Thursday, August 22, 2019

Threatening with a Gun vs. Shooting at Someone

By Eugene Volokh - August 22, 2019 at 12:31PM

American law generally has different rules for use of deadly force in self-defense than for use of non-deadly force:

  1. By and large, you can use deadly force to defend yourself only if you're being threatened with death, serious bodily injury, rape, kidnapping, or, in many states, robbery (and, in some, burglary).
  2. You can generally use nondeadly force, though, to defend yourself against any unlawful attack, and also to defend your property against theft or unlawful damage.

So you can hit someone to prevent them from punching you—but you can't shoot them, unless you're trying to prevent something much worse than just punching. (There are various twists on all this, but I'll omit them for now.)

But what if you threaten to shoot them? Is that deadly force, which can't be used unless you're trying to prevent very grave harm, or nondeadly force? In Monday's People v. Ra decision (nonprecedential), the Michigan Court of Appeals held that such threats are nondeadly force:

Our Supreme Court … has applied the term "deadly force" as defined as force used in a circumstance in which the natural, probable, and foreseeable consequence of the act is death. People v Couch (Mich. 1990). In People v Pace (Mich. App. 1980), this Court determined that a defendant's mere display of a knife during a fight, while implying a threat of violence, does not constitute deadly force…. [W]ithin the context of self-defense, "[m]erely displaying a knife implies a threat of violence, but, without more, it does not constitute deadly force."

This holding, that a threat of deadly force is itself nondeadly force, is consistent with Black's Law Dictionary (11th ed), which defines nondeadly force as "1. Force that is neither intended nor likely to cause death or serious bodily harm; force intended to cause only minor bodily harm. 2. A threat of deadly force, such as displaying a knife." Similarly, the treatise LaFave & Scott, Criminal Law (2d ed), § 5.7, pp 455, states in relevant part, that "merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified pulling the trigger."

That's correct, I think, and also consistent with the way other courts treat this, to my knowledge. For more on the case, which has been quite controversial, read this David French article at National Review Online.

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