home invasion.....shoot to kill, then go to jail?


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RDCL
July 10, 2009, 01:48 PM
My brother & I were talking recently and we both debated the question. IF you shot and killed someone breaking in through the front door, because it appeared that he (or THEY) meant to harm you.....do you go to jail immediately until a judge decides it is a justified killing?

My opinion is that you are arrested on the spot and go to jail.....no matter the situtation.

My brothers opinion is that the police (or sheriff) are authorized to make a decision on the spot as to wether it was justified or not.


Russ

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CoRoMo
July 10, 2009, 01:51 PM
My opinion is that you are arrested on the spot and go to jail.....no matter the situtation.

IANAL, but I think you're opinion is wrong. The police need a reason to place you under arrest. They aren't going to do so unless it looks like you acted in a criminal way. This will depend greatly on the state & local laws regarding self defense.

IANAL, but I think your brother's opinion is closer to the truth. The LEOs will gather the evidence, but won't likely arrest you unless it is obvious that they need to. Here in Colorado, the local DA will look at the evidence/testimonies and determine if charges need to be filed.

A little Google goes a long way... (click for the article)

No arrest in shooting of alleged burglar by Marconi Avenue shop owner (http://www.sacbee.com/static/weblogs/crime/archives/2009/05/deputies-probe.html)

TexasRifleman
July 10, 2009, 02:06 PM
My opinion is that you are arrested on the spot and go to jail.....no matter the situtation.

My brothers opinion is that the police (or sheriff) are authorized to make a decision on the spot as to wether it was justified or not.

Varies by state as most of these things do.

In Texas the decision of whether or not to arrest lies with the LEO.

However, you WILL be charged with homicide in Texas no matter the circumstances, that's state law. It will go to the Grand Jury and in many cases the Prosecutor himself will recommend a no bill, but it still has to go to Grand Jury.

So, you may not be arrested but you will be charged.

So no, it's not an automatic arrest no matter what.

Seenterman
July 10, 2009, 02:10 PM
So, you may not be arrested but you will be charged.

So no, it's not an automatic arrest no matter what.

Thats strange, I though you had to be arrested to get charged.

But if your arrested it doesn't mean you'll be charged.

Law is confusing.

TexasRifleman
July 10, 2009, 02:18 PM
Thats strange, I though you had to be arrested to get charged.

But if your arrested it doesn't mean you'll be charged.

Arrest is simply a way to legally restrain someone during the course of an investigation.

Arrest and the subsequent bail (or no bail) are simply ways to keep people from fleeing.

A shooting judged a pretty clear case of self defense by the investigating LE, especially in one's own home, doesn't really represent a flight risk or a danger to the community so they are free to skip the arrest if they feel like it. I'm sure there are local rules for LE on how that decision is reached, getting confirmation from the watch commander or whatever, maybe even a call to the prosecutors office, but there doesn't have to be an arrest for charges to be filed later.

Cosmoline
July 10, 2009, 02:48 PM
It's a matter of local practice and custom more than law. Up here I know several people who shot in self defense and were neither arrested nor charged. The officer reviews the evidence and the DA simply decides to let it lie.

lobo9er
July 10, 2009, 02:56 PM
regardless of law you mos def shouldn't be if it is that the bad guy is forcing his way in your home. i mean people dont break in to compliment your garden or welcome you to the nieghborhood it defintly isn't your home is your castle anymore.

Deanimator
July 10, 2009, 03:56 PM
It depends upon the individual state, city, and incident.

1911GI Fan
July 10, 2009, 04:11 PM
Deanimator is right. Here in Florida, Governor Bush passed the "Castle Doctrine" in October 2005, allowing people to use deadly force if someone were breaking into their home, regardless of whether the person was armed or not. Used to be we had the obligation to flee, according to the law, and could only use deadly force if escape was not possible and we felt our life was in danger. That B.S. was changed. Being a Law Enforcement Officer, I carry off duty, no matter where I go. The Castle Doctrine applies outside the home too. Anywhere you have a right to be, if you are in fear for your life, you have the right to use deadly force to protect yourself. THEN standby for the civil suit from the dirtbags family, because they'll sue to get easy money to buy their dope, Escalades and spinning rims.

TexasRifleman
July 10, 2009, 04:13 PM
THEN standby for the civil suit from the dirtbags family, because they'll sue to get easy money to buy their dope, Escalades and spinning rims.

Actually no. The Florida law, and many other so called "castle doctrine" states, provide civil immunity if the shoot was found to be justified.

Florida:

776.032 Immunity from criminal prosecution and civil

8 action for justifiable use of force.--

9 (1) A person who uses force as described in s.

10 776.012, s. 776.013, or s. 776.031 is justified in using such

11 force and is immune from criminal prosecution and civil action

12 for the use of such force.

And, even better:

(4) The court shall award attorney's fees, court

30 costs, compensation for loss of income, and all expenses

31 incurred by the defendant in defense of any civil action

brought by a plaintiff if the court finds that the defendant

2 is immune from prosecution as provided in subsection (1). The

3 plaintiff and the plaintiff's attorney are jointly and

4 severally liable to the defendant for the payment of fees and

5 costs.


That last one means that no lawyer will take the case unless it's rock solid since he becomes liable for court costs.

The ambulance chasers are effectively shut down there.

HIcarry
July 10, 2009, 04:54 PM
As several have already mentioned, it depends. Here in Hawaii, the police have been instructed to arrest and jail anyone involved in a homocide, regardless of the circumstances.

As an example, in 2006 a man was arrested after stabbing to death an intruder who attacked him and his girlfriend. What makes the event particularily disturbing is that the intruder tried to enter and assault the victim(s) on two prior occasions that same day and within hours of the event that led to his demise. On each occasion the police were notified and a report made.

To add insult to injury, in the course of the second and third attempted home invasion, damage to the home prevented the ability to secure the home, so when the male victim was arrested (he spent the night in jail) his girlfriend was left in a home where the front window and door were broken to the point of not working. Can you imagine having to stab someone in such an obvious self-defense situation, then going to jail for it knowing the girlfriend you were trying to protect was left in an unsecured apartment?

And, the greatest insult of all was that our City Prosecutor, Peter Carlisle, said on the following Monday when the male victim was released from jail, was that the the victim was "clearly justified" in using "deadly force to protect himself and his girlfriend from serious bodily injury."

And this was all because some meth head was stabbed to death by a law-abiding "good-guy" defending his girlfriend and home. I can only imagine what would have happened if the good-guy had used a firearm.....

http://archives.starbulletin.com/2006/03/23/news/story09.html

jhco
July 10, 2009, 05:04 PM
I would tend to say they don't have to arrest you if you appear to have acted within the law, however, they might arrest you as a precaution to protect there butts, and then release you later with no charges.

clemsonu0219
July 10, 2009, 05:23 PM
You will not be arressted unless the officer feels 1) you are any sort of threat to the public or anyone inside your home. 2) the officer believes you did not shoot in self defense. They are not going to arrest you, generally, unless there is a reason to do so. Now, I'm assuming that this could be different in other places but definitely not in sc or nc.

Oro
July 10, 2009, 05:58 PM
My brothers opinion is that the police (or sheriff) are authorized to make a decision on the spot as to whether it was justified or not.

Absolutely correct.

Let's put it this way: what if it was staged to look like they broke in? If the police show up and have a strong suspicion you were in the wrong, even if it's in your own home, OF COURSE they can take you in.

I would feel uncomfortable living in a place where the police did not have the discretion to arrest you if they found you standing over a dead body!

Thats strange, I though you had to be arrested to get charged.

Well, no, you can be charged then arrested. Think about what happens if someone flees the scene of a crime. The police can collect statements from eye witness who say clearly who it was. Then the prosecutor takes that to the grand jury and then they go looking for you. Charged, but not yet arrested. More common than you think.

Now, I would hate to live in a place like Hawaii; where you are guilty until proven innocent. That story HIcarry told is so scary it makes me shiver. a few years ago, I had the chance to live for free in Hawaii a while and then very possibly take a highly paid job there. I liked the place and the people when I went to visit and check it out, and then I learned about the law and the politics. I even skipped the "living for free for a few months" bit as I knew I could never live in a place like that with reduced personal freedoms and social engineering.

Frank Ettin
July 10, 2009, 07:10 PM
It depends on the circumstances and local practice. So --

[1] You may or may not be immediately arrested.

[2] In any case, there will be an investigation. Evidence will be gathered, witnesses interviewed and you will be interviewed.

[3] A report will be written and forwarded to what ever agency is responsible for prosecuting crimes in the jurisdiction -- usually the office of the county prosecutor or district attorney. The prosecuting authority will consider whether or not to prosecute or to take the matter to the grand jury to seek an indictment. In some jurisdictions, the investigating authority, i. e., the police or sheriff, may make a recommendation as to whether or not to prosecute.

[4] If the decision is to not prosecute, it will usually end there. There will usually be no positive finding of justification. But that can vary from jurisdiction to jurisdiction. For example, in some jurisdictions, I believe that a grand jury could return a finding of justifiable homicide. But I also believe in most cases if the prosecuting authority decides not to pursue matters, they just die.

[5] If the decision is made to prosecute, or if you're indicted, and you haven't already been arrested, you now will be.

[6] Of course while all of this is going on, you should have engaged a lawyer who will be following matters and advising you along the way.

61chalk
July 10, 2009, 08:03 PM
I've read that you should always "shoot to stop" the intruder, rather than telling law enforcment an others that you "shot to kill".

Diamondback6
July 10, 2009, 08:19 PM
Per Ayoob, the script is:
"I shot to stop the threat. I regret that emergency personnel were unable to save my assailant."
Second half I'm not so sure about my recollection of, but the parts about "shot to stop the threat" and "I regret..." are seared into my memory.

FROGO207
July 10, 2009, 08:34 PM
Serious food for thought. I will be asking the local LEO's that same question. I feel I need to figure out a plan of action should this unfortunate situation become a reality. I seriously hope that this avenue is never needed, by me or by any of you others reading here. As the world seems to become more violent this reality is disturbing all the same. Also ignoring the problem will not worjk at all either, better proactive than reactive. Maybe the best approach will be to help getting a law passed in your area to protect YOUR rights BEFORE you need it!

alsaqr
July 10, 2009, 08:40 PM
My opinion is that you are arrested on the spot and go to jail.....no matter the situtation.


Not so in OK. Not sure what happens where you live. The OK DA is not required to take a righteous shooting case to the grand jury. Our DA declined to take three righteous shooting cases to a grand jury in the past 18 months. If the family of the deceased perp is not happy with the decision of the DA, they can take up a petition for a grand jury hearing. Okies do not have a lot of sympathy for perps who get shot in a home invasions, so the petition will go nowhere.

This guy killed a man who threatened him on his own property. The shooter could not be found for a month. He got a pass from our DA.

http://www.kswo.com/Global/story.asp?S=5478120

The DA's ruling comes a month before Oklahoma's new "Stand Your Ground" law takes effect. Schulte says laws currently on the books already protect a person's right to defend their life. Schulte said, "If you're some place you're legally allowed to be, you have a right to protect yourself, there's nothing under our law that says you must be a victim of a crime before you act."

JImbothefiveth
July 10, 2009, 08:50 PM
I just think I should comment on this, you don't shoot to kill, you shoot to stop. This doesn't change where you shoot, it just means that once the threat is stopped you don't go for a kill.

mgkdrgn
July 10, 2009, 08:58 PM
Going to depend a lot on where you are.

South Carolina ... IN your house ... you probably won't even take "a ride down to the station."

In NYC ... be prepared to be a guest of the city/state for quite some time.

RDCL
July 10, 2009, 09:36 PM
In NYC....be prepared to be a guest of the city/state for quite some time.

That's what I was thinking too.....a lot depends on the local LEA being anti or pro gun.

Russ

RDCL
July 10, 2009, 09:37 PM
Going to depend a lot on where you are.

I'm in Westlake Ohio....FWIW.

Russ

Jim K
July 10, 2009, 10:19 PM
In a home invasion situation, where the owner or legal resident of the house is clearly innocent, it is unlikely that he/she would be arrested or even charged, but that is a matter of state law and local custom.

But, contrary to what some have said, I think a shooting/killing outside the home will always result in an arrest, simply because the street cops don't know what happened and aren't going to let a murderer just walk away no matter what he says to justify the shooting.

But some caution here on reported stories. Some of us tend to side automatically with the "law abiding citizen" in his home, without knowing or bothering to find out the circumstances. For example, was the "home invasion" truly by a criminal gang and the home owner an innocent person? Or was the home owner an armed criminal running a crack house and the invaders were people from whom he had stolen drugs? Maybe not quite the same thing.

Jim

Sergeant Sabre
July 11, 2009, 12:08 PM
You may be arrested. The prosecutor's office will be reviewing the facts to determine whether to ask for a warrant from a judge or not.

DMF
July 11, 2009, 02:10 PM
Most LEOs are empowered to make a probable cause (PC) arrest for felonies without a warrant. The defendant will then usually get a hearing before a magistrate judge at the next available appearance before a judge. Often that means the person will spend the night in jail until the next day. At the hearing the judge will determine if the officers were correct in their assessment of probable cause, and if so will determine what if any bail should be set.

Meaning if the cops that respond to the shooting think that there is reason to believe the shooting was not justified you could be arrested on the spot. If that were the case you would likely have your hearing the next business day.

Keep in mind things can vary a bit depending on jurisdiction, but that is generally how it works. A lot of factors will determine whether the cops merely collect evidence, and wait to make arrests, or whether they collect evidence and make arrests.

withdrawn34
July 11, 2009, 03:28 PM
It depends. In Florida, by law you cannot be arrested unless they have sufficient reason to believe you have acted criminally and not in genuine self-defense as defined by the castle doctrine laws in this state.

wep45
July 11, 2009, 03:45 PM
RDCL............contact your state attorney's office or police department for the factual information.

alsaqr
July 11, 2009, 05:37 PM
In Florida, by law you cannot be arrested unless they have sufficient reason to believe you have acted criminally and not in genuine self-defense as defined by the castle doctrine laws in this state.

The same is true in Oklahoma.

Frank Ettin
July 11, 2009, 11:36 PM
....In Florida, by law you cannot be arrested unless they have sufficient reason to believe you have acted criminally ...Yes, it's called "probable cause." But do you really understand what that means?

Some of the accepted, legal definitions of probable cause include:

[1] Facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed a crime.

[2] A reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true.

[3] "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction.

[4] Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to arrest and prosecute a person in criminal court.

[5] Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that a person has committed a crime.

To find out exactly what probable cause means in your jurisdiction and how the definition is actually applied, you will need to review the applicable case law and/or consult a qualified attorney.

Dodger02WS6
July 12, 2009, 09:43 AM
RCDL go here for info relating to our state.

http://www.ohioccw.org/

From conversations with officers I know in my City, if they believe it was justified self defense, you will NOT be arrested on the spot, they will send their reccomendation to the DA and if the DA agrees, it will be dropped right there.

We also have Castle Doctrin now and protection against Civil Lawsuits :D

Dodger02WS6
July 12, 2009, 09:49 AM
OH, and as others have stated, NEVER say shoot to kill, you shoot to Stop the immediate threat, doesn't matter if that's two to the chest and one to the head, or 17 rounds of 9mm all over, you STOP the threat by whatever means necessary to secure your life and/or family's lives and your home.

chuckusaret
July 12, 2009, 10:36 AM
The Castle Law works well here in Florida and it appears there has been a reduction in certain crimes. In my local area we have had several people who have used deadly force to protect themselves without being arrested. My friend is a attorney and has stated that if I am every envolved in any type of shooting is to keep my mouth shut and call him no matter what.........Hopefully I never have to use his services.

The Lone Haranguer
July 12, 2009, 10:49 AM
Shoot to stop. It need not result in death, but if it does that is an unavoidable consequence.

RDCL
July 12, 2009, 02:35 PM
RCDL go here for info regarding our state

Thanks for the link Dodger.

Russ

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