Tuesday, May 17, 2011

For everyone who has asked me: "Can I shoot somebody if..."

I don’t often write about “serious crimes” in my blog.  I suppose it’s because I want the blog to be relevant to the lives of the majority of the people who read this thing.  Hopefully you guys will be able to actually use some of the information contained herein.  And the average person is pretty likely to have an issue regarding DUI or drug possession - rather than Murder.
However, on occasion, people ask me about when and how they can defend themselves.  Bigger crimes make up a significant percentage of my practice - and self-defense is a defense I have used many times.  And this week, self-defense is especially relevant to my practice, as I just picked up a new Murder case out of Lexington.  It looks like self-defense is going to play a huge role in the case, so let’s talk a little bit about when and how you can defend yourself.  I usually get this question in several forms:
Can I shoot somebody if they don’t have a gun, but they are threatening me with something else?

Can I shoot somebody if they are breaking into my house, or do they have to be trying to hurt me?

Can I shoot somebody if they are threatening someone else but not me?
KRS 503.050 governs the use of force in self-defense.  It reads:

503.050 Use of physical force in self-protection -- Admissibility of evidence of prior acts of domestic violence and abuse.
(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.
(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.

(4)  A person does not have a duty to retreat prior to the use of deadly physical force.
Sections 1, 2, and 4 will be the most important to today’s discussion.  Subsection (1) basically says that you can defend yourself when you believe it is necessary to do so.  But there are some nuances that should be addressed.  It is significant that the requisite “belief” in the need for self defense is a very subjective standard.  The law does not require this belief to be a reasonable belief, or a belief that others in similar situations would also hold.  Only the actor needs to believe that self-defense is necessary.  Also significant is the wording of the last part of subsection (1).  It allows a person to defend themselves not only against the use of unlawful physical force, but also the “imminent use” of unlawful physical force.  This is what we call “anticipatory self-defense” and is not allowed in all states.  Personally, I believe that anticipatory self-defense is very reasonable - it means you don’t have to take a punch in the face before you defend yourself.
Subsection (2) answers all of the “can I shoot someone” questions.  It addresses the use of deadly force in self-defense.  Boiled down, it says that you can shoot someone (or use some other type of deadly force) when you believe it is necessary to protect yourself against death, serious physical injury, kidnapping, sexual intercourse (which would be against your will), or the circumstances found in KRS 503.055.
So let’s tackle question 1) Can I shoot somebody if they don’t have a gun, but they are threatening me with something else?  Under KRS 503.050 the answer is: It depends.  Do you feel like they are going to cause you serious physical injury?  Specifically, the Kentucky Revised Statutes define “serious physical injury” as physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.  So I think you’re safe to kill someone in self-defense if somebody comes at you with any dangerous weapon which can create a substantial risk of death.  If they have a knife, yes.  If they have a whiskey bottle, maybe.  If they have a Wiffle ball bat, don’t shoot them.  To quote Adam Sandler, “put up your dukes like 30s style boxing.”
Question 2) Can I shoot somebody if they are breaking into my house, or do they have to be trying to hurt me?  Again, the question needs to be answered by the mental state of the shooter.  Do you believe it is necessary to protect yourself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055?  If so,  you can pull the trigger.  And although “reasonableness” of the belief held by the shooter is not necessary, I would certainly want to show reasonableness to a jury.  So it would help if it was at night when the burglar/shot victim was crawling through your window.  A lot of people think it is more reasonable that you might be harmed by a burglar breaking in at night than during the day.
The last question is number 3) Can I shoot somebody if they are threatening someone else but not me?  The answer, generally, is yes.  But this is a section for another night, when I’m not watching television drinking a manhattan.
Lastly, it is important to note subsection (4) of KRS 503.050.  This great Commonwealth of Kentucky is a “no retreat state.”  If somebody is posing an imminent threat to you, pursuant to above, you can defend yourself without turning around, tucking your tail between your legs, and trying to run.  No offense to the states who require retreat.  But seriously - cowboy up.
Homicide is an extremely serious charge.  You should make sure you have a lawyer who has handled numerous homicide cases.  Specifically, ask the lawyer you speak with if they have handled Kentucky murder charges before, and if they have ever taken a homicide case to a jury trial.  If you are charged with Murder, Manslaughter, or Reckless Homicide in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding regions, call the experienced criminal defense lawyers at Gruner & Simms, PLLC at 502.618.4949.

No comments:

Post a Comment