3.3 Deadly Physical Force & Armed Guard Restrictions

3.3 Deadly Physical Force & Armed Guard Restrictions

Statutory Definition: Under New York Penal Law § 10.00(11), Deadly Physical Force means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.

Deadly physical force represents the ultimate level of force available in law enforcement and security operations. Because its application carries irreversible consequences, New York law imposes stringent statutory boundaries under PL § 35.15(2), precise licensing and training regulations under the Security Guard Act of 1992, and severe criminal penalties for unauthorized use.

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1. Statutory Triggers for Deadly Physical Force (PL § 35.15(2))

Under New York law, a security guard or private citizen is not justified in using deadly physical force simply because non-deadly physical force is justified. Deadly physical force may be used only when specific, narrow statutory triggers are satisfied.

Statutory Triggers under PL § 35.15(2)

Deadly physical force is authorized only when the actor reasonably believes that another person is:

1. Imminent Deadly Force: Using or about to use deadly physical force against the guard or a third person.
2. Violent Felonies: Committing or attempting to commit kidnapping, forcible rape, forcible criminal sexual act, or robbery.
3. Burglary of a Dwelling (PL § 35.20(3)): Committing or attempting to commit burglary of an occupied residential dwelling under circumstances where deadly force is reasonably believed necessary to prevent or terminate the crime.

Critical Note on Serious Physical Injury (PL § 10.00(10)): Serious physical injury means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.

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2. The Duty to Retreat in New York State

New York is not a "Stand Your Ground" state. Under NY Penal Law § 35.15(2)(a), a security guard or private citizen may not use deadly physical force if they know that they can, with complete safety as to themselves and others, avoid the necessity of doing so by retreating.

Key Rules of the Duty to Retreat

• Complete Safety Requirement: The duty to retreat applies only if the guard knows they can retreat with 100% complete safety. If retreating increases the risk of death or serious injury to the guard or third parties, retreat is not required.
• The Castle Doctrine Exception: A person is not required to retreat if they are inside their own dwelling (home) and were not the initial aggressor.
• Application to Commercial Security Guards: Commercial property (office buildings, banks, retail stores, construction sites) is not a dwelling. Security guards working on commercial premises must retreat if they can do so with complete safety before deploying deadly physical force. Standing one's ground on commercial property when safe retreat is available forfeits the justification defense under Article 35.

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3. NYS Armed Security Guard Licensing & Training Regulations

Armed security guards in New York State operate under strict oversight jointly administered by the NYS Department of State (DOS) Division of Licensing Services and the Division of Criminal Justice Services (DCJS) pursuant to the Security Guard Act of 1992.

Step-by-Step Qualification Process for Armed Guards

1. NYS Pistol Permit: The guard must individually possess a valid NYS Pistol Permit issued by their local licensing authority (county sheriff, judge, or NYPD License Division).
2. Employer Authorization: The guard must be employed by a licensed security guard company that authorizes the guard to perform armed functions and registers them with the NYS DOS.
3. 47-Hour Firearms Training Course: Prior to working any armed assignment, the guard must successfully complete the mandatory 47-Hour Firearms Training Course for Security Guards approved by DCJS. This curriculum includes:
   • 7 Hours of classroom instruction on NYS Penal Law Article 35 (Use of Force / Deadly Physical Force), followed by a written examination.
   • 40 Hours of live-fire range instruction, tactical marksmanship, and weapons qualification testing.
4. Annual 8-Hour Firearms In-Service Course: Every armed guard must complete an annual 8-Hour Firearms In-Service Training Course and requalify on the firing range every 12 months to maintain their armed guard registration.

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4. Firearm Discharge Rules & Tactical Prohibitions

Armed security guards are held to extraordinary standards of firearms discipline. Specific tactical actions are strictly forbidden under New York law and professional security standards:

Prohibition on Warning Shots

Warning shots are strictly prohibited. Firing a bullet into the air, ground, or wall is inherently reckless under PL § 120.20 (Reckless Endangerment). Warning shots present severe risks of ricochet, unintended casualties, and misinterpretation by responding police officers. Legally, if a guard has time to fire a warning shot, deadly force was not imminently necessary.

Prohibition on Shooting to Wound or Disable

Armed guards are trained to shoot at center mass (torso) solely to stop the imminent deadly threat. Shooting at arms or legs is ineffective, increases the risk of missing the target, and legally demonstrates that the guard did not reasonably believe an imminent deadly threat existed.

Discharge at or from Moving Vehicles

Discharging a firearm at a moving vehicle is prohibited unless the occupants of the vehicle are using deadly physical force against the guard or others by means other than the vehicle itself, or the vehicle is being used as a weapon in a mass-casualty attack and no safe option exists.

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5. Liability & Criminal Consequences for Armed Guards

An unlawful firearm discharge by an armed security guard carries catastrophic legal consequences:

• Manslaughter 2nd Degree (NY PL § 125.15): Class C Felony. Recklessly causing the death of another person (e.g., firing a weapon improperly or hitting a bystander). Punishment includes up to 15 years in state prison.
• Criminally Negligent Homicide (NY PL § 125.10): Class E Felony. Causing death through criminal negligence.
• Civil Wrongful Death & Tort Actions: The guard and employer face multi-million dollar civil suits for wrongful death, gross negligence, and punitive damages.

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6. Comprehensive Comparison: Unarmed vs. Armed Security Guards in NYS