Deadly force and Castle Doctrine

Discussion in 'Legal' started by Bulletski, Sep 13, 2022.

  1. Kleanbore

    Kleanbore Moderator Staff Member

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    True, if we insert "intentionally".
     
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  2. CapnMac

    CapnMac Member

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    This being Legal, let's go to the horse's mouth:
    https://www.scstatehouse.gov/code/t16c011.php
    Leading off, we have:
    Moving to the meat of it, Article 6:
    Section 16-11-440 (emphasis dded)
    So, SC asserts that a person can presume that they are safe where they are domiciled. That trespass and housebreaking are crimes of high risk to those engaged in them. But, nothing in the statue suggests carte blanche against such trespass or housebreaking. Even if a lot of leeway is presumed.
     
  3. tommy.duncan

    tommy.duncan Member

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    Well, in Virginia you have the "duty to retreat".
    You are supposed to try to retreat before using deadly force.
    I believe this is different between states and local municipalities.
     
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  4. alsaqr

    alsaqr Member

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    This Oklahoma man killed three teenage burglars who entered his home. The female getaway driver was charged with murder.

    "Oklahoma's law states that a person who is attacked in their home "has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony."

    Oklahoma Man Uses AR-15 to Kill Three Teen Home Intruders (nbcnews.com)

    The prosecutor gave the shooter a pass:

    Oklahoma home invasion shooting: No charges against man who killed 3 intruders | Fox News
     
  5. MEHavey

    MEHavey Member

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    Though Virginia does not have a stand your ground statute, the state courts have held that there is no duty to retreat before using force in public.

    If you were not at fault in starting an altercation with another person in Virginia, and that person is indeed the one who initially threatened or carried out an act of physical violence, then you have the right to defend yourself without having to determine whether you can retreat safely. This concept is called “justifiable self-defense”
    On the other hand, if you are partially at fault in starting the fight or confrontation, the Virginia law requires you to retreat as far as you safely can before you are permitted to use what is called ‘Excusable Self-Defense’.
    Foote v. Commonwealth, 11 Va. App. 61, 67 (1990) (citing McCoy v. Commonwealth, 125 Va. 771, 775 (1919).)

    Under Virginia's castle doctrine, you are allowed to protect your home — your castle —when you have sufficient reason to believe that the person or people entering will try to cause great bodily harm or death upon entering. You are not obligated to retreat.

    Take care to read all available legal sources in your owb states -- especially actual situational examples.
    You want to have already laid out your mental state of mind before having only a split second to decide.

    .
     
    Last edited: Sep 13, 2022
  6. Kleanbore

    Kleanbore Moderator Staff Member

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    The firs secion cited is relevant. The second has nothing to do with Castle Doctrine.
    How does trespass enter in?
     
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  7. Kleanbore

    Kleanbore Moderator Staff Member

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    Source?
     
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  8. MEHavey

    MEHavey Member

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  9. jmorris

    jmorris Member

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    Like, remotely?

    Well, that’s at least the question, you could have asked that started his mind working faster than his mouth…
     
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  10. RetiredUSNChief

    RetiredUSNChief Member

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    No. Absolutely NOT. There is no such "right" to kill another person. What there is, however, is the right to defend oneself, and others, under conditions in which a person has a reasonable fear for their life or physical well being. The use of deadly force under such circumstances may, or may not, result in the death of an attacker.

    There is no possibility that he is correct in his belief, and any attempt at justifying it is simply game-playing with circumstances in order to justify a killing act.

    The relevant SC statute Title 16 (Crimes and Offenses), Chapter 11 (Offenses Against Property), Article 6 (Protection of Persons and Property Act).

    Section 16-11-440 discusses "Presumption of reasonable fear of imminent peril when using deadly force against another unlawfully entering residence, occupied vehicle or place of business."

    There is a whole bunch of stuff under 16-11-440 and I rather suspect your friend will focus exclusively on paragraph (A) and, in doing do, completely gloss over the fact that nowhere in this paragraph does it say anything about "killing" an intruder.

    (A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:

    (1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and

    (2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.


    Deadly force, therefore, is defined as the "force that is intended or likely to cause death or great bodily injury".


    The law doesn't say anybody has an automatic "right to kill" another person. It says that, under the proper circumstances, deadly force may be used in defense. Deadly force is not an act...it's a level of force the law says is specifically justified. Its application may vary from totally harmless to lethal.

    Federal law (10CFR1047.7 (Use of deadly force) likewise discusses this.

    "Deadly force means that force which a reasonable person would consider likely to cause death or serious bodily harm. Its use may be justified only under conditions of extreme necessity, when all lesser means have failed or cannot reasonably be employed."


    https://safe.menlosecurity.com/https://www.scstatehouse.gov/code/t16c011.php

    https://www.law.cornell.edu/cfr/text/10/1047.7
     
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  11. chilehed

    chilehed Member

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    Not true. Private citizens don't have the right to intentionally kill someone, but that's not the same thing. There are certainly situations in which it's perfectly lawful to take action intended for a lawful purpose, and for which a foreseeable unintended secondary effect is the death of the target.
     
  12. entropy

    entropy Member

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    Disingenuous semantics. It allows for deadly force when certain conditions apply. There are too many variables involved in whether when that force is applied that decide if the person you use deadly force on will actually die. This applies with any deadly force, not just firearms.
    If it was a right to kill, some states wouldn't require aid to the wounded assailant once deadly force is not required.
     
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  13. TarDevil

    TarDevil Member

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    So then, true.
     
  14. chilehed

    chilehed Member

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    Not at all. There's nothing disingenuous about making sure you have properly defined terms and are disciplined about using them correctly.

    Not at all, as has been repeatedly explained.
     
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  15. CapnMac

    CapnMac Member

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    It's in the language under Definitions.
    I'm guessing it's meant to include things like entering a garage where the door is open, or an open porch or the like, where no "breaking" occurs, but threat could be presumed to exist.

    We can go back to (emphasis added):
    Which certainly appears to suggest one can start with a presumption that "fear of life or limb" exists.

    Of course, we are all expected to act as rational and reasonable people, too.
     
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  16. Kleanbore

    Kleanbore Moderator Staff Member

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    Yes. It defines the crime, and has nothing to do with terminating trespass.
    No.
    It is off topic.
     
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  17. Shanvanvocht

    Shanvanvocht Member

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    The law in South Carolina (I can't speak to other jurisdictions) is:
    SECTION 16-11-440. Presumption of reasonable fear of imminent peril when using deadly force against another unlawfully entering residence, occupied vehicle or place of business.

    (A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:

    (1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and

    (2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.

    Thus, the presumption is that the home invader and/or carjacker intends to commit a crime of violence and use of deadly force is authorized. It is not necessary that a deadly weapon be displayed; it is the threat of a crime of violence. Depending on your jurisdiction, YMMV
     
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  18. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Enough of this flaying around. Let's be clear, and accurate. Technically, Craig is correct. And it really isn't helpful to think in terms of some sort of [imaginary] right to kill.

    Technically, self defense is considered a privilege. That's how self defense is referred to by courts. See, for example, State v. Harp, 150 Wis. 2d 861 (Wis. Ct. App. 1989), at 868:
    It applies only when the necessary criteria have been satisfied.

    In our law, threatening violence to someone, or intentionally hurting or killing another human is always a crime of some sort, but our law also recognizes that in some circumstances doing so can be justified to the extent of excusing the actor from criminal and civil liability.

    So --

    1. It's not a matter of a right of self defense or a right to kill. Rather one may be privileged to threaten or intentional use force against another human if his conduct and the circumstances satisfy the necessary criteria to excuse what is, on its face, a crime.

    2. Exactly what would be necessary to establish that your intentional act of violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.

    3. And only reasonable force can be justified. Lethal force (force which could reasonable lead to the death of the subject) can be justified only against another's unlawful conduct that a reasonable person would conclude would result in the imminent death or grave bodily injury to an innocent.

    4. "Stand your Ground" or "Castle Doctrine" laws are about defining the justifying criteria.

    5. So let's look at a "Castle Doctrine" law, like (Tennessee Code 39-11-611(c), emphasis added):

      Other States have laws to similar effect and expressed in pretty much the same terms. (Note also that under the Tennessee statute and the laws of other States there are important exceptions which negate the presumption.)

      What does that mean?
      • The statute first creates a presumption.
        • A presumption is a rule that affects evidence and burden of proof in court.
          • Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true.

          • So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

          • If the party claiming fact A is true has established the threshold conditions required to receive the benefit of the presumption, the burden shifts to the other side to prove that fact A is not true (i. e., "rebut the presumption").

        • So under this statute a defendant will be presumed to have held a reasonable belief of imminent death or serious bodily injury if he can show:
          • The person he used force against unlawfully and forcibly entered (or was entering); and

          • The defendant knew or had reason to believe that was the case.

      • So if one needs the benefit of the presumption, he will need to establish those threshold facts.
        • That will be pretty straight forward if the guy you used force against kicked in your door in front of you.

        • It might be another thing if --
          • You hear a strange voice in the hall. Is it a stealthy burglar who unlawfully and forcibly entered by picking the lock on the back door? Or is it your daughter's boy friend who entered at her invitation?

          • a party guest gets rowdy or a repairman turns robber.

      These sorts of laws provide very useful legal protection for someone who really must use force to defend himself or a loved one from death or serious injury. They help the innocent person establish the legal justification for his act of violence. But they are not "a right to kill", nor are they "get out of jail free cards."
     
  19. tommy.duncan

    tommy.duncan Member

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    We were taught in our CCW class that you need to retreat, if possible, before using deadly force.

    Please educate me if I was taught incorrect information!!
     
  20. Kleanbore

    Kleanbore Moderator Staff Member

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    Has not the correct answer been given?

    I would, however, choose retreat if I could safely do so.
     
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  21. alsaqr

    alsaqr Member

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  22. MEHavey

    MEHavey Member

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    Re above:
    .Well gee.... I don't know....;)
     
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  23. RetiredUSNChief

    RetiredUSNChief Member

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    Yeah...he not only got it all wrong, he was quite a bit off base on all his stories as well.

    Out of all the statutes on the books, the ones involving homicide (the killing of another human being) are pretty much top of the list of worst things in society.

    If there's a homicide, then there will be investigations out the yin-yang over it to determine, as much as possible, what the nature of that homicide was. Was it murder? Manslaughter of some form? An accident? Justifiable homicide?

    Homicide comes in all flavors, and they're all serious. Even those that are flat-out, unquestionably justifiable. The impact on people, family, friends, co-workers, and society as a whole is pretty traumatic.

    I believe that people who espouse such things as what the OP described really have no real understanding of what it means to kill another person, and I'm not just talking about the legal aspects. It is literally life-altering for the people involved and the impact on a person who commits such an act is not nearly so clear cut as these people believe.
     
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  24. KyJim

    KyJim Member

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    The next sentence in the regulation states: "A protective force officer is authorized to use deadly force only when one or more of the following circumstances exists:..."

    So, to clarify, that federal regulation applies only to a "protective force officer" hired by the Department of Energy. It would not apply to anyone else.
     
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  25. RetiredUSNChief

    RetiredUSNChief Member

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    Thank you.

    But I only referenced this for the deadly force definition, not how it applied to federal protective officer agencies and when it was authorized to be used. My apologies for not being more clear on that.

    And yes, I'm aware that definitions within a statute are specifically applicable to that statute as written and not necessarily applicable to other statutes.


    Interestingly, many jurisdictions don't seem to have a clear cut definition of deadly force, at least not without doing some digging. In South Carolina, for example, there are no statutes which start off with definitions that clearly state "Deadly force is...". The closest is the statute I cited up in post #35 for 11-16-440(A) "A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:"

    Deadly force is defined virtually universally in all jurisdictions in the United States that I have researched in much the same way I learned it in the Navy as far back as the 80s: "Deadly Force is that amount of force which I know, or should know, will cause serious bodily injury or death, to be used as a last resort when all lesser means have failed or cannot reasonably be employed". In the Navy there are 7 circumstances in which deadly force is authorized.

    So, you can see that the definition (which is the part I was concerned about) is virtually identical in 10CFR1047.7 as what I learned in the Navy, and pretty much the same for South Carolilna, with the exception that SC leaves off the "to be used as a last resort..." part because they go on to codify the circumstances concerning this.

    What's radically different is when the different agencies and people are authorized to use deadly force. 10CFR1047.7 lists 5 circumstances. SECNAVINST 5500.37 lists 7. State statutes on this for private citizens is pretty much limited to the defense of self and others under circumstances where there is a reasonable fear of imminent death or serious bodily harm. (With some jurisdicational variations on this theme from state to state.)
     
    Last edited: Sep 15, 2022
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