I am happy to see that the laws of the Great State of Montana are not as liberal as some may attempt us to believe. I don't think this would justify "shooting a 17 year old in the back that has just stole your car stereo," but it does provide for using deadly force in the protection of PROPERTY. To shoot, or not shoot is the decision of the owner and must be weighed by the circumstances.
Nonya. If your comment, "You sound like you just cant wait to "bust a cap in someones ass",ill bet you never do." was addressed at me, let me say. I pray that I never have to use a firearm in self defense. Over the years I have used one on several occasions to defuse a bad situation, luckily, I never had to pop a cap as a civilian.
LEGAL PARAMETERS OF LETHAL FORCE
There are several factors that will control, in the final event, in just what circumstances a person may justifiably use lethal force. The primary ingredients are what the Montana Constitution says, what Montana statutory law (the laws passed by the Legislature) says, what Montana case law (rulings by courts) says, what the local prosecutor will prosecute, and what circumstances will cause a jury to vote to convict a person accused of having illegally used lethal force.
First, the Montana Constitution. Article II of the Montana Constitution is called the "Declaration of Rights". This article is comparable to the "Bill of Rights" in the U.S. Constitution. Section 12 of Article II contains Montana's right to keep and bear arms. Section 12 says:
"Section 12. Right to bear arms. The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called into question, but nothing herein contained shall be held to permit the carrying of concealed weapons."
Concerning concealed weapons, this constitutional provision does not, in itself, either grant or prohibit carrying concealed weapons. It does declare that carrying concealed weapons is not within the constitutional reservation of the right to keep and bear arms, in Montana.
Thus, to keep and bear arms in defense of self, person or property is a RIGHT in Montana. Just what is a right? Black's Law Dictionary, 5th Edition, offers one definition of "Right" as: "Rights are defined generally as 'powers of free action.' And the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law." Also in this context, "A power, privilege, or immunity guaranteed under a constitution, statutes or decisional laws, or claimed as a result of long usage."
Certainly, the right to defend oneself is thought by most legal scholars to a "God-given", inalienable, or "natural" right. Black's defines "Natural rights" as: "Those which grow out of nature of man and depend upon his personality and are distinguished from those which are created by positive laws enacted by a duly constituted government to create an orderly civilized society." Thus, natural rights are those rights that exist prior to the reservations of rights in constitutions.
Natural rights are recognized in Montana law. The Montana Codes Annotated (MCA; a collection those laws passed by the Legislature), at 1-2-104, says: "Preference for construction favoring natural right. When a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted."
Before turning to the laws of Montana, it would be useful to look at the term "defense", which is used in the Montana Constitution. It is worth citing Black's entire definition of "Self-defense":
"The protection of one's person or property against some injury attempted by another. The right of such protection. An excuse for the use of force in resisting an attack on the person, and especially for killing an assailant. The right of a man to repel force by force even to the taking of life in defense of his person, property or habitation, or of a member of his family, against one who manifests, intends, attempts, or endeavors by violence or surprise, to commit a forcible felony. Essential elements of 'self-defense' are that a defendant does not provoke difficulty and that there must be impending peril without convenient or reasonable mode of escape. The law of 'self-defense' justifies an act done in the reasonable belief of immediate danger, and, if an injury was done by the defendant in justifiable self-defense, he can never be punished criminally nor held responsible for damages in a civil action. Baltimore Transit Co. v. Faulkner, 179 Md. 598, 20 A.2d 485, 487.
"A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force. One who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonable believes: (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger. It may be reasonable to use nondeadly force against the adversary's nondeadly attack (i.e., one threatening only bodily harm), and to use deadly force against his deadly attack (an attack threatening death or serious bodily harm), but it is never reasonable to use deadly force against his nondeadly attack."
Blacks Law Dictionary is NOT THE LAW in Montana, but it does contain authoritative definitions to help us understand terms and concepts used in the law.
What do the Montana laws say about use of lethal force? Most of the Montana law concerning allowable use of lethal force is found in Title 45 of MCA. The effective laws are found at 45-3-101, 102, 103, 104, and 105, and are recited here in full:
"45-3-101. Definitions. (1) 'Forcible felony' means any felony which involves the use or threat of physical force or violence against any individual.
(2) 'Force likely to cause death or serious bodily harm' within the meaning of this chapter indicates but is not limited to:
(a) the firing of a firearm in the direction of a person, even though no purpose exists to kill or inflict serious bodily harm; and
(b) the firing of a firearm at a vehicle in which a person is riding."
"45-3-102. Use of deadly force in defense of person. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another or to prevent the commission of a forcible felony."
"45-3-103. Use of force in defense of an occupied structure. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon an occupied structure. However, he is justified in the use of force likely to cause death or serious bodily harm only if:
(1) the entry is made or attempted in violent, riotous, or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon or offer of personal violence to him or another then in the occupied structure; or
(2) he reasonably believes that such force is necessary to prevent the commission of a forcible felony in the occupied structure."
"45-3-104. Use of force in defense of other property. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with either real property (other than an occupied structure) or personal property lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent the commission of a forcible felony."
"45-3-105. Use of force by an aggressor. The justification described in 45-3-102 through 45-3-104 is not available to a person who:
(1) is attempting to commit, committing, or escaping after the commission of a forcible felony; or
(2) purposely or knowingly provokes the use of force against himself, unless:
(a) such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant; or
(b) in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force."
(Editor's Note: "The classic rule is that the right of self-defense begins when the deadly danger begins, ends when the danger ends, and revives when the danger returns." (Gravest Extreme, P. 15))
Some definitions may be useful here. "Tortious" (torshess) as used in 45-3-104 means: wrongful. "Occupied structure" is defined at 45-2-101(40) as meaning "any building, vehicle, or other place suitable for human occupancy or night lodging of persons or for carrying on business, whether or not a person is actually present." "Real property" is land. "Personal property" is anything of value, from money to possessions, even including secret formulae and private electronic impulses (45-2-101(54)).
Finally, Montana has a body of laws concerning Human Rights, found in Title 49, which contains one relevant section, as follows:
"49-1-103. Right to use force. Any necessary force may be used to protect from wrongful injury the person or property of one's self, of a wife, husband, child, parent, or other relative or member of one's family, or of a ward, servant, master, or guest."
