A question was sent our way recently from someone who lives in an apartment, the lease of which prohibits the discharge of firearms.
Such prohibitions are not uncommon in residential leases, and are also pretty commonly found in town/city ordinances. The reasons for such a prohibition ought to be fairly obvious—nobody wants rounds flying around their living space without good reason.
The question:How does such a prohibition affect the legal privilege to fire a gun in self-defense?
Short answer: not at all.
First, if we’re talking about the legal privilege to fire a gun in self-defense, we need to presume up front that your firing of the shot otherwise meets the conditions of lawful self-defense. If it doesn’t, then your conduct wasn’t self-defense at all, the shot was unlawful, and that would move the discussion beyond the scope of this post.
Second, “not violating a lease/HOA/ordinance” is not an element of a claim of self-defense, so simply as a matter of first principles such a prohibition cannot constrain your rights to otherwise lawfully fire a gun in self-defense.
It’s worth keeping in mind that generally speaking shooting at someone at all is already illegal on numerous levels—and with legal consequences far more severe than merely violating a lease/HOA/ordinance—but that the legal defense of self-defense justifies such otherwise illegal conduct. If the legal defense of self-defense can justify you killing another human being, it can certainly justify you violating a condition of a lease.
(The “necessity defense,” also known by the name of “choice of lesser evils defense,” may also be relevant here, although we must always be cautious in applying this defense to self-defense situations. In general, if we’re talking about the threat or use of force against another person, the necessity defense is not the appropriate defense–self-defense is the appropriate defense. If we’re talking about the use of force against an object, for good reason–say, smashing a car window to save an infant trapped in a locked car on a hot day–then the necessity defense would be the appropriate defense.)
Third, even if the legal defense of self-defense did not justify you violating a condition of a lease, it’s worth keeping in mind that a lease violation is merely a civil violation, and not something that carries criminal sanction. The same is true for violation of an HOA provision. Violating a town ordinance may carry some criminal liability, but it will invariably be a modest misdemeanor.
Balance that modest civil/misdemeanor legal jeopardy against the jeopardy against which you fired that shot—presumably against a threat of death or grave bodily injury towards yourself or someone you have a duty to protect—and the proper solution to the problem ought to be self-evidence.
Shorter: If all the legal conditions for the use of deadly defensive force have been met, and the use of that force is actually necessary to secure the safety of yourself or those you have a duty to protect, a lease/HOA/ordinance prohibition on discharge of a firearm ought to be the least of your concerns.
Like many things in life, discharging a firearm in violation of a lease/HOA/ordinance falls into that bucket of actions generally described by the following principle: Definitely do not do that … unless you have a very, very good reason. Stopping a deadly force threat against innocents would certainly qualify as such a reason.
Attorney Andrew F. Branca Law of Self Defense LLC
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