Posted by Eugene Volokh:
Well, It's a *Form* of Surgery:
http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253049435
"Johns Hopkins Med Student Kills Thief With Samurai Sword," reports
[1]NBC Washington:
[T]he student said that he heard a commotion in the house and went
downstairs with the samurai sword. The student said he told the man
to leave, but the suspected burglar lunged at him instead. That's
when, according to [a police spokesman's account of the student's
statement], the student defended himself, cutting off the man's
hand and causing a severe laceration to the man's upper body.
A student asked me whether the student would be criminally or civilly
liable. My quick look suggests that in Maryland, one may only use
deadly force -- even in one�s home --� if one reasonably believes that
one is in imminent danger of death or serious bodily injury. (That's
the rule for both the criminal law self-defense defense and the tort
law defense.) If the student is accurately reporting that the burglar
lunged at him, while the student was holding a sword, that might be
enough to reasonably fear imminent danger of serious bodily injury. If
someone attacked me when I was visibly armed with a deadly weapon, I
think I could reasonably believe that he must be very dangerous
himself. To be sure, I wouldn't know it with complete certainty, but
the law only requires reasonably belief.
On the other hand, if the prosecutor concludes that the student didn�t
reasonably fear death or serious bodily injury, but feared only slight
injury or loss of property, then the prosecutor might well charge the
student with murder or manslaughter, and if a jury agrees then it
might convict. (The crime might be manslaughter, even if the student
didn't reasonably fear death or serious bodily injury, either if the
student was so angered by the lunge that he acted under provocation of
the sort that might lead a reasonable person to kill, or if the
student sincerely but unreasonably believed that he was in danger of
death or serious bodily injury.)
In some states, special statutes provide that one may categorically
use deadly force against unlawful intruders, without having the
prosecutor and jury decide whether one actually feared serious bodily
injury. But I believe Maryland is not one of those states.
References
1.
http://www.nbcwashington.com/news/local-beat/Hopkins-Student-Stops-Kills-Thief-With-Samurai-Sword-59329902.html
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