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Home owner protects family during home invasion

Discussion in 'General Gun Discussions' started by shibbykins, May 6, 2010.

  1. shibbykins

    shibbykins New Member

    Sep 7, 2009

    Could have been alot worse.
  2. hacksaw

    hacksaw Member

    Oct 19, 2006
    I love a story with a happy ending! Good for the Daw's!
  3. TexasRifleman

    TexasRifleman Moderator Emeritus

    Feb 16, 2003
    Ft. Worth
    Well that's utter horse crap. There has never been a duty to retreat in Texas. Not in case law, not in statute. Texas law always allowed for the use of deadly force if "necessary". The Castle Doctrine just reworded the statutes to say that inside one's own home the "necessity" may be assumed to already exist if someone breaks in. Also added cars etc.

    Other than that, glad to see the law abiding citizen emerge unharmed.
    Last edited: May 6, 2010
  4. Husker_Fan

    Husker_Fan Active Member

    May 28, 2008
    I was just about to say the same thing. I don't know of any jurisdiction that has a duty to retreat that applies in your own home.

    A man's home is his castle. That is why it's called the castle doctrine, and it has always been a part of the law. Now Texas just extends it beyond the home and limits the ability of surviving criminals to sue.
  5. Thingster

    Thingster Member

    Jan 18, 2009
    I know Massachusetts used to have a duty to retreat within ones own home, don't know if it's still the law or not.

    EDIT: found it, MA no longer has a duty to retreat.
  6. Zoogster

    Zoogster Senior Member

    Oct 27, 2006
    I was going to comment on the same thing but I see it is covered.

    There have been states that hold it against you if you did not show an attempt to retreat before use of force.
    Some of the worst offenders have adopted "castle doctrine" type laws since then, so researching each individual one historically would require some time.

    While wiki is a poor source for legal information, I do see a compiled list of states that may work as a starting point, (or at least a list you may wish to prove otherwise):


    You will note some places only let you protect yourself from a violent attack in the home, while others make that assumption from someone who breaks in or let you use force against any intruder.
    Which means there is still discretion in whether self defense applies when lethal force is used against an intruder for a court, prosecutor, and jury.

    So there is a duty to retreat in some parts of the United States! Interestingly enough your own state of Nebraska is listed as a place you may still need meet a duty to retreat in the home.

    An interesting bit of history people might find intriguing is the change in English law (which is the basis for our Common Law and a lot legal procedures) that allowed more self defense for the common man came from a King who frequently executed people for petty things.
    Henry VIII. http://en.wikipedia.org/wiki/Henry_VIII_of_England
    He executed a wife that would not bear him a son, and his chief minister for arranging a marriage to a women he found to be ugly in person for example.

    As noted here:

    Prior to that the best a common man could hope for if they defended themselves was to lose all their property and belongings and not be executed.
    And even that, the best of possible outcomes, depended on the generosity and mood of the King.
    So you automatically lost the civil case, and the criminal case resulted in execution unless the King pardoned you. :neener:
    Last edited: May 6, 2010
  7. Zoogster

    Zoogster Senior Member

    Oct 27, 2006

    Castle Doctrine was in fact just defeated in Nebraska about a month ago.
    It would appear the court retains wide discretion in whether your self defense in your home was legal or not.

    In Nebraska
    it would appear that even in your own home you need to meet the "Justification; choice of evils" clause:
    "The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged"
    means your self defense in the home would appear to still require reasonable fear of something even worse being done to you.
    Which is above and beyond the legal requirements even outside the home in most of the nation.

    This means it would appear to be possible for the use of lethal force against a mere intruder breaking into your home to be deemed excessive and not self defense.
    It may not happen often, but you do not appear to be automatically legally protected in Nebraska.
    If a court determines your fear of something even worse being done to you was not reasonable, your self defense argument could be defeated. Making the use of that force criminal.
  8. devildog32713

    devildog32713 Member

    Jun 14, 2009
    Volunteer State

    How could it be proved you retreated??
  9. gearchecker

    gearchecker Member

    Mar 13, 2009
    North Idaho
    Idaho has not prosecuted anybody in defense of their lives in a home in over 40 years.
    The last prosecution I know of was a case where the homeowner chased the armed intruder into his house and the homeowner shot him. The intruder was killed in the incident.
    He was found not guilty by a jury of his peers.
  10. wishin

    wishin Senior Member

    Nov 20, 2009
    Whoever authored that quote must not have known that all stories beginning with the words "once upon a time" are usually fairy tales. However, we know how arbitrary monarchs were hundreds of years ago.

    Sounds like his wife got in the fight too. They got the upper hand and managed to prevail. Good example of a couple working together in defense of family.
  11. Zoogster

    Zoogster Senior Member

    Oct 27, 2006
    Perhaps the choice of words was poor.
    Indeed the concept of self defense is much older, but the article quote is still accurate as to typical practice at the time, and the law passed which reversed automatic forfeiture of property if you defended yourself.


    That link also cites where the duty to retreat that existed in many states until recently (and still some today) comes from:

    So self defense killing in general outside of his "castle" required retreat to be legal in self defense. While one could even pursue and kill one if it served the greater public good.
    For example police until last century would legally shoot at fleeing criminals doing nothing but trying to get away in some parts of the nation.
    A supreme court case put an end to this as recently as 1985:
    After someone is convicted and in custody the use of lethal force expands even more in some portions of the United States.
    Lethal force is still used against those trying to escape state or federal custody, even if they use no violence. Someone in prison for a petty felony and no violent history can be shot in the back trying to climb over a wall or running from the prison or jail in an escape. Which meets no self defense criteria.
    It dates to the concept of "serving the greater public good" by preventing such escape.

    This is quite accurate and was the case until many states recently passed "castle doctrine". Several states required it even inside one's "castle".
    It is why most of the western half of the United States had no duty to retreat, and much of the east half did.
    Even places like California have had "castle doctrine" long before the term was even used because it was part of the western frontier.
    Last edited: May 6, 2010
  12. Kleanbore

    Kleanbore Moderator

    Aug 13, 2008
    Actually, until several years ago, the law read as follows:

    Did that impose a "duty" to retreat? I don't know, but I wouldn't want to have had my reasonableness evaluated by others after the fact, considering the stakes.


    True; the wording regarding retreat was also eliminated.
  13. Buck Snort

    Buck Snort Participating Member

    Oct 5, 2004
    N. CA.
    "Homeowners Paul Daw and Monica Daw were asleep during the initial break-in and awoke to find the man in the master bedroom."

    WHAAAAAAAAT? How does ANYBODY with a lick of sense allow their perimiter to be so soft a perp can get in all the way to the master bedroom without getting stopped? You use motion dector lights and motion detector alarms. You have a dog, at least one that'll yap like crazy and wake you up. You do whatever it takes because if the guy is a homocidal maniac you won't get a second chance, nor will your kids. These kind of stories really floor me.

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