A reminder, I’m not an attorney. None of this is legal advice. Simply passing along my framework, previous experience, and training.
Continuing from last week’s post on the use of force continuum.
In Montana our crimes are contained in Title 45 of the Montana Code Annotated. We have a great advantage in this State that we elect Citizen Legislators rather than professional ones. Our laws are generally readable and understandable to the lay person, because they generally are written by the average citizen for the average citizen. This is an odd time to be writing this as the Legislature is currently in session and a few of the laws referenced below are slated to change.
These laws are incredibly important to know and understand. To the point that I believe it is negligent if willing to use force and have the means to do so to not understand them and their implications. This overview is not all inclusive! There are laws I am leaving out. It’s on you to read the law in relation to the commentary below. Understand that “and” “or” “shall” “may” etc are extremely important when it comes to reading laws and must be taken strictly. Do note that “use of force” does not automatically mean deadly force. A common theme in these laws is specifically lining out when deadly force is justified. Part of my framework is that force is only justified in stopping a crime in progress. If there is no crime being committed there is no justified use of force. Of course as all things this can be taken too far we are not the police so it is not our role or place to stop all wrongs we see in our presence… as such note the distinct lack of traffic offenses below.
45-3-XXX When Force Justified Crimes Against Property are generally understood to have a much higher burden to justify force to stop. Deadly force is never going to be justified just based on the commission of these crimes alone either to stop them, apprehend, or prevent escape. Relevant Justified use of Force in defense of property statutes:
45-3-103. Use of force in defense of occupied structure.
45-3-104. Use of force in defense of other property.
45-6-xxx Offenses against Property
In Montana it is NOT legal to shoot someone, shoot at them, or otherwise use high violent force merely because they are on your land. For some insane reason this myth perpetuates regardless of it being absolutely unreasonable on its face. It is also questionable whether deadly force is automatically justified against someone simply in your home with no other facts being present. There are certainly facts that would preclude use or threat of deadly force against an unwanted person in your home or business. Do not forget that use of deadly force requires “imminent threat of serious bodily harm or death” in all cases. In the case of a “riotous or tumultuous” entry on your home, that you occupy, the occupant is considered immediately under the belief an assault is about to be committed upon them or someone else inside and may use deadly force to repel or defeat the invader(s). Even in the cases of stopping a forcible felony, the reasonableness standard must be applied as if the application of deadly force is necessary to stop that crime. In the case of a rape that answer will be absolutely, for certain methods of robbery less so. Many times when people colloquially use the term “robbed” they were actually burgled or simply stolen from as there was no force or threat of force. Easy way to think of burglary is trespass on an occupied structure + crime committed inside. For example trespass + theft = burglary . Trespass + criminal mischief (vandalism) = burglary . Add force or threat of force on a person during a theft, and we get robbery which is a persons crime and does easily justify use of force (but maybe not deadly force - think of the force continuum).
Crimes Against the Person are generally going to allow force to stop, including very high levels. One could also reasonably believe that allowing an assaultive person to escape poses a danger to others and higher than usual levels of force may be justified to prevent flight. However, it is generally impermissible to use deadly force to prevent flight unless there is a reasonable belief that allowing that flight will lead to serious bodily harm or death of another imminently or assuredly. Tennessee v Garner is the Supreme Court case that mainly hits that, but is related specifically to Police but would go doubly for citizens. Relevant Justified use of Force in defense of person statutes:
45-3-102. Use of force in defense of person.
45-3-105. Use of force by aggressor. - Years back this came up in a case where a person used deadly force after instigating a fight inside the Fox Club in Missoula.
45-3-110. No duty to summon help or flee - This is our stand your ground law
45-3-111. Openly carrying weapon – display – exemption.
45-5-XXX Offenses Against the Person
It is very important to not read into these statutes too far as it goes to using force to stop crimes while in progress. Remember that reasonableness, imminence, and necessity are required parts to use of force. A defense of self is generally easier to justify than the defense of another, in particular a stranger. Of course there are exceptions.
Again to stress, use of force must be proportional, reasonable, necessary, to stop a certain and imminent threat, and once stops that use of force does as well.