Can  you  use  deadly  force  to  fight  off  a  person  if  you  think  he  will harm  you? 

NOTE: The two paragraphs that are backlighted with white backing are of no more special significance than  the other paragraphs. It is an anolaly in the printing of this article.

What follows are two interesting American cases that deal with this question.

A university student (Pontolillo) in Baltimore, Maryland armed with a samurai sword killed a suspected burglar in a garage behind his off-campus home on September 16, 2009 after someone broke into his garage and was stealing more of the student’s electronic components. Previously, two laptops and a Sony PlayStation were stolen from his home. Some shocked neighbours said they heard blood-curdling screams in the residential area just blocks from the university and called the police. The police arrived at the scene and held the student, a third-year chemistry major at Johns Hopkins University, who was 20 years of age for several hours, and then released him without charging him with anything.

Prior to his arrest, at around 1:20 a.m., the student heard noises behind the home and noticed that the door to the garage was open.  He grabbed his samurai sword and confronted the intruder who was later identified by the police as Donald Rice, 49, a habitual offender who had just been released from jail.

Rice was crouching beneath a counter, when the student asked him what he was doing. He also threatened Rice that he was going to call the police.

According to Pontolillo, when the suspect lunged at him, he kind of forced Pontolillo against the wall so while in a state of fear or panic, he struck Rice with the sword.

Rice's left hand was nearly severed and was hanging on by a strip of skin.  He also suffered from a severe incision from the sword to his upper body. He died at the scene.

The police did not know why the student kept a sword. In any case it isn’t illegal to keep such a sword in your home.

Rice's criminal history included more than two dozen arrests for burglary, breaking and entering and auto theft. According to court records, he was also charged with a crime in 2007 after he pulled a gun on a police officer, although prosecutors placed that charge on hold because the police officer was on military leave.       

The police decided that they would consult with prosecutors about whether to file charges against the student. As in most states, self-defence in Maryland is defined by common law rather than by statute.

Common law is best defined by saying that it is the decisions of the courts that constitutes common law. It is not legislative law.

People who confront intruders inside their homes have a greater degree of latitude to use force, and prosecutors consider whether to file charges in such incidents on a case-by-case basis.

The police arrived at the conclusion that Pontolillo had been backed up against a corner and either out of fear or out of panic and for thjis reason, he struck the intruder with the sword. They made the presumption (and possibly correctly) that Pontolillo rteally was probably in fear for his life. They also reasoned that because he struck the intruder no more than twice, his actions weren’t overkill. 

The police also decided to leave it to the state's attorney's office to determine whether or not Pontolillo was to be charged in the incident. The states attorney’s office thought about this question for four months and it was finally decided not to charge Pontolillo with a crime because they were satisfied in their own minds that he acted out of fear for his life and as such, he acted in self-defence.  

Admittedly the intruder was unarmed however, he could have strangled Pontolillo and that possibility could have created sufficient fear in Pontolillo to believe that he might be killed by the intruder. Further, the intruder might have been able to grab the sword out of Pontolillo’s hand and kill him with it.

Before using deadly-force, a person is required to make all reasonable efforts to retreat however, a person isn’t required to retreat if he or she is in his or her own home and retreat is unsafe, the safest avenue of retreat is unknown to the person, the person is being assaulted or a family member is being assaulted  or the person’s family is in imminent danger, or the person is being robbed or his or her home is being severely damaged by the intruder, or the person is lawfully arresting the intruder.  

 Here is another American case where the facts of the case are different. The man was convicted of a murder. He appealed his conviction on the basis of self defence and the decision of the appellant court was announced in February 2012.  (Ohio v. Hargrave)

 Hargrave had gone out to the garage where his grandfather was inside it. Hargrave had no recollection as to why he went to the garage or what his grandfather was doing there. According to Hargrave, he began having an anxiety attack and was acting strangely which was of some concern to his grandfather. His grandfather, threatened to call the police and according to Hargrave, his grandfather took a shotgun from of its case, and then loaded a shell into it. Hargrave, fearing he was going to be shot, began stabbing his grandfather. He couldn’t recall whether he had come to the garage armed with the knife, or whether it was already in the garage. Once Hargrave began stabbing his grandfather, “I just a blurred.” Hargrave then recalled his grandfather falling to his knees and he then stopped stabbing him.

It was at that point that Hargrave recalled his grandmother entering the garage and him

believing she had concealed a steak knife within the sleeve of he nightgown, he punched her. Hargrave claimed that he didn’t notice his grandmother leaving the garage and go to a neighbor’s house to call 911.

 Hargrave’s grandfather had suffered numerous injuries. Hargrave had stabbed him at least 28 times, and other lacerations indicated that his grandfather was

in a defensive posture. Contrary to Hargrave’s statement that he stopped stabbing his grandfather when he fell down, there were stab wounds to the victim’s back. Specifically, there were seven stab wounds in a circular pattern on his back. These wounds pierced the victim’s spleen and heart; nearly severing the aorta, and were so forceful, they fractured his grandfather’s ribs. There were also 21 other punctures, one of which completely severed the victim’s jugular vein. He died as a result of his injuries.

 Mr. Justice McFarlane said in part when describing the defence of self defence;

“Even if the State had proved the elements of murder, Hargrave could not be convicted if he had demonstrated he acted in self-defense. Self-defense is an affirmative defense that requires a defendant to prove three elements by a preponderance of the evidence: ‘(1) the defendant was not at fault in creating the violent situation, (2) the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was the use of force, and (3) that the defendant did not violate any duty to retreat or avoid the danger.” unquote

The judge ruled that the evidence demonstrated that Hargrave was the aggressor and for this reason, he was not entitled to the privilege of self-defense. Hargrave’s explanation during his trial was, “I must have totally flipped out.” That wouldn’t get any sympathy from the trial judge or the appellant judge and for this reason, he is still in prison.

In Canada, the law with respect to use of force is found in Section 27 of the Canadian Criminal Code which states;

 Every one is justified in using as much force as is reasonably necessary

 (a) to prevent the commission of an offence

 (i) for which, if it were committed, the person who committed it might be arrested without warrant, and

 (ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

 (b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

Varying degrees of force can be used by people to protect themselves and their property, or by law enforcement officials to subdue a suspect. It's permissible to use reasonable force. However, excessive or extreme force is unlawful and that is because deadly force although is sometimes necessary, it's not always unlawful.

 Unlawful or excessive force is physical force directed at a person that's considered as being unreasonable or unnecessary under the circumstances. For instance, using a weapon, such as a knife or gun, against someone who has only attacked you with his bare hands would be considered unnecessary, and therefore, unlawful. The use of such force is a criminal offense and can also give rise to a civil tort claim. However, if the person is strangling you and you can’t break free and you have a knife in your hand, you can use the knife to prevent the person from killing you by strangulation.

Deadly force is defined as an action that creates the risk of death or serious injury. Deadly force, while it is extreme, isn't necessarily unlawful or excessive. For example, deadly force is permissible in circumstances of self-defense especially when you are retaliating against some else's use of deadly force. If someone punches you, you cannot shoot him; however, if someone's holding a gun on you, you have the right to protect yourself by firing first even if it turned out that the other person’s gun was empty. You don’t have to second guess what that person is going to do to you with his gun or whether or not it is fully loaded or not.

A person can be justified in using excessive force to defend himself against an attack, if the attack is real or reasonably apprehended.

 In the Canadian Criminal Code, there is a section in the Code that deals with the use of excessive force.

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and

(b) he believes, on reasonable and probable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

The qualified defence of excessive force in self-defence has been developed in some common law criminal jurisdictions around the world and has been applied by analogy to the defence of the prevention of the commission of a crime.

 This section allows a justification for as much force as is reasonably necessary to prevent the commission of an indictable (felonious) offence. The section clearly contemplates the possibility of killing a person and can even extend its justification to killing the person with intent to kill, if it is reasonably necessary. The question whether such force is or is not reasonably necessary is one for a jury to decide. If the force is reasonable in all the circumstances the accused is entitled to an acquittal; if not, he is in my view guilty of murder if he has the required intent to kill the other person.

 Suppose however that the other person has a gun and is about to shoot you. In my opinion, you don’t have to restrict shooting him in the arm to stop the potential shooter from killing you. You can shoot him with the purpose of killing him if you believe that in doing so; your life will be spared. But as previously mentioned; that is up to a jury to decide if your life was at risk or if you had a reasonable apprehension that your life was at risk.

 In my opinion, even if the gun of the potential shooter was unloaded and in his dying statement he claims he didn’t intend to shoot you; if the jury is convinced that your belief that the gun was loaded and he intended to shoot and kill you was valid, then they would in all likelihood acquit you of the crime of murder or manslaughter—unless of course, you first assaulted the man and he was attempting to prevent you from killing him.

 An accused may still be found to have acted in self-defence even if he was mistaken in his perception. Reasonable and probable grounds must still exist for this mistaken perception in the sense that the mistake must have been one which an ordinary man using ordinary care could have made under the same circumstances. The scenario I gave you with respect to the man believing the potential shooter had a loaded gun is a case in point.

 In Halsbury’s Laws of England (4th ed.), volume 11, at page 630 it says in part as follows:

 “In determining whether the force used was reasonable, the court will take into account all the circumstances of the case, including the nature and degree of force used, the seriousness of the evil to be prevented and the possibility of preventing it by other means. This provision is of general application and is not limited to arrestable or any other class of offences, but it would not be reasonable to use even slight force to prevent very trivial offences.

 The circumstances in which it can be considered reasonable to kill another in the prevention of crime must be of an extreme kind; (one) that could probably arise only in the case of an attack against the person which is likely to cause death or serious bodily injury and where killing the attacker is the only practicable means of preventing the harm. It cannot be (considered) reasonable to kill another merely to prevent a crime which is directed only against property.” unquote

 An accused may be found to have acted in self-defence within the meaning of section 34(2) even if he were mistaken in his apprehension of death or grievous bodily harm or if he mistakenly believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. His apprehension, however, must be reasonable and his belief based on reasonable grounds.  Such a defence is available even to an intoxicated person if the accused’s perception meets the aforementioned objective standard.

 I hope you have found this article informative.