This article addresses my thoughts on the use of deadly force by crime victims to stop the criminal from committing the crime, and the surrounding laws:
What this article is and is not
I would like to start out by saying what this article is, and what it is not. It is an explanation of my reasoning and opinion regarding the use of deadly force to protect property, and the general laws surrounding such action. I base these opinions upon preponderance of the crime and self defense research I’ve done over the years of writing article for this website, my research and experience as an attorney at law, and my general life experience. One thing that that article does not constitute is legal advice. While it is true that nothing on this website constitutes legal advice, I feel especially compelled to make this clear, since I’m discussing various laws.
The current law on use of deadly force in many states
The laws of self defense have, for the most part, been developed though common law (judge made law) over the last several hundred years. Many states follow these old common law rules, and allow the use of deadly force (e.g. a gun) in self defense only when the victim is in reasonable fear of suffering death or grievous bodily harm, and cannot retreat to avoid that threat. That means that a person can lawfully fire in self defense when they reasonably believe that a criminal is about to murder/kidnap/rape/severely injure/etc. them, and also believe that they cannot run to safety. It also means that a person who uses deadly force to protect themselves against some lesser degree of attack, or when a jury later decides that they could have run to safety, can be prosecuted for their actions.
Problems with the current law’s restrictions on when deadly force can be used
On its face, the current law may seem reasonable, since human life is a sacred thing that should be protected. A couple hundred years ago, when the common law of self defense was being created, life was different. People often lived in smaller communities, and in mainly rural areas. As a result, it was not uncommon for everyone in a town to know everyone else. Since this was before the invention of the car and other modern means of transportation, most people spent their entire lives within just a few dozen miles of where they were born. Taken together with a multitude of other social factors, rape/robbery/murder/other violent attacks by strangers were much less common than they are today. Instead, the real danger to life was the situation where the “victim” would wait for the “attacker” to provide some sort of minor provocation, and then use that as an excuse to kill the attacker – whom the victim knew didn’t pose a deadly threat. An example to illustrate this danger: Person A is angry with Person B, his neighbor. Both individuals have known each other for years, and while they may get into minor scuffles from time to time, neither has ever attempted to kill or seriously harm the other. Person A waits until Person B shoves him, at which point Person A intentionally kills Person B, then tries to claim self defense. The common law self defense rule would not allow Person A to claim self defense, and rightfully so. Instead of killing Person B, Person A should have used the legal system, or at least non-deadly force, to put an end to Person B’s wrongful action.
The above discussed common law rule for self defense wasn’t bad for its time, when the danger of violent attack by some stranger was quite low. However today, violent attack by strangers is quite common. Mass killings by deranged individuals are also on the rise – not just in the USA, but in other countries too. It also seems that due in part to a break down in family structures and societal norms, criminals are more willing to use deadly force against innocent people than ever before. The result is that a law abiding citizen who is faced with attack by a criminal has little ability to assess the exact level of danger posed by the criminal, and is more likely to face a criminal who is willing to become violent in a hurry. The old common law rule, which sought to prevent self defense from being used as a cloak for premeditated murder of one’s enemy, is outmoded in this sort of modern life-and-death situation. Rather than helping to preserve life, it ensures that law abiding citizens hesitate to defend themselves, out of fear that they may be prosecuted for murder. The criminals, who by definition don’t obey the law, don’t hesitate, and are often able to harm their victims. What is needed is a new self defense rule, that will take the realities of modern life into account.
Problems with the current law’s duty to retreat
Another problem with the current law deals with the requirement that a person retreat if possible to avoid the threat, rather than using deadly force. As I mentioned above, the current common law of self defense requires a crime victim to retreat, rather than use deadly force, if it is possible to do so safely. For example, going back to the hypothetical about two fighting neighbors, it is better that both live to see another day and settle their dispute in court than one neighbor die. In short, this rule developed because, hundreds of years ago, judges recognized that preserving life is an important enough goal that a person in a fight should retreat and lose face, rather than stand his ground and cause the preventable death of another.
However things are different today. While fights certainly do happen these days, mutual fighting between adults is no longer the preferred method to resolve a dispute. Instead, we have police, courts, arbitration, and other means of resolving disputes (a non-scientific poll of a half dozen people aged 24 to 45 that I interact with on a regular basis reveals that not one of them has been in a mutual fight since they turned 18, although 3 have been the victims of robbery). The antiquated common law rule requiring retreat, based on the goal of keeping fist fights among acquaintances from turning deadly, just doesn’t make sense in light of today’s violent crime situation when robbers, rapists, and other criminals seek out random victims on which to prey. Instead, it only ensures that law abiding people will hesitate or turn their backs on violent criminals, making it easier for such criminals to harm their victims.
Some states have wisely passed “castle doctrine” and “stand your ground” laws that abolish the outmoded common law duty to retreat and other unreasonable restrictions upon self defense. The result of these self defense reforms are that law is on the side of the crime victim, rather than on the side of the violent criminal. The result is fewer innocent people suffering at the hands of criminals, both due to the immediate effect of that criminal being stopped, as well as a deterrent effect upon other would-be criminals.
To be clear, such self defense reforms almost certainly lead to more criminals being shot in self defense by their would-be victims – sometimes fatally so. As someone who doesn’t believe in capital punishment, I find the death of any human to be regrettable. However, every law abiding citizens has the basic human right to defend themselves – and it would be morally wrong to impair that right to benefit violent criminals. At the end of the day, if either the violent criminal or the innocent victim must suffer death or bodily harm, it is far better that the harm befall the violent criminal.