In Pennsylvania, when can a law-abiding gun owner (LAGO) use defensive force in protection of a third party?
U.S. Law Shield of Pennsylvania Independent Program Attorney Justin McShane addresses this very important topic.
According to McShane:
Defensive force may well be considered by the law to be deadly force, which can be used in Pennsylvania to protect yourself or others from death, serious bodily injury, sexual assault, or kidnapping. Unlike many other jurisdictions where a special relationship must exist between yourself and the party you seek to protect, Pennsylvania requires no special relationship, and simply uses a three-part test to determine when someone is justified in in using defensive force to protect a third party. Justified use of defensive force in order to protect a third party in Pennsylvania is allowed when the following three criteria are met: 1) if you were in the same position as the party you seek to protect, you would have the legal right to use the force you are going to use, 2) the third party you seek to protect would be legally justified in using such force to protect himself 3) you must believe your intervention is necessary to protect the third party. All three criteria must be met to be afforded justification as a defense.
It can be hard to imagine a situation where the first criterion is met but the second criterion is not. One scenario where this could happen is in a situation where the third party who you seek to protect is physically much more capable then yourself, and in the situation they are involved in perfectly able of escaping with complete safety. To test this let’s imagine an elderly man attempting to beat up an active NFL football player with his fists. An elderly woman observes the fight and wonders if she should step in. Due to the superior strength of the NFL football player, he would not be justified in using deadly force against the elderly man, therefore the second criterion would not be met and deadly force would not be justified if used by a third party, in this case, the elderly woman. If an elderly woman was the one being attacked by the elderly man, she would be justified in using deadly force in her situation, so the third party, also an elderly woman, would also be justified because both the first and second criteria would be satisfied.
To further complicate the situation, all the criteria do not have to actually be met, you simply must have the reasonable belief that they are all met. This reasonable belief standard is measured objectively not subjectively. To determine whether this reasonable belief exists we ask whether a reasonable person in the same or similar circumstances would form the same belief about the situation that you formed. If a reasonable outsider given the same information would reach the same conclusion than the objective reasonable belief standard is met. This reasonable belief will often be inferred from the totality of the circumstances; in other words, by putting all the facts available to you at the time together in order to make a determination of reasonableness. In order to imagine this let’s look at a scenario where you come upon someone being beaten up in the street, and decide to use deadly force to protect the person being attacked. Unbeknownst to you, the person being attacked was actually the initial aggressor and had attempted to mug the person hitting them. While the attempted mugger would not be justified in using defensive force to protect himself (as he was the aggressor in the first place), as long as from the facts as you reasonably perceive them it appears to you that he was the victim and could have used defensive force, you will still be afforded the same protections. This is an affirmative defense, which means you have the burden of raising it and proving it at trial. It can easily be overcome by statements you make to officers, or others, and is another important reason to lawyer up and shut up!
Lastly there are some notes and exceptions. Deadly or defensive force of a third party is never allowed against an officer of the law, even if it appears the officer is affecting an unlawful arrest. It is also important to note that there is no duty to assist a third party in Pennsylvania, even if you believe all three criteria are met. It is simply a personal choice of whether to help a third party, and there is neither criminal nor civil liability in the event that someone chooses not to help a third party. While other states do not even afford the ability to assist a third party you are not otherwise related to, Pennsylvania makes it a choice, but it no way requires it. Many considerations come into play before choosing to assist a third party in distress, but we are lucky to live in a State that recognizes that everyone is safer when law abiding gun owners, who may be the only ones in a position to help a distressed third party, are afforded legal protection if they choose to come to a stranger’s aid.
Contact us with other burning issues and we will try to get to as many as we can in the coming weeks.