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When Can You Shoot Someone?

You may have been told that state law varies significantly when it comes to guns. That is partially true. Gun law, the law that impacts gun possession does vary enormously from state to state. Things like magazine capacity, possession on school grounds, duty to notify law enforcement, vehicle possession, etc., are all examples of gun laws that are very different state to state.

However, when it comes to the laws that determine when you can use force to defend yourself or others from a threat, those laws are amazingly similar as they all are based on old English common law.

An in-depth study and research on the topic (resources and sources at the end of this article) help one understand that regardless of the state you are in there are only 4 or 5 legal “elements of self-defense.” Meaning, that regardless of the state you are in, you are legally justified in using force in your defense when 4 things (which we refer to as “elements”) are true. In a handful of states, there is a 5th element.

So to be clear and to answer the question, “When Can You Shoot Someone” the answer is this: You can shoot someone when all four of the core elements of self-defense law below are true and depending on the state the fifth element may also be required.

The Five Elements of Self-Defense Law

I first became familiar with the concept and paradigm of the five elements from Attorney, author, and instructor Andrew Branca. Andrew is the author of The Law of Self-Defense and is highly recognized as the foremost expert on self-defense law nationwide. More information about Andrew and his resources are at the end of this article.

Leave out or miss any one of the required elements and your use of force is unlawful.

What follows is an overview of each of the five elements. And, while for the purpose of this article we are boiling them down to the simplest form of the idea, there is potential for complexity which is why we encourage a more thorough education on this topic beyond these basics.

Innocence

You must be the innocent party in the encounter. You can't start the fight. If you start the fight or if you provoked the attack then you don't have the legal right to self-defense.

Proportionality

Your use of defensive force must be proportional to the threat. If you are defending against a threat of low physical harm (IE a punch in the face that is not likely to cause serious injury or death) then you do not have the legal right to use deadly force in defense of that threat.

You may legally only use deadly force such as a gun to defend against a threat of serious bodily injury or death.

Imminence

You may only defend against a threat that is immediate. You may not defend against a past threat that is no longer active or against a potential future threat that is not immediate.

Reasonableness

What you perceive, think, and do must be reasonable based on what a reasonable person of your circumstances would have thought, felt, or believed as it relates to each of the elements of self-defense.

Avoidance (The 5th Element)

Only true on a small number of states, and even within those states only true outside the home; you must make any reasonable attempt to safely retreat from the threat before using force in defense of that threat.

Answers to the Most Common Questions

Question: Relating to “Proportionality” what if I'm smaller, older, pregnant, on blood thinners, have a pacemaker, or otherwise am more vulnerable to serious injury or death?
Answer: The law doesn't list weapons and say you can't use a gun against a punch or a knife smaller than 3 inches. That would be arbitrary and limiting. The law says you can use proportionate force. If you would be likely seriously injured or die if you get punched in the head then you can use deadly force against that punch in the head but obviously you will have to justify/proof that to the legal system.

Question: What about Stand Your Ground Laws?
Answer: The Stand Your Ground legal doctrine is generally misunderstood and falsely referenced by the media and often law enforcement. Simply put, a state that has Stand Your Ground laws or precedents is a state that doesn't have the “Avoidance” element. The majority of states fall into this category (37 states at the time of this writing). Stand Your Ground is the opposite of Duty to Retreat and simply means you don't have to attempt a safe retreat even if one is available to you.

Question: What about Castle Doctrine? When I'm in my home I don't have to worry about any of that right?
Answer: Castle Doctrine is a legal concept that means that even though you may have a legal duty to retreat (see Avoidance above) you don't have that duty in your home. So, for the 13 states that are NOT Stand Your Ground States (See question above) that do require Avoidance; all 13 of them have a castle doctrine that waives that duty inside your home. Two major takeaways here. First, there isn't a state in the USA that requires you to retreat from a threat if you are in your home. Second, Castle Doctrine doesn't mean you can shoot someone in your home no matter what. It doesn't in fact change the 4 core elements and requirements for self-defense at all. It ONLY removes the requirement/element of Avoidance when in the home.

Question: But who can I defend? Only myself? Family? Others?
Answer: There isn't a law in any state of this country that makes any distinction relative to self-defense and whom you may defend. Meaning, you have the same rights to defend any HUMAN from any threat as you do to defend yourself from any threat.

Question: What about my stuff? Can't I defend my car or pet?
Answer: With very few and very limited exceptions beyond the scope of this article; the law ONLY allows for the use of deadly force in defense of humans. Thus, you may be able to shoot a carjacker if you or another human is in immediate danger during the course of that crime but NOT in order to defend the car itself from being stolen.

Question: In circumstances in which I may not be lawful in shooting my gun can I just wave it or vaguely refer to it or threaten to use it?
Answer: No. Making a threat to use a gun in circumstances in which it isn't lawful to use the gun is illegal.

Yes, The Devil May Be In The Details

If it was really this simple we wouldn't need attorney's right? While these principles are simple real-life situations rarely are.

The above is a rough and simplified summary of when you can legally shoot at people. A more thorough education is a good idea in order to understand the various nuances and unusual circumstances that may take what would otherwise seem like a black and white question and make it gray.

For that reason, I provide the following resources that you may want to consider to deepen your knowledge of this subject.

Andrew's Book: The Law of Self Defense by Andrew Branca.

Comprehensive Gun and Self Defense Law Course: Our American Gun Law video course is a comprehensive overview of both self-defense and gun laws.

Andrew's Course: The Law of Self Defense Level 1 (and consider also purchasing your state supplement here).

Gun Law Summary: A summary of gun laws (not self-defense laws) by state.

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12 Responses to When Can You Shoot Someone?

  1. Duane May 2, 2020 at 6:36 am #

    Nice article, simple and straightforward. I would highly recommend that each person research what laws and doctrines their state has in place; then verify the neighboring states too.

  2. jim isbell May 6, 2020 at 3:21 pm #

    At 83 years of age, I believe, a fist in the face would cause serious injury if not immediate death.

    • Brent Shelton May 7, 2020 at 2:29 pm #

      If I was on that jury I would be inclined to agree.

    • Joe P May 28, 2020 at 5:14 pm #

      A punch in the face would not necessarily kill an 83-year-old person. If I was on a jury, I wouldn’t support this argument unless there were other medical conditions related to being unable to take a punch.

  3. Gene Matthews May 6, 2020 at 4:58 pm #

    Bull. Put yourselves in a deadly fight situation. Are you going to be stupid and waste time arguing legalities with yourself? Nope. Everything will be adrenaline-driven, split-second, reflex actions.

    • David J Shultz May 10, 2020 at 8:50 pm #

      Not exactly sure what you’re saying, but I will say this…and this comes from Andrew Branca himself. If you instigate said deadly fight, you cannot claim “Self-defense,” Stand Your Ground,” etc. If you survive the fight, chances are you’re going to jail for whatever the prosecutor can charge you with. And there may be plenty for him to charge you with.

  4. Lon James Loren May 6, 2020 at 5:17 pm #

    I believe if you are past seventy years of age and punched in the head or face, you can fall causing significant injuries. It doesn’t take much to knock an older person down.
    On the other side old men with guns chances are they know how to use them, assuming the arthritis isn’t too severe.

  5. Yank May 6, 2020 at 5:51 pm #

    There are far to many queer Quirks in these laws or, at least what I consider queer quirks. Take away the wiggle room and just say what it means, period, and remove the jibberish that does not make 100% sense on said topic. There are to many defense attorneys that make their money from twisting these words to suit their fancy.

  6. Gary Boham May 6, 2020 at 6:42 pm #

    I believe that saying Stand Your Ground is the opposite of Duty to Retreat AND the concept of avoidance is going too far.

    Yes, Stand Your Ground and Duty to Retreat are mutually exclusive, but avoidance is a concept that is in the case law of several states that have adopted a Stand Your Ground law, and though a prosecutor cannot argue that a defendant failed to retreat, he/she can still argue that a reasonable person would have tried to avoid the situation, and the defendant’s actions are therefore unreasonable.

    This is the result of trying to simplify Mr. Branca’s excellent work to a one-sentence summary. The law is not THAT simple.

    • Jacob Paulsen May 6, 2020 at 6:51 pm #

      Gary, that is a great comment and a valuable discussion to be sure. I agree it isn’t always that simple, but Mr Branca doesn’t differentiate between states that have Stand Your Ground statutes and case law that effectively removes the need for avoidance or retreat. He lumps all of those states (37) into a single bucket which he labels as Stand Your Ground States. That said your comment about using the lack of retreat as an argument against reasonableness is very valid and appreciated. Thank you!

  7. Paul S. Penzick May 6, 2020 at 7:18 pm #

    Are conditional threats (i.e., the use of “if” followed by the use of “then” in a sentence) illegal. My example follows:

    “If you ever try to kill me, then I will kill you with my .38 caliber Colt Revolver.”

    Can you help me out with this one?

    • Jacob Paulsen May 6, 2020 at 7:24 pm #

      Paul, there are a few different things at play in your question but I think they are potentially legal. For example, come any closer to me with that big kitchen knife and I’ll defend myself. That said I do have an issue with “I’ll kill you” in any context whatsoever. The law doesn’t allow one to KILL another person intentionally. It is never legal. It is legal to defend oneself in certain circumstances and if in the act of defending oneself you happen to take a life that can be legal. However, stating that you intend to kill someone is illegal and if you follow through with the threat the prosecutor is going to be able to show that your stated intent was to kill.

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