LEDFORD & ASSOCIATES

MICHIGAN LAW IN THE NEWS

The difference between "deadly force" and "non-deadly force."

On August 20, 2019, the Michigan Court of Appeals handed down a favorable decision supporting a woman's right to use her legally owned and possessed pistol where she "reasonably and honestly" believed that there was imminent danger of the unlawful use of force against herself or others. The case is "People v Siwatu-Salama Ra" (CoA Case No. 343202). Ms. Ra, believing that she, her child and her mother were in imminent danger, pulled her (unloaded) pistol and pointed it at another person who had already struck Ms. Ra's parked vehicle (inside of which was Ms. Ra's 2 year old child), and who had attempted to use the vehicle, after ramming Ms. Ra's parked car, to hit Ms. Ra's mother.

There are a number of conclusions that can be drawn from this case, all of which are favorable in a non-deadly self-defense scenario. First, and perhaps foremost, the Court reiterated that pointing a gun at someone, without intent to actually shoot the person, is the use of "non-deadly" force. The Court quoted the following from a legal treatise, 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.” Discussing the Self-Defense Act addressing non-deadly use of force in self-defense (MCL 780.972(2)) with the facts presented in the case, the Court stated, "because defendant used only nondeadly force by brandishing her weapon, she was justified in using that force if she honestly and reasonably believed that she had to use force to protect herself or others from the imminent unlawful use of force by another. The evidence presented in this case supports the conclusion that it was reasonable for defendant to believe that she had to use force to protect herself or others from Harvey’s imminent unlawful use of force, even if it was not reasonable to believe that she was in danger of being killed or seriously injured." (People v. Ra, at *5).

A second important point that can be taken from this decision is that the Court once again reiterated the meanings and difference between "deadly force" and "non-deadly force." Citing prior Michigan Supreme Court holdings, the Court stated that "Our Supreme Court, however, has applied the term “deadly force” as defined as force used in a circumstance in which the natural, probable, and foreseeable consequence of the act is death." The Court then recited from the model criminal jury instructions the differences:

"The use of deadly force in self-defense requires that the defendant honestly and reasonably believe that she or another is in danger of being killed or seriously injured, M Crim JI 7.15(3), while the use of nondeadly force in self defense requires that the defendant honestly and reasonably believe that the use of force is necessary to protect herself or others from the imminent unlawful use of force by another. M Crim JI 7.22(4)."

This distinction is important for the non-lawyer to understand: it is much simpler to convince a jury of the justification for the use of non-deadly force (the defendant's reasonable and honest belief of an imminent threat of unlawful force being used against them or others) than for the use of deadly force. "Unlawful force" includes simple assault. Thus, the imminent threat of the use of unlawful force would include the reasonable and honest fear of someone about to assault you or someone else. However, to reiterate the Court's point where a firearm is in play, there CANNOT BE ANY intent of actually firing the gun (pulling the trigger). Intent to fire the gun would convert the conduct over from non-deadly defense to the deadly force much higher defense justification requirement.

Another takeaway from this Case was the Court's willingness to criticize, and very resounding criticism of, the trial judge for instituting his own feelings about whether the defendant's conduct involving a firearm, merely because a firearm was involved, automatically implicated "deadly force." The Court was firm and unanimous in holding that the mere presence and use of a firearm DOES NOT automatically transform the conduct into a use of deadly force. The Court said, "the trial court’s conclusion that the brandishing of a gun is the equivalent of deadly force is contrary to this Court’s holding in Pace that brandishing a weapon is not the equivalent of the use of deadly force for purposes of self-defense."

Some final thoughts on this case: The Court has clearly taken a stance that pointing a gun at someone if there is no intent to use it falls within the "use of non-deadly force" and that under the right circumstances, that conduct can be justified as self-defense or defense of others. However, given long-standing prosecutorial practices, the person who does this may well be charged with 2 felonies: felonious assault (where the gun was pointed at someone even without the requisite intent to fire the weapon) and "felony firearm" (using a firearm in the commission of a felony). The "felony firearm" charge comes with a MANDATORY 2 year prison sentence in Michigan if convicted. However, the Court in this case always referred to the defendant's conduct as "brandishing" not "felony assault" such as how she was charged. This *may* hint that the Court, under the right circumstances, may not be favorably inclined to allow stand a felony assault and felony firearm conviction in a brandishing case, especially where there are facts strongly supporting a self-defense or defense of others affirmative defense justification.

Finally, for the legal practitioner, do NOT be afraid to push the prosecution and trial judge on the issue of a jury instruction supporting the use of non-deadly force in the right scenario. Convincing a jury that your client was justified in using non-deadly force is a much lower hurdle to get across than convincing a jury that the use of deadly force was justified. While that may well seem obvious and pointless a point to make, when in the face of a scoffing prosecutor and a former prosecutor-turned-judge trial judge, the pressure is intense to treat these sorts of cases as deadly force cases. That does appear, perhaps, to have also occurred in this case, and I have personally had to fight tooth-and-nail in certain of my defense cases for the non-deadly force instruction against both a prosecutor and a judge who were absolutely adamant that because a gun was involved the force used was therefore "deadly force." If you cannot get the instruction you want, ABSOLUTELY make sure your objection is on the record.

Stay safe out there!

by: Paul Ledford

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