When May A Person Use Deadly Force to Defend Themselves?

published: March 19, 2018 by: firearmslegal

If someone enters your home in the middle of the night and threatens you or your family, are you able to use the firearm you have in your bedroom nightstand  that you purchased for personal safety reasons? What about if you have a gun in your car as you and your family travel to grandmother’s house at Christmas? If you have a flat tire and someone else stops–not to render aid but to hurt your or your family—may you use your firearm in self-defense then without first trying to retreat?  When can you use force, including deadly force such as using a firearm, to protect yourself or your loved ones?  In short, it depends on the situation you find yourself and in what state you live as the applicable law differs from states to state.  “Self-defense” in one state, especially using deadly force, can rise to the level of being charged with a murder, manslaughter or aggravated assault with a deadly weapon charge in another.  Thus, if you own a firearm, it is of paramount importance you familiarize yourself with your state’s law regarding the use of that firearm, especially in self-defense.

Google “self-defense” or “self-defense with a firearm” and you will find many articles that refer to the “Castle Doctrine” and/or “Stand Your Ground” laws.  Both “Stand Your Ground” and the “Castle Doctrine” have common roots stemming from medieval English law and are somewhat self-explanatory. Why are they important to you? Let me explain:

The Castle Doctrine Applies to a Person’s Home

“For a man’s house is his castle and his home his safest refuge” Sir Edward Coke The Institutes of the Laws of England (1644).  This idea is not terribly controversial and soon became known as the Castle Doctrine. Over time, the Castle Doctrine came to represent an individual’s right to use force to defend against and protect his or her home from invasion or unwanted intruders. As will be explained in greater detail below, if someone not a resident of your home forcibly enters your house, you have the right to defend it and yourself without retreating or fleeing. And further, if you believe the intruder intends to kill you or inflict great bodily harm, you have the right to use deadly force against the intruder. In some states that codify or recognize the Castle Doctrine, it has been extended to include the right to defend an occupied motor vehicle and place of work as well as your home and in others it only applies to the protection people and property.

More than half of all states in the United States have adopted some version of the Castle Doctrine, which states that a person may protect himself or herself in their own homes.  Let’s take a look at Texas’ Castle Doctrine as an example. First, it is important to note that nowhere in any Texas law will you find the phrase “Castle Doctrine.”  Instead, the general theme behind this doctrine can be found in the Texas Penal Code Sections 9.31 and 9.32.

The Texas Penal Code section 9.31 specifically states that a person may use deadly force to defend him or herself without first retreating against a non-resident intruder who:

  • forcibly enters or tries to forcibly enter his or her “occupied habitation, vehicle, or place of business or employment” or
  • forcibly removes or attempts to remove a person from his or her “occupied habitation, occupied vehicle, or place of business or employment”.

In those situations, the use of deadly force in those situations is presumed valid.

However, the user of deadly force:

  • must not have provoked the confrontation, or
  • may not be engaged in criminal activity, other than Class C misdemeanor traffic violation.

In addition, deadly force is not justified against verbal provocation alone and any attempts to break off the confrontation must be accepted.  Also, deadly force is never allowed against a lawful search or arrest by a police officer unless the officer uses “greater force than necessary” to perform the search or arrest, which is very hard to prove.

Trespassers and the Castle Doctrine

However, do not misconstrue the Castle Doctrine.  It does not mean a person may use deadly force merely because someone is on your property without your consent as a trespasser. That is not the case.  For instance, the Texas Penal Code section 9.41 (as most states’ law that have some form of the Castle Doctrine found therein), clearly states that a person may use force reasonably necessary to prevent or terminate another’s trespass on their property, but that does not extend to the use of deadly force.  You may display your firearm in order to create apprehension in the trespasser but using deadly force or discharging your firearm to “move” someone off your driveway or your land is a sure way to go to jail and more than likely stay there.

What about Trespassers Committing Other Crimes on your Property?

Some states allow a person to use deadly force in defense of property but only in certain limited situations.  Again, let’s consider Texas law.  Under the Texas Penal Code section 9.42 a person is justified in using deadly force to protect property against a trespasser to prevent:

  • arson
  • burglary
  • robbery
  • aggravated robbery
  • theft during the nighttime or
  • criminal mischief during the nighttime

In addition, Texas allows a person to use deadly force to recover stolen property only if:

  1. force is necessary to prevent or terminate trespass or unlawful interference with property, and
  2. deadly force is reasonably necessary to prevent the trespasser who is immediately fleeing after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property and
  3. the person using the deadly force reasonably believes that the property cannot be recovered by any other means.

Stand Your Ground Laws Apply to Public Places

Similar to the Castle Doctrine, “Stand Your Ground” is a term or art not normally found in any state’s laws. “Stand Your Ground” is a somewhat new doctrine that extends the concept of the Castle Doctrine to public places. This means that in a Stand Your Ground state a person may use deadly force to defend him or herself without first retreating if he or she reasonably believes he or she is in imminent serious bodily harm or death by another, even in public our outside the home. The overwhelming reason for Stand Your Ground laws was to eliminate the long-standing legal duty to retreat when facing danger in public places.

In 2005 Florida was the first state codify the doctrine of Stand Your Ground into law. Florida law states “A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony.” In 2007 Texas codified the concept of Stand Your Ground in the Texas Penal Code. The law states that a person is justified and does not need to retreat before using deadly force to protect self or another if:

  • the person using deadly force has a legal right to be at the location where deadly force is used,
  • that person did not provide the person against whom deadly force was used, and
  • the person using deadly force was not engaged in criminal activity at the time deadly force was used.

In addition, under Texas law if a person is anywhere he or she has a right to be he or she may use deadly force against another who is committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery without first trying to retreat.

But remember, just as with the Castle Doctrine, a person is not justified in using deadly force against verbal provocation alone and any attempts to break off the confrontation must be accepted.  Also, deadly force is never allowed against a lawful search or arrest by a police officer unless the officer uses “greater force than necessary” to perform the search or arrest, which again, is very hard to prove.

The laws regarding the use of deadly force in self-defense vary from state to state and are somewhat complicated.  However, as a responsible firearm owner, it is imperative that you educate yourself about your state’s laws and when you may use your firearm to defend yourself, your property, your family or others. This article provides a general overview and is not legal advice.