Judge rejects 'Castle' law claim

[feedthehogs]

http://www.palmbeachpost.com/localnews/content/local_news/epaper/2007/05/15/s1b_borden_0515.html


Judge rejects 'Castle' law claim

By Larry Keller

Palm Beach Post Staff Writer

Tuesday, May 15, 2007

WEST PALM BEACH — In the end, it might have been the nine additional shots he fired at his tormentors that prevented Norman Borden from having his first-degree murder case dismissed Monday.

Borden, 44, asked Circuit Judge William Berger to dismiss charges against him - two counts of first-degree murder and three other felonies - on the basis that under Florida's "Castle Doctrine" law he acted lawfully in shooting to death Christopher Araujo, 19, and Saul Trejo, 21, in his Westgate neighborhood in West Palm Beach in October.

Berger denied the request and set Borden's trial for June 18.

The confrontation occurred when Borden and a friend were walking Borden's dogs around 3 a.m. Words were exchanged, and Borden said the other men drove at him in a Jeep.

That's when he fired five shots from a 9mm handgun, and the vehicle came to a stop against a fence.

Borden then fired nine more shots from close range into the vehicle.

Sheriff's investigators say that Trejo was a local leader of a criminal nationwide street gang called Surenos 13 or Sur 13. They say that the gang's members set fire to Borden's house a couple of days after the shootings.

Public Defender Carey Haughwout sought dismissal of the charges on grounds that the state Castle Doctrine law in effect since Oct. 1, 2005 expanded one's right to self-defense to include shooting another person in their home, their vehicle and in a public place.

The law usurped court rulings that people had a duty to retreat from violent encounters. The Castle Doctrine states that a law-abiding person "has the right to stand his or her ground and meet force with force."

That fit Borden, Haughwout said. "His actions were done out of reasonable fear for his life and safety" and that of his friend, she said.

A preponderance of the evidence showed this, she added, and that's the standard of proof that applies.

Prosecutor Craig Williams said the Castle Doctrine law states that the use of force is permitted if "a reasonably cautious and prudent person" could believe that danger could only be avoided by the use of force.

Borden might have had a valid argument after firing the first five shots at the moving vehicle, he said.

The nine shots he dispensed when the Jeep came to a stop gave police probable cause to believe that Borden did not act in self-defense, he said.

"It's clearly a jury question," Williams said.

Berger agreed, saying that since factual issues are in dispute, a jury, not he, should decide them.

Had Borden succeeded in getting murder charges tossed because of the Castle Doctrine, he would have been the first defendant in Florida to do so.

 

[Dave P]

"Had Borden succeeded in getting murder charges tossed because of the Castle Doctrine, he would have been the first defendant in Florida to do so."

I don't think that is true. I posted a story about a man shooting thru his door and being covered by Castle Doc.

 

[ceetee]

There have been plenty of cases where the shooter in a self-defense situation was not prosecuted, but this would have been the first time where someone was charged, and the charges dropped due to the "Castle" law. Personally, I'm on the fence on this case. After reading the published news stories, I think the world hasn't lost any Nobel prize winners, but the main question seems to be (and it's one I can't answer) "Did the shooter keep on firing after the need for self-defense had passed?" And if he did, shouldn't he be punished?

 

[romma]

The nine shots he dispensed when the Jeep came to a stop gave police probable cause to believe that Borden did not act in self-defense, he said.

Of course the Police are qualified to make these claims when it's a citizen dispensing this many rounds.

This is not intended to be a cop bashing statement, but why the double standard when the police excercise force?

Maybe what this person did was outside the law, I wasn't there so my point is about the double standard.

Please don't let this turn to a bashing thread as it is not my intent. Keep it civil while at the same time admitting that there are double standards sometimes in these instances.

 

[1911Tuner]

Castle

Reported:

>He fired five shots from a 9mm handgun, and the vehicle came to a stop against a fence. Borden then fired nine more shots from close range into the vehicle.<
***********

Unless he saw the occupants preparing to fire at him, he should have stopped when the threat ended. Continuing to fire after the hostiles have been neutralized is viewed as murder...and since he had a short time to deliberate the action...he may be facing capital charges. Maybe more details will be forthcoming...

 

[Geno]

I call foul. Even highly trained LEOs frequently cannot tell one how many rounds they fired. Given this heated moment factor, he may not have even perceived a "pause" in the action. Note I say, "may not". We need more information to be able to make an informed decision. That one of the perps was a national leader of a gang adds to the reasonableness of firing until you are assured the threat is ended.

Given the retributions on the defendant's house following the shooting, I wonder if the police and judge are under pressure by the gang...so, now they will leave it in the hands of a jury. Stranger things have happened in this world.

 

[FieroCDSP]

I think the judge was right in passing this onto a jury. The first five were likely clean. I'm curious to know why he closed and continued firing. Did he know these were gang members? If in such a position, having just been assaulted with a vehicle, and knowing they were gang members, I'd fear retaliation, be it immediate or soon after. We already saw that the gang torched his house. I wouldn't convict him unless it was obvious he was disregarding the rules of the game. In my mind, the fear created by the situation could have made him feel the rest of the mag was necessary.

Not to mention if you shoot at a gang memeber, you'd better take him out, because you're going to see him and his buddies later.

 

[SteveS]

"It's clearly a jury question," Williams said.

Berger agreed, saying that since factual issues are in dispute, a jury, not he, should decide them.

Sending this case to trial seems very appropriate, considering there is a factual dispute.

 

[Erebus]

The "at close range" part bothers me. Did he approach and see someone trying to the get vehicle back in gear or readying a weapon? Or did he just decide to finish tham off? I guess the jury will have to decide. Once the vehicle stopped the danger was over unless one of the occupants came up with a weapon of got the vehicle moving again.

 

[Michael Courtney]

This is a tricky question.

Once lethal force is justified, how quickly can a "reasonable man" reasonably be expected to process that lethal force may no longer be required and then desist from using the reasonable lethal force that was necessary and prudent just moments before?

Certainly there are details unknown to us that hopefully will be available to a jury. And it looks reasonable to put this one before a jury to weigh all the evidence of this specific case.

Michael Courtney

 

[foob]

Maybe he read too many posts online mentioning dead men do no talking.

 

[joab]

This is not intended to be a cop bashing statement, but why the double standard when the police exercise force?

police will get the same scrutiny when one of their shots is alleged to be a contact shot to the head.

 

[El Tejon]

foob, how dare you! Don't you realize that Problem #2 only exists in the mind of El Tejon?

This case has nothing to do with the Castle Doctrine and the media is driving me nuts!:banghead:

 

[pacodelahoya]

police will get the same scrutiny when one of their shots is alleged to be a contact shot to the head.

Please provide the link to back up this statement. I didn't see it in the article linked to.

As for the rest, none of us were there, we all know the media does not always get it right. He just wanted to go home to his wife and kids.

 

[joab]

When the story originally was presented her there were many articles linked
At least one gave an account of a speculated contact shot to the head

I accept my responsibility to provide links but the site has been down for awhile and I don't have the time right now

I will look later

He just wanted to go home to his wife and kids.

Actually it was his dogs, they're the only reason he ever gets out of bed (that's also from one of the earlier articles) and also the target of the gang

 

[joab]

OK I just looked the links from those stories are archived, so you'll just have to trust that I remember correctly that there was an allegation of a contact shot

In the old thread one of his comments from one of those articles is quoted
When asked why he thought he he needed to shoot the other guys he said "They were there"

Comments like that got him a jury

 

[Warren]

I say the tie goes to the person who was not a member of a gang of criminals.

 

[Flyboy]

I call foul. Even highly trained LEOs frequently cannot tell one how many rounds they fired. Given this heated moment factor, he may not have even perceived a "pause" in the action. Note I say, "may not". We need more information to be able to make an informed decision.

The article says the second string of nine was fired "from close range" after the Jeep hit a fence. That can be factually determined--go look for his brass. If the brass was in two separate piles, in different locations, then there were two string fired. Based on the article, I'm going to agree that this is a good case for a jury to decide.

 

[Geister]

Reminds me of a conversation I had with a gun store clerk. He told me he carried a Kimber compact 1911. I asked him if he had any problems with being only limited to six or seven .45s. He told me, no, after two shots or so it's going to pretty expensive to defend yourself in trial.

That rings true here. Had the guy not shot nine more rounds after the fact, he probably wouldn't be in so much trouble.