Deadly force to retain handgun

[Mike Irwin]

I used Pennsylvania as an example for a couple of reasons.

1. The OP's premise seems to indicate that deadly force isn't justified because the theft is a simple property crime. It's far more than that, and it all hinges on the perception of the person against whom the crime is being committed.

2. I'm more familiar with Pennsylvania law than those those of other states.

3. I don't know a former District Attorney with over 20 years experience in that role in my current home state of Virginia.

The sections of law that I attached came from a site that tracks the laws of all 50 states and the US Government.

Pennsylvania adopted its Castle Doctrine Law in 2011, which made numerous changes in section 500; those changes are part of the law on that site; see Section 505, 2, ii in what I attached.

Finally, the claim that deadly force cannot be used to prevent property crimes is, on its face, overly broad and thus incorrect.

State laws vary considerably. I believe several still assign a monetary value to where use of deadly force is permissable as a last resort. Other states (I believe Michigan may be one) disallow deadly force to stop property crimes in pretty much all cases (arson may be the exception), and then there's Texas...

Excerpt from the Texas Constitution (and supported by numerous sections of the Texas code):

"A person is justified in using deadly force against another to protect his property to the degree he reasonably believes the force is immediately necessary to prevent the others imminent commission of arson, burglary, robbery, theft during the nighttime or criminal mischief during the nighttime, and he reasonably believes that the property cannot be protected by any other means."

There have been numerous cases of deadly force being used in Texas cited here at TFL over the years. In several, individuals died, and the shooters were found to be acting within the bounds of Texas law.


My primary premise remains, however, that if someone is attempting to wrestle your carry gun away from you, it is NOT a simple property crime, it is at very least assault, possibly felony assault, and raises the distinct possibily of escalation to murder if the individual manages to take the CCWer's gun from him.

As such, use of deadly force may very well be a justifiable action and an affirmative defense against prosecution.

 

[Mike Irwin]

And, even more from the Texas Penal Code:

"Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another: 1) if the actor would be justified in using force against the other under Section 9.31; and(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: A) to protect the actor against the other's use or attempted use of unlawful deadly force; or(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery."


Note the references to robbery and aggravated robbery.


And, sections 9.41 and 9.42:

Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and: 1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property (1) if he would be justified in using force against the other under Section 9.41; and(2) when and to the degree he reasonably believes the deadly force is immediately necessary: A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and(3) he reasonably believes that: A) the land or property cannot be protected or recovered by any other means; or(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury."


In other words, Texas allows the use of deadly force to protect property under a number of circumstances.

 

[Mike Irwin]

Pursuant to Florida, it appears that in some cases deadly force is allow to protect property there, as well. I THINK I'm reading the statutes correctly...

This comes from Florida statutes chapter 776, titled "Justifiable use of Force."

"776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual."

Here's an analysis by a Florida attorney: http://www.floridafirearmslaw.com/Analysis-Florida-New-Self-Defense-Law.html

Granted, that's primarily "castle doctrine" law and includes carjacking, but burglary andarson are, on their face, primarily crimes against property.

 

[MLeake]

I know what you mean about arson, Mike Irwin, but arson can and frequently does lead to injury or death. A person observing an arsonist in the act is not likely to know that the structure is unoccupied, and it may not be; it would not be unreasonable for the observe to think the arsonist may well be committing crimes against persons. (Note: This assumes a house or building, not condemned shed, etc.)

In feudal Japan, due to the light wood and paper construction in prevalent use, arsonists were viewed as more deadly than simple murderers, as a single act of arson could easily burn down an entire neighborhood, or even city.