Drizzt
Member
Lawful stance improves steady aim - Sunday, April 20, 2003
SUMMARY: Effective self-defense requires understanding the justified use of deadly force.
A Missoula man, Samuel Alan Yates, is in jail facing deliberate homicide charges after interrupting what he says was a youth's attempt to break into Yates' car outside his home April 10. Yates allegedly shot the teen in the back of the head as the boy turned to flee.
With the speed of the bullet, the alleged criminal became the victim and the victim was charged as a criminal.
What gives? Doesn't a person have the right to defend himself and his property?
The answer is, yes - but ...
Montanans have a (state) constitutional right to "keep or bear arms in defense of Å home, person and property Å ." But the lawful use of deadly force is, appropriately, limited.
Anyone who owns a firearm - or, for that matter, a knife, ax, baseball bat or five-iron kept in the hall closet "just in case" - should understand the circumstances under which you are entitled to use deadly force. A moment of crisis is no time to wonder about your rights and responsibilities.
In many situations, the law is crystal clear. In others, there's room for judgment. Here's what it says in state law (Montana Code Annotated 45-3-102):
"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 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."
Note that term "forcible felony." It's defined as "any felony which involves the use or threat of physical force or violence against any individual."
The law (MCA 45-3-103) also justifies the use of deadly force to defend an "occupied structure," such as a home, when a person "reasonably believes that such conduct is necessary to prevent or terminate Å unlawful entry into or attack upon an occupied structure." But, deadly force is deemed justified only if "the entry is made or attempted in a violent, riotous or tumultuous manner" and you "reasonably believe" that deadly force is needed to prevent "an assault upon or offer of personal violence" to you or someone in the structure; and if you reasonably believe "such force is necessary to prevent the commission of a forcible felony in the structure."
You also may use deadly force to protect real and personal property - yours or that of a member of your immediate family or someone else whose property for which you have a legal duty to protect - but, again, only if you believe it's necessary to prevent a "forcible felony" (MCA 45-3-104).
The law grants you immunity from civil damages if your use of force is legally justified. Your attacker or his family can't further victimize you with a lawsuit if you wound or kill him in self-defense.
From a practical standpoint, if you can avoid a situation that could involve deadly force, you should. Better to talk to your insurance agent than to your court-appointed lawyer. The law doesn't require you to rely on police protection, but if the police can do it, call 9-1-1 and let them. If you can escape danger, do so. If the criminal you confront isn't committing a felony with the "threat of physical force or violence," don't shoot. No matter how mad you are about the punk vandalizing your car or stealing your lawn gnome, it's not worth the legal trouble to plug him. If it's not a situation that could justify the use of deadly force, be very careful about brandishing a weapon.
Unfortunately, there are situations in which you might have no choice but to kill someone. It should be the last resort, not an early option.
Finally, if you keep a gun for protection, you shoulder great responsibility. It takes good judgment to know when a gun can solve a problem or make it worse. And if you wield a weapon, you need to do so competently. Anytime you draw a gun on another person, you are a split-second from using deadly force. If you need to pull the trigger, you don't want to miss. The situation - to say nothing of your legal jeopardy - won't be improved by winging a bystander.
To be useful for self-defense, a gun needs to be handy and loaded. (In most cases, if you have to reach and unlock the gun safe and scrounge up some ammunition and return to the scene to shoot someone, you're probably better off calling police or escaping the danger.) But if you're going to keep a firearm handy, you also have a responsibility to keep it secure - out of the hands of children and the incompetent. Think hard about the relative danger from criminals vs. the dangers of having a loaded gun under your pillow or under the car seat. If someone dies, even accidentally, due to your negligence, you're in trouble.
Police undergo extensive training in the use of deadly force. Citizens can take specialized self-defense classes (often advertised in the Missoulian or promoted by gun clubs); there are books and videos on the subject; for a thoughtful discussion on the "Allowable Uses of Lethal Force," check out the Montana Shooting Sports Association Web site: www.mtssa.org/lethalforce.html.
You do have the right to defend yourself and your property. It's one of the things that make you free. But understanding the justified use of deadly force not only helps keep you safe from potential criminals, but it also will keep you secure in a legal system that takes a dim view of shooting first and asking questions later.
http://www.missoulian.com/articles/2003/04/27/opinion/opinion1.txt
SUMMARY: Effective self-defense requires understanding the justified use of deadly force.
A Missoula man, Samuel Alan Yates, is in jail facing deliberate homicide charges after interrupting what he says was a youth's attempt to break into Yates' car outside his home April 10. Yates allegedly shot the teen in the back of the head as the boy turned to flee.
With the speed of the bullet, the alleged criminal became the victim and the victim was charged as a criminal.
What gives? Doesn't a person have the right to defend himself and his property?
The answer is, yes - but ...
Montanans have a (state) constitutional right to "keep or bear arms in defense of Å home, person and property Å ." But the lawful use of deadly force is, appropriately, limited.
Anyone who owns a firearm - or, for that matter, a knife, ax, baseball bat or five-iron kept in the hall closet "just in case" - should understand the circumstances under which you are entitled to use deadly force. A moment of crisis is no time to wonder about your rights and responsibilities.
In many situations, the law is crystal clear. In others, there's room for judgment. Here's what it says in state law (Montana Code Annotated 45-3-102):
"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 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."
Note that term "forcible felony." It's defined as "any felony which involves the use or threat of physical force or violence against any individual."
The law (MCA 45-3-103) also justifies the use of deadly force to defend an "occupied structure," such as a home, when a person "reasonably believes that such conduct is necessary to prevent or terminate Å unlawful entry into or attack upon an occupied structure." But, deadly force is deemed justified only if "the entry is made or attempted in a violent, riotous or tumultuous manner" and you "reasonably believe" that deadly force is needed to prevent "an assault upon or offer of personal violence" to you or someone in the structure; and if you reasonably believe "such force is necessary to prevent the commission of a forcible felony in the structure."
You also may use deadly force to protect real and personal property - yours or that of a member of your immediate family or someone else whose property for which you have a legal duty to protect - but, again, only if you believe it's necessary to prevent a "forcible felony" (MCA 45-3-104).
The law grants you immunity from civil damages if your use of force is legally justified. Your attacker or his family can't further victimize you with a lawsuit if you wound or kill him in self-defense.
From a practical standpoint, if you can avoid a situation that could involve deadly force, you should. Better to talk to your insurance agent than to your court-appointed lawyer. The law doesn't require you to rely on police protection, but if the police can do it, call 9-1-1 and let them. If you can escape danger, do so. If the criminal you confront isn't committing a felony with the "threat of physical force or violence," don't shoot. No matter how mad you are about the punk vandalizing your car or stealing your lawn gnome, it's not worth the legal trouble to plug him. If it's not a situation that could justify the use of deadly force, be very careful about brandishing a weapon.
Unfortunately, there are situations in which you might have no choice but to kill someone. It should be the last resort, not an early option.
Finally, if you keep a gun for protection, you shoulder great responsibility. It takes good judgment to know when a gun can solve a problem or make it worse. And if you wield a weapon, you need to do so competently. Anytime you draw a gun on another person, you are a split-second from using deadly force. If you need to pull the trigger, you don't want to miss. The situation - to say nothing of your legal jeopardy - won't be improved by winging a bystander.
To be useful for self-defense, a gun needs to be handy and loaded. (In most cases, if you have to reach and unlock the gun safe and scrounge up some ammunition and return to the scene to shoot someone, you're probably better off calling police or escaping the danger.) But if you're going to keep a firearm handy, you also have a responsibility to keep it secure - out of the hands of children and the incompetent. Think hard about the relative danger from criminals vs. the dangers of having a loaded gun under your pillow or under the car seat. If someone dies, even accidentally, due to your negligence, you're in trouble.
Police undergo extensive training in the use of deadly force. Citizens can take specialized self-defense classes (often advertised in the Missoulian or promoted by gun clubs); there are books and videos on the subject; for a thoughtful discussion on the "Allowable Uses of Lethal Force," check out the Montana Shooting Sports Association Web site: www.mtssa.org/lethalforce.html.
You do have the right to defend yourself and your property. It's one of the things that make you free. But understanding the justified use of deadly force not only helps keep you safe from potential criminals, but it also will keep you secure in a legal system that takes a dim view of shooting first and asking questions later.
http://www.missoulian.com/articles/2003/04/27/opinion/opinion1.txt
