Legal Ramifications: Shooting to defend property -- specifically, a gun


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dev_null
February 20, 2012, 01:21 PM
I realize the codes differ from state to state, and that only the courts can decide on specific cases, but I'm wondering what the 'legal landscape' is like these days in regard to defense of property when it's a firearm.

Sample scenario (I'm sure you can think of others): Guy breaks into your home (or car, or trailer, etc.), and you come in just as he's about to make off with one of your guns.

Possible variations:
(a) He has the drawer/cabinet/whatever open but hasn't actually touched the gun yet.
(b) He has it in his hands but it's unloaded.
(c) He has it in his hands and it's loaded - he may or may not be aware of this.

Okay, so (c) sounds like you'd be justified: fear of your life, immanent danger, etc. But what about (a) and (b)?

Me, I'm not the kind of guy to shoot someone, possibly fatally, over a laptop, a stereo, or a handful of CDs. But if he's about to grab my shotgun and I have a pistol on me, what is my legal standing?

Please note: I'm not looking for "screw the law, I'm gonna ... " answers.

Let me throw one more scenario into the mix, possibly even more contentious:

What if you're open carrying and someone is about to grab your weapon?

(Again: not looking for OC vs CC debate here. Beat that horse somewhere else, please?)

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Bubba613
February 20, 2012, 01:42 PM
At a gun shop here a guy was stealing long guns off the rack. Clerk shot him in the back, with the explanation that he might have loaded them. Jury cleared him. Somehow.

It will come down to: Did you have a reason to be in fear of death or severe bodily harm to yourself or another?

Ford Prefect
February 20, 2012, 02:35 PM
You live in TX? As long as the bad guy is dead, your story is the only one that counts. As long as your story sounds reasonable and there is no evidence to the contrary you will probably be questioned and the gun taken. That's it. Good night sir. You will sleep in your own bed tonight. In NYC things will be the opposite.

Rob G
February 20, 2012, 02:49 PM
As Ford Prefect (I love that book) said, you're in TX. You're unlikely to be have legal issues in any of those scenarios. Don't forget we have Castle Doctrine here. The fact that they've broken in to your house gives you legal authorization to use deadly force. They could be twenty feet from the gun in question and it's still a good shoot. I'm pretty sure it's also still legal to use deadly force to protect your property so that would be two different laws now that would protect you.

Short answer you're covered in this state. As for any other state? I have no idea. They're all over the map with their laws.

ClickClickD'oh
February 20, 2012, 02:56 PM
He has immediate access to a lethal weapon. You have no clue if it's loaded or not, and you have no legal obligation to determine such. If you have reasonable fear that an intruder with a lethal weapon might use it against you, you have the right to use lethal force against him. We haven't even touched on defense of property laws, that's defense of a person right there. The laws on the use of force in the defense of property also state that you can use lethal force to stop a burglary, but you better be pretty sure the property would be unrecoverable by any means.

As for the OC scenario, you have the right to defend yourself using any force necessary to prevent him from taking your weapon from you since the reasonable assumption is that he is going to use it on you if he gains control. However, if at any point he stops fighting for it or surrenders, you may no longer use lethal force against them. With the caveat: If he surrenders because you get your weapon out and point it at his head, it's probably a good idea to keep it pointed at his head until he is secured or the popos arrive. You just don't get to shoot him unless he goes rodeo on you again.

Ford Prefect
February 20, 2012, 03:31 PM
I should clairify a little. This assumes there is some evidence of a break in. You don't know the bad guy. He, or someone else, doesn't give a different story than yours, etc.

If you know the guy or it looks like a domestic argument gone bad, then the outcome could be very different even in TX.
If the police smell anything fishy (even if unreleated to the shooting) when a shooting/death are involved you can count on an exam to every orifice you have, and then some. $10,000 for the first check to the lawyer, arrest, seizure, investigation, court appearances, bond, loss of rights and travel, etc, etc. That's just the first week, before any conviction or plea.

Most people agree going though the system is intended as punishment prior to any conviction. Most (98%) agree to plea down to a lesser charge to avoid going through it, regardless of guilt or justice.
Obviously, you should try to stay clear of trouble to avoid becoming a victim of the "system", truth and justice have little to do with, but it does help sometimes.

Kleanbore
February 20, 2012, 06:21 PM
Posted by Rob G: The fact that they've broken in to your house [in texas]gives you legal authorization to use deadly force. They could be twenty feet from the gun in question and it's still a good shoot.

No!

The law does not give anyone "authorization" to use deadly force.

The law (including the case law) does state that if the actor knew, or had reason to believe, that the person had unlawfully and with force entered the occupied domicile, there is a presumption that deadly force had been immediately necessary.

That presumption is rebuttable.

Was the invader attempting to leave? Had he surrendered? Do not discount the power of forensic evidence.

Had there been prior dealings indicating possible motive?

Is there the possibility of earwitness testimony?

I'm pretty sure it's also still legal to use deadly force to protect your property so that would be two different laws now that would protect you.Under some circumstances, when there is no other safe alternative, yes.

But even when it is an open and shut case, the adverse impact upon the actor and his or her family may far outweigh the value of the property so protected.

On the other hand, if "protecting the property" involves preventing a violent criminal actor from gaining access to a lethal weapon, we are not really talking about protecting property, are we?

ClickClickD'oh
February 20, 2012, 06:46 PM
I should clairify a little. This assumes there is some evidence of a break in. You don't know the bad guy. He, or someone else, doesn't give a different story than yours, etc.

If you know the guy or it looks like a domestic argument gone bad, then the outcome could be very different even in TX.

...Um.... No.

It doesn't matter one little bit if you know the guy. There is absolutely zero legal requirement for the use of lethal force in the defense of the person or property that pertains to a persons relationship with the perpetrator. If he's in your house without your permission with one of your guns in his mitts, you still have exactly the same legal rights and protections as if the person was Random John Doe #1 off the street. If his presence in your house and his possession of your firearm causes you to fear for your life (finding people with your guns in your house when they aren't supposed to be there generally does that to folks) you can use lethal force to defend yourself, even if he's your grandfather, that uncle ever family seems to have or your nephew. There have been way too many people killed by people they know over the years to even consider alter self defense laws to include exemptions for personal familiarity of the perpetrator.


If the police smell anything fishy (even if unreleated to the shooting) when a shooting/death are involved you can count on an exam to every orifice you have, and then some. $10,000 for the first check to the lawyer, arrest, seizure, investigation, court appearances, bond, loss of rights and travel, etc, etc. That's just the first week, before any conviction or plea.

Well, maybe, maybe not.

First off, the police will always think something is a little fishy when they roll out to a dead guy call. Someone is dead, that's fishy. However, in the above scenario where you walk in the door and there's a guy with your guns, it's pretty easy for the cops to tell so. Car keys in the door or your hand or pocket, maybe some mail or groceries that you brought from the car, you are wearing shoes, the location of the bullet holes probably indicating a firing direction into the house, cabinet drawers or your gun safe that have been opened. I know people around here like to malign cops, but some things are pretty easy to figure out.

You may not even need to get lawyered up. You see, here if you shoot someone it's most likely going to the Grand Jury. If you kill them with said shooting it WILL go to the Grand Jury. No defense council allowed at the Grand Jury, so until an indictment is handed down you can save on the lawyer bills and obey the 5th (not Beethoven). If it was a clean shooting and the popo agree, the DA is likely to walk in, tell the GJ he isn't going to follow prosecution and they No Bill you since they know going to trial would be a waste of time.

That's if it's a good shooting.

Now, it gets a lot harder if it wasn't a good shoot... but I don't give advice for that sort of thing so those peeps can bugger off.

dev_null
February 20, 2012, 06:56 PM
Kleanbore:
On the other hand, if "protecting the property" involves preventing a violent criminal actor from gaining access to a lethal weapon, we are not really talking about protecting property, are we?
Well, that's the crux of the biscuit, isn't it? I presume you mean because it goes from protecting property to protecting lives? Care to elaborate?

BSA1
February 20, 2012, 07:12 PM
The three elements required for use of self-defense are opportunity, ability, and jeopordary. If you will study these three elements you will have the answer to your questions.

hermannr
February 20, 2012, 08:23 PM
He has hold of one MY guns in MY house? He is dead only if I'm quicker than he is.

I hold to the rule, a gun is always loaded, no mistakes are made when you hold that rule...so, my guns ARE always loaded, and then there is no question if they are loaded or not.

Actually home invasion, burglery with the owner present, is very very hazardous to the health of a criminal here in WA.

Jim K
February 20, 2012, 08:56 PM
"Scenarios" are fun, and have no relationship to reality. In the first place, most folks seem to think they have to convince some cop of their innocence. Not true; the cop can't and won't just let you go. You or your lawyer might convince the DA not to prosecute, but that is iffy.

Self-defense is not a "right", even in states with a Castle law. It is an affirmative defense, in court, to a charge of murder, attempted murder, manslaughter, or whatever the charge is. In other words, it is a "plea", just like a plea of insanity, and your lawyer has to convince a judge or jury that it is valid. Note also that when you "cop a plea" you are admitting you are guilty of the basic charge, so you are no longer "innocent until proven guilty." The burden of proof to support your plea shifts to you and your attorney and you have to convince the judge or jury that your plea is valid.

Jim

dev_null
February 20, 2012, 09:26 PM
Jim K:

I get that. When I ask what the 'legal landscape' is like in regard to these scenarios (and I disagree that they have no relationship with reality, a statement that implies they cannot and do not happen), one of the things I'm asking is what has happened to people placed in similar situations in the past. (I'm also trying to get an idea of legal questions around the scenario, such as what I think Kleanbore is getting at, as well as some of the other legal points others have been pointing out in regard to Castle Doctrine, various ramifications I might not think of unless/until someone here points them out, and so on...)

Alaska444
February 20, 2012, 09:41 PM
As stated in OP, no, you make the point, "He is about to leave." Sorry, that doesn't imply imminent threat and a statement like that will get you a murder charge in most places. If your assessment is that he is in the process of leaving even with your property, you no longer have the legal elements of self defense.

If you encounter him and he appears to place you in jeopardy and imminent threat of death or grave bodily harm, that is a self defense shooting. There are lot's of situations where you can "fear for your life," that would not invoke the elements of self defense. That is commonly quoted, but it is not really an element in self defense. Fear is quite subjective. The objective elements of imminence, jeopardy and ability all must be in place at the time you respond with lethal force.

As written in OP, I would state that is not a self defense shooting. Federal law prohibits lethal force for property.

Owen Sparks
February 20, 2012, 10:19 PM
The opening battle of the American Revolution was actually in defense of property in the form of firearms. See for yourself: http://en.wikipedia.org/wiki/Battles_of_Lexington_and_Concord
Come to think of it the entire Revolution was fought over property. King George did not want to KILL anyone, he just wanted to confiscate a portion of their property in the form of taxes, search their homes at random and use them to quarter soldiers. The only people who were shot by the British were those who resisted.

xXxplosive
February 20, 2012, 10:47 PM
Years back a gun shop I dealt with was being robbed...the owner was upstairs when some guy breaks in and starts loading up guns on the counter to cart out....he triggers the silent alarm and LE shows up. They come in the rear entrance and catch the guy red handed. The owner is still upstairs and had no clue this was going on....just as they go to cuff this guy he makes a break for the front door. One LEO lets him have a round of 00 at about 5 feet and blows this guy through the front door and down the steps....the owner comes down to find this guy laid out in front with the shotshell wad sticking out of his bicep....I came to the shop the next morning to find the doors boarded up...The owner who was also a friend of mine explained what had happened....LE felt they had sufficient cause to use deadly force.....and they did.

Alaska444
February 20, 2012, 10:47 PM
Today, 07:19 PM #15
Owen Sparks
Member

Join Date: May 26, 2007
Posts: 2,913
The opening battle of the American Revolution was actually in defense of property in the form of firearms. See for yourself: http://en.wikipedia.org/wiki/Battles...on_and_Concord
Come to think of it the entire Revolution was fought over property. King George did not want to KILL anyone, he just wanted to confiscate a portion of their property in the form of taxes, search their homes at random and use them to quarter soldiers. The only people who were shot by the British were those who resisted.
__________________
There is absolutely nothing that you can do with a firearm to harm other people or their property that is not already covered by an existing law.

That is an interesting observation, not sure if I agree with it completely, but it is not the law of the land today. Shooting someone for property is a sure way to end up going to jail.

Rob G
February 21, 2012, 12:50 AM
That is an interesting observation, not sure if I agree with it completely, but it is not the law of the land today. Shooting someone for property is a sure way to end up going to jail.

Maybe. Maybe not. Joe Horn shot two men in Pasadena TX in 2007 for robbing his neighbor's house. Both were shot in the back while fleeing and died. An officer who witnessed it refused to arrest Mr. Horn and ultimately a Grand Jury no billed it.

Hypnogator
February 21, 2012, 01:16 AM
FWIW, military guards are authorized to use deadly force to prevent perpetrators from escaping with weapons.

Makes the Gunwalking scandal doubly heinous, from my perspective. :uhoh:

Alaska444
February 21, 2012, 01:49 AM
Today, 09:50 PM #18
Rob G
Member

Join Date: February 14, 2007
Location: Cypress TX
Posts: 311
Quote:
That is an interesting observation, not sure if I agree with it completely, but it is not the law of the land today. Shooting someone for property is a sure way to end up going to jail.
Maybe. Maybe not. Joe Horn shot two men in Pasadena TX in 2007 for robbing his neighbor's house. Both were shot in the back while fleeing and died. An officer who witnessed it refused to arrest Mr. Horn and ultimately a Grand Jury no billed it.
__________________
"A fear of weapons is a sign of retarded sexual and emotional maturity" - Sigmund Freud

Alterius non sit qui suus esse potest

"Nature can't evolve a species that hasn't a will to survive" - Ender's Game, Orson Scott Card


If you look at the Joe Horn case, he testifies that he believed that the two men were going to attack him. TX is a different animal. Just as we saw jury nullification of a black man in LA called OJ, this very questionable "self defense" case is really just another example of jury nullification. This time by the grand jury.

In any case, I would not hold up Joe Horn as either hero or an example of a good self defense shoot. Simply because a jury of his peers decided to no bill this case, does not in the end analysis justify his actions. I would certainly not recommend anyone in the future try to do the same. In many ways, the Joe Horn case is very troubling. The bottom line, Joe Horn through his attorney admits it was mistake to shoot these men. Not something that any of us should emulate. He truly got away with it this time. Not likely to have lighting strike twice.

The law stands clear, well I guess everywhere but TX some might say, but shooting a person over property is not the law of the land.

JRH6856
February 21, 2012, 01:55 AM
Self-defense is not a "right"

Might want to rethink that. See D.C v. Heller. The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.

CapnMac
February 21, 2012, 03:03 AM
I'm wondering here if Dev Null is thinking of a situation where you are motoring along home to Williamson County, and you pull up in the drive and there are a couple of goblins with your safe on a dolly--so what do you do, sitting there in your-still-running pickup desperately trying to get over dumbfounded?

Because I like kleenbore, let's not muddy the water with it being anywhere near to dusk or dawn not dark of night (just have to love the intricacies and convolutions of Texas laws). If they have the safe, I'd let them drop it <cringe> and flee, getting the cell out and mashing the "9" button to connect to 911.

If, instead of the safe, they come out of the garage carrying an armload of longarms, that could be the stuff of much legal wrangling. That's a situation where no one is "in" the domicile. And, our putative driver will have to exit their vehicle to interact with hoodlum(s). In the driver's defense, in that hormone dump accompanying the dumbfounded, there is not going to be a great deal of foveal vision to pick out if that 870 is "yours" or the goblin's; or that SKS or other non-customized weapon.

I think that a reasonable person has to start from "all weapons are loaded" and procede from that point. I'm just a reasonably-knowledgeable person who has lived a life mostly in Texas. I strongly suspect that a person in that situation is going to need a very good attorney skilled in such things, to file the sort of cogent, precise writs, motions and the like that might/ought/should convince who ever it takes to prevent consignment to durance vile.

As to the O/C question, that probably rates its own thread. To my mind, my understanding of it, a person lays their hand upon my weapon without permission, it's a battery in the same way as if they lay a hand on any other part of my person. Maybe. Probably. Perhaps.

Rob G
February 21, 2012, 04:08 AM
If you look at the Joe Horn case, he testifies that he believed that the two men were going to attack him. TX is a different animal. Just as we saw jury nullification of a black man in LA called OJ, this very questionable "self defense" case is really just another example of jury nullification. This time by the grand jury.

In any case, I would not hold up Joe Horn as either hero or an example of a good self defense shoot. Simply because a jury of his peers decided to no bill this case, does not in the end analysis justify his actions. I would certainly not recommend anyone in the future try to do the same. In many ways, the Joe Horn case is very troubling. The bottom line, Joe Horn through his attorney admits it was mistake to shoot these men. Not something that any of us should emulate. He truly got away with it this time. Not likely to have lighting strike twice.

The law stands clear, well I guess everywhere but TX some might say, but shooting a person over property is not the law of the land.

I will say that I didn't bring up Joe Horn as an absolute example of law but more as an interesting case study in what could potentially happen. I don't agree with what he did and I wouldn't do it myself. I do however find it interesting that it didn't go up for trial. I don't think that his self defense claim was the whole reason though. Texas does have laws providing for the possibility of using deadly force to protect property in certain situations. This also extends to a third person's property which sort of fits Joe Horn's case. I'd imagine that somewhere in the Grand Jury testimony they probably figured he fit in to one of those exceptions and let him go.

And yes the law is a little murky in TX at times. But after having gotten to know my neighbors (I'm from up north originally) I'm not surprised Horn was let go.

Alaska444
February 21, 2012, 04:20 AM
Texas is a different animal than anywhere else in the US. Wow, don't mess with those folks down there. This is why Joe Horn walked.

Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land or property;
(B) he has a legal duty to protect the third person's land or property; or
(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

http://www.statutes.legis.state.tx.us/docs/PE/htm/PE.9.htm

I do believe he could be open to prosecution under Federal statutes if they wished. The Texas law is opposite of Federal law. Not sure how that washes down in Texas. The Rodney King officers were prosecuted under Federal statutes.

Kleanbore
February 21, 2012, 07:03 AM
Posted by Alaska444: Texas is a different animal than anywhere else in the US.True, in terms of the law involving the use of deadly force to protect property.

This is why Joe Horn walked.

Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if,the actor reasonably believes that:
(A) the third person has requested his protection of the land or property;
(B) he has a legal duty to protect the third person's land or property; or
(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Pure speculation, I'm afraid--the Grand Jury deliberations were secret.

However, there are credible reports contained in legal articles that (1) there is nothing in the public record indicating that Horn ever claimed that he had been requested by his neighbor to protect the property; (2) that Horn's attorney intended to mount a defense on the basis that Horn was defending is own life; (3) that a detective who had responded to the 911 call testified that the criminals turned back and approached Horn; and that (4) the forensic evidence was such that it was not possible to conclude that the location of the entry wounds indicated that the perps had been escaping rather than attacking.

In any event, some months went by before the no bill decision was made, and Joe Horn has not had a happy time with the aftermath--he has said he wouldn't do it again.

Should one be inclined to use deadly force to protect the property of a third person in Texas, it would be very advisable indeed to have that person's request in writing and kept in a safe place.

Bubba613
February 21, 2012, 08:03 AM
Anyone want to bet on a No-True Bill from a Grand jury? Not me.
There are a million variations on this question that will make it a good shoot or a bad shoot.

Carl N. Brown
February 21, 2012, 08:54 AM
It will come down to: Did you have a reason to be in fear of death or severe bodily harm to yourself or another?

Actually it will come down to, will a reasonable person imagining themselves to be in your shoes believe you acted in fear of imminent death or greivous bodily harm. The reasonable person may be prosecutor, grand jury, trial jury, trial judge or appellant court.

NG VI
February 21, 2012, 09:29 AM
(b) He has it in his hands but it's unloaded.
(c) He has it in his hands and it's loaded - he may or may not be aware of this.

Okay, so (c) sounds like you'd be justified: fear of your life, immanent danger, etc. But what about (a) and (b)?


B and C are identical.

The Termite
February 21, 2012, 10:42 AM
I do believe he could be open to prosecution under Federal statutes if they wished. The Texas law is opposite of Federal law. Not sure how that washes down in Texas. The Rodney King officers were prosecuted under Federal statutes.
The officers in the Rodney King case were prosecuted under federal statute for violation of civil rights. This was because President Bush ordered the DOJ to investigate the possibility of charging the officers involved in King's beating, since the state court had acquitted Koon, Wind, and Briseno of all charges, and the jury was unable to reach verdict on one charge against Powell.
Personally, I think it's double jeopardy, but the courts disagree with me.

Shooting an intruder in your house is going to fall under state law; with the possible exception if the intruder is a federal officer. Getting no-billed by a local grand jury, or the DA declining to prosecute, does not mean the DOJ can automatically charge you with violating the intruder's civil rights.

As for your statement that a homeowner who is not residing on federal property is prohibited by Federal law from using deadly force to prevent loss of property, please quote the relevant statute.

dev_null
February 21, 2012, 11:10 AM
Some interesting food for thought here, and it's helping clarify things in my mind, somewhat...

Seems clear that if Harry/Harriet Homeowner feels his/her life is in immanent danger, shooting in self defense is an affirmative defense (I think that's the term?).

The others are a greyer area where what's liable to be passing through HH's mind is something along the lines of preventing a potential death down the road. And as I think about that, not only is it not likely to keep HH off the docket (other than maybe in Texas -- possibly with the exception of Austin), but seems like a good prosecutor or plaintiff's lawyer could make shreds of it in short order.

aeriedad
February 21, 2012, 11:37 AM
This is how it happened in my neighborhood last April, less than 300 yards from my front door:

Bobby Gadsden Jr. was wearing all-black clothes, gloves, and had a rag over his face as a mask. He was walking down the stairway, carrying Barwick's long gun and a satchel full of ammunition, Moncks Corner Police Lt. Wendell Bowen said.

Barwick fired, fatally wounding Gadsden. Then he heard more rustling noises come from upstairs. Barwick ran to a neighbor's house to call 911 while police say at least one more suspect ran out of the house in the other direction.

Berkeley County Coroner Bill Salisbury said Gadsden, who was 21, died of a single gunshot wound.

Police arrested the second suspect a short while later and charged Clifford Ramsey, 20, of Moncks Corner, with first-degree burglary.

The shooting was justifiable, Bowen said.

http://www.postandcourier.com/news/2011/apr/14/homeowner-kills-intruder/

allaroundhunter
February 21, 2012, 11:41 AM
(a) He has the drawer/cabinet/whatever open but hasn't actually touched the gun yet.
(b) He has it in his hands but it's unloaded.
(c) He has it in his hands and it's loaded - he may or may not be aware of this.

Okay, so (c) sounds like you'd be justified: fear of your life, immanent danger, etc. But what about (a) and (b)?

For (a), I will give an order to stop and to put his hands up, if a hand goes back into the drawer/cabinet/safe, I fire. He has made a move for a gun and I will react just as I would if he reached for a gun on his hip. (If you are concerned about whether he is reaching for an unloaded gun, see my next answer)

My opinion [for (b) and (c)], is to treat every gun as if it is loaded. That has been taught to me enough that I will not hesitate to shoot if a gun is pointed at me, regardless of whether it was unloaded when I put it up or not. For all I know, the guy could have found ammo or brought his own to load it.


ETA: There is a difference between shooting someone who is stealing your CD collection and someone who is stealing a gun. A gun could very easily be turned against you, while CD's (unless the intruder is a ninja) will not pose a serious threat. That being said, shooting someone who is stealing your gun would be the same as if they were inside of your house and had brought their own gun.

4kdave
February 21, 2012, 01:24 PM
I have read the whole thread and believe that "Hunter" has the whole thing exactly correct!!!!

Kleanbore
February 21, 2012, 01:32 PM
Just to expand the practical aspects of the discussion, and not to be at all argumentative, might I suggest that ordering the perp to put his hands up carries with it the risk of alerting an accomplice who could ambush you.

Depending upon the layout and the location of you and the known perp, you may be able to effectively mitigate that risk.

Thoughts?

RX-178
February 21, 2012, 01:36 PM
A gun, loaded or not, is a deadly weapon.

A TOY gun, that cannot be readily identifiable as a toy, when used in a threatening manner, is deadly weapon.

At NO point in this scenario, are you actually in the situation of justifying the act of deadly force as defense of property. Period.

You are shooting because the bad guy now has a deadly weapon in their immediate possession, which presents an immediate danger to your life.

You are shooting in self defense.

allaroundhunter
February 21, 2012, 01:41 PM
Just to expand the practical aspects of the discussion, and not to be at all argumentative, might I suggest that ordering the perp to put his hands up carries with it the risk of alerting an accomplice who could ambush you.

This is definitely a valid point, Kleanbore....one that I don't see a way around at the moment.

Kleanbore
February 21, 2012, 01:53 PM
Posted by RX-178: At NO point in this scenario, are you actually in the situation of justifying the act of deadly force as defense of property. Period. ... You are shooting because the bad guy now has a deadly weapon in their immediate possession, which presents an immediate danger to your life.Sounds right to me.

aeriedad
February 21, 2012, 01:58 PM
...ordering the perp to put his hands up carries with it the risk of alerting an accomplice who could ambush you.

Depending upon the layout and the location of you and the known perp, you may be able to effectively mitigate that risk.

Yeah, that's what makes this worth thinking about ahead of time.

You don't want to shoot someone if you can avoid it (hence, the order for the BG to put up his hands), but then you don't want to increase your chances of being shot yourself. The stress of finding an armed BG in one's home will make clear thinking incredibly difficult, but also incredibly important.

The Post & Courier story I linked to in #31 notes that the homeowner shot the first BG (who was armed!) and then fled his own home to call 911 from a neighbor's. He heard more noise upstairs and didn't know who or how many, and figured it best not to find out.

25cschaefer
February 21, 2012, 02:04 PM
"Treat every gun as if it is loaded." - right, that's the rule? I think you would really be rolling the dice with a and b.

Scout Dork
February 21, 2012, 02:10 PM
"Please note: I'm not looking for "screw the law, I'm gonna ... " answers."

Deadly force to defend property? Texas law says you can.

Helps to be a criminal lawyer. As of now, no charges have been filed.

http://www.kvia.com/news/29775810/detail.html


edit: no weapons were found on Miller

AABEN
February 21, 2012, 02:17 PM
If they force entry you can wast them or if you come home and find them in your home shoot then. DEAD person tell no lies. I always have loaded guns in my home so I do not know if they have one of my loaded gun.

Kleanbore
February 21, 2012, 02:27 PM
Posted by AABEN: If they force entry you can wast them or if you come home and find them in your home shoot then.If they force entry into your occupied home, deadly force is justified in most US jurisdictions, unless of course it proves unnecessary.

If you come home to find any indication that someone has unlawfully entered your house, you are far better off from the tactical standpoint, and better off from a legal standpoint, to withdraw immediately and seek help.

DEAD person tell no lies.A large percentage of gunshot victims survive.

TonyDedo
February 21, 2012, 02:30 PM
In Massachusetts, which is a far cry from Texas:

#1 - ability: a grown man (or woman), having broken into my home, has access to firearms, may be carrying other weapons, and likely possesses more physical strength and combative experience than I (he's a criminal, I'm an accountant). I assume he has the ability to hurt me.

#2 - opportunity: he has ready access to firearms, and is within close enough range to engage me (stab me, punch me, tackle me, etc). He has the opportunity to hurt me.

#3 - manifest intent: Here's where I hesitate. If I simply walk in on him robbing the joint (situation A), I don't think he's expressed any intent to harm me. However, simply by nature of him being there (and certainly by nature of my firearms being in play), I know he has some criminal intent. I draw, but I don't shoot unless he gives me reason to believe he intends to hurt me. If he's holding a firearm, I assume the firearm is real and loaded, I draw and aim at center of mass. If the barrel of that gun even begins to move in my direction, I know firearms are only pointed at things meant to be destroyed, I know he has the intent to hurt me, and I fire.

#4 - preclusion - I'm in my home, castle doctrine says I have no obligation to retreat. Again, I give him an opportunity to de-escalate and surrender, but the moment I know I'm in immediate danger, I fire.

Alaska444
February 21, 2012, 03:27 PM
Today, 07:42 AM #29
The Termite
Member

Join Date: August 2, 2011
Location: central Louisiana
Posts: 20
Quote:
Originally Posted by Alaska444
I do believe he could be open to prosecution under Federal statutes if they wished. The Texas law is opposite of Federal law. Not sure how that washes down in Texas. The Rodney King officers were prosecuted under Federal statutes.
The officers in the Rodney King case were prosecuted under federal statute for violation of civil rights. This was because President Bush ordered the DOJ to investigate the possibility of charging the officers involved in King's beating, since the state court had acquitted Koon, Wind, and Briseno of all charges, and the jury was unable to reach verdict on one charge against Powell.
Personally, I think it's double jeopardy, but the courts disagree with me.

Shooting an intruder in your house is going to fall under state law; with the possible exception if the intruder is a federal officer. Getting no-billed by a local grand jury, or the DA declining to prosecute, does not mean the DOJ can automatically charge you with violating the intruder's civil rights.

As for your statement that a homeowner who is not residing on federal property is prohibited by Federal law from using deadly force to prevent loss of property, please quote the relevant statute.
Last edited by The Termite; Today at 07:48 AM.


Thank you for the clarification. I was under the impression that the DOJ could step in on civil rights violations in a case such as the Joe Horn case if they wished.

As far as the federal statute, you are correct, I was thinking of Tennessee vs Garner which is not a property case, but fleeing suspects.

http://en.wikipedia.org/wiki/Tennessee_v._Garner

I have heard it said many times over that you can't shoot to protect property EXCEPT in Texas. I know of a couple cases where people have been prosecuted for doing that. Here is one such case where a man was charged with second degree murder:

http://www.newstribune.com/news/2011/jan/26/kc-man-charged-after-shooting-burglar/

brickeyee
February 21, 2012, 04:01 PM
Even in Texas shooting to protect property is very limited.


At night, not likely to be recoverable are at least two of the limits.

In most other states, shooting to protect property is simply not allowed.

Now, if you are between the perp and the door he wants to exit through and he rushes you, things start to change.

The Termite
February 21, 2012, 04:13 PM
I have heard it said many times over that you can't shoot to protect property EXCEPT in Texas.That is not entirely correct. It depends on each situation.

Example #1: Under your car-port, you surprise a burglar breaking into your car, stealing your CDs, laptop, etc. If he clearly has no deadly weapon and you kill him, you will likely be charged with manslaughter.

Example #2: You return home, get out of your car, and are greeted with a strong smell of kerosene or diesel. You are packing a pistol, and now on your own property. You walk around behind your house looking for the source of the odor, and find a perp who has doused your house in an accelerant, has a lighter in hand, and is about to set fire to your house. You cap him, and he dies. You will probably NOT be charged, at least in most non-GFW states.

Owen Sparks
February 21, 2012, 10:10 PM
There is a difference between shooting someone to PUNISH them for a crime and shooting them to stop them from absconding with your valuables. The problem is that the law currently values ALL life over ALL property. (Unless of course it is government property). Without a right to protect your property by whatever means necessary the right of ownership goes to whoever can run the fastest.

WardenWolf
February 22, 2012, 06:39 AM
In response to the original poster, if the intruder has immediate access to a deadly weapon, you generally have the right to take action, up to and including lethal force. In other words, if you see him trying to steal your guns, has already gotten access to them, and one or more of them is loaded or believed to be loaded, the suspect is considered armed. If the person is simply walking or running out the door with your stuff, no, you cannot shoot them. If they are carrying the load towards you in a fashion where they could bring a gun barrel to bear on you, they constitute an immediate armed threat.

Bubbles
February 22, 2012, 08:38 AM
Theft of a firearm from an FFL is a violation of 18 USC 922(u), a federal felony with a max 10 year prison sentence.

I am a home-based FFL.

WV permits use of lethal force to halt a felony in the home if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.

http://www.legis.state.wv.us/WVCODE/55/code/WVC%2055%20%20-%20%207%20%20-%20%2022%20%20.htm

If a burglar is stealing my guns IMO it's pretty reasonable to assume that he's not doing it because he wants to hit the local range for a few hours of target shooting..

mgkdrgn
February 22, 2012, 09:43 AM
In the state of TX you can use deadly force to defend property.

However, that is about the only state (that I know of) where you can do so, legally.

allaroundhunter
February 22, 2012, 10:24 AM
and one or more of them is loaded or believed to be loaded, the suspect is considered armed.

Treat EVERY gun as if it is loaded, whether you believe it is or not.

If the person is simply walking or running out the door with your stuff, no, you cannot shoot them.

Actually, in Texas, if using lethal force is the only way to ensure that they will not get away with your belongings, then yes, you are justified in using lethal force....but prosecutors do have a way of mixing up stories....

Ankeny
February 22, 2012, 10:39 AM
If you come home to find any indication that someone has unlawfully entered your house, you are far better off from the tactical standpoint, and better off from a legal standpoint, to withdraw immediately and seek help.

I posted this before, but it bears repeating. In the mid to late-1980's I returned home at night in a rural area of Wyoming only to find a vehicle parked in my driveway with the motor running. I pulled in behind the vehicle at which time I observed a "dark shadowy" figure run through my "mud/laundry" room and out the back door. I took notice of the license plate and make and model of the vehicle and immediately left. Now keep in mind this was before cell phone coverage and was also back when folks kept firearms on display in a gun cabinet rather than secured in safe.

I traveled to the nearest neighbor's place and they were not home. I parked with my headlights off in the neighbor's driveway and waited. When the vehicle left my home I intercepted it while posing as normal traffic and I managed to get a good view of the driver, then I returned home to call the law.

Upon entering my house I saw my back door was open where the first burglar had left. Upon entering my kitchen area I saw the window above my kitchen sink was kicked out from the inside where a second burglar was making his escape. There was a loaded model 66 Smith in the kitchen sink (my night stand gun). The second burglar had left my home, traveled about a mile across country, and stolen a vehicle to make his escape. There were several long guns wrapped up in a blanket on my living room couch.

When the law arrived we did a quick inventory and I discovered a loaded model 10 Smith and Wesson was missing. I found the gun several months later when the snow melted in my pasture. The second "fleeing felon" had thrown the gun while leaving. The burglar in the vehicle was arrested within two hours of the incident. The second burglar was arrested the next day.

In discussing the incident with the county attorney, he told me at no point in the incident (the way it played out) would I have been justified in using deadly force to pursue the felons and/or to protect my property. He also told me if I had entered my domicile and encountered the second burglar he probably would not prosecute had I used deadly force depending on the physical evidence. When I asked him to elaborate he mentioned something along the lines of the guy being "shot in ass" and "wadded up" in my kitchen window with the gun out of reach.

allaroundhunter
February 22, 2012, 10:44 AM
"shot in a**"

Hows about we just call it a precautionary tetanus shot in the case that he cut himself on some glass or the rusty nail outside? :neener:

Ford Prefect
February 23, 2012, 02:05 PM
...Um.... No.

It doesn't matter one little bit if you know the guy. There is absolutely zero legal requirement for the use of lethal force in the defense of the person or property that pertains to a persons relationship with the perpetrator.

Not at the time, but it can make a huge difference afterwards. As I said, if it starts to look at all grey, then you could be in a lot of trouble. Even if you win in the end, it can get expensive, messy and painfull for you, and last for a long time before it's "resolved". You don't get to blow it off. The DA will look for any excuse to make a case. Don't give him any.

For an "ideal" (no such thing) shoot, you would want it to be a stranger, not a neighbor, or someguy you admit to knowing, or they know you know. That can make the whole situation viewed as a an argument gone bad. If there is no evidence of a break in, the dead guys is known to you then the police may take a very different stance towards you.

All hypothetical, but most shoots are not black and white so easy to decide. There is usually some grey or unanswered questions. The police, and DA, have to use some "judgement" how to proceed. If there is any grey you should expect to get dragged thru the system. Just because you think you've victim, does not change what will happen to you. Especially the further away you get from rural Texas. In an urban NE town, the guy with a weapon will be assumed to be the perp and the guy on the ground is the victim. You must prove otherwise. Texas is a little better, but the risks to you are very serious.

The seriousness of the incident demands that they look at each little detail under a magnifing glass. Sometimes they blow the smallest things into huge issues that you don't think are important, but they do.

Dont' assume the police are you friend. The DA is certainly not.

AABEN
February 25, 2012, 07:32 PM
If they force entry into your occupied home, deadly force is justified in most US jurisdictions, unless of course it proves unnecessary.

If you come home to find any indication that someone has unlawfully entered your house, you are far better off from the tactical standpoint, and better off from a legal standpoint, to withdraw immediately and seek help.

A large percentage of gunshot victims survive.
I am disable and will shoot to kill! I will take my chance in court!! A Dead man tell no lies. hoot more then one time.

JTHunter
February 25, 2012, 08:38 PM
MicroTecniqs said:
Might want to rethink that. See D.C v. Heller. The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.

Whatever your religion, the preservation of Life is one of the most basic fundamentals. That is why they call it self-preservation. How you preserve that life is up to you, regardless of the laws Man makes.

Man, in his infinite stupidity and arrogance, tries to restrict a God-given right, especially when they try to restrict to a certain few of THEIR choosing. That's why we have so many incomprehensible laws.

Considering man's laws, shooting a perp in the front half of his/her body (from one shoulder pointing at you to the other shoulder pointing at you -NOT across the back) is probably the safest way. You can claim they were turning towards you when you shot.

This MAY work in those more restrictive states like Illinois.

Owen Sparks
February 25, 2012, 09:32 PM
When someone takes your property what they have really taken is the past portion of your life that it took to earn or produce it.

Kleanbore
February 25, 2012, 11:03 PM
Posted by AABEN: I am disable and will shoot to kill! I will take my chance in court!! A Dead man tell no lies. hoot more then one time.First, dead men do leave unmistakable testimony in the form of forensic evidence. If there is any evidence that the actor did in fact shoot for the purpose of killing rather than for the purpose of protection, things could go very badly indeed. Second, one may indeed prevail in court, or one may not, but the time it takes for a felony case to move from the investigation phase though final resolution would likely be lengthy, the stress almost unbearable, and the expense is likely to exceed what most people have saved to live on. Finally, a statement such as "I will shoot to kill", taken together with "dead men tell no lies", could easily be used with terrible effect by a prosecutor for the purpose of establishing state of mind and to prove that a defendant had been predisposed to criminal violence.

One does not want to shoot someone who no longer poses an imminent threat, and one does not want to give the authorities any reason to believe that one would wilfully do so.

AABEN
February 26, 2012, 10:02 AM
In Massachusetts, which is a far cry from Texas:

#1 - ability: a grown man (or woman), having broken into my home, has access to firearms, may be carrying other weapons, and likely possesses more physical strength and combative experience than I (he's a criminal, I'm an accountant). I assume he has the ability to hurt me.

#2 - opportunity: he has ready access to firearms, and is within close enough range to engage me (stab me, punch me, tackle me, etc). He has the opportunity to hurt me.

#3 - manifest intent: Here's where I hesitate. If I simply walk in on him robbing the joint (situation A), I don't think he's expressed any intent to harm me. However, simply by nature of him being there (and certainly by nature of my firearms being in play), I know he has some criminal intent. I draw, but I don't shoot unless he gives me reason to believe he intends to hurt me. If he's holding a firearm, I assume the firearm is real and loaded, I draw and aim at center of mass. If the barrel of that gun even begins to move in my direction, I know firearms are only pointed at things meant to be destroyed, I know he has the intent to hurt me, and I fire.

#4 - preclusion - I'm in my home, castle doctrine says I have no obligation to retreat. Again, I give him an opportunity to de-escalate and surrender, but the moment I know I'm in immediate danger, I fire.
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