Home owner protects family during home invasion

[shibbykins]

http://www.elpasotimes.com/news/ci_15027169

Homeowner shoots, kills intruder in Northeast
By Maggie Ybarra \ El Paso Times
Posted: 05/06/2010 12:00:00 AM MDT

EL PASO -- A homeowner shot and killed a burglar who broke into his house early Wednesday morning, police said.

About 4:40, an unidentified man in his early 20s broke into a house in the 8000 block of Tonto Place, police said.

Homeowners Paul Daw and Monica Daw were asleep during the initial break-in and awoke to find the man in the master bedroom.

They fought with him, police said.

During the struggle, Paul Daw shot the man multiple times with a handgun. He was taken to Beaumont Army Medical Center, where he later died, said police spokesman Darrel Petry.

Investigators were working Wednesday afternoon to identify the man through his fingerprints, said Dr. Paul Shrode, the county medical examiner.

Police spokesman Detective Mike Baranyay said the couple's children were home during the break-in.

"I know there was a man and a woman and kids, but I don't know how many kids," Baranyay said.

David Hennis said the shooting was the first in the upscale Mountain Park neighborhood since he and his family moved there in the 1960s.

"I'm sure it's handy for people who want to break into houses that there's no streetlights," said Hennis, 80.

The last time an El Paso homeowner shot and killed an intruder was in 2000, when Dr. Joseph Segapeli, a pediatrician, shot a man who forced his way into his Lower Valley home.

The man, Steven Medrano, held three children, their nanny and another man in the kitchen before the shooting.

Segapeli was not prosecuted.

In Texas,
homeowners may use deadly force to protect themselves, their families and their property under certain conditions.

After the Castle Doctrine became law in 2007, homeowners could legally use a gun to defend themselves from home invaders without retreating before shooting, said National Rifle Association spokeswoman Vickie Cieplak.

Before the passing of the Castle Doctrine law, a person had to retreat to another room in his or her house before shooting an intruder, she said.

A permit is not required to own a gun, but a permit is required to conceal and carry a gun.

Could have been alot worse.

 

[hacksaw]

I love a story with a happy ending! Good for the Daw's!

 

[TexasRifleman]

Before the passing of the Castle Doctrine law, a person had to retreat to another room in his or her house before shooting an intruder, she said.

Well that's utter horse crap. There has never been a duty to retreat in Texas. Not in case law, not in statute. Texas law always allowed for the use of deadly force if "necessary". The Castle Doctrine just reworded the statutes to say that inside one's own home the "necessity" may be assumed to already exist if someone breaks in. Also added cars etc.

Other than that, glad to see the law abiding citizen emerge unharmed.

 

[Husker_Fan]

I was just about to say the same thing. I don't know of any jurisdiction that has a duty to retreat that applies in your own home.

A man's home is his castle. That is why it's called the castle doctrine, and it has always been a part of the law. Now Texas just extends it beyond the home and limits the ability of surviving criminals to sue.

 

[Hoxviii]

I know Massachusetts used to have a duty to retreat within ones own home, don't know if it's still the law or not.

EDIT: found it, MA no longer has a duty to retreat.

 

[Zoogster]

Well that's utter horse crap. There has never been a duty to retreat in Texas.

I was going to comment on the same thing but I see it is covered.

I was just about to say the same thing. I don't know of any jurisdiction that has a duty to retreat that applies in your own home.

There have been states that hold it against you if you did not show an attempt to retreat before use of force.
Some of the worst offenders have adopted "castle doctrine" type laws since then, so researching each individual one historically would require some time.

While wiki is a poor source for legal information, I do see a compiled list of states that may work as a starting point, (or at least a list you may wish to prove otherwise):

http://en.wikipedia.org/wiki/Castle_doctrine

States with weak Castle Law

The duty to retreat is not removed, but deadly force may be used to end invasion of home without presence of immediate lethal threat.

* Idaho (Homicide is justified if defending a home from "tumultuous" entry; duty to retreat not specifically removed)
* Illinois (Use of deadly force is justified if defending a "dwelling" (a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence) from "a violent, riotous, or tumultuous" entry or "to prevent the commission of a felony in the dwelling"; duty to retreat not specifically removed)
* Montana (Deadly force justified to prevent felony in the home)
* New York (Deadly force justified to prevent burglary or arson of the home)
* Pennsylvania 18 Pa. Cons. Stat. § 505 on the defense of self says there is no obligation to retreat from the home or workplace unless the actor was the initial aggressor or, in the latter case, set upon by a co-worker; however, "surrendering possession of a thing to a person asserting a claim of right thereto" and "complying with a demand that [one] abstain from any action which [one] has no duty to take" are listed in addition to retreating as avenues which, if open to the actor but not taken, invalidate justification for the use of deadly force. Deadly force itself is not justifiable unless "the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat." 18 Pa. Cons. Stat. § 507 allows the use of deadly force if the actor believes there has been an unlawful entry into his or her dwelling and believes that nothing less than deadly force will end the incursion; if the person on the receiving end of the deadly force is "attempting to dispossess [the actor] of his dwelling otherwise than under a claim of right to its possession;" or if deadly force is the only thing that will prevent a felony from being committed in the dwelling. In any of those cases, the property owner must first ask the interloper to desist — unless the owner believes that doing so would be "useless," "dangerous," or would result in the property being defended coming to substantial harm before the request to desist could be effectively communicated.
* South Dakota "Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is." SD Codified Laws 22-16-34 (2005).



States with no known Castle Law

* Iowa (Law does not require retreat from home, but may require retreat within the home[31])
* Nebraska
* New Hampshire (Such a law was vetoed in New Hampshire.[3])
* New Mexico
* Virginia
* District of Columbia

You will note some places only let you protect yourself from a violent attack in the home, while others make that assumption from someone who breaks in or let you use force against any intruder.
Which means there is still discretion in whether self defense applies when lethal force is used against an intruder for a court, prosecutor, and jury.

So there is a duty to retreat in some parts of the United States! Interestingly enough your own state of Nebraska is listed as a place you may still need meet a duty to retreat in the home.




An interesting bit of history people might find intriguing is the change in English law (which is the basis for our Common Law and a lot legal procedures) that allowed more self defense for the common man came from a King who frequently executed people for petty things.
Henry VIII. http://en.wikipedia.org/wiki/Henry_VIII_of_England
He executed a wife that would not bear him a son, and his chief minister for arranging a marriage to a women he found to be ugly in person for example.

As noted here:
http://www.claytoncramer.com/popular/DutyToRetreat.html

Once upon a time, there was indeed a duty to retreat, rather than use deadly force. Under English law until 1532, if you killed another person, upon conviction, your property was confiscated and you were sentenced to death--even if you were defending yourself from robbery or murder. It was common for the king to hear appeals if you had been defending yourself, and for him to pardon you--but your property was not returned to you.

Henry VIII changed the law in 1532, clarifying that killing another person in one's home, or on public roads, while defending yourself from murder, robbery, or burglary, was now lawful. You would no longer be convicted for killing in self-defense, nor would your property be confiscated.

Prior to that the best a common man could hope for if they defended themselves was to lose all their property and belongings and not be executed.
And even that, the best of possible outcomes, depended on the generosity and mood of the King.
So you automatically lost the civil case, and the criminal case resulted in execution unless the King pardoned you.

 

[Zoogster]

I was just about to say the same thing. I don't know of any jurisdiction that has a duty to retreat that applies in your own home.

http://journalstar.com/news/state-a...cle_5a0d1f40-3799-11df-b6ed-001cc4c002e0.html

Castle Doctrine was in fact just defeated in Nebraska about a month ago.
It would appear the court retains wide discretion in whether your self defense in your home was legal or not.



In Nebraska it would appear that even in your own home you need to meet the "Justification; choice of evils" clause:

Section 28-1407
Justification; choice of evils.

(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:

(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;

(b) Neither sections 28-1406 to 28-1416 nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

"The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged"
means your self defense in the home would appear to still require reasonable fear of something even worse being done to you.
Which is above and beyond the legal requirements even outside the home in most of the nation.

This means it would appear to be possible for the use of lethal force against a mere intruder breaking into your home to be deemed excessive and not self defense.
It may not happen often, but you do not appear to be automatically legally protected in Nebraska.
If a court determines your fear of something even worse being done to you was not reasonable, your self defense argument could be defeated. Making the use of that force criminal.

 

[devildog32713]

Before the passing of the Castle Doctrine law, a person had to retreat to another room in his or her house before shooting an intruder, she said

How could it be proved you retreated??

 

[gearchecker]

Idaho has not prosecuted anybody in defense of their lives in a home in over 40 years.
The last prosecution I know of was a case where the homeowner chased the armed intruder into his house and the homeowner shot him. The intruder was killed in the incident.
He was found not guilty by a jury of his peers.

 

[wishin]

Once upon a time, there was indeed a duty to retreat, rather than use deadly force. Under English law until 1532, if you killed another person, upon conviction, your property was confiscated and you were sentenced to death--even if you were defending yourself from robbery or murder. It was common for the king to hear appeals if you had been defending yourself, and for him to pardon you--but your property was not returned to you.

Whoever authored that quote must not have known that all stories beginning with the words "once upon a time" are usually fairy tales. However, we know how arbitrary monarchs were hundreds of years ago.

They fought with him, police said.

Sounds like his wife got in the fight too. They got the upper hand and managed to prevail. Good example of a couple working together in defense of family.

 

[Zoogster]

Whoever authored that quote must not have known that all stories beginning with the words "once upon a time" are usually fairy tales.

Perhaps the choice of words was poor.
Indeed the concept of self defense is much older, but the article quote is still accurate as to typical practice at the time, and the law passed which reversed automatic forfeiture of property if you defended yourself.

http://law.jrank.org/pages/1466/Justification-Self-Defense-History.html

In 1532, King Henry VIII's parliament enacted a statute that eliminated the forfeiture of property.

That link also cites where the duty to retreat that existed in many states until recently (and still some today) comes from:

In 1769, Blackstone explained that justifiable homicide could only be killings required by law that promoted the social good. Personal killings in self-defense could only be excused because they could not be absolutely free from guilt. In excusable homicide, the accused had to retreat to "the wall" before killing (except if he was in his "castle") but in justifiable homicide the accused need not retreat and could even pursue the felon.

So self defense killing in general outside of his "castle" required retreat to be legal in self defense. While one could even pursue and kill one if it served the greater public good.
For example police until last century would legally shoot at fleeing criminals doing nothing but trying to get away in some parts of the nation.
A supreme court case put an end to this as recently as 1985:
http://en.wikipedia.org/wiki/Tennessee_v._Garner
After someone is convicted and in custody the use of lethal force expands even more in some portions of the United States.
Lethal force is still used against those trying to escape state or federal custody, even if they use no violence. Someone in prison for a petty felony and no violent history can be shot in the back trying to climb over a wall or running from the prison or jail in an escape. Which meets no self defense criteria.
It dates to the concept of "serving the greater public good" by preventing such escape.

Blackstone's interpretation was imported into the New World and became quite influential, indeed it was often the only source of law. As the frontier expanded westward, however, sentiment grew that retreat before using force in the face of a wrongful assault was cowardly and unmanly and gradually the retreat requirement dissolved.

Even today, while eastern states generally retain some form of retreat requirement, most western states do not. Gradually, self-defense became justified even though it did not further the public good in Blackstone's sense.

This is quite accurate and was the case until many states recently passed "castle doctrine". Several states required it even inside one's "castle".
It is why most of the western half of the United States had no duty to retreat, and much of the east half did.
Even places like California have had "castle doctrine" long before the term was even used because it was part of the western frontier.

 

[Kleanbore]

There has never been a duty to retreat in Texas. Not in case law, not in statute.

Actually, until several years ago, the law read as follows:

Sec. 9.32. Deadly Force in Defense of Person.
(a) A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other under Section 9.31;
(2) if a reasonable person in the actor's situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Did that impose a "duty" to retreat? I don't know, but I wouldn't want to have had my reasonableness evaluated by others after the fact, considering the stakes.

Texas law always allowed for the use of deadly force if "necessary".

True.

The Castle Doctrine just reworded the statutes to say that inside one's own home the "necessity" may be assumed to already exist if someone breaks in. Also added cars etc.

True; the wording regarding retreat was also eliminated.

 

[Buck Snort]

"Homeowners Paul Daw and Monica Daw were asleep during the initial break-in and awoke to find the man in the master bedroom."

WHAAAAAAAAT? How does ANYBODY with a lick of sense allow their perimiter to be so soft a perp can get in all the way to the master bedroom without getting stopped? You use motion dector lights and motion detector alarms. You have a dog, at least one that'll yap like crazy and wake you up. You do whatever it takes because if the guy is a homocidal maniac you won't get a second chance, nor will your kids. These kind of stories really floor me.