OK, but is that the LEGAL response to do?
Legally I can use deadly force for someone spray painting my gate in the middle of the night. Would I? No.
I hope to never take a life while I walk this earth.
OK, but is that the LEGAL response to do?
Jeez the "If he's in my house I CAN shoot him" stuff gets tiresome. It is NOT a correct application or understanding of the various "Castle Doctrine" laws.
Those laws don't give you ANY more justification to shoot someone than you would have ANYWHERE else. On the street, in your bathroom, in the woods, or on a flippin' Ferris wheel.
What these laws do is give the resident a lowered burden of proof when they're in the courtroom pleading an affirmative defense. These laws say that because the guy had forcibly entered your home you don't have to PROVE to the court that he intended to harm you. The court will accept that one factor of your defense prima facie. That's all these laws do.
They DON'T prescribe that you MAY take a life when otherwise you couldn't. They just help you mount your defense in court.
Further, that presumption is REBUTTABLE. In other words, just because the court normally would accept that portion of your defense, doesn't mean that decision is written in stone. If the prosecution can show that for some reason the intruder should have been known to be no threat, OR was trying to retreat, OR was surrendering, OR some other thing that casts doubt on your decision, that automatic portion of your defense may be not accepted and you're back to proving your case as best as you can.
So you KNEW he wasn't armed? You could be facing rebuttal of your justification depending on the totality of circumstances.
This is a mindset we need to embrace. We've accepted the "OK, NOW I CAN SHOOT" mentality for far too long.
(c) Any person using force intended or likely to cause death or serious bodily injury within a residence, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.
What these laws do is give the resident a lowered burden of proof when they're in the courtroom pleading an affirmative defense. These laws say that because the guy had forcibly entered your home you don't have to PROVE to the court that he intended to harm you. The court will accept that one factor of your defense prima facie. That's all these laws do.
They DON'T prescribe that you MAY take a life when otherwise you couldn't. They just help you mount your defense in court.
Further, that presumption is REBUTTABLE. In other words, just because the court normally would accept that portion of your defense, doesn't mean that decision is written in stone. If the prosecution can show that for some reason the intruder should have been known to be no threat, OR was trying to retreat, OR was surrendering, OR some other thing that casts doubt on your decision, that automatic portion of your defense may be not accepted and you're back to proving your case as best as you can.
So you KNEW he wasn't armed? You could be facing rebuttal of your justification depending on the totality of circumstances.
This is a mindset we need to embrace. We've accepted the "OK, NOW I CAN SHOOT" mentality for far too long.
The basic principle is that someone who is in his or own house is given certain presumptions regarding the justification of the use of force against an unlawful intruder that would not apply somewhere else.
As in the case of the duty to retreat and the right to not retreat (to "stand your ground"), castle doctrine provisions are variously defined in state codes and in appellate court rulings (legal precedent). One should never rely on a layman's reading of the code, or on any one statute taken out of context.
Provisions vary from one jurisdiction to another. In general, however, "castle doctrine" laws and rulings do the following:
They provide a resident or his or her guest with a presumption that an unlawful entry by an intruder gives the occupant reason to believe that deadly force is immediately necessary to defend against an imminent threat of death or serious bodily harm; that belief is one of the fundamental requirements of a defense of justification for the use of deadly force;
they establish clearly that, once the conditions for justification have been met, there is no duty to retreat within or from the domicile in the event of an attack by an unlawful intruder.
Castle doctrine laws DO NOT provide a resident with a carte blanche right to employ deadly force simply because someone has entered a domicile unlawfully. The aforementioned presumption is rebuttable: if the intruder does not pose a serious threat or has ceased to do so, the use of deadly force is not justified. Essentially, what the castle doctrine really does is reduce the burden on the defender to provide evidence supporting a reasonable belief that deadly force was necessary.
Hi, Tarosean, I don't know where you live, but I doubt very much that you may legally use deadly force against the guy painting your gate.
DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
My hope has always been that the dog would persuade an intruder to change his mind.NO, probably would not have to after Shadow got through with em !...............
And we'll probably never know how the intruder managed to break his shot at the exact same time. If the homeowner had hesitated only a bit longer, who knows what would have happened??(Not every home defense shooting is serious or tragic. An acquaintance thought he heard a noise in his living room. He crept down the stairs, gun in hand. In the half light from a street light, he saw a man who appeared to be pointing a gun at him, so he fired and nailed the intruder dead center. No cries, no screams, just the sound of breaking glass. After which he remembered the antique mirror his wife had purchased for a very high price and had delivered the day before. Needless to say, he has not been allowed to forget his "home defense" shooting.)
However, you need to pay particular attention to paragraph (3) of that statute (which is Texas Penal Code 9.42, BTW).tarosean said:Hi, Tarosean, I don't know where you live, but I doubt very much that you may legally use deadly force against the guy painting your gate.
My location is below my user name just as its always been...
TX is rather unique in this regard.
DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
...(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
Which is why most States have a law very much like the Tennessee law quoted in post 33 (Tennessee Code 39-11-611(c), emphasis added):CAPTAIN MIKE said:...Under the law of most states, a Home Invasion falls under the general heading of 'Burglary'. It's one thing to break into your home when you and none of your wife & kids are home - and quite another to break in when you ARE home. The law generally considers 'certain felonies' to be "Inherently Dangerous Felonies" ....
...(c) Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred....
Other than in beered-up sophmoric speculation entairnment value, this is about the silliest thread that I have noticed.
That's a slight variation on one of the rules of safety, but it most certainly does not mean that if you have drawn you should necessarily shoot.Posted by kyew: Legalities aside, I was taught never to point a gun at anyone until I was ready to pull the trigger.
That is a terrible way to look at things, and one's having posted it in a public forum could have disastrous consequences should he or she ever end up in a use of force stituation in which the facts are not clear cut. Let no one follow that advice....if it ever comes down to it (and I sincerely hope it doesn't) the person I draw my weapon on is going to get shot.
Time to reconsider that....... drawing a weapon and leveling it at someone is paramount to pulling the trigger, at least for me it is.
Many states even specifically recognize a difference between the two in the text of their use-of-force laws.There is a distinct difference between the presentation of a firearm in a use of force encounter and the actual use of deadly force.