With the rash in larger cities across the U.S. of what are termed ‘smash and grab’ thefts as stores are looted by numerous individuals while the store owner stands by helplessly, many are asking why the merchants cannot defend their property with deadly force.

Missoula Deputy County Attorney Mac Bloom spoke with KGVO News about the issue on Monday, and referred to Montana Code Annotated, specifically referencing 45-3-102, 103 and 104.

“Montana has a ‘use of force in defense of property statute’ that does allow a person to use force against another to the extent that that person reasonably believes necessary to prevent or terminate another person's trespass onto a business,” said Bloom. “So that does allow some level of force but when you're talking about force that might cause death or serious bodily injury such as shooting someone, you can only use that level of force if you believe it's necessary to prevent the commission of a forcible felony.”

Bloom further defines ‘a forcible felony’.

“What forcible felony means is it's a felony which involves the use or threat of physical force or violence against a person,” he said. “So, really what that means is that you can only use deadly force or force likely to cause serious bodily injury. That is, ff you're trying to prevent a person from being seriously injured or killed.”

Bloom, an experienced prosecutor with the Missoula County Attorney’s Office, offered his professional views on preventing possible ‘vigilante justice.

“My opinion is that the reason that the law is made that way is they don't want people to resort to self-help ‘vigilante justice,” he said. “When people do come in and commit a burglary or a theft like that, they really want the authorities to prosecute those offenses and not have people taking violence into their own hands to prosecute these offenses as they're occurring.”

Bloom offered a sobering warning for anyone, even with the best of intentions, who might take the law into their own hands which results in serious injury or death.

“In a situation like that, it's certainly not unheard of for somebody to be prosecuted for maybe an aggravated assault or a homicide if they kill somebody, and it's not deemed that the use of force was justified,” he said. “That's going to be a very ‘fact specific' inquiry. However, folks can be prosecuted if they take the law into their own hands and it's deemed that the force was excessive or not justified. Certainly in a town like Missoula, the police are very responsive and do their best to get out to these situations as they're occurring, and law enforcement in Missoula certainly has a very good response time and does an excellent job prosecuting these types of offenses.”

Bloom’s advice in situations that might occur in Missoula is to let law enforcement do their job to protect life and property.

Below, find the statutes referenced from Montana Code Annotated.

Use Of Force In Defense Of Person

45-3-102. Use of 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 the person reasonably believes that the conduct is necessary for self-defense or the defense of another against the other person's imminent use of unlawful force. However, the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent imminent death or serious bodily harm to the person or another or to prevent the commission of a forcible felony.

Use Of Force In Defense Of Occupied Structure

45-3-103. Use of force in defense of occupied structure. (1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person's unlawful entry into or attack upon an occupied structure.

(2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:

(a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or

(b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.

 

Use Of Force In Defense Of Other Property

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 the person reasonably believes that the conduct is necessary to prevent or terminate the other person's trespass on or other tortious or criminal interference with either real property, other than an occupied structure, or personal property lawfully in the person's possession or in the possession of another who is a member of the person's immediate family or household or of a person whose property the person has a legal duty to protect. However, the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent the commission of a forcible felony.

 

Use Of Force By Aggressor

45-3-105. Use of force by 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 the person, unless:

(a) the force is so great that the person reasonably believes that the person is in imminent danger of death or serious bodily harm and that the person has exhausted every reasonable means to escape the danger other than the use of force that is likely to cause death or serious bodily harm to the assailant; or

(b) in good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that the person desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

 

No Duty To Summon Help Or Flee

45-3-110. No duty to summon help or flee. Except as provided in 45-3-105, a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force. The provisions of this section apply to a person offering evidence of justifiable use of force under 45-3-10245-3-103, or 45-3-104.

 

Definitions

45-3-101. Definitions. (1) "Force likely to cause death or serious bodily harm" within the meaning of this chapter includes 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.

(2) "Forcible felony" means any felony which involves the use or threat of physical force or violence against any individual.

 

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