Commentary on Alabama Law and Society

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Wednesday, April 05, 2006

The New Self Defense Law

I may have to take back my initial conclusion that this is no big deal.

Thus far, the press coverage has been on the repeal of the duty to retreat. Getting rid of the retreat requirement is not a big deal. Generally, if you are attacked by another person, you are entitled to use any amount of force necessary to repel the attacker. If you are attacked with deadly force (e.g. a gun) you can respond with deadly force. Everyone agrees on that. The disagreement is whether you also have a duty to retreat. Some states say yes, others no. Alabama used to be the former, now we are the latter. The change is no big deal for two reasons. First, there was already an exception for attacks occurring within the home. Even before the new law, if you were attacked in your home, you had no duty to retreat. Second, the duty only arose if you were aware that you could retreat with complete safety. When faced with a gun, how many people will be thinking clearly enough to recognize an escape route? And how many ways can a person escape, with complete safety, from a gun? In short, as a practical matter the duty rarely arose. Thus, eliminating it is mostly symbolic.

However, there is one section that possibly makes a major change. Until now, the rule was you can not use deadly force merely to protect property. With that in mind, here is part of the new law:

A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person . . . if the person reasonably believes that another person is:

In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring.

Under the second paragraph, if you came home from work and saw someone trying to force open a window to your house, you could shoot them. The would be burglar would be "in the process of unlawfully amd forcefully entering . . . a dwelling." That is all the statute requires; there is no mention of possible harm to another person. Thus, this paragraph appears to allow the use of deadly force merely to protect property.

Now, you could argue that by introducing the paragraph with the phrase "A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person" the statute requires some danger to a person. You can only use deadly force in defense of another person. Hence, when the statute speaks about property, it assumes there is also an endangered person.

However, the emphasized "and" calls that reading into question. The statute does not say "you can use deadly force only in defense of a person. . . ." It says "you can use deadly force and . . . ." In other words, this sentence could mean you can use deadly force, and if you use it to defend a person, you also get the legal presumption. If there is no person, you can still use deadly force, you just don't get the presumption. The danger is therefore not a requirement for deadly force.

If the second reading is correct, the state just gave you permission to use deadly force to protect your property. That would be a big change.

Am I reading the new law correctly? Anyone have any other suggestions?

Btw, this post is not legal advice. Don't go shooting anyone.