The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


When Can You Threaten Deadly Force as a Defensive Tactic?


This question is in the news because of the St. Louis controversy (see, e.g., here and here); but I thought I'd discuss it more broadly, because the answer is surprisingly unsettled.

[1.] To begin with, recall that, as a general matter, you can lawfully use deadly force to prevent death, serious bodily injury, kidnapping, or rape, if you reasonably fear such harm. In about half the states, you can use it to prevent robbery (forcible theft from your person). And in some states, you can use it to prevent arson (even arson that doesn't threaten death or serious bodily injury, such as arson of some outbuilding) or burglary of your home or possibly even your business or workplace.

But you generally can't use it if all you reasonably fear is mere trespass on your open land (e.g., your lawn) or minor vandalism or even a physical battery short of serious bodily injury. You can use nondeadly force to stop such lesser harms, but not deadly force. For more details, see this post, but let's rely on this (admittedly oversimplified rule) for now.

[2.] If you can lawfully use deadly force, then you can lawfully threaten deadly force, e.g., by pointing a gun at someone or saying "get out of here, or I'll shoot you." So if, for instance, you tell a trespasser that they're trespassing (or even threaten nondeadly force to tell them to stop trespassing), and they turn on you and credibly threaten to kill you (the St. Louis man's story), then you can generally use deadly force to protect against that threat.

[3.] If you can't lawfully use any force (for instance, against people who aren't trespassing but are merely peacefully protesting on a public sidewalk, even in front of your house), then you can't lawfully threaten deadly force, either.

[4.] But say that protesters are trespassing, so you're allowed to use nondeadly force to eject them: Perhaps they are on your driveway or your lawn. I don't know the Missouri law on whether residents of a gated community where the roads and sidewalks are private may use nondeadly force to eject trespassers, so let's turn to the clearer case where they are on your own property, or are threatening to damage your property in a fairly minor way (as opposed to, say, through arson or some other especially harmful action).

Can you threaten deadly force even when you can't lawfully use it? (Assume they are merely trespassing, and you don't reasonably believe them to be threatening something much worse.) On that, states disagree. The LaFave & Scott Criminal Law treatise tells us that "merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified pulling the trigger." Likewise, Black's Law Dictionary defines "nondeadly force" to include a "threat of deadly force, such as displaying a knife." (See this post on the Siwatu-Salama Ra case from Michigan.) That seems to be the majority view.

But it's not the view everywhere, and in particular not in Missouri, see State v. Kendrick (Mo. Ct. App. 2018):

Kendrick was accused of "knowingly exhibit[ing], in the presence of one or more persons a .45 Caliber pistol, a weapon readily capable of lethal use, in an angry or threatening manner." "The Missouri Supreme Court has held that unlawful use of a weapon by exhibiting it in an angry or threatening manner constitutes 'deadly force' for the purpose of … justification defenses." State v. Cummings (Mo. Ct. App. 2017) (citing State v. Parkhurst (Mo. 1992)). Thus, the … statutory elements that must have been established by substantial evidence in order for Kendrick to inject the issue of self-defense in this case are [in relevant part -EV]:

[a] that Kendrick … reasonably believed physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force of another (section 563.031.1);

[b] that Kendrick reasonably believed deadly force—that is "'physical force which is used with the purpose of causing or which a person knows to create a substantial risk of causing death or serious physical injury'"—was necessary to protect himself against death, serious physical injury, or {"any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense"}, or was necessary to use against a person who had unlawfully entered, attempted entry, or remained after unlawful entry into his residence (section 563.031.2(2), (3)); ….

The evidence, viewed in the light most favorable to Kendrick, established that Williams was unarmed, raised his voice, and pushed Kendrick three times before Kendrick retrieved a handgun. Thus, Kendrick "'introduced a deadly instrument into what had been, at most, a simple battery and significantly raised the level of violence.'" "'[D]eadly force [including, in Missouri, the threat of deadly force -EV] cannot be used to repel a simple assault and battery.'" Instead, "[d]eadly force is only justifiable when the defendant reasonably believes that such deadly force is necessary to protect himself from death, serious physical injury, or any forcible felony." Here, the evidence established, at most, that Williams committed a simple assault and battery against Kendrick. There was no evidence that Kendrick reasonably believed deadly force was necessary to protect himself against death, serious physical injury, or any forcible felony.

NEXT: Communications With Reputation Repair Firm Aren't Privileged

Guns Self-Defense

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

181 responses to “When Can You Threaten Deadly Force as a Defensive Tactic?

  1. Go ahead, tell someone who’s open carry (thanks to your efforts) and who’s toting an AR-15 (thanks to your efforts) and tell him he can’t threaten deadly force.

    1. If you are talking the St Louis couple, they laid the foundation for a self defense claim by announcing (he is apparently a very successful attorney) that they were in fear for their lives, and that of their family, and that of their kids, and they saw some of the trespassing protesters carrying guns. And, if they could legally have shot the protesters, they could legally have threatened to have done so.

      1. Were the protestors brandishing, or just openly carrying? If the latter, how can the open carrying of weapons in a state where open carry is legal provide an objectively reasonable basis to claim one fears for one’s life?

        1. "Were the protestors brandishing, or just openly carrying? If the latter, how can the open carrying of weapons in a state where open carry is legal provide an objectively reasonable basis to claim one fears for one’s life?"

          If someone is "open carrying" while trespassing, especially if someone is open-carrying while trespassing after forcing your gate open, that might play into reasonable fears for one's life.

        2. "Open carrying" on private property while threatening the owners of the property with violence?

        3. As is unfortunately common these days, reports from different sources offer different facts; at this point I have no idea which are more accurate.

          With that disclaimer, some reports have the 'protesters', having broken down a gate shouting 'Eat the rich' (presumably hyperbole) and threatening to burn the house (perhaps more credible).

          I think that context matters. From the far end of the spectrum, if a bunch of Kluckers show up at a farmhouse, carrying rifles and announcing an intent to lynch, I'm going to be pretty sympathetic to the defender, and not at all sympathetic to the Kluckers protestation of 'but open carry is legal!'.

          (this is reason #983736 why open carry at political events is a dumb idea ... too much room for ambiguity)

          1. Why would "Eat the Rich" chants be hyperbole? They targeted that gated community with private roads, just like they did in Hollywood. They were chanting "Eat the Rich" in Hollywood too.

            1. Did a lot of people in the Hollywood gated community get eaten?

              1. Do a lot of black people get lynched? In the part twenty years? So I guess the bruthas need to get less scared of ropes.

                1. This is the audience you have cultivated, Prof. Volokh.

                  For what?

                  1. So that bigots like you could have a platform, I guess.

                    After all, it was your Party that created the KKK, and lynched both blacks and the Republican politicians trying to secure freedom for blacks during the Reconstruction.

            2. "Why would “Eat the Rich” chants be hyperbole?"

              Because ... I really, really doubt the protesters actually intended cannibalism. 'Kill the rich' or 'hang the rich' while carrying rope, OK, but 'Eat the rich' sounds like hyperbole to me, unless perhaps they were dragging a large grill and BBQ sauce. Or maybe one of those cannibal cauldrons featured in 'The Far Side'.

              1. So... "Eat the rich" was hyperbole, they weren't actually going to eat them, just kill them?

                1. "just kill them?"

                  Well, the mob didn't actually try that, did they?

                  'I'm going to kill you' is rather unambiguous. 'Eat the rich' is a little less so, would you agree, given the totality of the circumstances?

                  1. To be fair, if you see an angry mob marching towards your large house chanting "Eat the rich", I fail to see how it would be unreasonable to conclude that they are there for friendly purposes.

                    Furthermore, if you think someone is going to try to seriously hurt or kill you, you don't have to wait until they actually try it before you act to prevent it. It's not unreasonable to believe that the guns wielded against the crowd were instrumental in preventing the crowd from attempting serious harm.

                    1. They weren't marching towards these chuckle-head's house, they were going to the mayor's house along the street.

                    2. Marching toward your house or past your house? If they're coming up your driveway/lawn towards your front door, yes, I'd agree that it was reasonable to be scared. If they're walking down the street (even if the street is a private street) chanting slogans, less so.

                    3. So, they broke down a gate to gain entrance to the private road through the community and then entered it bearing weapons and chanting, "Eat the rich!" They sound like a group that is respectful of other people and their property.

                    4. Wuz - check out the video. It's a march.

                      Y'all are just itching to shoot some protesters.

                    5. Sarcastr0, considering all the news about people getting shot, property burned, cars tipped over and burned, and other horrors, saying "it's just a march" isn't going to cut it. People encountering "peaceful protests" at the very least should be on their guard, if not outright fear for their lives.

                    6. Your confirmation bias does not let you bootstrap your way into thinking all protests are violent.

                      I mean...I guess it does, but it's not reasonable to do so.

                    7. Sarcastro, I think at this point we're talking denial bias on your part, not confirmation bias on our's. Once you break down the gate, you're not a peaceful protest anymore.

                    8. "Once you break down the gate..."

                      FWIW, and with the 'careful about videos' caveat in mind: I have seen a picture of a broken gate, and also video of protesters/mob/whatever going through what looks like the same gate, when it was intact but open. Is there video of the gate actually being forced?

                      Now, low res video, etc, etc. There are various possible sets of possible facts:
                      1)The gate was locked, the p/m/w forced it, but the damage (like a crack) wasn't visible at first, and it broke further later
                      2)The gate was open, the p/m/w went through, and someone broke it later. 2(a) would be the angry p/m/w broke it on the way out, 2(b) would be someone broke it to make it look like the gate was forced

                      There are more possibilities - it was open, some p/m/w entered, someone locked the gate to keep more out, etc, etc. Just, again, be careful about building a narrative on incomplete evidence.

                    9. Wuz – check out the video. It’s a march.

                      I did check out the video, as well as the numerous still photos (taken by the "protesters" themselves), with most of the latter clearly showing the "protesters" trespassing not only on the private street, but on the couple's property. Pull your head out of your ass.

                      Y’all are just itching to shoot some protesters.

                      How many protesters were shot here? How many have been shot elsewhere for simply protesting? Hell, there have been remarkably few violent rioters/looters harmed in any way, in spite of there being more than ample opportunities for these imaginary vigilantes you keep blathering about.

            3. They seem to have "targeted" the street of the mayor they wished to petition.

              1. And how was the couple supposed to know that?

                Come to think of it, aren't we happy that this crowd is finally protesting a Democrat mayor for their racism and police brutality?

                1. Wow, you need to read more.

                  Plenty of Dem mayors getting protested. NYC is a great example of that.

                  1. Yes, plenty of Dem mayors are getting protested. However, that doesn't mean that (1) this couple knew that the mayor lived in their neighborhood (while they likely did, no one's knowledge of who's in the neighborhood is perfect), (2) that this particular mayor was going to be protested, or (3) that this particular crowd was going to limit their activities to protesting the neighborhood.

                    To further emphasize the third point, while it's true that a lot of protests about mayors have been in the news, I wasn't personally aware of them, and what's worse, there's plenty of examples of protesters who do more than just protesting. The point about "there's been plenty of stories in the news about mayors being protested" can't be made without ignoring "there's plenty of stories in the news about 'peaceful protests' becoming riots."

              2. Trespassing on this couple's property (clearly shown in the many photos of the incident) is a pretty stupid way to target someone else's property.

        4. Whether the protestors were brandishing or just openly carrying can be a difficult fact-intensive thing that a jury would have to weigh when deciding on the credibility of the homeowners' claims to be in fear of their lives.

          Or maybe not so difficult if you adopt the standard of fear that most cops seem to get away with claiming. The protestors were, after all, alive and somewhere in the same zip code.

          1. It didn't matter that the crowd was unarmed: they had disparity of numbers. When three people attack one, it's considered a deadly threat, even if the attacks of the three individually would have been considered non-deadly force in a one-on-one attack.

            1. I just logged on here to specifically mention the disparity of force modifier in relation to the crowd. I was advised when training for ownership that it was my responsibility to learn and know applicable laws including use of force.

              Disparity of force is viable when applied to deadly use of force when such use of force would not otherwise be qualified.

      2. Are we sure they were attorneys. Their story sounds more like cops.

      3. Pair of incompetent fools as far as demonstrated gun use. She was waving the pistol around with the muzzle pointed at her husband as much as anyone else. But once she levels the gun at a non-brandishing person, then it is she who has become the imminent threat to life to the one at whom she is aiming.

        1. Except that she can legally do that if she is already in reasonable fear of loss of imminent loss of life or great bodily injury. The person who is legally culpable is the party that originally escalated to a deadly threat, and not the person who is responding to that.

    2. captcrisis: 1. If you're referring to the St. Louis incident, carrying weapons on one's own residential property has long been allowed pretty much everywhere. The public carry debate (whether open carry or concealed carry) is about being able to carry on public streets and other such places.

      2. I don't feel materially more endangered by someone "toting an AR-15" than I am by someone who is carrying an ordinary hunting rifle (or an ordinary handgun). All of them are lethal weapons. If you think people shouldn't be able to carry any firearms on their own property, say so; but the availability of so-called "assault weapons" strikes me as not relevant here.

      3. The question, of course, isn't what you'd feel comfortable telling someone on the spot; it's whether they can be prosecuted later.

      1. A hunting rifle is MORE lethal.
        Bullet is larger and going the same speed, way more energy.

        In many states it's illegal to hunt deer with a .22 and very much frowned on to use am AR-15 chambered for a .223. It's considered cruelty to animals.

        1. I dont disagree that a smaller munition is apt to injure, not kill a deer.
          But logically, How would the state allow a bow season for deer?

          1. Wider wound channel, I suppose. The head of a hunting arrow for deer is a fairly wide razor sharp blade. It doesn't just poke a hole.

          2. You've clearly never seen the damage a quality broadhead does to the internals of a game animal.

          3. Iowantwo,

            Go to any store that sells arrowheads, ask if perhaps they could demonstrate the sharpness of an arrowhead. I have a scar on my hand from grazing (and not even feeling it) myself with a blade.

            Or go see what it does to gelatin setup on youtube, I'd bet there's a video or two on it.

  2. Across the nation, there are mobs of leftists rioting, looting, and attacking innocent people on the streets.

    The Saint Louis incident was not about some lone unknown individual trespassing, it was about a man and woman defending their home against a mob of leftists.

    1. Across the nation, there are mobs of leftists rioting, looting, and attacking innocent people on the streets.

      You watch too much OAN.

    2. Easily frightened, bigoted, delusional, gun-fondling clingers are among my favorite culture war casualties.

      1. Of course, your most favorite among the "culture war" casualties are black businesses looted and burned to the ground, and black neighborhoods destroyed by looting and arson, while suburban white moms cheer the destruction from gated communities.

        After all, we can't have uppity minorities becoming self-sufficient! Some of them might stop voting! Heck, some of them might even start voting Republican!

  3. I'm not sure Kendrick is a good case example here, based on the current situation at hand.

    You had a mob, which broke into private property, was clearly trespassing, was making violent threats, and may have been armed...

    And the couple can't defend themselves in their own home? What do they need to wait for before pulling out a gun? Someone to actually light their house on fire?

    1. The only question that really matters is, would a reasonable person believe their lives were in danger. Making that statement and proving it in court away from the action are two vastly different things.

      I own lots of firearms and am proficient with all. Have carried a concealed weapon for 35 years. I also know the law as it relates to self-defense. There's no way I would have set foot outside the house, that can be construed as "taking the fight to them" and is not a good position to be in in a court battle with your local DA. Try to kick down my door or throw things through my windows and we've got a whole different set of circumstances. Stand outside and yell at me and I'm going to turn up the TV and call the police. I'm also going to have a couple of firearms and about 100 rounds of ammunition within arms reach and I do happen to have a tactical plan in place for just that scenario.

      1. BS. It's their property. They don't need to cower inside hoping the mob passes them by. This ain't passover. They are free to stand on their own property and since there are ZERO public side walks or streets and the mob broke down a gate to get in, they are already law breakers. There has been a history with in a few days of mobs setting fires, looting and destroying property. And police had already been called and the private security contracted by the neighborhood had been contacted. Cops NEVER showed up. So what do you do? Cower inside and hope the mob passes you by?

        1. Prosecutors can play a game of chicken and try to get you to agree to a plea deal...and if someone is killed they will likely do that. So if you shoot someone outside the home even if you didn’t break the law the prosecutor can still take the case right up until the trial is going to begin...and then if you are in the right they will drop it but you will never get those months of sweating the charges back.

      2. I'm pretty sure, in this climate, an angry mob knocking down your gate and marching down your private road...

        Yes, they might be in fear of their life.

        1. Did you see the video?

          1. I have seen several of the videos. From at least one video, I actually feared for the woman's life.

            1. Which video? Because everything I've seen was peaceful except for the gun-toting yahoos.

              1. The video in question included shouts of "get her gun" (which would *definitely* have resulted in someone getting shot) -- and fortunately there were also people in the crowd who got them to back off.

                That alone convinces me that not all the people in the crowd were there for peaceful purposes. If they were, they would have been shouting "Everyone, back off! We're only here to protest the Mayor!"

        2. Why are clingers such pussies?

          1. Take a Midol and relax Artie. Let the grown ups discuss this. You're embarrassing yourself, if that's even possible any more. Instead of whining online, do something useful, start some petitions to repeal Concealed Carry.

          2. I'm sure that if an angry mob broke down the gate to your home, you'd happily lay down and let the mob beat you to death, while they burned down your house.

            Why do bigoted Democrats believe that everyone should just lay down and take the beating/mugging/arson/killing?

    2. re: "was clearly trespassing"

      Is that established yet? From the articles linked above, that still seems to be an open question.

      If the protestors invaded the couple's lawn (that is, not merely being in the street or on the sidewalk), then yes there was trespassing.
      If the protestors all remained in the public street, then no there was not trespassing.
      If the protestors remained in the street within the gated community, whether that counts as public or private property seems to be a question of local law. But I'm guessing that in most places, the community's road maintenance, utilities, etc are a municipal responsibility - which argues for public no matter what the homeowners' association brochure says about solicitors.

      1. It’s a gated community with the roads within clearly marked as private property. The mob broke down the gates anyway and advanced into the gated community on those clearly marked private roads. The private property signs are very noticeable in the videos shown the mob breaking down the gate.

        1. Private property signs are not legally determinative of whether the property actually is private. The question is legal ownership (influenced by curtilage analysis which hinges in part on access and responsibility). You and I cannot, for example, turn the local park into private property merely by hanging some signs around the perimeter.

          By the way, there are numerous examples of people trying the sign-posting trick to make their local park exclusive to residence. I'm not aware of a single one of those cases where the sign-posters won.

          1. While that is true, the presumption is that signs like that are accurate. If you can find a deed or easement in the country records providing the city (county, etc) government ownership, then fine. But most likely one of the purposes of the gates and signs is preventing accidental loss of ownership, such as through adverse possession, or something similar. I would put the odds of it being still private property at maybe 90%, with someone screwing up over the past century at maybe 9%, and intentional deeding to the city at maybe 1%. You can counter those with your own figures, if you have something to back them up.

            Which reminds me. I need to put up some no trespassing /private property signs for the subdivision I just bought. Or at least need to talk to the city.

      2. If the local municipality allows them to have a closed gate across the road to restrict access, that strongly argues for private property no matter who maintains the utilities.

  4. An argument can certainly be made that the couple was justified in brandishing their weapons.

    Unfortunately for them (and even more unfortunately for people who are not "of means") an argument can certainly be made that they committed several felonies by brandishing and threatening "the mob."

    The first problem is that pretty much any DA can get an indictment against pretty much any ham sandwich. For pretty much anything. If you are arrested you'd better have competent legal services (and these two are apparently ambulance chasers NOT experts in self-defense law) or you will find yourself in a legal hole you'll be in for 20-30 years. Think something on the order of $25,000+ for a pretrial retainer (plus bail if you're arrested.) If it goes to trial, put a zero behind that.

    These two may be able to handle that. Most people can't. In which case, the process IS the punishment.

    1. Both of them are lawyers. I think they'll be fine.

      1. LOL. Lawyers known for never running afoul of the law.

    2. My concealed carry insurance is about $130 a year. $250,000 bail/covered. $1 million/ lawyer/expert coverage/ covered. If you carry a gun, legally, you might want to look into it.

    3. They didn’t commit any felonies if they had a reasonable fear of imminent death or great bodily injury for them or their family. That is because the self defense statute covers all such felonies and not just homicides. (I.e. a prosecutor cannot get around self defense by charging aggravated assault, or even menacing, instead of homicide). They set the basis for a self defense claim by contemporaneously claiming to have seen guns, and to have been in fear for their lives.

      Sure, it will ultimately be a question of whether their fear was reasonable, but that is a pretty low hurdle right now. They would just show video of big cities around the country, with headlines showing death after death, and assault after assault.

      Except in, I believe, Ohio, the burden is on the prosecution to disprove self defense beyond a reasonable doubt. Not going to happen here. Let also add, that the statements about seeing guns and being in fear, were recorded contemporaneously, and are thus are exceptions to hearsay. The result is that they can get much of the evidence they need for their defense admitted, without needed to testify themselves, opening themselves up to cross examination.

      1. I think even in Ohio the burden of proof has recently been changed to match the rest of the States of the Union. There was even a case where someone had just been convicted just before the law went into effect, but the judges ruled that the old law still applied to him.

  5. It's pretty clear the woman was pointing her gun at people. At that point can someone in the crowd shoot her in order to defend the lives of the unarmed, non-trespassing protester(s) in her sights?

    1. It is all private property. All the mob is tresspassing.

      1. But what if it wasn't?

        1. If a reasonable person would conclude that the crowd was a serious threat to life and limb, then no, the crowd couldn't shoot her for pointing a gun at them.

          They are the aggressors. The law frowns on aggressors shooting people.

        2. Depends on the circumstances.

          If it's just a group of people going by peacefully, then no.

          If it's a bunch of people going by yelling threats that they're going to cause you bodily harm, then yes.

        3. But what if it wasn’t?

          But it was.

    2. In one photograph I saw, the woman was pointing a gun at someone who had a "shotgun boom" -- essentially, a long microphone -- pointed at her.

      Of course, as the self-defense lawyer showing the picture observed, a "shotgun boom" gets its name from looking like a shotgun. And if someone points something that looks like a shotgun at you, and you have a reasonable reason (ie, a conclusion that a person who isn't drunk, crazy, or high would typically reach, given the circumstances) would to believe that the person with the "shotgun" was there to cause harm, then it's perfectly reasonable to point a gun at that person -- and in some cases, it's even reasonable to shoot that person!

  6. I'll make it simple for the microcephalics here. If it were mobs of Ku Klux Klan instead of leftists rioting, looting and attacking innocent people on the streets, and a mob of KKK showed up in front of the house of a black man and woman who responded the same way as the white man and woman in St. Louis, which side would you pinheads be on?

    1. It's a given that Democrats are unprincipled hypocrites.

      They subscribe to an "Ends Justify The Means", it's what makes their ideology so dangerous and life threatening. There are no guardrails of principles or morality. Only the ends.

      Once you realize and accept that, everything they do makes sense.

    2. Condoleezza Rice spoke to her father owning a shotgun.

    3. We have a winner. The idea of prosecuting the black couple would never even be discussed

      1. We have a winner. The idea of prosecuting the black couple would never even be discussed.

        I think you're mistaken.

        1. Yes, because shooting a lone teenager point-blank in the face, using a gun you're in possession of illegally, while he's outside of your home is comparable to standing on your own property with a firearm you legally possess and using it to deter...without ever firing a angry mob.

          1. It wasn't a mob.

            If you think fear was reasonable, you aren't afraid based on their behavior...

            1. A large group of people shouting angry slogans is, by definition, a mob.

            2. It wasn’t a mob.

              You do know that "mob" doesn't just refer to the Mafia, right?


              1: a large and disorderly crowd of people
              especially : one bent on riotous or destructive action

              2 informal : a large number of people

  7. I don’t know about other folks, but I was trained to never brandish a weapon. When it came out of the holster, you used it.

    1. Dude this guy is so cool.

    2. Yeah, no. The vast majority of defensive firearms uses never result in pulling a trigger. Brandishing to deter an attacker is not only acceptable but recommended and in some circumstances, required.

      Mind you, you have to be willing to pull the trigger. But you don't automatically do it.

    3. When it came out of the holster, you used it.

      Is it too late to request a refund for your training? Your instructor was an idiot.

    4. I think there is a legal middle ground, such as a low ready position. There was a case a couple years ago, where a police detective, I believe, drew his weapon, and held it at a low ready as two people approached him aggressively. He did not raise his gun and fire until they crossed the Turing Drill distance (about 20 feet).

      The key here is a reasonable fear of imminent death or great bodily. A low ready position probably doesn’t qualify. A low ready doesn’t indicate an imminent threat, but rather a future one. A hoplophobe (Someone with an unreasonable fear of guns) may believe that they are threatened, but the reasonableness has to be both subjective and objective.

  8. Those two are heroes. Even if they are lawyers.

    1. I saw pictures of the interior of the home they were defending -- a home they spent 30 years to restore to its original condition. I can darn well see why they'd want to defend it, even if technically they should only defend their own lives and the lives of others (as they had dinner guests as well).

      Having said that, I'd support them, even if they were defending a dirty hovel. It's their retreat, and it's an angry mob that's threatening them.

  9. Seems like a jury could decide how reasonable their fear of being assaulted was. I'm pretty sure I would decide reasonable enough. But I don't know why a prosecutor would bother with this.

    We don't need protestors who trespass and shove a guy to feel safe doing it. We do need people protecting their property to feel free to threaten force to protect it.

    1. "I don't know why a prosecutor would bother with this."

      If the prosecutor (1) bases his charging decisions on his political sympathies, and (2) is sympathetic to whatever political point the mob was trying to make, he'll prosecute the homeowners and not the mob. (Of course, if this were a different mob, he'd prosecute the mob and not the homeowners.)

      1. In other words, if a prosecutor is unjust.

        1. And operates unethically. But we see that every day - I.e. the charging of LTG Flynn for §1001 lying to FBI agents, and potentially for FARA and the manifestly unconstitutional Logan Act violations. Or, trying George Zimmerman for killing Trayvon Martin, despite the evidence never rising to even the probable cause level (plus putting on perjured testimony, by the state’s Primary witness, likely known to be perjured by the prosecution - turns out Martin’s real GF refused to testify, and her cousin testified instead). The list goes on.

  10. It is all private property. All the mob is trespassing.

  11. Isn’t Missouri the Show Me State?

  12. I think it's relevant here that before stepping outside, the couple did call the police, and they failed to respond.

  13. Rather apparent they never gave much thought to home defense beyond "buy a gun"

    Pretty damn stupid to go outside while armed.
    Tactically, you lose options for cover, concealment, access to extra magazines, first aid, phone, etc
    Legally you are greatly increasing your risk.

    Threats are outside, you need to stay inside, get to a window (preferably upstairs), and covertly keep an eye on things.
    If you start seeing people carrying flammable liquids and an ignition source maybe you break silence to let them know that if they want to burn the house down they'll have to bleed for it, but otherwise you keep your mouth shut.

    Leftist mob congregating outside your home probably isn't the home defense scenario most people think about but as a general rule you got to remember your are safer inside than out, and that you are on a better legal standing when you are not the initiator of force.

    1. But that's not how you stop the revolution.

      1. They should have followed Joe "I love the way your hair smells" Biden's advice by marching out onto the balcony with a double-barreled shotgun and unloading two rounds of buckshot into the air.

    2. Depends. Knowing someone is armed and willing to defend their house can prevent all sorts of ill-advised behavior from the mob.

      1. Exactly. Normally I say stay inside and call the police if there are nefarious people outside. But first, that's if there is only a few people, and second, the couple did call the police and they did not respond.

        In this instance, going out side and making a show of force can pause the attack and make the protestors move on. Plus, once the mob is on the house, they can surround it and there is no way two people can defend a house when people are up close. They can break the windows and start burning the house.

        These people did the right thing.

    3. Ideally, every one of us should have hours, even days, of training, every year, in the use of our weapons.

      In the real world, each one of us is on our own journey to proper readiness. For some of us, it starts with owning a gun. For too many of us, it ends there, too.

      When the need for that gun arises, though, we don't reach for it with the training we should have. We necessarily reach for it with the training we do have.

      Granted, doing this can be both legally and tactically dangerous. But then, there's always a tactical and a legal danger, regardless of how much training we get.

  14. " generally can't use it if all you reasonably fear is mere... physical battery short of serious bodily injury...The LaFave & Scott Criminal Law treatise...Likewise, Black's Law Dictionary... see State v. Kendrick (Mo. Ct. App. 2018)..."

    How about "move out of St. Louis?" That sounds like a non-lethal form of self-defense.

    1. That is a fine line though. Serious bodily injury typically includes the breaking of bones. So, yes, self defense isn’t available if all that you anticipate is some bruising, but it typically is, if you can reasonably anticipate some broken bones. And here, the crowd was easily big enough that the couple could expect to be overwhelmed, if attacked, with given their ages, some chance of broken bones. Of course, they also contemporaneously claimed to have seen guns with the mob.

  15. Random thoughts.

    My first question relates to any HOA in this gated community. As a rule HOAs have a lot of power over things like trespass, especially if there is a locked gate. Destroying a locked gate to enter property posted as private is definitely a crime and depending on the value of the gate a possible felony (in Florida the cut off for misdemeanor is $US2,500; or at least it use to be).

    Maybe more to the point Florida (and many other states) have a special circumstances provision for many crimes. This basically means if you threaten certain young or old age groups punishment is harsher. A lot of states put the numbers at younger than 12 and older than 60, or even 55. So does age factor into how a person views a credible threat. While I don't know the ages of the two lawyers in MO they don't really look like whippersnappers. But as a seventy something guy I certainly feel less capable of defending myself unarmed than when I was twenty something.

    One reason a lot of folks retire to gated communities in Florida with age restrictions on residents is they are thought to be safer than living in an urban city like Miami where gated communities have armed guards at the gates.

    1. I am a septuagenarian retired to a community with a seven mile moat and a ferryman’s tariff. My community is aged, impoverished and mono-cultural. I noted threatening political activist-tourists recently.

      I am conscientiously armed, openly when I can, concealed when I must.

  16. Vastly all armed citizens are not lawyers. On the cusp there is not the opportunity to consider much beyond, “Do I draw and shoot now? Now? NOW?”

    Better judged by twelve men, good and true, than carried by six that are weeping and blue.

    Be innocent of instigation. Be in fear of bodily harm. Use sufficient force only to deliver oneself from evil. Attempt to withdraw. The predicate quibbles are grist for the legalistic mill.

    Thank you EV for all that you have done and all that you do.

  17. So an angry mob busted through a private gate. Same mob who is laughably labelled "mostly peaceful" has had a tendency for violence and destruction.

    Same "mostly peaceful" mob states they want to destroy your property and hurt you.

    So do you believe them and defend yourself or not? I personally believe them and defend myself. Maybe that's just me?

    Missouri also has the "Castle Dcotrine" which is not mentioned but I believe applies and allows a lot more latitude in regards to self defense than what s in the article.

    So we're debating prosecution of this? Moral of the story don't break into private property and threaten the owners

    It ended about as well as it possibly could.

    1. In one video I saw, a couple of people were crying out "get her gun!"; fortunately, there were reasonable people in the crowd that pushed back against this, and got them to back down. This is enough to convince me that the crowd wasn't entirely peaceful.

      I would consider the crowd peaceful if they cried out "No need for weapons! We'll stay off your property! We're only here to protest the Mayor!" Perhaps they were mostly like this; however, I didn't see it in the admittedly somewhat limited videos I saw.

  18. I haven't seen any legislation cited here that denies the right to show a weapon on your own property. All the cites are a result of Judges codifying their personal angst through rulings from the bench.
    In this particular case, the property owners did declare they feared for their life and lives of family. National reporting is full of examples of lawless mobs assaulting peaceful bystanders. These mobs assault gay, Democrat member of the legislature that support the cause. It is reasonable, no prudent, to assume, a mob that has already violated private property to be in front of their house, it is stupid, and dangerous to self and family to think the lawlessness will not continue, is negligence.

  19. To be silly, I guess I could fashion a "Garage Sale" sign, throw up a card table and sit there with my "sale items" displayed.

  20. This is a telling thread about what people want to use their guns for.

    Legal or not, these guys were not exactly being model citizens here.

    1. "...what people want to use their guns for..."

      I want to use my guns to protect myself, my family, and my property. Which is precisely what this couple did. Good for them!

      1. This wasn't protection.

        There was no danger; this was a protest, not a riot.
        They aimed the guns at people's backs who were already past them.

        No, what this thread is into is *intimidation*

        1. "Protesters" stick to public areas, and stop being "protesters" when they trespass onto private property, armed, and start yelling threats.

          1. Yeah, that's just wrong.

            At best you're excluding the middle.

            At worst you are advocating for people to be shot by third parties for trespassing.

            1. Sarcastr0, I don't know what videos you saw, but the videos I saw made it pretty clear that this wasn't a happy crowd. Furthermore, there's a word for damaging property to commit trespass: it's called "breaking and entering".

              In self defense law, breaking and entering is a very strong signal that you're not there for friendly purposes. Indeed, shooting someone who broke into your house or car is a very strong indication that your act is self defense. States differ on how much you can defend outside your home -- but in any case, the couple has been making the claim that their concern wasn't the trespassing, but the risk of life (as emphasized by their trespassing).

            2. At worst you are advocating for people to be shot by third parties for trespassing.

              I've never even come close to advocating for any such thing, you lying sack of shit.

        2. If I had a nickel for every thing that was a "protest", and not a riot, I would be pretty rich right now. It doesn't take much for a protest to become a riot.

          I'm still reeling over the news that a driver was shot -- yes, shot -- at a "peaceful" protest. The driver was just trying to drive through, and the crowd swarmed him, then someone in the crowd pulled out a gun and shot -- and after getting shot, the driver then sped out, putting the lives of other protesters at risk. After doing that, the protester put his gun away and continued protesting.

          And to short-circuit a reply that you'll probably make (because it seems that every point you have made here is complete anathema to the law of self defense), yes, it is legal to run over members of a protest if (1) the protesters are swarming a vehicle (it's scary how quickly a vehicle could be tipped over, as was demonstrated in Salt Lake City a couple of weeks ago) and (2) the protesters are doing things that put you in fear of your life. Shooting you certainly fulfills this.

    2. Sure they were. They were on their own property and hurt no one. No one was under threat without trespassing and threats to trespassers stopped when the trespassing stopped.

      It's a model of defense not ending in violence. There's no way it could have turned out better: no violence, no injuries, no property damage, no harm at all to anyone.

      Tone-policing them after the fact is petty. They were there in the moment. The results speak for themselves.

      1. Your standard is way low. Brandishing is illegal for a reason. Walking around pointing your gun at people and threatening them is not good behavior.

        There was no danger to their life or property, it's a model of dumbass gun owners becoming threatening yahoos.

        Tone policing when firearms are involved should be something people for gun rights would want to do. But y'all don't really care.

        1. Trespassers don't get to complain about their feelings being hurt or fear for their safety while they're trespassing.

          1. That's a pretty screwed up view. Mere trespassing doesn't mean 'I get to threaten to shoot you.'

            Trespassers: still humans, with rights. And that includes getting to complain about the ramping up to threads of lethal force you seem to be endorsing.

            1. The right to trespass fearlessly and with no hurt feelings isn't a right. Defending your property is a right.

              1. There is no right to trespass. But neither does trespassing mean you lose all rights.

                This was not about property defense. There was no threat; and they pointed the guns at people who had already passed.

                1. No one lost "all rights". So no problem.

                  1. Just the right to not have your life threatened as you protest.

                    1. Don't trespass then.

                    2. Or else no speech?

                      Your punishment is way out of proportion. Trespass alone doesn't have damages. And self-help should not be first resort.

                    3. The trespassers also suffered no damages.

                      The damages on both sides were similar: bad feelings. The main difference is that the trespassers were the aggressors.

                    4. Threatening someone's life is an escalation from trespass.

                      It is also considered damaging; indeed in many places it is a crime.

                      Criminal trespass, on the other hand, requires damage or intent to burglarize.

                      Quit being so casual about using firearms to intimidate people you disagree with.

                    5. "Criminal trespass, on the other hand, requires damage or intent to burglarize."

                      They accidentally broke the gate on the way in? Is that what you're saying?

                      They were already guilty of criminal trespass at the point where they confronted the homeowners.

                      Quit being so casual about violent mobs threatening people.

                    6. Someone defending his property from trespassers has no obligation to not "escalate".

                      If the homeowner does not "escalate", why would trespassers leave? Why not stay? They came for a reason. The homeowner must "escalate" to make the reason for leaving outweigh the reason for the initial trespass. That's how the situation gets remedied.

                    7. Criminal trespass, on the other hand, requires damage or intent to burglarize.

            , it doesn't. And you went to law school?

                    8. "Quit being so casual about violent mobs threatening people."

                      what we had here was people threatening mobs, which is not quite the same thing.

                2. You don’t know that the trespassing protesters were unarmed. The couple contemporaneously claimed to have seen guns among them. You can’t prove that the couple were wrong, and more importantly, that they were wrong seeing guns, and were unreasonable having seen such. Keep in mind that the burden of proof is on the prosecution to disprove self defense, beyond a reasonable doubt. Ain’t gonna happen here.

                  1. This was a on tape, Bruce. It's not a long video; you should watch it. No sign of guns. They shout all sorts of stuff; nothing about guns.

                    Maybe there were secret guns; that's quite a leap to make, though.

                    Can I prove the couple was lying? I cannot. But it is not in keeping with the current evidence.

                    1. I'm not sure which video you saw, but the one I have seen was a fairly narrow FOV, and seemed to have been taken by one of the demonstrators, or at least someone mixed in with them. In general, I think that one ought to be careful when using video taken and provided by one side of a dispute. Camera angles and so on can make a world of difference.

                      We went to a presentation a couple of years ago when out PD was adopting badge cams. That had video from a training situation from their academy. The scenario was a domestic dispute call where the officers ended up wrestling with a man in the front yard of a house. There were three cameras on tripods arranged around the yard, plus all the participants had badge cams. Those cameras told very different stories, based purely on angle.

                      They had another real-life incident - a car chase that ended in a parking lot. There were multiple dash cams, multiple badge cams, and surveillance cameras from the business. Only one of all those videos showed the suspect's gun, but it showed it clearly.

                      You seem to have a habit (here and the Covington incident) of looking at one video, from one angle, composed (and edited??) and provided by a participant from one side of the dispute, and then assuming you have incontrovertible knowledge of what happened. I think that is a very bad habit to get into.

                      I don't know exactly what happened there, and I don't think you do either.

                    2. You keep on saying we should see the video; I saw the video, and heard the voices, and it was enough to convince me that their lives were in danger.

                    3. Good point, Absaroka. The video is not dispositive. Countervailing evidence is certainly possible. But from where we are now, the video is the best we got. It's certainly more evidence than Bruce's speculation.

                      epsilon, I don't know what the heck you're talking about, but you spent last night just posting over and over again about how threatening the protesters with guns was great because the protesters are bad. I'm not sure you're really operating from a reality-based place.

                    4. "epsilon, I don’t know what the heck you’re talking about, but you spent last night just posting over and over again about how threatening the protesters with guns was great because the protesters are bad. I’m not sure you’re really operating from a reality-based place."

                      I don't know what reality you're in, but the reality here is that protests across the country have been turning violent. I'm still stunned that a protest in Salt Lake City resulted in a turned over police car that was doused with gasoline and burned, and more recently, that a driver just trying to pass through Provo's city center was shot by "peaceful protesters". And these events are in Utah

                      Anyone paying attention to the news would be very foolish and very clueless to assume that any particular crowd is just there to "peacefully protest".

                    5. "I don’t know what reality you’re in, but the reality here is that protests across the country have been turning violent."

                      Specifically, they've turned violent when the people with weapons try to push the protests and protesters instead of ignoring them until they were done. funny how often people looking to pick a fight can find one.

                  2. "You don’t know that the trespassing protesters were unarmed."

                    We DO know one thing: None of them responded to being threatened by opening fire. So, either they were factually peaceful or they were factually unarmed.

          2. "Trespassers don’t get to complain about their feelings being hurt or fear for their safety while they’re trespassing."

            Sure they do. that's why leaving shotgun traps is illegal.

        2. Yes, it's true: brandishing is illegal for a reason. However, there's an entire branch of law that allows you to not only brandish your weapon, but to actually use it: it's called self defense law.

          This couple wasn't brandishing their guns to get a drug deal to go their way; nor were they doing it to settle an argument. They were doing it because an angry crowd broke down a gate and started walking around their private residence.

          1. "there’s an entire branch of law that allows you to not only brandish your weapon, but to actually use it: it’s called self defense law."

            Try again... To invoke self-defense law, you first need to be defending yourself.

            1. Indeed. Which is why this couple was justifiably brandishing their weapons.

              Anyone paying attention to the news would have very good reason to fear a mob passing through the neighborhood.

              1. Threatening people with deadly violence has a mixed record when it comes to avoiding violence.

      2. "They were on their own property and hurt no one. No one was under threat without trespassing and threats to trespassers stopped when the trespassing stopped."

        Oh, they got the smart bullets that know to stop when they reach the property line?

  21. Kendrick seems to be a one on one confrontation, the context is not clear. Were there weapons easily at hand? How could someone predict that after being assaulted (shoved 3 times) that resistance would not escalate and the attacker resort to using a weapon (rock, bottle, stick or piece of furniture)?

    Finally a large crowd chanting and vandalizing property could clearly easily escalate beyond the ability of two people to resist and foreseabley result in ay least serious bodily injury.

    Finally "Your Honor, I was only going to fire in the air and if necessary shoot them in the leg, Honest."

  22. The same gun nuts who approve departing from 'literal application' of a statute to rescue a citizen who used an unlawfully carried firearm are ready to watch homeowners shoot protesters who walk past the home in a gated community on the way to petitioning the mayor at home along that street?

    And you wonder why the mainstream rejects your preferences, our society regards you as bigoted cranks, and Profs. Volokh and Bainbridge occupy the lonely table at UCLA law faculty lunches?

    1. This was on their own property. Those laws about legal carry don’t apply there.

  23. Eugene, item 2) last sentence: You say "use deadly force" but presumably mean "threaten deadly force."

    1. I'm not sure if there's much of a distinction between "use deadly force" vs "threaten deadly force" in self defense law, beyond the sentences you will get if convicted of the charge in question. The conditions to legally threaten and use lethal force are pretty much the same.

  24. Kendrick absolutely does not apply because Williams had been invited into the house before the confrontation began. The portion of Missouri's Castle Doctrine law pertaining to trespass wasn't in play. This section seems to apply.
    The individual uses deadly force against another who unlawfully enters, remains present after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by the individual, or is occupied by an individual who has been given specific authority by the property owner to occupy the property, claiming a justification of protective force

  25. This was not a peaceful "protest." The mob had broken down the gate to this gated community and were therefore already trespassing. At least some of them had threatened to harm the couple. Whether or not the mob had brandished guns (apparently they had), or were even known to be carrying guns does not change matters: to be threatened by a mob is to be threatened with deadly force, as an unarmed couple can not defend themselves against multiple attackers. In addition, everyone in the country is aware that in many places similar mobs had attacked and killed or gravely injured people (especially police) and could reasonably anticipate such an attack here.
    In short, the couple were perfectly entitled to threaten the use of deadly force, possibly entitled to actually use deadly force at that point, and certainly entitled to use deadly force if members of the mob had come any closer.
    And why was only one of the couple properly armed? They should each have had semi-auto rifles or shotguns.

    1. Indeed. I have no idea why so many people here are willing to let innocent people succumb to the violence of an angry mob, and are downright angry when innocent people, fearing for their lives, take action to prevent themselves from being subject to said violence!

      1. You want to shoot some protesters, in the hopes of ending the protests.
        You are not hiding it well.

        That's pretty screwed up.

        1. You want to shoot some protesters, in the hopes of ending the protests.
          You are not hiding it well.

          You're a lying piece of shit...and you've never even tried to hide it.

        2. I don't particularly want to shoot protesters. I don't particularly want anyone to be shot. I'm especially happy that not only did this encounter result in no one protester getting shot, but it also resulted in no arson, no looting, and no injury to innocent people (protester or homeowner).

          Because I also don't want protesters rioting, looting, harming, and killing innocent people -- as has happened in cities across the country.

          1. Oh, and I forgot: I'm perfectly fine with all these protests. Protest all you want. But let's not pretend that these protests are "mostly peaceful", because (1) a "peaceful protest" can turn violent pretty darn fast, and (2) a lot of these "peaceful protests" have turned violent pretty darn fast.

            1. "a 'peaceful protest' can turn violent pretty darn fast"

              Particularly if some outside party shows up and actively threatens violence against the "peaceful protest" or the members thereof. That's usually the fastest way to bring about such a change.

      2. " I have no idea why so many people here are willing to let innocent people succumb to the violence of an angry mob"

        First show evidence of a threat coming from a violent, angry mob, THEN you can make this claim.

        1. First, the breaking down of the gate seems to be a pretty good evidence that the people there aren't there for happy reasons.

          Second, the protesters shouting angry slogans is a pretty good bit of evidence that the mob might just be angry, if not outright violent.

          Third, the couple claimed to have seen weapons; at least one of these weapons turned out to be a microphone -- something called a "shotgun boom" -- something that a reasonable person could justifiably mistake for a real weapon.

          Fourth, there have been lots of "peaceful protesters" that have become an angry mobs, both across the country and in St. Louis itself.

          If all this doesn't add up to a reasonable belief that this is an angry, violent, mob, then I don't know what will. (Keep in mind that it doesn't matter whether the mob really was violent or not -- all that matters is that any reasonable person, seeing those people march through what was supposed to be a locked gate, would have reached the same conclusion, namely, that the mob wasn't there for peaceful purposes.)

          1. "If all this doesn’t add up to a reasonable belief that this is an angry, violent, mob, then I don’t know what will."

            Then you don't know what will, even if I believed all of your interpretations of events, which I do not.

  26. I live close to and am familiar with this neighborhood. FWIW: it is *not* a gated community in the sense that planned developments with gatehouses and barriers are. It's a couple of privately owned streets with "no trespassing" signs, which is a very common arrangement in St. Louis.

    The main road into these streets has no gate. (Check Google Street View for 5199 Lindell Blvd. to see it.) Some of the side entrances have vehicular gates that are almost always locked, but are open to pedestrians. (Check 352 Kingshighway Blvd.)

    1. If the protesters had only gone through the public gate, and stayed on the roads, I think the couple would have been on somewhat more shaky ground about their fear of the marchers. That they were streaming through one of the gates that was supposed to be locked strengthens their claim that they feared for their lives.

      1. " That they were streaming through one of the gates that was supposed to be locked strengthens their claim that they feared for their lives."

        Because people who'll go through gates are probably violent?

  27. When I saw the news coverage of this event, I remember wondering if any of the protesters happened to be armed. Presumably, if they'd reacted to having guns pointed at them by opening fire, they'd have been able to hide behind "self-defense" as justification for murdering these aggressive people.

    1. Not while they were with people who were trespassing on the couple's lawn, and not while they were chanting threats.

      1. How do you figure?

        1. This is fundamental self defense law. You can't threaten and scare people and make them otherwise fear for their life, and then shoot them when they respond to that fear, and claim self defense.

          It was the protesters that were generating the conditions that put the couple in fear of their lives. If the crowd did, indeed, shoot at them, the couple's fear would have been completely and utterly confirmed.

          1. "It was the protesters that were generating the conditions that put the couple in fear of their lives."

            True enough, but walking down a street while being black isn't a threat that self-defense law accepts as reasonable.

            If you start a confrontation by threatening people with your weapon, and they respond by shooting you, THEY get the self-defense defense.

  28. I've never been to St L, but I did learn about its private streets decades ago, in the pages of this magazine.