[jotamiller]

I've poured over the various posts here and on other forums relating to firearm use in self-defense. I can't seem to find any actual laws that dictate what includes self-defense. Does self defense include the defense of one's property?

It seems to me that during our CFP class, I learned that a firearm can only be used in times when your life, or the life of another is in immediate danger of severe harm or death (in your judgement). Can anyone point me to some actual authority on this? I would like to know for sure and not suppose anything.

Thanks in advance!

 

[Tacomatose]

I've poured over the various posts here and on other forums relating to firearm use in self-defense. I can't seem to find any actual laws that dictate what includes self-defense. Does self defense include the defense of one's property?

It seems to me that during our CFP class, I learned that a firearm can only be used in times when your life, or the life of another is in immediate danger of severe harm or death (in your judgement). Can anyone point me to some actual authority on this? I would like to know for sure and not suppose anything.

Thanks in advance!

Self-defense is just as it sounds, (defense of ones self, or the self of others). This does not include the defense of personal property. It is all spelled out in the law books, but you are correct in that you can only use deadly force if your life or the lives of those you choose to protect is in danger, and this does include forcible felonies (rape, kidnapping, armed robbery, etc).

You can use "force" to protect property, but unless a deadly threat is present, then you are not authorized to use deadly force to prevent it. That is about as cut and dry as it gets, and I'm sure people will start to list sections of the law, but it all boils down the same way. Deadly threat=use of deadly force. If you need more details, let me know, B

 

[apollosmith]

What tocomotose said is MOSTLY true... the difference is that you can use deadly force in your home, even if you see no direct physical threat.

The Utah Constitution (Article 1, Section 6) says:

The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.

Utah law then breaks down deadly force into three categories - defense of person, defense of habitation, and defense of persons on real property.

Defense of person (Utah code 76-2-402)

This one is pretty straight forward. You can use deadly force to prevent death or serious bodily injury to yourself or a third person.

Of note, you do not have a duty to retreat from the force or threatened force. 'Forcible felony' includes almost all violent felonies, but NOT burglary of a vehicle unless you're in the vehicle at the time. In other words, if you shoot someone that is pulling out of the driveway in your car, you'll likely go to jail.

Defense of habitation (Utah code 76-2-405)
This defines that deadly force can be used to protect your habitation (note, this includes temporary habitations like camps and mobile homes) only when:

(a) the entry is made or attempted in a violent and tumultuous manner, surreptitiously, or by stealth, and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence; or
(b) he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.

It further clarifies that you are presumed to have acted reasonably if these conditions exist (in other words, you shouldn't be charged with anything).

Of note, you CAN use deadly force to protect your property WITHIN YOUR HABITATION even if you see no personal, physical threat. In other words, if someone is in my home to steal my radio (a felony), I don't have to wait until that person aims his gun at me to use deadly force. It is presumed that if the person is not supposed to be there and is committing a felony, that the person is a personal threat.

Now, while you legally could shoot someone stealing your radio, making up your mind to just automatically shoot anyone in your home is likely setting you up for a disaster.

Deadly force in defense of persons on real property. (Utah code 76-2-407)

This defines that one can use deadly force in defense of persons (yourself or others) when you ARE NOT in your habitation, if:
* it is in your control (e.g., your place of employment, if under your charge)
* you are trying to stop or prevent trespass
* trespass is made violently (note that surreptitious or by stealthy entrance is not justification for force here as it is with your habitation), AND
* you believe the person will be violent against a person OR the person will commit a forcible felony that poses imminent peril of death or serious bodily injury to a person

Of note, all four conditions must all apply here. Notice that deadly force is only allowed to protect persons, NOT the property itself as it is for your home. In other words, if you're a manager of grocery store, you can't shoot a kid that sneaks in after hours and steals a Snickers bar.

Now, with other property that is yours or in your care (Utah code 76-2-406), you are NOT justified in using deadly force unless any of the above conditions apply (though you can still use force - take it back, rough them up a bit, etc.). This means that if someone steals your wallet on the street, you can't shoot them just for this reason.

 

[Car Knocker]

A little light reading:

76-2-402. Force in defense of person
http://le.utah.gov/~code/TITLE76/htm/76_02022.htm

76-2-405. Force in defense of habitation.
http://le.utah.gov/~code/TITLE76/htm/76_02025.htm

76-2-406. Force in defense of property.

A person is justified in using force, other than deadly force, against another when and to the extent that he reasonably believes that force is necessary to prevent or terminate criminal interference with real property or personal property:
(1) Lawfully in his possession; or
(2) Lawfully in the possession of a member of his immediate family; or
(3) Belonging to a person whose property he has a legal duty to protect.

Enacted by Chapter 196, 1973 General Session

http://le.utah.gov/~code/TITLE76/htm/76_02026.htm

Looks like apollosmith was a bit quicker off the mark than me.

 

[Tacomatose]

What tocomotose said is MOSTLY true... the difference is that you can use deadly force in your home, even if you see no direct physical threat.

.

This is correct, but if you take it upon yourself to use deadly force in your habitation, and a deadly threat didn't exist.....just plan on spending many, many days, months, and years,(and lots of $$$$$) battling it out in the civil courts. Just because it is your "right" doesn't always make it the "right" decision. As much as we hate to...sometimes we might actually have to think before we act. B

 

[bane]

This is correct, but if you take it upon yourself to use deadly force in your habitation, and a deadly threat didn't exist.....just plan on spending many, many days, months, and years,(and lots of $$$$$) battling it out in the civil courts. Just because it is your "right" doesn't always make it the "right" decision. As much as we hate to...sometimes we might actually have to think before we act.

This is my line of thinking too. Why risk getting YOURSELF in trouble just so you can use all of your rights, in a situation that didn't actually warrant using all of your rights?

It is better to go into these situations armed, in case needed, but try and address the situation without needing to resort to the gun. If someone were in my house, I would certainly draw down on them but I wouldn't shoot simply b/c I would be allowed to do so. I would only shoot if they attempted to assault me in retaliation.

In contrast, if someone were breaking into my car outside I wouldn't just stay inside the house and call the cops (something a lot of people recommend to avoid getting in a situation where you could be shot... )... I would go outside and attempt to stop the theft and physically apprehend the person; but I would only draw my weapon if the individual put me in a situation I could justify.

The weapon is there to defend your life. It should only be used for that. That isn't to say that you can't attempt to stop a crime with the weapon in your possession (just in case).

 

[apollosmith]

This is correct, but if you take it upon yourself to use deadly force in your habitation, and a deadly threat didn't exist.....just plan on spending many, many days, months, and years,(and lots of $$$$$) battling it out in the civil courts. Just because it is your "right" doesn't always make it the "right" decision. As much as we hate to...sometimes we might actually have to think before we act. B

Yes, that was primarily my point. But if someone breaks into your house, they are automatically presumed to be a deadly threat. And in fact, MANY (perhaps most?) home invasions are for the intent and purpose of causing physical harm, NOT for stealing property. And as such, as a homeowner, I do not necessarily have to wait until the physical threat is present before taking action.

For instance, if someone is busting their way through my front window with a solid object in their hand, I don't have to wait until they point the object at me before taking action. If someone is barreling down the hall at me in the dark, I don't have to wait, turn on the light, identify that they aren't carrying a knife, and then verify that their intentions are to steal my watch, not slit my throat. In any place other than my home, I would likely need to take the extra step. But by the very fact that the person is uninvited in my home, I can be fairly assured and legally justified in reasonably believing that the person is there to cause harm.

Still, I am with you guys. If I can take actions to confirm the threat, I absolutely will. But if I can not do so, I must assume the threat and would be justified in taking appropriate action.

 

[T-Man]

My thinking is, and I believe this is what my CCW instructor said, if you pull your gun, that constitutes deadly force. So, if an uninvited guest is in your house, go ahead and draw a bead on him. You don't necessarily have to give him a lead injection, but make sure he knows you have the ability to do so. In order to CYA, always use the minimum amount of force to neutralize the threat. If that means two in the chest and one in the head, let him have it. If it means you detain him at gunpoint and make him clean your house until the cops show up... :lol:

 

[bane]

if you pull your gun, that constitutes deadly force.

I'm not sure that's quite right, at least here in UT...

76-2-405. Force in defense of habitation.

(1) A person is justified in using force against another when and to the extent that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if:
(a) the entry is made or attempted in a violent and tumultuous manner, surreptitiously, or by stealth, and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence; or
(b) he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.
(2) The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the 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.

While I couldn't find a hard definition in the code for "Deadly Force", it is pretty well defined in the first line of this law. "[Deadly Force is] the use of force which is intended or likely to cause death or serious bodily injury". I certainly wouldn't think drawing your weapon on someone as indicating your intent to cause them death or injury... it is merely your intent to be prepared to defend yourself should they choose to turn the tables and assault you. Your intent is not to shoot them, just to be prepared given the short distance likely to exist between you and them within the confines of practically any home (the "30 foot rule")

In response to some of the statements (T-Man, this isn't aimed at you, or anyone in particular) that one is entitled to shoot anyone who is in their home... well, a careful reading tells me this isn't quite right either. You will notice above that over and over again there ARE qualifications (lots of them, actually!). So, you can't just open fire. That being said, in a lot of situations you could in fact easily fit these qualifications to your need and be covered. As someone earlier said "if someone is barrelling towards me down a dark hallway"... yeah, definitely... but a word of caution, still... what if that's your teenage kid acting stupidly b/c he came home late drunk or stoned??? What if in your half-sleep you perceived someone barelling towards you but you later found out it was one of your teenaged daughters running to wake you b/c someone is downstairs breaking in??? Merely walking into your kitchen to see someone going through your kitchen cupboards hardly qualifies as needing deadly force either... notice the clause above says "...that the force is necessary to prevent the commission of the felony..." -- Now, if after you shoot that little old lady, or the 13-year old punk neighbor and you, a 200 lb. 5'11" guy, shows up in court to defend yourself, how are you going to justify that???

Simply shooting is never the right choice; ever.
Drawing a gun (in your home at night) is probably always the right choice; but before you put your finger on the trigger, you better stop to think... or you will end up killing a loved one, a mentally-handicapped neighbor who was doing something he wasn't fully aware of, etc.

I'm a huge fan of the 2nd Amendment and my Right to Defense. As we all are, I'm sure.
I am NOT a fan of indiscriminate killing, even if I can justify it; and I personally don't think anyone else is here either -- yet over and over I keep reading "trigger-happy" posts. We should stop and think about these situations as if we were actually in them through the end (that is, through the end of the court case, possible jail time, meeting God and having to answer for our mistaken shooting, etc) -- if we are to develop the mentality necessary to defend ourselves properly.

Otherwise there's little difference between us and the cowardly criminal who sits and waits for an opportunity to get away with something without getting caught.

Sorry for the "flame" -- it wasn't directed towards any one individual, only towards a thought-process I tend to see everywhere (not just by some here) including some who served in the military with me. I hope no one takes this personally, it was not meant to be.

 

[xmirage2kx]

Hand on your gun with the intent to draw = assault (misdemeanor)
Draw your gun at low ready = assault (misdemeanor)
Draw and aim = assault (Felony)

(this assumes you are not justified)

 

[bane]

Hand on your gun with the intent to draw = assault (misdemeanor)
Draw your gun at low ready = assault (misdemeanor)
Draw and aim = assault (Felony)

(this assumes you are not justified)

Do you have any references to this? I asked my CC instructor this question directly, and unless he misunderstood my question and I misunderstood his answer, the issue isn't quite so clear.

As he put it, "brandishing" is not illegal in Utah... thus I can take my gun out and hold it however I wish (with the possible exception of actually aiming at someone), or simply put my hand on it and I haven't technically done anything wrong (with the exception, that if I'm not mistaken there is a law that states I can't go looking for a fight and then brandish the weapon b/c I have know committed assault (getting in a fight) while wielding a weapon. But the issue isn't brandishing.

As I understood it, making mention of, or even displaying, your firearm is not illegal. When you cross the line between legal and illegal is when you actually pull the trigger.

As you indicated, though, I do think there is probably something about drawing down on someone without just cause -- but I'm not certain where that is in the law -- you got anything on that?

 

[T-Man]

bane, what you are saying is pretty much the way my thought processes were going. I am just not as good at expressing them. "Castle" doctrine is designed to protect homeowners from defending themselves against malicious intruders, but it would be a hard sell defending oneself against charges of shooting an intruder whose intent was harmless. (i.e. sleepwalking neighbor kid, etc.) That's why I would approach any such situation with gun in hand, ready to defend my family. But always observe rule #1: be sure of your target before you fire. Someone's signature on some forum somewhere (maybe here) had a T. Roosevelt quote that said something like "Don't hit unless you have to. But if you have to hit, hit hard." Always use the minimum amount of force necessary to neutralize the threat.

 

[xmirage2kx]

There is some case law about it, I will try to find it again and post when I do. What I said assumes you are doing these actions in a threatening manner (confrontation). You can pull out your weapon and not be assault in most cases (one example: getting into your car without a permit), but while arguing over a parking spot it could be assault.

 

[heavykevy]

I have a great uncle who is a retired Utah Sheriff (keep in mind that his law enforcement experience predates the politically correct era we are in now). His advice was always just make sure then person breaking into your house is across the threshold before you shoot and you are justified.

Granted I would personally take the circumstances in mind before just shooting someone breaking into my house, but his interpretation is that you are justified in firing if someone breaks and enters your home. There is a definite difference between a Sheriff and a lawyer or judge, but that was his view.

I too have spent time studying the law since obtaining my CWP and I read it like many of the others here. A person who breaks into your home using stealth, in the middle of the night, or with obvious intent to harm you have legal authority to use deadly force to stop the threat. That is just my .02 and non-legal interpretation.

 

[bane]

There is some case law about it, I will try to find it again and post when I do. What I said assumes you are doing these actions in a threatening manner (confrontation). You can pull out your weapon and not be assault in most cases (one example: getting into your car without a permit), but while arguing over a parking spot it could be assault.

Agreed.

 

[jotamiller]

All the info you guys have given me is great. I'll read it all tonight and try to digest it. I appreciate the links to the laws as well as the opinions.

 

[althor]

I see the word brandish used to describe a number of things, and as far as I know the utah code does not use the term anyway.

As I understand it, to brandish a weapon means to display it in a threatening manner that is not justified by self defence etc... (i.e. pointing at someone or makeing its presence know in order to intimidate). To merely display a firearm inadvertently or through some other lawful use does not constitute brandishing.

By this definition brandishing would always be illegal. I also see reference to brandishing in self-defence, but I don't believe the term fits.

How does everyone else understand it?

 

[xmirage2kx]

there is no brandishing in utah law. any crime with a gun is covered in other areas.

 

[bane]

there is no brandishing in utah law. any crime with a gun is covered in other areas.

+1

 

[hamm]

+1

Maybe I'm the only one who doesn't know, but what exactly does +1 mean? I figure it means "I agree," but I just wanted to make sure.