Home defense you may get in trouble

[midtennpawnstar]

I was talking to a police friend the other day about a robbery that happened locally where the robber was shot and the home owner was charged for the shooting.

he told me that if somebody walked into my house uninvited and did not leave or was there stealing things that i couldnt shoot them.....he said that you have to be in a situation where the intruder is attacking you or armed in order to shoot them and not be charged with a crime by shooting them, something on the lines of being in fear for you safety,it has something to do with you shooting somebody who is unarmed (personally dont come in my home uninvited)........what he said made some sense but i just want to know what you think about the subject. If somebody broke into your house or entered into it do you think you should be able to use lethal force to remove them regardless of their intentions or methods? Or should you only be allowed to do so when you are in clear and present danger?

 

[Freedom_fighter_in_IL]

Some states are like that and others consider it a threat against your life for them simply breaking into your home. Most use a tool to break into the door or window such as a screwdriver. That, in my opinion, is armed enough for me. Only problem I would have would be me beating Hercules and Zues to him My boys would have him down and out before I got woke up really well more than likely. While this state sucks about carry laws (you can't) it does have pretty darn good laws as far as castle doctrine and defense of life in your home or business. Bad guy can't sue you (if you didn't kill the fool just wounded) here in this state. You break into Joe Blows house and Joe Blow blows your leg into 3 pieces then you will just have to deal with being called stumpy and get over it. But go outside your home here and you are then under the wonderful protection of LEO. When seconds count they are minutes away!

 

[Quiet]

Keep in mind, use of deadly force while defending your residence will vary from state to state.

For example, under CA state law [PC 198.5]...
If someone breaks into your home, you can legally use deadly force aganist that person regardless of that person's intentions, because it is automatically presumed that you are in fear for your life and that they are there to do you harm.


CA Penal Code 198.5
Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant or substantial physical injury.

 

[Bartholomew Roberts]

First of all, I would talk to a local lawyer, not a cop. While cops can have a very good understanding of laws that they enforce frequently, they are often way off on laws that they don't deal with regularly.

Many states have what is a called a "Castle Doctrine" law - this is basically a law that creates a rebuttable presumption that somebody who unlawfully breaks into your home means to kill you or do you great bodily injury and you are justified in using lethal force.

So, burglar breaks in - you don't have to wait for him to pull a weapon to use lethal force to defend your home. On the other hand, if the guy breaks into your house with an axe wearing a firefighter's helmet and uniform, then that evidence can be presented at trial to rebut the presumption that you had reason to fear death or serious injury.

However, you need to talk to a local lawyer because different states take different approaches to this problem and those tiny differences can mean a big difference in the legal outcome of any given shooting situation.

 

[Steve in PA]

I would say a lot depends on how your state's laws are written.

 

[dnlgao]

In my state (Kansas), we also have the castle doctrine. Which basically states, that if someone did indeed come into your home that you are legally at will to use lethal force because it is already assumed that they mean you life threatening danger. the law in kansas actually goes even further stating that "lethal force can be used in the prevention of another felony" like robbery or burglary.

 

[LiveLife]

I talked to several who were actually involved in physical attacks and shooting situations. When I asked "when" they knew that their lives were in danger and when they had a "justified shooting situation", they all said, "You KNOW when your life is in danger."

Several years back, I was in a situation where I had to confront an intruder inside my house. Trust me, you KNOW when your life is in danger. I believe the definition of "fearing for my life" is subjective and different for individuals. I live in a high crime metropolitan city with frequent home invasion robberies (our home got robbed 2 years ago). I do not want to hurt anyone, but I would fear for my/family's life if I found someone(s) inside my house - I would give them "some benefit of doubt" to explain why they are inside my house, but it would be "very brief" benefit of doubt.

Your situation may be different if you live in a "safer low crime" area, but for me, I would not take the chance. We had too many victims of home invasion robberies where the entire families were bound, robbed and killed by gang members. The PD/SD officers I shoot with say when you call 911, they can't help you if your life is in immediate danger. You must be able to defend yourself until they respond to your house. Unfortunately for many, police response is too late and they arrive to put them in body bags. Based on what I have seen and experienced, I can't take that chance. And that's why we have 2 dogs. If the intruder makes past them and enters the house, we have a problem.

 

[UnclePete]

It's hard to imagine that anyone in that situation would have legal consequences at the forefront of their mind.

 

[Carl N. Brown]

IANAL and internet legal advice is worth every penny you pay for it. Tennessee handgun carry permit requires a 4 hour class on laws of self defense (and passing a written exam). PLUS thirty years ago I had long talks with two city detectives hanging out at a motorbike shop.

This is the way I have come to understand it: to get a justification of self-defense in threat or use of lethal force (deadly weapon, brandishing or firing a gun) requires that a reasonable person would be in fear of imminent death or greivous bodily harm, which includes reasonable tests of whether the attacker had the ability and opportunity to put the defender in jeopardy of life or limb.

"It's hard to imagine that anyone in that situation would have legal consequences at the forefront of their mind. - Uncle Pete"

"Detached reflection cannot be demanded in the face of an upraised knife.-Justice Oliver Wendel Holmes"

Convincing the grand jury or prosecutor, trial jury or judge, or appellate court, that you acted out of fear of life or limb (and not out of malice or revenge) often works even if there was no real jeopardy but a mistaken belief, but absence of jeopardy will hang you in civil court.

John Lott and David Mustard on the first page or so of their 1997 article on right to carry point out the Peairs/Hattori shooting in Louisiana as a case of self defense gone wrong (and it is cited up front in every edition of Lott's book on "More Guns, Less Crime"): exchange student Hattori dressed as John Travolta in Saturday Night Fever was seeking a Halloween party and knocked on the wrong door. Peairs' wife panicked and told her husband to get his gun. Peairs got his gun, opened a side door and ordered Hattori to "freeze". Instead Hattori approached the door and Peairs shot and killed him. At criminal trial Peairs was cleared of criminal homicide, but he lost the civil case for wrongful death.

A relative of mine was attacked in her home by a burglar who had kicked in a door in the wee hours and when discovered fought with her rather than run out. After she got her hands on her .357, he did run out; she detained his accomplice at gun point for arrest and both men are now in prison. The police told her she did the right thing. (In Tennessee a person attempting to perpetrate a felony cannot sue you for accidental or intentional injury.)

The situation is a reasonable person in fear of death or bodily harm at the hands of a person with the ability and opportunity to put life and limb in jeopardy.

You have to think through shoot-don't shoot if you decide to keep a gun for self defense. And think seriously. One night I held fire on a trespasser that turned out to be a drunk wandering on his way home, even though my initial reaction was panic.

 

[crossrhodes]

It's a state thing

Here in Vermont it is considered an act of violence to break into an occupied dwelling. We've had a few shootings this year and the home owner was/is justified to use deadly force. Remember...in some states common sense is not a common virtue. I can find no good intent on a person B&E into a house and a prudent person wouldn't do so. Just my 2 cents. Never ask a cop he's in a different game then a lawyer. Ask the the one's that interpret the laws and not the ones that enforce it.

 

[wishin]

If somebody broke into your house or entered into it do you think you should be able to use lethal force to remove them regardless of their intentions or methods?

That's a major problem; you just can't know their intentions and mindset. State laws differ on what actions can legally be taken by the dweller.

 

[LiveLife]

A relative of mine was attacked in her home by a burglar who had kicked in a door in the wee hours and when discovered fought with her rather than run out. After she got her hands on her .357, he did run out

"burglar who had kicked in a door in the wee hours ... fought with her rather than run out" This situation could have gone really wrong ... and this is not enough of justification for "fearing for life"?

According to California Penal Code, above situation would be qualified as "justified shooting" situation in defense of person and property when the burglar "kicked in a door" and "fought with her".

Here are the California Penal Code sections regarding self defense and defensive shooting in the home:

197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.

198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.

198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant
or substantial physical injury.

199. The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and
discharged.

 

[Art Eatman]

Personal opinions have no force in law, so our views are irrelevant. The key to this deal is to know the laws of YOUR state, or the states through which you travel. They differ greatly from one place to another.