In recent Network online journals, Robert Margulies, MD gave very convincing arguments to justify using deadly force against an empty-hand attack. At the same time, experience in court also shows that when a person uses deadly force against an unarmed attacker, they are routinely prosecuted for murder. We asked our affiliated attorneys –
In your state, if a citizen uses a gun to stop an empty-hand attack, is the armed citizen routinely charged?
Is there any established case law in your state clarifying the use of deadly force to stop an empty-hand attack?
We received a number of good, educational responses and will split them between this month and our April 2023 journal. Here are the first half of our attorneys' answers–
Steven M. Harris
14260 W. Newberry Road #320, Newberry, FL 32669-2765
Florida is a mixed bag on deadly force “use” of a firearm in response to physical attack by fist. Hands are usually considered non-deadly force, but in some cases the jury may be asked to determine the level of force. There is a recent Florida case where one punch resulted in death and the attacker was found guilty of manslaughter over his claim of self defense. See https://www.nbcmiami.com/news/local/pablo-lyle-sentenced-to-5-years-in-2019-miami-road-rage-manslaughter-case/2965441/ .
The discharge of a firearm is deadly force as a matter of law, even if it is an accidental or a “warning shot.” Gun pointing has been considered deadly force as a “threat” of deadly force by one appellate court. Before that ruling, uniform appellate caselaw dictated firearm display and all gunpointing were the use of non-deadly force as a matter of law. See p. 6, https://www.8jcba.org/resources/Documents/Feb%202023%20Newsletter.pdf .
There is a recent St. Augustine case where a trial judge granted pretrial immunity under Fla. Stat. § 776.032 to a defendant who shot and killed an empty hands attacker. The defense presented the kind of medical evidence Dr. Margulies discussed. See https://www.youtube.com/watch?v=ZK3pj2-zoUE .
The most recent appellate case which discusses firearm versus punch is Edwards v. State, 351 So.3d 1142 (Fla. 1st DCA 2022) (opinion by Rowe, C. J., Osterhaus, J., concurred, B. L. Thomas, J., dissented). Edwards was denied pretrial immunity. A discretionary review petition before the Florida Supreme Court has been filed. Edwards shot and killed at contact range someone who was punching (or about to punch) him in the head. The majority opinion questioned the use of deadly force to oppose punches, noting “not every blow to the head is deadly” and “not every fist fight justifies defending oneself with deadly force.” The dissent noted (citing cases) that a single punch to the head can kill and that under the concept of imminence, one does not have to wait until actually being beaten to death to respond with deadly force. I suspect the judge who wrote the majority opinion thought the use of “not every” was a prosecution friendly characterization. I see it as legal support for a deadly force response when it could reasonably be believed to be necessary.
I think it is more likely than not that without demonstrable concerns about age, stature and frailty, a person outside the home who has used deadly force against an attacker known to be empty-handed will be charged in Florida. I cannot say such defenders are “routinely” charged. There are controversial cases where an armed defender who killed was not charged. See, for example, https://www.news-press.com/story/opinion/2021/03/20/stand-your-ground-florida-ryan-modell-case-state-attorney-lee-county-sheriff/4746152001/ , where in my opinion the State made the correct but unpleasant non-prosecution decision. Nobody in Florida who asserts justified threat or use of force should be “routinely” charged. The immunity statute clearly rejects that by requiring an “agency” probable cause determination. “Self-defense immunity” in Florida includes not being arrested or charged unless the State proves by clear and convincing evidence deadly force was not justified.
John I. Harris III
Schulman, LeRoy & Bennett PC
3310 West End Avenue, Suite 460, Nashville, TN 37203
615-244-6670 Ext. 111
Tennessee’s statutory scheme for self defense does not directly address the empty-hand issue. Under Tennessee’s civilian deadly force statute (Tenn. Code Ann. § 39-11-611), an individual is generally allowed to engage in conduct that is “threatening or using force intended or likely to cause death or serious bodily injury, if: … The person has a reasonable belief that there is an imminent danger of death, serious bodily injury, or grave sexual abuse….” Thus, Tennessee’s statutory language is silent on the empty-hand factor.
However, other parts of the statute create an evidentiary issue of whether the individual’s perception or whether the belief by the individual was reasonable. Thus, the statute requires the jury to consider whether the “danger creating the belief of imminent death, serious bodily injury, or grave sexual abuse is real, or honestly believed to be real at the time; and
[also whether] “The belief of danger is founded upon reasonable grounds.” In handling these cases, we have seen arresting officers and district attorneys express personal opinions that there either was not a real threat of death or imminent serious bodily injury and/or that even if there was a belief that it was not founded on reasonable grounds. When this perspective arises, criminal charges are likely and the issue becomes a focus of the jury trial.
Factors to be considered on the reasonableness of the belief that there was an actual and reasonable fear of death or serious bodily injury include considerations such as a) whether there is a size disparity in the victim and attacker, b) whether there is more than one attacker, c) whether the attacker / victim had any special training or skills, d) the relative physical health/capacity of the attacker and the victim, and e) whether the victim attempted to or had any reasonable opportunity to flee to avoid the injury. That is not an exhaustive list but just for illustration.
With that said, I have had cases and seen cases where the individual did use deadly force against an attacker who was otherwise unarmed. In some of those, law enforcement decided not to charge, the district attorney decided not to charge or continue prosecution and/or the jury acquitted the individual. Sadly, in almost all of those, the individual needed the assistance of a knowledgeable attorney to handle the investigation and matter.
Kelly & Chapman
P.O. Box 168, Portland, ME 04101
Question 1–In your state, if a citizen uses a gun to stop an empty-hand attack, is the armed citizen routinely charged?
No, citizens are not “routinely” prosecuted for defending themselves. Here is an example: Shooter who killed Lewiston man at Augusta tow yard will not be charged. Officials: Rob Drummond, owner of Ready Road Service, shot Tyler Morin, 36, on May 20. See https://www.centralmaine.com/2022/07/14/shooter-who-killed-a-man-in-augusta-tow-yard-wont-be-charged/
On the other hand, as in the case of State v. Cardilli, where an unarmed black man was shot in the back while he was on the floor, sometimes prosecution is undertaken, and succeeds. https://scholar.google.com/scholar_case?case=18277839268767784721&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Question 2–Is there any established case law in your state clarifying the use of deadly force to stop an empty-hand attack?
See the Cardilli case above. It fits the bill. There are a few others. Cardilli is the latest and most in-depth.
Steven Howard, Esq.
209 N. Walnut, Upper Level, Lansing, MI 48933
“The delightful double standard!”
In Michigan, the prosecutors and the Attorney General, don’t like citizens using deadly force. So unless you’re an old woman, you’re in a wheelchair, or your attacker was absolutely off-the-chart outrageous in their attack, you are going to get charged with murder, or at the very least manslaughter. In my entire life, I’ve seen about four cases where they didn’t. Two of them, I was involved in. They listened to my lecture at the CPL class, they called me, then called 911 (in most places, once you dial 911, the operator will not let you hang up! Your phone becomes an open mic for any evidence they hear and it’s perfectly legal). And once they called 911, they were careful what they said, and they kept their mouth shut and demanded a lawyer.
However, if they are police officers, I have only heard of one case, where an on the job shooting was not declared justified, even when the defendant was shot multiple times in the back (14 rounds) and had no gun at all! I have seen cases where cops buried the muzzle of their gun into the person’s body and fired 14 or 15 times even though the person was not armed and was simply trying to run away! They justify these murders, and yes, I called them murders, because if we did it, it would be charged as murder, they escape murder charge, by citing “policy.” The policy basically says if you don’t know what they’re going to do next, and you feel in fear – shoot them! I have seen cases of people shot 2 to 34 times, yet they were not resisting, and it was shown at the civil trial that the person had their hands up. And yet, all the body cam footage magically malfunctioned, or was lost! Anybody ever wonder why the black community riots? I don’t! And to top it all off, the “state police officer involved, shooting investigations squad” (that’s the official name), moves in, and does everything they possibly can to protect the officers and whatever department the officer is from, from being sued. They go absolutely out of their way to testify for the officer and to coach the officer in saying things that will make them difficult to sue. The last thing on earth that they are ever going to do is prosecute a police officer for murder. To prosecute a police officer for murder is to admit that they cannot control their men. They would rather die than admit that.
The law in Michigan is relatively clear, though I do not have the caselaw at my fingertips. The attacker may be fired upon if he’s within 21 feet and has anything that could even remotely be called a weapon in his hands. Further, if he has a firearm in his hands, because it is believed that even the most ridiculous tiny little palm pistol is lethal out to several hundred yards, the police may engage him with firearms at any distance they feel threatened. If you ever have to shoot somebody for God’s sake get away from your gun, or the police will shoot you just for the fun of it. The police are given absolute immunity to shoot anyone who is holding a weapon of any kind within 21 feet of them, even if it’s not a firearm.
Certain things, I’m willing to bet a lot of money on. These are: if you shoot somebody, even in good self defense, and you are not old, crippled, blind, or helpless, a weak female, or you’re shooting someone who is attacking the police, you are going to jail! You will be arrested, you will be charged, and you will be expected to plead to a crime so that you can’t ever have a gun ever again. This is the mindset of prosecutors in the state of Michigan, or at least the vast majority of them that I have seen. Time, and time again, I see people with valid self-defense cases that are routinely charged with massive felonies. One of the biggest reasons is they don’t want the dead person’s next of kin to go on social media, or to the press and say “that dirty so-and-so, he killed my brother, father, son, whoever, and the prosecutor won’t do anything about it!“ The biggest thing the prosecutors worried about is getting reelected in the next election. And unfortunately, this seems to be the driving force on these charges. Someone is dead, therefore, somebody else has to go to prison for life, or justice is not served! These people are nuts! I am really glad I never became a prosecutor. I don’t think I could live with myself.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have additional responses from our affiliated attorneys on this important topic