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If someone who is not associated with the police or military is certain that an aircraft is being used as a weapon for a violent crime (maybe someone is flying a small plane directly toward an occupied house), and that person legally possesses a weapon that is capable of shooting down the aircraft, is it legal to do so?

ETA: The pilot/attacker is the only person in the plane.

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  • 1
    While there is statutory law on point, I do not believe that this issue has ever come up in a U.S. case.
    – ohwilleke
    Jul 9, 2023 at 19:20
  • Does this question assume there are people in the aircraft?
    – jqning
    Jul 10, 2023 at 13:43
  • @jqning only the pilot/attacker.
    – Someone
    Jul 10, 2023 at 13:46
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    …flying a small plane directly toward an occupied house.” You would need more justification than this for a self defense claim. Got a better example? Jul 10, 2023 at 14:55
  • Maybe the pilot had threatened the person before? A pilot saying "If you don't XYZ I'll crash my plane into your house" and then flying a plane directly toward your house would probably be enough?
    – Someone
    Jul 10, 2023 at 15:11

3 Answers 3

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The defences of "self-defence" and "defence of another" are available defences to any act that would otherwise constitute "an offence" in Canada. Section 34 simply says: "A person is not guilty of an offence if... [and then goes on to list the elements of the defence]."

Your question seems to ask about the scope of actions that might be justified or excused by the defence.

If it wasn't clear before 2012, amendments in 2012 to the self-defence laws in Canada made it absolutely clear that any offence may be justified or excused by self-defence or defence of another. As the Supreme Court describes in R. v. Khill, 2021 SCC 37:

The accused’s response under the new law is also no longer limited to a defensive use of force. It can apply to other classes of offences, including acts that tread upon the rights of innocent third parties, such as theft, breaking and entering or dangerous driving.

The substantive elements of self-defence and defence of another are described two other Q&As, so I will only state them briefly: (a) reasonable belief of a threat of force; (b) the act constituting the offence is for the purpose of protection; (c) the act committed is reasonable.

For details see:

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"Shooting down the plane" is unlikely to fall under Notwehr in

In Germany, the fact pattern as described is impossible to achieve and still grant Notwehr. Notwehr is not the same as self defense under common law, but that is the best translation. In contrast to the wide latitude given in for example US law, it is incredibly tightly defined in Germany.

In Notwehr, one may under no condition risk the harm or death of any person besides the pilot, even if they find a way to somehow kill the pilot in self-defense, and you only may use proportional force to the threat. That excessive risk by the wreck of the airplane or killing the passengers can all be treated as separate charges of reckless endangerment or murder (as death was taken willingly into account). In Germany, self-defense does not allow Bob to harm or kill those others, and threatening them with his illegal backyard stinger, in turn, allows anybody to defend the passengers by shooting Bob first.

This hinges on a particularity of the law: You only are allowed to use the least forceful means that are effective to stop the crime, and shooting the pilot or plane is most likely not an effective means to stop the plane from crashing into the building (as proffered by OP) in the first place. Or to stop any other crime that could be conducted with a plane. Also, you are only allowed to use lethal force after having given a warning of some sort - which is clearly lacking in this case. As a result, it might be an extreme case of Notwehrexcess (excessive self-defense) to shoot down the plane, especially without warning. Shooting down a plane simply lacks Gebotenheit under German law, which is a crucial part of an analysis of Notwehr.

Note that while Gebotenheit can be translated with necessity, that is not a good translation at all, even a worse one than to translate Notwehr as self-defense: Gebotenheit does not just cover the need for a specific action, that it is proportional to the danger and that it is is able to have success. Shooting a person armed with a rubber chicken is not geboten as it is neither required nor proportional, and shooting a plane down is unlikely to be geboten as it is unlikely to have the intended success while endangering others.

To stay with the example of OP: No means of shooting a plane "down" will stop a plane from crashing into a building once it becomes apparent that the pilot can no longer avoid crashing into the building, and likely doing so is a case of Extensiver Notwehrexzess (extensive excessive self-defense).

Shooting the plane "down" before it is clear that the plane will crash into the building is an unlawful killing and clearly Extensiver Notwehrexcess, possibly even Mord of the pilot. This is because a pilot might avert a plane to not crash into the occupied building until about two seconds before the catastrophe - and so there was no situation that required Notwehr at all, and you had no right to apply it in the first place.

Shooting the plane after that point, where the crash has become inevitable and Notwehr would start, doing so does not stop the debris to follow Newton's Laws and crash into the building, and thus shooting the plane "down" is clearly not an effective means to stop the death of people in the building. The act isn't covered by Gebotenheit. However, that might only be Intensiver Notwehrexcess, and the shooting of the plane thus might not be punished.

However, that would not excuse any other violations of law that needed to happen to shoot the plane in this way, such as illegal possession of a firearm that is able to destroy the fuselage (most of which are illegal to possess under the Kriegswaffenkontrollgesetz (War Weapons Control Act) in the first place)

But even the military is not allowed to shoot down a plane:

The first organization that for a short time was deemed able to decide to shoot down a plane in Germany was the Einsatzführungskommando der Bundeswehr according to the 2005 of § 14 (3) LuftSiG. But that was declared void in 2006, which led to a new version in 2009, which was then deemed valid in 2013 under BVerfGE v. 20.3.2013 I 1118 - 2 BvF 1/05. This current version of §14 (1) LuftSiG does not permit to actually shooting down a plane at all:

(1) Zur Verhinderung des Eintritts eines besonders schweren Unglücksfalles dürfen die Streitkräfte im Luftraum Luftfahrzeuge abdrängen, zur Landung zwingen, den Einsatz von Waffengewalt androhen oder Warnschüsse abgeben.

In English: To prevent an aircraft disaster, the armed forces may force an aircraft out of German territorial airspace, force it to land, threaten the use weapons or give warning shots.

Note that this law does only handle civilian aircraft, not military enemy incursions in case of war - those are handled as enemy combatants and are fair game to shoot down for the armed forces.

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  • The person would certainly be guilty of the possession of a backyard SAM launcher, and neither they nor the military has statutory authority to shoot down the plane, but does that prevent them from using defence of others as a defence to the actual act?
    – Sneftel
    Jul 10, 2023 at 10:46
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    You should clarify that your answer is relying quite heavily on the assumption that there are innocents around somewhere. Otherwise, I don't see any obstacle to a self-defence claim.
    – Arno
    Jul 10, 2023 at 12:07
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    @jqning manned aircraft. Shooting down a drone with a grenade would not even trigger self defense as you did not shoot at a person in the first place, unless you shot the person with the remote.
    – Trish
    Jul 10, 2023 at 13:44
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    @Trish the question is, “is it legal to do so?” It doesn’t ask if an affirmative defense of self-defense is available. Now, if the question included facts such as a pilot got injured or died, that provides color. But as the question is asked, legal issues such as destruction of property are implicated and should be addressed irrespective of injury or death.
    – jqning
    Jul 10, 2023 at 13:52
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    There seems to be some cultural difference discussed here in the comments. Trish is trying to point out that "Notwehr" is an extremely narrowly defined concept under German law, whereas the commenters basically assert that it stands to reason you are allowed to shoot at things that look threatening. Not really, not in Germany. That you are unhappy with the state of German law should not stop you from appreciating a well formulated answer. Jul 11, 2023 at 8:00
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Yes, but the factual pattern is unlikely to ever happen.

Self-defense

Article 122-5 du Code Pénal:

N'est pas pénalement responsable la personne qui, devant une atteinte injustifiée envers elle-même ou autrui, accomplit, dans le même temps, un acte commandé par la nécessité de la légitime défense d'elle-même ou d'autrui, sauf s'il y a disproportion entre les moyens de défense employés et la gravité de l'atteinte.

N'est pas pénalement responsable la personne qui, pour interrompre l'exécution d'un crime ou d'un délit contre un bien, accomplit un acte de défense, autre qu'un homicide volontaire, lorsque cet acte est strictement nécessaire au but poursuivi dès lors que les moyens employés sont proportionnés à la gravité de l'infraction.

A person has no criminal liability when he or she is faced by an unjustified attack against himself or herself or another, accomplishes at the same time an act out of the need of legitimate defense or himself, herself or another, unless there is a disproportion between the means of defense and the severity of the attack.

A person has no criminal liability when he or she accomplishes an act of defense other than voluntary homicide, in order to interrupt a crime or felony against goods, when the act is strictly necessary to the aim of defense and when the means of the act are proportionate to the gravity of the attack.

It’s a bit complicated but it all checks out:

  • unjustified attack: check, assuming the prospective defender knows that the plane pilot intends to crash it into their house
  • towards persons: check (if the house is occupied)
  • action taken "in the heat of the moment": check (you don’t shoot the plane pilot after the plane has crashed)
  • necessary act: check? (see below)
  • proportionate: check (there is no way to stop the plane other than shooting it down)

The factual pattern is dubious

In the above, the person shooting down the plane

  • has the knowledge that the plane is coming for an unjustified attack (how do you know the plane will aim at the house? that it is voluntary and not a distress landing?)
  • has enough time to do something weapon-y about it (shooting down planes is, you know, hard)...
  • ...but not enough time to evacuate the house of its occupants (or ask the police or army to shoot down the plane, or any other means)
  • has the necessary material at hand to shoot down the plane. That is almost certainly a violation of some arm control provision. Contrary to popular belief, you can legally have weapons in France and the permit is decently easy to get; but you don’t shoot down a plane with a hunting rifle.
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  • There might be problems with proportionality, as shooting down the plane actually does not make the danger for the people go away - the plane does not stop to blow up, its debris will hit the house anyway.
    – Trish
    Jul 12, 2023 at 15:59

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