAINDER OF THIS MATERIAL IS COMMENT AND OPINION, AND IS NOT OFFICIAL OPINION.

It will have been noted by the reader that the allowable uses of force, and the justifications for those uses under law, are divided into two general categories.  Those are "force likely to cause death or serious bodily harm", and lesser amounts of force.  Since this material is intended for persons owning firearms, the following discussion will deal ONLY with the former, or, as used here, lethal force.

OTHER APPLICABLE LAWS.  Although the law is not recited in full here, informed gun owners should be aware that threatening another person with a firearm, without sufficient justification, could be construed as the crime of "assault" (45-5-201; injuring another with a weapon OR causing reasonable apprehension of serious bodily injury in another by use of a weapon), "intimidation" (45-5-203; any act which reasonably tends to produce fear in another that the perpetrator will inflict physical harm on the person threatened or any other person), "criminal endangerment" (45-5-207; knowingly engaging in conduct that creates a substantial risk of death or serious bodily injury to another), or "negligent endangerment" (45-5-208; negligently engaging in conduct that creates a substantial risk of death or serious bodily injury to another).

If a person should apply lethal force, especially if the application is effective, there will be an investigation of the circumstances.  If it is clear that the person using the lethal force was within the law in such use, normally the County Attorney will simply fail to advance a prosecution.  This is more true in Montana than other places.  There are places where justifiable use of lethal force has been prosecuted because the prosecutor was seeking to build a career upon such prosecution, or because the social climate demanded prosecution (Goetz, New York City).

If the circumstances surrounding the application of lethal force are less than clear, the County Attorney may choose to advance a prosecution and let the judge and jury sort out the merits and circumstances.  In this situation, the judge could choose to dismiss the case for lack of merit.  Should the judge allow the case to proceed, the jury will eventually vote to decide the guilt or innocence of a person accused of misusing lethal force.  In this context, the jury is also the expression of the sentiment and values of the community from which the jury is drawn.  (Example:  the Goetz jury failed to convict Bernard Goetz on all charges except that of possessing an unregistered firearm, despite admissions that he shot his assailants; thus the old adage, "Better to be judged by twelve than carried by six.")

"The accepted definition of the justifiable use of deadly force is an immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent.  There must clearly be no hope of escaping an attack safely, and according to Massad (Ayoob), the attacker must fulfill three conditions to justify a lethal defense on the victim's part:
"1.  ABILITY - The attacker must have the power to kill or cause crippling injury, or to be advantaged with a disparity of force or a disparity of skill, such as a prizefighter or black-belt karateist (which the victim must know before hand).
"2.  OPPORTUNITY - The attacker must be capable of employing bodily harm immediately.  He must be within range.
"3.  JEOPARDY - The perpetrator must be acting in such a manner that a reasonably prudent person would assume he intended to attack.  (Armed & Female, P. 110)

However, the best advice is that a gun-owning citizen should try and conduct himself or herself with sufficient understanding, restraint, and foresight that the issue does not rest on the decision of a jury.

CIVIL LIABILITY.  Any person may be sued in civil court for any reason.  Suits where the plaintiff can demonstrate real injury or damages will probably be allowed to go to trial by the judge (suits where no genuine injury or damages can be demonstrated are often dismissed by the judge).  If a gun owner should shoot another person, it is almost guaranteed in this litigious society that the gun owner will be subject to a civil suit to collect damages, either by the person shot or his next of kin.  Count on the fact that the plaintiff and his attorney will ask for BIG money.

If the shooting was a clearly legitimate and justifiable use of lethal force under the law, it is unlikely that the claims of the plaintiff will be sustained by the judge and jury.  If, however, the shooter has made errors in judgment in application of lethal force (classic examples: pursuing and shooting the theoried assailant; applying lethal force with insufficient reason or provocation) the person shot or his next of kin may gain a court order to collect an amount of monetary damages that will bankrupt the shooter, forever.

Says Randi McGinn, former violent-crimes prosecutor in the Albuquerque district attorney's office.  "As a lawyer, I know all the legal consequences (of shooting in self defense).  Having a gun and making that kind of decision to shoot somebody in self-defense is a big responsibility.  If you are wrong, certainly the law will penalize you.  I think that I am responsible, and I'm willing to test my judgment if it ever comes to it."  (Armed & Female, P. 19)

"Yet, when the (police) officers themselves are questioned about owning a gun for self-defense, another viewpoint comes into focus.  Officer Evan Marshall of the Detroit Police Department sums it up rather well:  'Let me say that I carry a gun all the time, and I don't carry that gun all the time just because I have a badge.  I carry a gun all the time because I am aware of what kind of a world we live in.'"  (Armed & Female, P. 122)

After having been through all of the preceding material, what sort of bottom lines can the gun owner hang his or her hat on?

Bottom line 1.  The proper, lawful and justifiable application of lethal force is so littered with pitfalls that by far the best choice is to simply avoid using lethal force, whenever and however possible, and to avoid situations that may require one to make the choice whether or not to use lethal force.

Bottom line 2.  If the defensive use of lethal force is forced upon one, and is unavoidable and necessary, apply lethal force effectively and decisively.

Bottom line 3.  Know the law about use of lethal force.  Understand that after an incident involving application of lethal force, where one may have to make life and death decisions in fractions of seconds, a person having used lethal force will be expected to have used the sober, educated and reflective judgment of an un-stressed, armchair philosopher.  Think through IN ADVANCE how you will conduct yourself.

Bottom line 4.  As a very general rule of thumb, never use or threaten to use lethal force to protect property - only to defend against imminent threat to life.

Bottom line 5.  Use of lethal force to protect people in your home is MUCH more justifiable than use of lethal force in any sort of public place.

Bottom line 6.  When the threat from an assailant stops (because he's "neutralized" or has fled or surrendered), discontinue application of lethal force (stop shooting).  This may not always be good tactical advice, but following it will help keep you on the right side of the law.

Jeff Cooper, the father of modern combat gun handling:  "If violent crime is to be curbed, it is only the intended victim who can do it.  The felon does not fear the police, and he fears neither judge nor jury.  Therefore what he must be taught to fear is his victim."  (Armed & Female, P. 136)

"... remember that when a person doesn't know the law, or has so little confidence in his manhood that he lets his machismo run away with his brains in a desperate effort to prove himself - and uses a firearm outside the parameters of the law to do this - he has endangered your right, and mine, to keep firearms for self defense against deadly danger."  (Gravest Extreme, P. 93)

Many books have been written on all of these topics.  Anyone wishing to research these issues further should consult their library or organizations of gun owners for further information.

Firearm owners who have unanswered questions about allowable uses of lethal force, after having read the material contained here, are urged to obtain and read the two books referenced throughout, Armed & Female and Gravest Extreme, or contact your personal attorney or County Attorney.

For persons who seek gun-handling skills to enhance their personal security, there is no better way to become proficient with handguns than to join and shoot with a practical shooting club.  There are several practical shooting clubs in Montana.  Send a SASE envelope to MSSA and ask for the address and phone number of the nearest practical pistol club.

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