Louisiana law permissive on deadly force
Author(s): PENNY BROWN ROBERTS Date: February 26, 2006 Section: News
The bystander who killed a businessman embroiled in a brawl with a Baton Rouge police officer may be aided by one of the nation’s most permissive justifiable homicide laws, legal scholars and others say. Louisiana allows the use of deadly force in self-defense or defense of others to “prevent a violent or forcible felony involving danger to life or great bodily harm,” People also can shoot intruders inside a home, business or car even if there is no such threat – and need not make any effort to retreat.
That’s different from most states, which sanction physical force to prevent imminent physical danger and deadly force only when there is reasonable fear of “serious physical injury or death” – and the person in danger is otherwise unable to first safely retreat.
South Carolina, for example, limits bystanders to using deadly force only in instances where the victim “is in imminent danger of being murdered by the assailant, if the assault is malicious and unprovoked and with a deadly weapon” – and then only if there is “no other reasonable means of escape” and the victim and bystander are “without legal fault in bringing on the difficulty.”
“Louisiana has the broadest self-defense law in the country,” said Stuart Green, an LSD law professor who specializes in criminal law. “The questions raised in this case are, ‘Was the police officer in imminent danger of losing his life or suffering great bodily harm?’ and ‘Was the killing necessary to save him?’ But even if it wasn’t, the issue in this state is whether his purpose was preventing a violent forcible felony involving danger to life or great bodily harm. And I think you can make a good argument for that.”
Perry Stephens, 56, shot 24-year-old George Temple IT four times in the chest cavity and once in the head after seeing him in a struggle over a traffic violation with Officer Brian Harrison, 32, on Feb. 17 outside an Auto Zone on Greenwell Springs Road.
Investigators have said Stephens – who was wearing a neck brace and using a cane – retrieved a gun from his car after hearing Harrison yell for help. After hearing shots, he asked Temple to get off Harrison and shot him four times when Temple did not comply. Stephens again unsuccessfully ordered Temple to retreat, then fired a fatal shot into his head, investigators said.
The East Baton Rouge Parish Sheriffs Office continues to investigate the matter; the District Attorney’s Office ultimately will decide whether to pursue charges.
The National Association for the Advancement of Colored People publicly has called for an independent investigation by the U.S. Justice Department, but has not made a formal request.
Louisiana law allows people to step in and use deadly force to defend someone else as long as the victim would have been legally justified in doing so. Still, authorities say such cases are rare.
Observers are divided on whether Stephens legally was justified in shooting Temple to protect Harrison, saying there are a number of issues prosecutors or a grand jury may explore before deciding whether to press charges.
Pete Adams, executive director of the Louisiana District Attorneys Association, said the case likely will come down to whether the police officer truly was in danger of great bodily harm or death.
Temple was not armed with his own gun, but family and friends have described him as an athlete who enjoyed boxing. Investigators have not said whether there was a struggle for Harrison’s gun, although the officer – who suffered facial contusions and possibly a broken jaw -did shoot the businessman once in the abdomen during the struggle.
“My understanding is this case is going to turn on the facts, and if the facts demonstrate that the circumstances were such that the bystander had a reasonable belief the officer was in danger of great bodily harm or possibly even death, he was entitled to use deadly force against the perpetrator,” Adams said. “Not knowing what happened, it’s hard to make a judgment. That’s why we have the district attorney and the grand jury investigate.”
Baton Rouge defense attorney Jim Boren said that if Temple had brandished a weapon, “it would make the investigation a lot clearer.”
Louisiana case law, Boren notes, does recognize both the hands and even the ground as a dangerous weapon that can commit great bodily harm. But based on media reports, the lawyer contends there still may be a question as to whether five gunshots were necessary to guarantee the safety of the officer,
“The issue here is whether the police officer would have had the right to use that kind of force to protect himself,” Boren said. “One of the issues to look at is, ‘Was it necessary to kill him after he was shot and obviously going to be disabled after too long?1 The way we look at it when a client is charged with shooting someone is, ‘Could they have run, retreated or used less-dangerous force?1 The reasonable man standard applies here – whether the good Samaritan believes that four shots might have saved the police officer rather than five.”
LSU’s Green agreed, but added that if Stephens ordered Temple to stop before shooting him, Stephens’ legal defense might be that the shooting “really was necessary or he would have continued
pummeling the officer.”
Col. Greg Phares – chief criminal deputy for the East Baton Rouge Parish Sheriffs Office – would not comment on the incident, but did say such investigations typically center on determining whether “the facts fit within the legal parameters of justifiable homicide.”
“The difficult thing about these cases is that typically the person committing the act is a law-abiding citizen or law-enforcement officer – a good person who is put into desperate circumstances they had to react to,” he said. “That’s why it’s so important that we do a thorough and professional investigation.”
Phares said he thinks Louisiana’s defense-of-others law “is good on this point because it pretty well tracks what most people think is the moral right.”
It’s that law that convinces Stephens’ own attorney, Thomas Damico, that the shooting ultimately will be deemed legal.
“As I understand the law, if the person reasonably believes that it is apparent his actions are necessary for the defense of another who is subject to death, he is completely justified,” Damico said. “I don’t think there’s any doubt in this one. It was a graduated response coming to the aid of someone Mr. Stephens felt was in grave -possibly life-threatening – danger.”
Except where drugs are involved, Louisiana law legalizes killing in four circumstances:
To prevent loss of life or great bodily harm.
To prevent a violent or forcible felony involving danger to life or great bodily harm, if there is reasonable fear that trying to prevent the felony without killing the perpetrator would be too dangerous.
To prevent unlawful force against a person in a home, business or vehicle.
To stop someone who has unlawfully entered a home, business or vehicle if one reasonably believes the use of deadly force is necessary to prevent the entry or compel the intruder to leave.
Copyright (c) 2006 Capital City Press. Baton Rouge, La.