[Gary H]

I have done a good bit of reading about the use of a firearm when threatened with loss of life, or great bodily harm, but I'm confused about the legal fallout from the following situation:

You and your spouse are at home sleeping when you hear strange noises from the front of the house. You roll over and grab your handgun and tactical light and slowly venture forth. At this point, you really don't know what is up, so you don't call 911 and stay put. Upon investigating the noise, you come upon an intruder. You note that his hands are empty, but there you have it, your gun is in your hand. He rushes you, all five foot, two inches and 135 pounds and you shoot. My main concern in that situation would be that somehow this person would obtain my gun, or pull a weapon. You, 6'3" and 220 pounds have just shot an unarmed man of much lesser stature. Forgetting civil court for a moment, where do you legally stand in California's criminal system? I'm thinking that the fact that this happened in your home gives you some wiggle room and you won't be wearing prison garb for the next many years.

[Jim March]

There's a couple of issues here:

* it's dark - what DID you see?

* it's dark - what the HELL was he doing that close to you in your own home? You'll know how close he was from analysis of the powder blast, if the twit was inside 10ft or so.

* it's dark - why was he charging you as evidenced by the entrance wounds on his front side?

[Pilgrim]

Calif. Penal Code Section 198.5. Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

[Azrael256]

You have this choice... You *might* have some legal troubles (it is the PRK, after all), but then you won't have to worry about this dude killing you, raping and murdering your wife, killing your kids, etc. Just because his hands are empty doesn't mean that he doesn't have an M-60 strapped to his back. Armed or not, uninvited guests will receive a lead shower in my living room.

[WilderBill]

Azrael has the right idea, but if you are talking about the PRK, then real world answers don't apply.
If you see an object in the intruder's hand, you might assume he's armed. If you shoot first and then find nothing in his hand, you might want to correct his oversight with a steak knife or something...

[Feanaro]

I wouldn't tamper with the scene. Yes, it might keep your from being charged... but if they find out YOU put it there, you're going to be in some deep crap.

[Pendragon]

If you are in the Bay Area or LA, then who knows.

Most of the rest of CA is actually pretty sane.

First, if you are smart, when the cops come, you will say nothing beyond your name and "I am pretty upset, I do not think I can discuss this for a while" then you get an attorney.

Since it was at night and you said nothing to the cops, the prosecution has to make his case.

The prosecution has to make the case that in the middle of the night, a man charges you in your own home and you KNEW he was unarmed.

You may have known he was unarmed. They should not know this.

A lot of the people who get into trouble with court do it to them selves - presuming the police are on their side, etc.

Just SHUT UP.

Your lawyer will talk about your wife and kids, and how good a person you are and your little precious babies and all that.

1. Shut up.

2. Get a good lawyer. They are expensive, but a cheap one may cost you more in the long run...

[BamBam]

Is Jesse Jackson involved?
If so, see you in 40 years.

[JPM70535]

The fact that you are 6'3" and 220 lbs. should from a strictly legal standpoint have nothing to do with the use of deadly force against an intruder in the middle of the night. In the dark you might think his hands are empty, but unless you are an umteenth degree Black Belt in the martial arts, when this 5'2" intruder charges you, the only assumption you can make is that he intends to do you great bodily injury or death. The only prudent course of action is.

BANG! BANG!

[Sven]

ou roll over and grab your handgun and tactical light

If by 'tactical light' you mean a light mounted to the gun, you may have a hard time (in CA) convincing the DA and jurors that you were an innocent civilian with no choice but to use deadly force... like it or not, a light mounted on a slide rail is a SWAT setup (ie, for offensive use), and will not look good in court.

If someone can recommend a good lawyer in California (especially Northern CA), please PM me with his/her contact information. I've called a couple lawyers - even those who advertise in CRPA's publication - but none seem to return my calls or understand why I would want to have a lawyer's number ready - just in case.

[Gary H]

Sven:

The reverse is also true. "What do you mean you shot this person? How could you know that they were a threat when you could not see them in the dark?"

Light is not mounted, but my shotgun has an affixed light.

[Drjones]

No offense to you personally, Wilderbill, but that is the worst piece of advice EVER.

NEVER, NEVER, EVER, EVER tamper with a crime scene in any way, shape, or form.

Forensics guys are amazingly good at what they do, and the second the police catch you in any sort of a lie (especially tampering with the scene like you suggest) your credibility goes straight out the door, and your goose goes in the pre-heated oven.

It is just not worth it.

You have enough to worry about in a SD shooting without worrying about tampering with the scene.

[Gary H]

This issue was on my mind after reading about robbers stopped by someone with a gun. A California criminal would need to be terminally stupid to allow anyone to hold them for the police. After all, you can't shoot someone when they are fleeing. So why should they stay around? That said, what about your macho criminal that decides to take your gun away? In my mind there are only two possible experiences, the guy flees, or attacks.

[Drjones]

A California criminal would need to be terminally stupid to allow anyone to hold them for the police. Well, I'd say that would apply to any criminal in any state. Mind you that criminals aren't generally the brightest crayons in the box... :rolleyes: However, if you are the one pointing the gun at him, he isn't really in a place to call the shots, is he? Except for deciding to run as you said...

That said, what about your macho criminal that decides to take your gun away?

Well, I dunno about you, but if I ever encountered anyone in my home, and if for some reason I didn't shoot them instantly, ANY move they make that is not a move to run AWAY from me WILL get them shot, as it is a clear assault on me.

As you say, they could be trying to take my gun away, and I'll be darned if I'm gonna find out the hard way what his intentions are.

He comes towards me while my gun is trained on him, he gets shot.

That simple.

Gary, this thread I started a while back may give you some food for thought. http://www.thehighroad.org/showthread.php?threadid=1184&goto=newpost

I think I'm going to read it again myself.

Regards,
Drjones

[Gary H]

Drjones:

Good thread.. certainly no certain answer to this one.

Avoid the situation if at all possible.. That is what I got out of the four pages of posts.

Big Dog .. Good Locks .. Outdoor lights.

[gudel]

you might want to take a look at this pdf file (http://www.ag.ca.gov/firearms/forms/pdf/cfl.pdf) particularly on page 31.
if the guy is unarmed and you're bigger than the intruder, well, i'd say it can be difficult to prove to the jury that it's a mayhem.
but then since you're bigger and charging you, if this is me, i'd probably kick em in the nuts first or shoot his legs, not necessarily shoot his head. also turn on your house lights, not just your tactical light on your gun!

assuming this is a hypothetical situtation, i'm 5'7", i must be really stupid if i'm charging some 6'3" 220lbs guy with a gun in his hand.

[Drjones]

gudel:

With all due respect, your post didn't make a lick of sense.

I have read the 2003 CA gun laws before (just printed it out a few weeks ago) and read pg. 31 again just now, as you said.

Nowhere on there does it say anything about the size or physical characteristics of the intruder or anyone else.

Do you know why?

Because it is irrelevant.

For all you know, the intruder can be stronger, faster, and a better fighter than you, even if he's half your size and weight.

You could be twice as big, and he could still be able to mop the floor with you.

He may have a concealed weapon.

There are so many things that could happen its ridiculous.

And if you think all he wants is some friendly tussle, well, that's your problem.

And if you shoot him in the legs or otherwise shoot to wound, you are up sh#t creek without a paddle, probably without even a canoe.

-His attorney will make it seem (probably rightly so) that deadly force was unwarranted; that you were NOT justified in using your gun.

-He can sue you for damages in a civil trial. That's going to cost you. A LOT.

-You could (probably would) miss his legs, esp. if he's running AT you. Even if you hit him, it may not stop him immediately. There have been incidents of guys taking 6 shots from a .357 COM and they're still running. :uhoh:

Regardless, if you're going to shoot, SHOOT. As in COM. (Center Of Mass)

Otherwise, you are just ASKING for trouble.

Oh, and anything worth shooting once is worth shooting twice. And then again. And again...

:)

[Pendragon]

Ok,

Drjones and I had lunch on Friday, so he can attest to how big I am.

6'5" ~320lbs.

I dont care if the dude is 5'2" and 98lbs soaking wet. If he makes any kind of furitive move including charging me, he gets it.

This is completely defensible in court - especially when it happens in your own home.

1. Since I am so big, I should presume that a much smaller person charging me has some kind of "ace in the hole" - a knife, exceptional skill, a partner, etc

2. I may be big - Refrigerator Perry big, but I am a professional mouse potato. I have very little experience in grappling and wrestling and I used to always get beat really bad in wrestling in PE - the little guys would thrash on me (I got my revenge in Rugby though ;)) There is no upside to me engaging in hand to hand with an assailant of unknown ability and utility.

3. This is not England. You are not legally obligated to only match the force of your assailant. You are allowed to use deadly force when you are in reasonable fear of your life or great harm. Guess what - a reasonable person would be afraid of a burglar charging them in their own home.

4. Since I have already decided to evercise my right to keep my mouth shut, I am not goint to tell the cops "yeah, I did not see a gun, but he looked pretty scary anyway". I am goint to give name, rank and serial number and ask for a lawyer. Period. If the DA wants to come get me, he can do that on his own, but I am not going to make his case for him.

5. I am not afraid of a DA. I have a job, a house, a family - no record and an honest face. My area is actually one of the more conservative areas of the state and if it did go that far down the road, I think I have a much better than even chance with a jury. I also know a few people in media and I think I could pull some pretty sympathetic coverage - I would beat them in the media before the trial. Thats worst case scenario by far, but if they want to play that way, you gotta roll up your sleeves. The only way the DA would go after you is for political reasons - so you gotta make it politically expedient for you to NOT go to trial.


All this stuff about size and being armed - its all crap. Its crap on the street and crap in your home - read up on Ayoobs cases and if you go to trial, you can say you read American Handgunner and you know that a person can cover 20 feet and deliver a fatal knife wound before you can draw your gun, so you have knowledge that makes it reasonable to fear a charging attacker.

Fight to win, then worry about court later.

[Drjones]

Ok,

Drjones and I had lunch on Friday, so he can attest to how big I am.

Yeah man...The first time I met you at the first THR shoot, I was scared!!!

I'm just glad you're on my side!!!

Right....?

;)

:D

Great post too, BTW...

[DRC]

Howdy folks,

This is an intresting thread and there are some very good points made but I have to interject here and say that LAW IS SUBJECTIVE, NOT OBJECTIVE! There is no such thing as a "cut and dry case" in law even if you are in your own home. If you discharge a firearm in your house or in any situation legally in self defense or not you WILL end up in front of a Grand Jury.

If you end up in court you will be judged by a jury of your peers. The only problem with this is that the jury is picked by both prosecution and defense before the trial, ergo it is not a jury of your peers not to mention people with the IQ of a house plant can serve on a jury. Typically in these types of cases the jury does tend to get loaded up with folks that are easily swayed toward the prosecution side (depending on the overall view of the area regarding these types of actions) So you are not safe from criminal charges if you shoot a perp in your own home but you can make a better arguement for your case in this respect because you were SUPPOSE to be there while the perp was not suppose to be there.

There are no absolutes in law period. A jury of your peers does not mean you're getting the "cream of the crop" to pass judgement on you either nor does it mean that they are what you would consider your "peers" to begin with. If you shoot an intruder you will be put under a microscope so as long as you understand that and make your decisions accordingly then do what you feel is necessary. I'm not telling anyone not to shoot a perp in your house if you fear for your life but rather I am telling a piece of the story that you need to know before making the decision to do so. You WILL end up in front of a Grand Jury, it's just that simple.

With all that said let me say this (something told to me and many others out there I'm sure) if ever in a situation where you fear for your life remember that "Dead men tell no tales." and that's all I will say.

Take care,

DRC

[rock jock]

i'd probably kick em in the nuts first or shoot his legs
gudel,

I take it you have never competed in IDPA or received any defensive pistol training, correct? Being able to place an accurate shot at a target's legs while he is moving in the dark under highly stressful conditions is something best left to Hollywood. It doesn't happen in the real world, not with LE, not with the elite military units, and certainly not with you and me.

[Pendragon]

I totally agree with what DRC said.

No matter how clean the shoot, there is always a chance that the perm was the godson of the Fire Marshall or something and you may get prosecuted.

Remember that a Grand Jury only talks to the prosecution - they do not talk to the defense - any mitigating circumstances that they discover will come as a result of their questions.

That said, as long as you are not executing intruders, as long as you do act reasonably - that is not shoot them unless it is necessary, then I honestly believe that most of the time, you will be fine.

Because it is so subjective, your fate is going to be affected by how the jury sees you. If you have a history of violence or irresponsibility or drug use, that could hurt you. If you appear anti social or radical - that could cost you.

Maybe I am just very confident because I am one of those extraverted people person types. I am very good at interviews and speaking and making friends - so as distasteful as it sounds, I actually think I could look like everyones neighbor who was in a bad spot and had to shoot a criminal to save his loyal whife and precious baby, etc.

Not everyone is me, not everyone is a people person and not everyone looks that sympathetic on paper - so you have to take that into consideration.