Shooting thru a barricade at a home intruder

mgkdrgn said:

...I'm not going to take the time to sit down and work all that stuff out, consider all the legal angles, and look up the supreme court precedents....

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Do what you want. We really don't care what you do.

But if you're going post erroneous comments about the law, we will correct you for the benefit of others -- so others don't get misled by you.

Your chest thumping notwithstanding others should understand that Castle Doctrine/Stand Your Ground laws are not a free pass. Folks should understand applicable well enough so that they can make good decisions and do so quickly.

With regard to South Carolina law, awhile ago there was an interesting editorial in The Post and Courier, "Standing your ground has its legal limits in South Carolina":

Chief, the other very important "what if" is "what if" the forensic evidence, or the eyewitness testimony of the intruder and his accomplice, or of someone viewing through a window, or earwitness testimony, indicates that, when the resident fired, the intruder had given up or had indicated his intention to leave.

That would rebut the presumption granted in law--it would indicate that the intruder no longer intended to commit the crime of violence.

It would thus eliminate any justification for the use of deadly force.

Maybe such evidence would still leave room for reasonable doubt, or maybe not, or maybe it would be down to the weight of a feather.

At that (last) point, other evidence could be dispositive.

Evidence previously created by the defendant that he would be inclined to shoot anyone in his house regardless of the "legal angles" could seal his fate.

Psyphertext said:

Bobson said:

It is always illegal.

When you're accused of a crime in court, the burden of proof is on the prosecution. When you go into court for a SD shooting where you've killed your attacker, you'll begin by pleading guilty. In doing so, the burden of proof switches to you. Until you prove sufficient justification, you're guilty of murder.

It's not an insignificant matter of semantics. You kill someone for any reason, you've committed a felony. Later, you'll get an opportunity to defend your actions, but understand that you're starting in the hole.

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Unless you are in Missouri! Our legislature saw fit to make self-defense justification the burden of the shooter and yet they gave the power to the court to rule as a matter of law if the clai ed facts and circumstances constitute self-defense....

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1. The availability of a preliminary opportunity for the defendant to raise his self defense claim is not necessarily unique to Missouri. A number of States (including Florida and, I believe, South Carolina) have procedures for a defendant to seek a ruling on his justification defense before trial.
   
   
   • A ruling favorable to the defendant resolves the charge without the time and cost of a full blown trial.
     
     
   • If the ruling is unfavorable to the defendant, he would generally still be able to try to make his self defense case to the jury at trial.
   
   
2. In any case, Bobson's comments, which you quote, were not entirely accurate. This was fully addressed by me in post 46. As I noted in that post, if you claim self defense:

   1. .... you do effectively admit that you intentionally shot someone.
      
      
   2. By admitting that you have admitted the core elements of a crime -- at least voluntary manslaughter. ....
      
      
   3. As the defendant seeking exoneration on the grounds of justification, your burden of proof will vary somewhat depending on the jurisdiction. But you will in any event have the burden of producing evidence sufficient to support the inference that all the elements have been satisfied as necessary for your act to have been justified. If you have thus made a prima facie case the prosecution will have the burden of convincing the jury that your actions were not justified.
      
      
   4. By claiming self defense you have effectively admitted the elements of the crime, so the prosecutor doesn't have to prove that you intentionally shot the guy. ...

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Psyphertext said:

...Now factor rule #1: NEVER talk to the police on a self-defense action without your lawyer and take at least 48-72 hours to do so while getting your composure and coming down from a heightened state; they instruct their own to do just that.

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But if you are claiming self defense, that's not necessarily the best idea. See our our thread: What to Do after a Self Defense Encounter.

Also, see what lawyer Andrew Branca has to say on the subject here.

Note also that not saying anything could also be used against you (Salinas v. Texas, No. 12-246, Supreme Court 2013).

pendennis said:

...When police arrive, admit to nothing other than your name and address. Make no statement of any kind...

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Again, not the best idea when claiming self defense. See above.

pendennis said:

...If pressed, insist on being taken to the hospital for treatment. You have been through a traumatic experience. You need medical help...

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An extraordinarily bad idea (unless you actually do need medical attention).

Unless it's true, you would be lying. and lying will always be used against you. It establishes doubt as to your credibility. Once you are caught in a lie, you are a liar; and people, including people who you very much need to believe your story about needing to defend yourself, will doubt everything you say.

You may think you won't get caught, and maybe you won't. But that's a different question. And liars frequently get found out.



In addition, you have now called for an ambulance you really don't need. Depending on the availability of emergency medical services in your community, you have taken an ambulance out of service and perhaps delayed response to someone who really is gravely sick or injured and really needs one. 



You're also now using space and resources in an ER -- space and resources you really don't need. You may be thereby delaying care to someone who really is sick or injured. 

And are you going to file an insurance claim for emergency medical services, which you knew you really didn't need? That's insurance fraud and grand larceny.



So when all that is discovered, you now become a callous, lying monster wasting limited emergency medical resources so you can duck talking with police (when you merely have to invoke your right to remain silent) and delaying the availability of those services for people who may really need them. You also expect your medical insurance to pay for your little ruse, even though they have no responsibility to pay for unnecessary service used for the purpose of temporarily evading police questioning; and thus you are stealing from your medical insurance. 



But nonetheless you will expect the police, the DA, the grand jury and possibly a trial jury to believe your claim that you were an innocent victim forced by the criminal act of another to use violence as a last resort to save your life?
 Good luck.

Whatever else, don't lie (and don't run).

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Posted by Psyphertext: [In response to "the burden of proof is on the prosecution"] Unless you are in Missouri!

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The burden of proof in Missouri is on the prosecution.

Our legislature saw fit to make self-defense justification the burden of the shooter.

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According to the law, "The defendant shall have the burden of injecting the issue of justification.... If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force."

...and yet they [the legislature] gave the power to the court to rule as a matter of law if the claimed facts and circumstances constitute self-defense.

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What the law says is "whenever evidence relating to the defense of justification under this section is offered, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

None of the above is peculiar to Missouri.

Now factor rule #1: NEVER talk to the police on a self-defense action without your lawyer and take at least 48-72 hours to do so while getting your composure and coming down from a heightened state; they instruct their own to do just that.

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I see that Frank has addressed that fully.

pendennis said:

Let's keep this in the real world....

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Yes, let's keep this in the real world. It seems that we have no reports of folks who have successfully defended themselves going to the hospital unless they were actually wounded or in clear medical distress.

pendennis said:

...I've discussed with both my family doctor and a psychiatrist, and they are both in agreement that it is not any sort of ruse, if a person involved in a shooting needs medical attention, and asking for medical assistance is not a waste of any hospital, ambulance, or other medical assets...

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Worthless hearsay. Let's hear from them first hand.

pendennis said:

...Neither am I a lawyer...

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That's obvious. However, I am a lawyer. Andrew Branca (whose article on the subject I linked to in post 56) is as well (he's also the author of The Law of Self Defense).

And Massad Ayoob doesn't think much of your "go to the hospital" advice (see his column in the August, 2010, Combat Handguns.)

pendennis said:

...Silence is never an admission of guilt.

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How would you know?

That in fact is not necessarily true. Silence, or other conduct may be offered by the prosecution as evidence of a defendant's guilt. For example, the Supreme Court as noted in Salinas v. Texas (No. 12-246, Supreme Court 2013) affirming the Court of Appeal's rejection of defendant's Fifth Amendment claim (slip op., 2 -- 3):
In fact, it is well established that conduct, including silence or being asked to unnecessarily be taken to a hospital, can be evidence from which a jury may draw inferences.

• U.S. v. Perkins, 937 F.2d 1397 (C.A.9 (Cal.), 1990), at 1402:

  ...the instruction explicitly stated, "the jury may consider [the false statements] as circumstantial evidence of the defendant's guilt." Id. at 1104. Second, we have approved the use of this instruction on false exculpatory statements. See United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir.1979) (court noted approval of standard Devitt & Blackmar instruction and distinguished Di Stefano in upholding a variation from the standard instruction); United States v. Wood, 550 F.2d 435, 443 (9th Cir.1976)....

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• State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653 (Iowa, 1967), at 656:

  ...In Wigmore on Evidence, Third Ed., section 276, Volume II, page 111, under the title 'Conduct as Evidence of Guilt' the editor states: 'It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.'
  
  McCormick on Evidence, section 248, pages 532, 533, puts it thus: "The wicked flee when no man pursueth.' Many acts of a defendant after the crime seeking to escape the toils of the law are received as admissions by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself. In this class are flight from the locality after the crime, assuming a false name, resisting arrest, * * *.' See also Jones on Evidence, Fifth Ed., section 386, page 717.
  
  We have held many times that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563, 569; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279, 281; State v. Ford, Iowa, 145 N.W.2d 638, 641. See also 29 Am.Jur.2d, Evidence, section 280, and 22A C.J.S. Criminal Law § 625 a....

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• State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (Neb., 1991), at 743:

  ... Although Clancy involved evidence of the defendant's attempted intimidation or actual intimidation of a State's informant or witness, evidence which was admissible under Neb.Evid.R. 404(2) ("other acts"), the rationale for "conscious guilt" evidence is equally applicable in Lonnecker's case.
  
  Lonnecker's hiding in the crawl space was evidence of his "conscious guilt" concerning the marijuana located on the premises which were under his control, that is, a conscious guilt concerning possession and cultivation of marijuana as a controlled substance. ...

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• Martin v. State, 707 S.W.2d 243 (Tex.App.-Beaumont, 1986), at 245:

  ...In 2 RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 1538 (Texas Practice 3rd ed. 1980), we find:
  
  "Sec. 1538 Conduct as Evidence of Guilt
  
  "A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of crime, subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged." ...
  
  See also Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981)....

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pendennis said:

...Your profile shows you as a commercial attorney, with a background in medical insurance.

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And you're no kind of lawyer whatsoever.

From a lawyer's perspective, this is all basic stuff.

pendennis said:

Then please cite some cases you've personally handled in criminal court.

Your profile shows you as a commercial attorney, with a background in medical insurance.

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You realize that you are presenting a Straw Arguement, right?

Training in the Law is about understanding what is written, not the practice of the law

Please contest the posting, not the poster

1SOW said:

...The property owner, on the property, points and shoots a firearm at the thief , kills him and calls the police. At least once this has happened in Texas and the property owner wasn't indicted. IF this true, how can breaking into the home and the property owner ADDING the statement of fearing for his/his families life in addition to reasonable belief that theft was was the second fear? How is this different than preventing the theft of an automobile?

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Every situation is different. In order to fully understand the legal implications, any situation has to be analyzed based on exactly what happened, how it happened, what the applicable statute law is and what the applicable court decisions say.

Furthermore, Texas use-of-force law is unique. However, is is also more complicated than many people realize.

We're trying here to outline some broad guidelines for making use-of-force decisions in general terms. In some situations, circumstances can make the decisions more complicate and difficult. In other situations, like your hypothetical, circumstances will cause the decision to be far more straightforward.

Posted by pendennis: Neither am I a lawyer. I do have a good attorney on my speed dial, and in the process of retaining him, I presented him the advice I received from my CPL instructor. He agreed entirely, and he is on retainer. He also advised that any statements of the event, or claiming self-defense should only be made in his presence.

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I strongly suggest that you study the link contained in Post #56, and try to understand it.

But first, understand this: defending a self defense case is fundamentally different from any other kind of criminal defense.

The most basic differences are these:

1. In other kinds of criminal cases, the objective of the defense attorney is to prevent the state from proving beyond a reasonable doubt that his or her client did, or at least did knowingly and willfully or with culpable negligence, the deed.
2. In a self defense case, the client must necessarily admit to having done the deed, and the attorney must convince the jury that the act had been lawfully justified (again, to the BARD standard). That takes evidence. And evidence lost at the scene will never make it into court.

That widely-circulated youtube video applies to the former, and not to the latter. Most attorneys who are experienced in other kinds of defenses do not have even a basic practical understanding of what it takes to defend a self defense case. It is not uncommon for this subject to receive little more than an hour of relevant instruction in law school.

For that reason, you will be far better served to pay more attention to the likes of Massad Ayoob, Andrew Branca, Frank Ettin, Marty Hayes, Spats McGee, and Bartholomew Roberts on this board, to name a few, than to a general criminal defense attorney who is not intimately familiar with the subject matter, when it comes to what to do or say after a use of force incident for which you intend to present a defense of justification.

Frank, incidentally, has assisted in the teaching of the subject.

I have interviewed several well known criminal defense attorneys in my area, only to decide that they will not represent me in such a case.

Study the link.

But, since Mr. Ayoob is not a practicing physician, I will demur to my own doctor's expertise.

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I would offer that your doctor has limited, if any, expertise, in how a investigating detective, intake ADA, supervising ADA or jury would view certain courses of action.

An interesting question might be, would your doctor be willing to go to court to testify that he gave you a blanket recommendation to seek medical attention in that situation.

Posted by pendennis: I will demur to my own doctor's expertise.

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If I had medical advice to seek attention following a very stressful event of any kind, I would not ignore it.

That does not mean that to seek medical advice immediately after a self defense shooting is necessarily good advice for just anyone. Claiming that one requires immediate attention without a good basis could prove very damaging.

As has been said, do not lie. Period.

I also interviewed several attorneys to insure that the one I wanted has expertise in firearms and self defense laws.

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In my case, I have sufficient knowledge to evaluate the expertise of the attorneys.

Let me cut to the chase: if any attorney ever (1) advises you to follow the general advice of the law professor in that video that has gone viral, or (2) to do anything that differs materially from the advice given by attorneys Branca or Hayes, or former vice president of the Forensic Evidence Committee of the National Association of Criminal Defense Lawyers (NACDL) Massad Ayoob after a self defense shooting,

1. ignore that advice, and
2. find another attorney.

The video, and any other advice to say nothing to police at the time, simply do not apply to a case in which a suspect or defendant will subsequently try to mount a defense of justification.

Now, part of that advice rings true for any kind of case. You cannot talk yourself out of being arrested. But--should your silence lead to the loss of any necessary exculpatory evidence (and that would include the disappearance of witnesses from the scene), your defense of justification may be lost at the outset. That is the essence of the advice of Ayoob, Branca, Hayes, and others.

One other thing, and this is important: there have been determinative, precedential court cases since the video was made that make parts of the presentation invalid. These have been discussed on this board before. Frank Ettin has cited one.

pendennis said:

...I will not, however, have discussions I've had with my family doctor, and my retained attorney referred to as "Worthless hearsay. Let's hear from them first hand." We are not in a court of law. We're in a public forum. And, I'm not obliged to call witnesses on my behalf...

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It is never unreasonable for me, or anyone else, to expect someone offering an opinion, here or anywhere else, back that opinion up. All opinions are not equal, and how much attention an opinion deserves depends on how well it can be backed up. As far as back-up goes, relying on what some anonymous, unknown person not present supposedly said is pretty near the bottom of the barrel.

pendennis said:

...I will demur to my own doctor's expertise.

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Be my guest. I don't care what you do. But for the benefit of others, I will challenge what I consider to be bad information.