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 split them between our March 2023 and this, the April 2023 journal. Here is the second half of our attorneys’ answers–
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, IN 47106
As with so many circumstances in the legal world, it depends. Prosecutors in Indiana are tasked with making the charging decision, and whether they decide to charge an armed citizen who uses a gun to stop an empty-hand attack is going to be highly fact sensitive. However, the fact that the attacker is empty-handed is not enough on its own to justify a charge. This determination will be made in the context of a self-defense claim, and we should address the parameters of a valid self-defense claim to begin.
In Indiana, a valid claim of self defense is a legal justification for an otherwise criminal act. A person is justified in using reasonable force against another person to protect the person or another innocent person from what the person reasonably believes to be the imminent use of unlawful force. A person is justified in using deadly force if the person reasonably believes that the force is necessary to prevent serious bodily injury to the person or another innocent person or the commission of a “forcible felony,” which is defined by Indiana statute.
To prevail on such a claim, the defendant must show that he (1) was in a place where he had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. In making this determination, a jury looks from the defendant’s viewpoint when considering facts relevant to self defense. However, the defendant’s belief must have been reasonable. The phrase “reasonably believes,” as used in the self-defense statute, requires both the subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances.
For purposes of a claim of self defense, the question of the existence of apparent danger, apparent necessity, as well as the amount of force necessary to employ to resist the attack, can be determined only from the standpoint of the defendant at the time and under all the then-known existing circumstances. Focusing on the defendant’s standpoint means at least two things: (1) the trier of fact must consider circumstances as they appeared to the defendant rather than to the alleged victim or anyone else, and (2) the defendant’s own account of the event, although not required to be believed, is critically relevant testimony.
With this background in mind regarding self-defense claims generally, it helps us understand the legal context and the framework for judgment. So, how does this apply to an armed citizen who uses a gun to stop an empty-hand attack?
In Indiana, there is case law dating back to the late 1800s saying that an armed citizen is not automatically barred from using deadly force against an unarmed attacker. In the 1898 case of Davis v. State, the Indiana Supreme Court addressed an inappropriate jury instruction and said:
These instructions inform the jury that a person assaulted by another, who has no weapon in his hands, or the appearance thereof, is not justified in using a deadly weapon in defense of his person. If that is the law, then, in every conceivable case of a violent attack upon one by another, no matter what the circumstances may be, no matter what the disparity between the ages and physical strength of the two may be, the assaulted party must stand and take his chances of being knocked down and stamped into a jelly, or of being choked to death, before he can lawfully use a weapon in his defense.
Though the appearance and circumstances of the assault were such as to induce the reasonable belief to be honestly entertained by the defendant that his life was in danger, or that he was in danger of great bodily harm, from the assault, he could not lawfully use a deadly weapon to repel such assault, unless the assailant had a weapon in his hands, or the appearance thereof, no matter how many he had about his person. That is not the law.
Davis v. State, 152 Ind. 34, 51 N.E. 928, 929–30 (1898)
As you can see from the language in this opinion, whether one will be justified in using deadly force against an unarmed attacker will be highly fact sensitive. Is there a disparity in age, gender, size, ability, etc.? In other words, does the unarmed attacker have the ability to inflict death or great bodily harm on the innocent self-defender? All these considerations would be taken into account when considering the use of force, whether or not the attacker is armed. Otherwise, the person being assailed by an unarmed attacker, “must stand and take his chances of being knocked down and stamped into a jelly, or of being choked to death, before he can lawfully use a weapon in his defense.”
Richard E. Hornsby, P.A.
1217 E. Robinson St., Orlando, FL 32801-2115
Florida does not have a definitive appellate case establishing when deadly force would be appropriate to resist an empty-handed attack. Rather, the standard to be applied when using a firearm in self defense against an open handed attack is whether the gun owner reasonably believed such conduct was necessary to prevent the imminent commission of a forcible felony, death, or great bodily harm to themselves or another. State v. Moore, 337 So. 3d 876, 881 (Fla. 3d DCA 2022).
Importantly though, gun owners should be aware that due to a series of amendments to Florida’s self-defense laws, which collectively became Florida’s Stand Your Ground law, just brandishing a gun to deter a suspected assailant is now considered the use of deadly force. Little v. State, 302 So. 3d 396 (Fla. 4th DCA 2020). Prior to these amendments, “the mere display of a gun, or even pointing a gun at another’s head or heart without firing it,” was considered non-deadly force as a matter of law. Copeland v. State, 277 So. 3d 1137 (Fla. 5th DCA 2019).
This is an important distinction, because prior to the statutory amendments, a gun owner could brandish or even point their gun in self defense at another person who posed even a minor threat of harm. In this situation, the standard to be applied is whether the gun owner reasonably believed such conduct was necessary to defend against another’s imminent use of unlawful force. There was no requirement that the gun owner had to articulate a fear of great bodily harm, death, or commission of a forcible felony by the assailant before being justified in displaying or pointing their firearm.
However, under Florida’s current Stand Your Ground law, if confronted by an unarmed assailant, before legally being allowed to brandish – much less point – a gun in self defense, the gun owner must be prepared to articulate why they had a reasonable fear the suspected assailant was intending to commit a forcible felony against them or cause them death or great bodily harm.
Simply claiming a generalized fear of being hurt by another person because a heated verbal argument broke out or a generalized fear of getting into a fist fight will be insufficient under Florida law to brandish or point a firearm in self defense absent the ability to articulate additional circumstances to justify a reasonable fear of great bodily harm or death to the gun owner.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.