When did a person having a weapon become a requirement for LE to use deadly force? I keep on hearing about how many “unarmed” people are killed by police, as if “unarmed” equates to unjustified.
That’s never been the case.
When did a person having a weapon become a requirement for LE to use deadly force? I keep on hearing about how many “unarmed” people are killed by police, as if “unarmed” equates to unjustified.
That’s never been the case.
NOT to be mistaken for legal or professional advise.
The remainder of Article 35 is:
35.25 Justification; use of physical force to prevent or terminate larceny or criminal mischief. A person may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of larceny or of criminal mischief with respect to property other than premises.
This section covers the use of physical force (but not deadly physical force) to stop someone from stealing or damaging property. In typical “legal-eze” fashion, this was already covered “generally” back in 35.10, and in section 35.20 in regards to premises. This section spells out use of force to terminate larceny or criminal mischief “specifically”. You will note the “other than premises” part here. That is so this section doesn’t conflict with those other sections of law. Remember that section 35.20 authorizes the use of deadly physical force to stop arson of a dwelling or occupied building. You have to be careful that other sections of law don’t conflict.
This section is what is used frequently by store security and other security personnel to justify the use of force to apprehend/detain shoplifters, etc.
35.27 Justification; use of physical force in resisting arrest prohibited. A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.
If you know or should reasonably believe that a law enforcement officer is arresting you, you do not have legal authority to resist…even if you know you are innocent.
I know, this can sound unfair and there are many internet debates over if you should be allowed to fight a “rouge cop”. The fact of the matter is that cops have the authority to arrest on “probable cause”, not “proof beyond a reasonable doubt”. By and large most cops are arresting people because they have PC. Certainly some of those people may indeed be innocent. That’s why we have courts, a legal system and a burden of proof. The street is not the place to fight….court is.
35.30 Justification; use of physical force in making an arrest or in preventing an escape.
1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force; except that deadly physical force may be used for such purposes only when he or she reasonably believes that:
A police officer can use physical force, but not deadly physical force, to make an arrest or prevent escape from custody as long as that use of force is “reasonable”. Remember what was said about reasonableness in my previous post. The same standard applies to the Police. The use of force needs to be reasonable at the time it’s used and not necessarily proven correct down the road when facts not available at the time are discovered.
The Police are authorized to use deadly physical force under the same circumstances as everybody else as explained previously PLUS they have the legal authority to use deadly physical force to arrest or stop the escape of a person if the below factors are present:
(a) The offense committed by such person was:
(i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; or
(ii) kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or
(b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; or
(c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.
These conditions are specific to LE. Non-LE use of force in citizens arrest are covered further below.
2. The fact that a police officer or a peace officer is justified in using deadly physical force under circumstances prescribed in paragraphs (a) and (b) of subdivision one does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody.
Just because the police are authorized to use deadly physical force as described above does NOT mean they have the right to be reckless and a danger to people he/she is not attempting to arrest. I cant spray a crowd with gunfire to hit an escaping murderer.
3. A person who has been directed by a police officer or a peace officer to assist such police officer or peace officer to effect an arrest or to prevent an escape from custody may use physical force, other than deadly physical force, when and to the extent that he or she reasonably believes such to be necessary to carry out such police officer’s or peace officer’s direction, unless he or she knows that the arrest or prospective arrest is not or was not authorized and may use deadly physical force under such circumstances when:
If a LEO tells/orders/asks you to help in an arrest you can use physical force (not deadly force) to help him. If you KNOW (not “think”, “believe”, etc..but KNOW) the arrest is not authorized you will not be covered.
Under these circumstances YOU can use deadly force to assist the police in an arrest if the below conditions are met.
(a) He or she reasonably believes such to be necessary for self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or
(b) He or she is directed or authorized by such police officer or peace officer to use deadly physical force unless he or she knows that the police officer or peace officer is not authorized to use deadly physical force under the circumstances.
4. A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense; and may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:
This covers “citizen arrests”. The section above is almost exactly like that for the Cop in NY Penal Law except for one very important part, The part that states AND WHO IN FACT COMMITTED SUCH OFFENSE.
Police can arrest on probable cause. That’s probably the most important power given them by law. You do not have that power. You have to “reasonably believe” that the person you are arresting did indeed break the law AND that the person IN FACT COMMITTED THE CRIME. If afterwords its discovered that the person didn’t commit the crime the Cop is covered as long as he had probable cause at the time. If you are assisting an officer at his command you are covered. If you use physical force in a citizens arrest and you were wrong……well….you see what this means right?
You are authorized to use deadly force in the course of a citizens arrest if the below conditions are met:
(a) Defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or
(b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.
Notice that the list of crimes is very specific and doesn’t include many of the “fleeing felon” sections that the Police Officer specific section above had.
5. A guard, police officer or peace officer who is charged with the duty of guarding prisoners in a detention facility, as that term is defined in section 205.00, or while in transit to or from a detention facility, may use physical force when and to the extent that he or she reasonably believes such to be necessary to prevent the escape of a prisoner from a detention facility or from custody while in transit thereto or therefrom.
This last part is pretty easy to understand. Prison guards and cops transporting prisoners can use force to prevent escape.
Premises in general terms is defined as land and the improvements on it, such as; a building, store, shop, apartment, or other designated structure.
35.20 Justification; use of physical force in defense of premises and in defense of a person in the course of burglary.
1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.
Subsection 1 tells you that you can use “Physical Force” (not DPF) to stop someone from damaging your property. This means you cant shoot a kid who is spray painting the side of your house or egging your windows.
Arson however is another matter. Because burning down a building that contains or may contain people could result in their deaths or serious physical injury, Article 35 authorizes DPF to stop it.
2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.
Before I get into this subsection it’s important to understand the difference between “trespass” and “burglary”.
So….like as subsection 1 says about damage to property, this subsection says the exact same thing about trespass/criminal trespass. You can use any degree of “Physical Force” but not DPF to stop a trespasser. As in subsection 1, Arson is an exception but this subsection adds burglary as an exception as well…when the conditions in subsection 3 are met.
3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.
If you own, are in charge of or allowed to be in a dwelling (in simple terms…a home) OR any occupied building, you can use DPF if you reasonably believe it to be necessary to stop a burglary.
Note the subtleties…it says “a dwelling” OR an “occupied building“. It did not say “an occupied dwelling“. So if it’s a dwelling DPF is authorized regardless of your knowledge of it’s current occupancy. A building other than a dwelling and you have to know it is occupied.
YNN has learned that 31-year-old David Park’s BAC was .18, more than twice the legal limit for drivers in New York state, when he walked into an Amherst home around 1 a.m. on March 28th.
According to Tom Burton, the home owner’s attorney, David D’Amico repeatedly warned Park to leave and even told him he had a gun and would use it. When he ignored the warning, D’Amico fired one shot. He told police he believed Park was a burglar.
– See more at:
In early 2013 a man from out of town was visiting friends at their home. He had been drinking and for whatever reason decided to leave the house. He later came back to what he most likely thought was the same house he left. When he found the front door locked and the lights out he went over the fence to the rear yard and entered through an unlocked rear patio door. The homeowner, hearing someone in his home, grabbed his shotgun. He states that the intruder came to the foot of the stairs and started climbing ignoring commands to stop and warnings that the homeowner was armed. It’s stated that the intruder said nothing at all. The homeowner shot and killed the intruder.
In the aftermath, as the truth is discovered that the intruder was an unarmed school teacher with no criminal history, all sorts of second guessing the homeowner began. Some people seemed to believe that because the homeowner left his patio door unlocked, or that this was “just a lost drunk”, that somehow this was an unjustified use of force. To the contrary, this is exactly a situation this law was crafted for. Remember, reasonableness is defined as what an average person in similar circumstances might believe at the time of the event. The law requires only a reasonable, not necessarily correct, judgment of the situation. An intruder in your home at 1 AM who advances on you while ignoring all warnings and commands is presumed to be committing a burglary by any reasonable person.
What the facts turn out to be later doesn’t change the justification to use force if ones actions are reasonable under the circumstances at the time the incident happened.
4. As used in this section, the following terms have the following meanings:
(a) The terms “premises,” “building” and “dwelling” have the meanings prescribed in section 140.00;
(b) Persons “licensed or privileged” to be in buildings or upon other premises include, but are not limited to:
(i) police officers or peace officers acting in the performance of their duties; and
(ii) security personnel or employees of nuclear powered electric generating facilities located within the state who are employed as part of any security plan approved by the federal operating license agencies acting in the performance of their duties at such generating facilities. For purposes of this subparagraph, the term “nuclear powered electric generating facility” shall mean a facility that generates electricity using nuclear power for sale, directly or indirectly, to the public, including the land upon which the facility is located and the safety and security zones as defined under federal regulations.
This last section covers definitions and where they can be located elsewhere within the law. It also gives police and other security personnel the powers of “being licensed or privileged” to use DPF to stop a burglary of a dwelling or occupied building. Otherwise they wouldn’t have the legal authority to do that part of their job.
Now we get to the heart of justified use of force in self-defense within the State of New York:
35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
When reading any enforcement sections of law its vital to look for all of the AND’s, OR’s and UNLESS-ES and its important to read any other subsections referenced before you jump to an erroneous conclusion.
This section states you can use “physical force” to defend yourself or a third person “subject to the provisions of subdivision two“. This means that the section with the (2.) in front of it will spell out limitations.
Also note the “reasonably believes” part…reasonableness is defined as what an average person in similar circumstances might believe at the time of the event. The law requires only a reasonable, not necessarily correct, judgment of the situation. If someone approaches you with a “finger gun” in their pocket and states that they will kill you if you don’t get in their car and you shoot him, it doesn’t matter that he didn’t have a real weapon. Conversely, if a guy walks up to you on the street and asks you the time, you cant preemptively throat chop him because you “just know” that he was about to mug you.
The “unless” part is also very important. It tells you what situations you will NOT be justified to use force in. If you are the person who initiated a confrontation (with an intent to cause physical injury) you can’t claim self-defense if he/she or someone defending him/her starts kicking your ass. However, if you back out of the confrontation and clearly communicate that you “give up” and the other person continues to attack you now THEY are no longer justified and you are justified in defending yourself from that point forward. This effectively means you BOTH are now in some form of trouble, but you don’t have to take a beating after withdrawing from a fight you may have started.
You also can’t hold “fight clubs” in your basement and expect to use self-defense as a claim if things go wrong and you get charged with injuring or killing someone.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
Everything in part (1.) only justifies your use “physical force”, not “Deadly Physical Force”…unless the stuff below is true.
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or
If you reasonably believe someone is using or about to use “Deadly Physical Force” against you you are justified in using DPF yourself, UNLESS you know you can retreat WITH COMPLETE SAFETY to yourself or others. You do not have to retreat if you are in your home (and you are not the person who started the fight).
Cops don’t have to flee from the threat of DPF even if safe to do so. It is often wise to do so, but all sorts of thorny work related exceptions would come into play if it were mandated by law.
This is the section that gets some people wrapped around the axle over “stand your ground” laws. While…from one perspective I can see the “if I’m in the right why should the law require I flee?” point, I also think that avoiding unnecessary confrontation is always going to work out better in the long run. This law is not saying “to run” if the guy can shoot you in the back…that would not be “complete safety”. But if some guy outside your car is stabbing at your window with a knife (without success of course) and you can drive away…do so.
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
If you reasonably believe someone is doing or about to do those heinous things you can use DPF to stop them.
(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
Some burglaries can authorize the use of DPF. This part refers to another section that explains what those circumstances are.
We will get to that later….
The first section of Article 35 that actually spells out the “Who’s What’s and When’s” of the justified use of force is section 35.10:
35.10 Justification; use of physical force generally.
The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.
This is the section that allows parents to spank, restrain or otherwise discipline a child or other person under 21 they are guardian of. It also grants the same authority to teachers.
2. A warden or other authorized official of a jail, prison or correctional institution may, in order to maintain order and discipline, use such physical force as is authorized by the correction law.
Prison guards of course need to be able to maintain order.
3. A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use physical force when and to the extent that he reasonably believes it necessary to maintain order, but he may use deadly physical force only when he reasonably believes it necessary to prevent death or serious physical injury.
Bus drivers, Ship captains, Pilots and others in charge of common carriers are authorized to use force to maintain order on their vehicles.
4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result.
5. A duly licensed physician, or a person acting under a physician’s direction, may use physical force for the purpose of administering a recognized form of treatment which he or she reasonably believes to be adapted to promoting the physical or mental health of the patient if
(a)the treatment is administered with the consent of the patient or, if the patient is under the age of eighteen years or an incompetent person, with the consent of the parent, guardian or other person entrusted with the patient’s care and supervision, or
(b) the treatment is administered in an emergency when the physician reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.
This section not only allows physicians to physically restrain patients (intoxicated, mentally ill, etc.) if necessary it also allows doctors to do things like break bones for re-setting, stop the heart for surgical procedures, etc. When it comes to the law there has to be legal authorization for ANY use of force against another…even what you would take as “common sense” like a doctor sticking a needle into your arm.
6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in self-defense or defense of a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody. Whenever a person is authorized by any such provision to use deadly physical force in any given circumstance, nothing contained in any other such provision may be deemed to negate or qualify such authorization.
This is the first mention of “self-defense” in Article 35 and it sets the stage. It simply spells out that Article 35 justifies the use of physical force in defense of self or another as well as defending your home, preventing theft or effecting a citizens arrest. Note it says Physical Force. The use of Justified Deadly Physical Force is spelled out further on.
Whenever you are trying to interpret what a legal statute means it is very important to understand what the exact legal definitions in use are. Never assume that you know what a word/term means based on what you believe to be “common usage”. Find the “definitions” section of the law you are concerned with and read it first.
When reading Article 35 of the New York State Penal law (read previous post), the terms “physical force” and “deadly physical force” are used throughout. In New York, Deadly Physical Force is defined as:
“Deadly physical force” means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.
Within that definition is another defined term:
“Serious physical injury” means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
while “Physical Injury” is a less serious injury defined as impairment of physical condition or substantial pain.
I defined “Deadly Physical Force” first because New York’s Penal Law does not expressly define non-deadly “physical force”, “physical force” is simply “any degree of physical force other than deadly physical force.”
Of interest in the definition of DPF is the part that states…physical force which, under the circumstances in which it is used. Stabbing, shooting, etc are obvious applications of force that can cause death or serious physical injury, but even lesser means of force like a punch can become deadly physical force depending on the circumstances in which it’s used. A guy taking a drunken swing at you over a spilled beer? Probably not the time to shoot someone. A street mugging with a guy saying he’s going to kill you as he mounts you and starts punching you into unconsciousness? Different story.
These definitions will come into play as we look at Article 35 in more detail.
Let me make a few things clear first.
Any discussion of self-defense related legal issues must focus on your particular states “Justification” section of law.
As a rule of thumb, you should look at ANY from of physical or deadly force as illegal per se. In a legal sense (vs a “human right” sense), what makes the use of force in self-defense something you shouldn’t go to jail for is your States “Justification” section of law. In NY that section of law is Article 35 of the NY Penal Law. It’s first subsection explains it’s purpose rather succinctly.
In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.
Section 35.05 Justification; generally
Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:
1. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions; or
2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.
In essence what this means is, “I broke the law but I was JUSTIFIED” and therefore exempt from any form of legal punishment. So…if you ever find yourself having to use force in NY to defend yourself your “defense” is Article 35.
The word DEFENSE…as in many things legal…has specific meaning beyond your common understanding.
In general, a (legal) defense is an argument a defendant raises in an attempt to avoid criminal or civil liability for their actions. In specific there are two different categories of defense. A DEFENSE and an AFFIRMATIVE DEFENSE.
A DEFENSE, when raised, must be disproved by the prosecution beyond a reasonable doubt.
An AFFIRMATIVE DEFENSE must be proven by the defendant by a preponderance of the evidence. The insanity defense is a common affirmative defense.
So. In NY the defense of Justification is a DEFENSE. Once raised, the prosecution has to gather evidence, from an argument, and prove beyond a reasonable doubt that your actions were NOT in self-defense or otherwise justifiable. You do not have to “prove” it. This may vary in other states.
This is typically where the discussion of “DON’T TALK TO THE POLICE” comes in. I’m not going to take a hard stance one way or the other here but it’s my personal opinion that you should be prepared to give a basic explanation of what happened to responding officers. A ” he jumped me, we fought, he pulled a knife, I was afraid for my life so I shot him.” sort of response MAY be the difference between going home that day or being arrested on the spot. Giving a lengthy explanation or going back to the station to write a statement without legal representation is another issue entirely.