Lesson 3: Use of Force Upon Another Person

Erica Fisher CWL Courses

General terms and definitions.

Use of Force is physical force used upon another person. This ranges from offensive physical contact to assault and murder.

Physical Force is physical contact upon the body of another person, and includes, but is not limited to, the use of an electrical stun gun, tear gas, mace, punching, kicking, striking, or pushing.

Deadly Physical Force means physical force that, under the circumstances in which it is used, is readily capable of causing death or serious physical injury, such as the use of deadly and dangerous weapons.

Handgun with Bullets

Deadly Weapon is defined in Idaho Code 18-3302(b), as any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury, such as a gun or knife, or any other weapon, device, instrument, material or substance that is intended by the person to be readily capable of causing death or serious bodily injury. For example, if someone was near you and is in possession of a baseball bat, stick, heavy flashlight or lamp and said they were going to hit you in the head with the object, the object could be considered a Deadly Weapon.

Burglary is defined in Idaho Code 18-1401 as when a person enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, vehicle, trailer, airplane or railroad car, with the intent to commit any theft or any felony.

Justifiable Homicide is defined in Idaho Code 18-4009, as an action taken:

  • When resisting any person attempting to murder any other person, or committing a felony, or doing some other act that can result in great bodily injury on another person;
  • When committed in defense of habitation, a place of business or employment, occupied vehicle, property or person, against one who manifestly intends or endeavors by violence or surprise to commit a felony, or enters any such place in a violent, riotous or tumultuous manner for the purpose of doing violence to any person inside;
  • When committed in the lawful defense of family or another person when it is reasonable to believe the offender is committing a felony or plans to do great bodily injury to someone;
  • When necessarily committed in attempting by lawful ways and means to apprehend any person who has committed a felony, suppress any riot or keep and preserve the peace.

Habitation is defined in Idaho Code 18-4009(3) as any temporary, mobile, immobile or permanent building, inhabitable structure or conveyance of any kind, including a tent, that is designed to be occupied by people lodging in it at night.

Place of Business or Employment is defined in Idaho Code 18-4009(3) as a commercial enterprise or establishment owned by a person as all or part of the person’s livelihood, or is under the control of the owner or the owner’s employee or agent with responsibility for protecting persons and property.

Vehicle is defined in Idaho Code 18-4009(3) as any motorized vehicle that is self-propelled and designed for use on public highways to transport people or property.

Lawful Use of Force in Defense of Self and Others

Idaho Code 19-202 states that you may use such degree and extent of force as would appear to be reasonably necessary to prevent the threatened injury. Reasonableness is to be judged from the viewpoint of a reasonable person placed in the same position and seeing and knowing what the person then saw and knew without the benefit of hindsight.

  • A person may use reasonable physical force upon another person in self-defense or in defending a member of his family or another person, or in defending his property.
  • The defense of self or another doesn’t require a person to wait until he ascertains whether the danger is apparent or real. A person confronted with such danger has a clear right to act upon appearances such as would influence the action of a reasonable person.
  • In the exercise of self-defense, a person need not retreat from any place a person has a right to be, and can stand his ground and defend himself and others.
  • A person using force or deadly force in defense of habitation, place of business or employment or occupied vehicle is presumed to have acted reasonably and have had a reasonable fear of imminent peril of death or serious bodily injury if the force is used against a person whose entry, or attempted entry, is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony. Idaho Code 19-202A(5)

Deadly physical force can be used

  • When a person is committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person.
  • When a person is committing or attempting to commit a burglary in a dwelling.
  • When a person is using or about to use unlawful deadly physical force against a person.

For example, you are in a parking lot and see a man kicking another unconscious man in the head. You may use the amount of force necessary and reasonable to stop the man from kicking the other in the head, including deadly force, but only if you feel further kicking may cause serious physical injury to or the death of the victim.

Note

It is important to note that the use of deadly force is serious business and will be carefully reviewed by law enforcement and prosecutors in making their final determination on the use of force.

Idaho Code 19-202A (4) states that in any prosecution for the unlawful use of force, including deadly force, or the attempted or threatened use of force contrary to title 18, Idaho Code, the burden is on the prosecution to prove beyond a reasonable doubt that the use of force, attempted use of force or threat to use force was not justifiable.

Keep in mind, before you can use any amount of force, you should also be able to reasonably conclude that the person who was a threat to you, by word or conduct, demonstrated his intent to cause you or another harm, that the person making the threat had the means to carry out that threat and also had the opportunity to cause you or another harm.

Now let’s take all this information and put it into scenarios many instructors hear throughout the State of Idaho.

Scenario One:

Someone who is unlawfully in your house, runs outside when you discover them. Students in handgun safety classes sometimes state: “I am going shoot them and drag them back inside my house.”

Shoot – If you justify your decision to shoot the person who fled from your home on the sole fact that he was unlawfully in it, you likely do not have sufficient legal justification to use deadly force. Even though you may use force against a person if you believe that person is committing or attempting to commit a burglary of a dwelling, the use of deadly force is only justified when the facts reasonably indicate that the intruder intends to cause serious physical injury or death to you or another. Once the person has fled your home, there is likely no further justification for the use of force or deadly force, unless the person has demonstrated that he continues to pose a danger to the public. For instance, such danger may be indicated if the perpetrator fires a handgun while fleeing, or threatened you with a weapon before fleeing.

Don’t Shoot – Correct for the reason set forth in the previous paragraph.

Scenario Two:

In the middle of the night you hear a noise and get up to investigate. You look down your hallway and see a person standing in your living room. You make an announcement from your bedroom door, stating “I have called 911, and I have a gun, get out.” The person turns away from you and runs out the door with your TV.

Shoot – Incorrect. The person immediately fled out of the residence and no longer posed a deadly threat so shooting the person would not be justified under Idaho Code 19-202A. You may be found criminally and/or civilly liable for your decision.

Don’t Shoot – Correct. Once the intruder fled, he did not display any intent, means and opportunity to cause any serious physical injury or death to you or anyone else.

Scenario Three:

Same basic facts as Scenario Two. When you make the statement about calling 911, having a gun, and order him to get out, you turn on the hall light. The person then drops the TV, pulls a knife from his pocket and begins walking towards you with a fixed stare.

Shoot – Did the person by word or conduct have the intent to cause you serious physical injury or death?

  • Yes. He demonstrated his intent by removing the knife from his pocket, dropping the TV and walking in your direction.

Did the person have the means to cause you serious physical injury or death?

  • Yes. He had a knife.

Did the person have the opportunity?

  • Yes. He was down the hallway, closing distance and there were no impenetrable obstacles between you and the person.

Your actions will likely be found to be justified because the offender was in your home committing a felony. The mere fact that the person is in your home uninvited presumes that he has entered with the intent to commit a felony. Idaho Code 18-4009 (2) The evaluation of intent, means and opportunity is provided to add insight into your assessment, but it is not necessary to use deadly force in the example above.

Don’t Shoot – Deciding whether to take another human being’s life is a personal choice and choosing not to shoot is always an option. In this situation, your personal safety is at serious risk, and you should clearly take some immediate action to protect yourself.   Regardless of whether you would personally decide to shoot in this situation, as discussed in the previous paragraph, the decision to shoot appears to be legally defensible.

Idaho is a “stand your ground” state so you are not required to retreat if you have a right to be there. I.C. 19-202A Under these circumstances, there is a strong argument that the use of deadly force would be justified.

Scenario Four:

David cuts you off in traffic. David pulls into a nearby gas station and gets out of his vehicle to go inside. You quickly pull up and begin yelling at David, and aggressively approach him. David defends himself as you initiate a fist fight with him. As David begins to gain the advantage over you, you realize you are losing the fight so you draw your weapon and shoot David, killing him.

Justified? Although David cut you off first, you were the initial aggressor in the altercation, and the first one to use physical force. You provoked the fight with David and he was only using the amount of force necessary to defend himself from you. Your use of deadly force would not likely be found to be justified.

You may be found criminally and/or civilly liable for this decision.

Not Justified – Correct for the reasons set forth in the previous paragraph.

Contact with Law Enforcement

If you are carrying a weapon, whether concealed or not and a law enforcement officer contacts you because of a traffic stop or for any other reason it is very wise to inform the officer as soon as reasonable that you have a weapon on your person. This could be a knife, club, gun or any other weapon. Let the officer decide as to what should be done about the weapon during the encounter.

If you act with a weapon to lawfully protect yourself or someone else and law enforcement responds to your location it is critical that law enforcement not perceive you as a criminal aggressor. Circumstances may vary widely; however, if possible, you should not hold the weapon when approached by officers and should immediately notify them that you are armed. In addition, keep your hands in plain sight. Law enforcement officers responding to an incident where a firearm or other weapon is reported are highly vigilant and their commands must be obeyed without question until the officers understand the scope of the emergency.

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