Editor’s Note: I’m not an attorney and don’t pretend to be one. All of what is said is based on my unlearned reading of New York State law. Take what is written with a grain of salt. In other words, this is NOT legal advice so don’t treat it as such. If you have legal questions contact an attorney!
Deadly Force to Save Your Dog?
A teenage hooligan grabs your miniature poodle from your lawn, runs to the end of your street, and begins to savagely kick it. As an armed citizen in pursuit of the scumbag, can you use deadly force to stop this street punk from killing your pup?
No! Your dog is a piece of property. The law doesn’t allow one to use deadly force to protect property. No piece of property is worth a human life, as we often hear. You can use “reasonable” physical force against the teen to get him to stop torturing your poodle — shove him, kick him, maybe even strike him in the head — but if you draw your gun and shoot, you’re going to lose in court. Especially if the miscreant is unarmed and smaller and weaker than you are.
You can easily imagine how a savvy prosecutor would frame the case. Tony, the troubled teen, had a difficult home life. He was abused by his uncle. He was acting out for “attention.” And though his actions are inexcusable, Tony is a 15-year-old minor who weighs 110 pounds soaking wet with rocks in his pockets. Tony was unarmed. He never presented a threat of serious bodily injury or death to you (a grown man). Your use of deadly force was, literally, overkill. You murdered young Tony before he had a chance to turn his life around.
You’ll argue all day long that Tony viciously killed your dog but it won’t matter. Property is property. No property is worth a human life. Right? Or, is there an instance where you can use deadly force to protect property?
Deadly Force To Stop Arson?
Let’s check out another scenario. Klansmen with torches in hand are marching toward a historic black church that sits directly across the street from your home. When they gather there, they start chanting or doing whatever it is KKK members do when they congregate (bugger one another?).
Concerned for your safety and the safety of your family, you grab your AR-15 and several 30-round mags… Wait! Since this is New York we’re talking about, you grab your registered black rifle and several 10-round mags. Given that there are about a dozen of them, you want to make sure that if you have to engage them you have enough to get you through the fight. Damn those “low capacity” mags! Anyways, you instruct your wife to call 911. Now, you’re not going to leave your home. But at the same time, you notice that they’re sparking up Molotov cocktails. Sure enough, they’re getting ready to set the church on fire.
Any reasonable person in your situation would acknowledge what’s happening. Your wife, who is still on the phone with the 911 operator, is narrating the details. She tells the dispatcher that they’re going to light up the church like a Christmas tree. It’s nighttime. Presumably, the church is empty. Given that it’s just a piece of property, can you use deadly force to prevent those Klansman from burning down that place of worship?
What the Law Says
The answer, at least according to New York State law, is yes, you can. You can use deadly force to stop arson. Read it (emphasis added):
§ 35.20 Justification; use of physical force in defense of premises and in defense of a person in the course of burglary.
1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.
You may use deadly force to prevent arson. Now, if those Klansmen were taking sledgehammers to the church, it might be a different story. Deadly force would most likely be off the table unless you were a parishioner of the church on the premises or you were a law enforcement officer or a security guard charged with protecting it. To understand why those exceptions apply, read section 2 and 3 of the code.
The question is, of course, why is arson different than other kinds of property damage? Why can I use deadly force to stop a Klansman from burning down an unoccupied church and not use it to save man’s best friend?
Because with arson (a) you never truly know if a building is really vacant and (b) at the end of the day you’re not just protecting the property, you’re protecting people who may be residing in nearby dwellings that could also catch fire as well as the first responders who have to combat the conflagration.
What New York law recognizes is that killing arsonists is not just about protecting property, it’s about (potentially) saving lives.
The general rule of thumb is that you can’t kill someone over property. Arson is an exception. But only because setting a fire to a building may put people’s lives in danger. Does that make sense?
Another way to look at it. Name the piece of property that’s worth the life of your child. I’ll wait. Exactly, there isn’t one. That’s what the prosecutor will say to the jury. Don’t find yourself being judged by 12 for killing someone over a TV set or a convertible or even Lassie.