Lady in OK shot intruder while on w/ dispatch

[Fred Fuller]

Why did the Mods remove the funny posts? What rule, pray tell, did that violate?

It wasn't 'the Mods,' it was me. I removed them because there is not one single thing amusing about this situation, and because situations like this are NOT going to be treated lightly or taken lightly here.

You want comedy, go turn on the TV, or find one of the many fora on the web where they think shooting people is amusing. This is not the place for it.

lpl

 

[alsaqr]

I have been in court in OK a few times where suits were won against the homeowner for shootings.

Show me a cite where a civil suit was won against an Okie who made a good shoot. My lawyer friends say it has not been done since the OK law was passed in 1987.

 

[Army of Don]

As per the taped 911 call, she had about 20 minutes to flee the scene. Yes, her home would have been invaded and possibly more but she would have been clear of danger and out of harm's way. In short, she had the last clear chance to avoid confrontation.

This is akin to saying that a raped woman shouldn't have dressed so provocatively.

 

[bratch]

There is a case pending in central OK where a business shooting took place. It was justified but the shooter has been charged.

If I am thinking about the same case you are then justified is a bit of a stretch. His actions after the shoot and the video have been pretty damaging to his case of a justified shoot.

I too would like to see recent cases of a homeowner that was cleared of criminal charges face a civil suit and lose.

 

[MisterMike]

As per the taped 911 call, she had about 20 minutes to flee the scene. Yes, her home would have been invaded and possibly more but she would have been clear of danger and out of harm's way. In short, she had the last clear chance to avoid confrontation.

I disagree. Of course, none of us knows the size or layout of the home, but we do know that she was in her house and armed, while a screaming nut who was trying to violently break into her home. It sounded like he was going around the perimeter to try to gain access. By attempting to escape, she would have placed herself in a very vulnerable position.

Also, while just a secondary point, the break-in and shooting occurred at just over 10 minutes into the recording.

For me the bottom line is this: She would have been placing herself in considerably greater peril by trying to escape. I don't know of any jurisdiction where the law would require this.

 

[TexasRifleman]

As per the taped 911 call, she had about 20 minutes to flee the scene. Yes, her home would have been invaded and possibly more but she would have been clear of danger and out of harm's way. In short, she had the last clear chance to avoid confrontation

You gotta be kidding. Flee?

How would she know he was alone?
How would she know he wouldn't hear her leave and follow her if he was alone?

Sorry, fleeing could be just as dangerous, if not more dangerous, than staying inside.

Tactically, staying put in a known environment that you can somewhat control is always better.

 

[Mike J]

I agree with MisterMike & TexasRifleman. Fleeing would be a bad idea. You would not know if that person were alone or not. Being outside in the dark would put one at a definite disadvantage.

 

[Madcap_Magician]

She'll get no-billed for sure. That was about as clear-cut as it gets.

 

[Kleanbore]

For me the bottom line is this: She would have been placing herself in considerably greater peril by trying to escape.

Reasonable conclusion, but "could have been" might be more correct. Very fortunately, she did not have to make that decision. Inside is certainly safer in my view but opinions do vary.

I don't know of any jurisdiction where the law would require this.

Unfortunately, there are too many of them. In some places, she would have had to present evidence that safe escape was not possible, and in some, that she had tried every available means of escape.

That's essentially a throwback to the days of edged weapons, and in my opinion it should never have been applied to a home invasion. But try getting it changed in Massachusetts, for example. I think you might have a better chance in an appellate court than in the legislature, but maybe I'm wrong.

Decades ago, I decided to run from my home when someone was breaking through the back door (it may have been required then, I do not know), but I changed my mind when I realized that the perp would gain access to my unsecured long arms. The point of a handgun ended the incident. We now have a no retreat provision in the law, but it applies only to an occupied domicile or automobile.

 

[Wile E Coyote]

^^^^^Please allow me to preach to the choir for a bit.^^^^^
Unfortunate indeed. Downright criminal, IMHO. Requiring that a resident retreat from cover, concealment, means of communication, etc. goes against more than just hairy chest beating 'stand-my-grounders'. While in specific situations, retreat is tactically sound and morally desirable, having the law require it en-mass ignores the dynamics of such situations. It increasingly victimizes the victim by further tipping the advantage to the aggressor.

 

[sheepdog]

Back to the Oklahoma statute cited...

...the LAST thing you would expect a woman to do in the middle of the night is to leave the safety of her home and flee...that's why the LAW states that there is no duty to retreat...she had no reason or need to run out of the house into who knows what was out there waiting for her...and the legislators agreed...and covered it quite well...
..as to the civil suit...once she has been criminally cleared...declared "a good shoot" by whatever terminology her jurisdiction uses...the OK law cited forbids either criminal or civil charges being brought against her...additional facts after the investigation is closed may or may not be introduced...I would think they could...but for all practical purposes...the law provides the protection that it states that it does...civil suits would be rejected by state and county courts based on that law...

 

[sheepdog]

Kleanbore...it doesn't say that...

... it says the court SHALL award the defendant...as I quote here:

H. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection F of this section

...not if they decide...if they find out that the defendant has done the shoot right and therefore comes under the protection of the Castle Doctrine of OK...that's what SHALL means...criminally cleared...civilly protected...as these sections state:

F. A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term "criminal prosecution" includes charging or prosecuting the defendant.

G. A law enforcement agency may use standard procedures for investigating the use of force, but the law enforcement agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.


...no determination of unlawful use of force=no arrest...no criminal prosecution...and no civil action......that's why many states are passing laws similar to this one...prosecutors who had an agenda and greedy lawyers were making people like this fine lady go through torture and grief when it was clearly not necessary...these laws are some of the finest accomplishments of the legislatures which pass them....it's about time....

 

[sheepdog]

What Do We Learn Here???

...it's important to prepare for your own defense...help may not be available...
...we should research and learn the laws of deadly force, defense of self and property, and, if we have one...our state's Castle Doctrine(by any name)...and what it really says... one state's laws can be very different from the next...the law I knew in La. was radically different from Tx. law...being based on Napoleanic codes...which deal with what you INTENDED to do in a lot of instances...Tx. and most other states don't deal with intent, but with the letter of the law, in most cases...totally different mindset...
...the tragic reality of this post should be a wakeup to us all that trouble can come to us anytime, anywhere...have a well-thought-out, legally acceptable plan to deal with it...y'all be safe!!!

 

[Kleanbore]

..as to the civil suit...once she has been criminally cleared...declared "a good shoot" by whatever terminology her jurisdiction uses...the OK law cited forbids either criminal or civil charges being brought against her...additional facts after the investigation is closed may or may not be introduced...I would think they could...but for all practical purposes...the law provides the protection that it states that it does...civil suits would be rejected by state and county courts based on that law...

That what part of the law says; another part says that if the court so finds, the defendant is entiltled to recovery of expenses.

That should dissuade the plaintiff's attorney.

Where I live, and in a number of other states, the law says about the same thing.

Problem is, according to a trial lawyer I know who has practiced in a number of states, that the law has some inconsistencies with other laws and legal priciples. To be found not guilty of a criminal charge, you have to establish (in the minds of the court) reasonable doubt. In tort law, however, the plaintiff must show by a preponderance of the evidence that the defendant wronged him. That's fundamental.

So, the question becomes, has this been tested in the appellate process? Not where I live--there hasn't been an instance to cause the question to come up.

There just aren't that many shootings involving home invasions, and there have been very few indeed that were not reasonably clear. (From the OP, this one would seem reasonably clear to me).

I'm happy for the protection, but I'll never, ever, rely on a lay interpretation, based on dictionary definitions, of one law taken out of context of (1) all the other relevant laws (criminal and tort, in this case), (2) relevant current case law, and/or (3) long standing general legal precedent and theory. That's just not wise. I've known people who have found that out the hard way.

Also, I don't want to be the one to make the case law in uncharted legal waters. I have neither the money nor the time left.

I'm really not that concerned about the odds (maybe I should be, but I'm not). It's the stakes that would concern me.

 

[sheepdog]

No Problem...

...with the truth in this statement:
"Problem is, according to a trial lawyer I know who has practiced in a number of states, that the law has some inconsistencies with other laws and legal priciples. To be found not guilty of a criminal charge, you have to establish (in the minds of the court) reasonable doubt. In tort law, however, the plaintiff must show by a preponderance of the evidence that the defendant wronged him. That's fundamental."

...but this statement has nothing to do with this case...because of the cited OK law (Castle Doctrine, if you will), there will BE no criminal charge filed and no civil suit accepted by the courts...who are bound by the law in discussion here...
Dead horse...I'm done...

 

[Kleanbore]

H. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection F of this section

If the court finds. My point was that this implies a proceeding in court. Whether civil or criminal court is not clear to me (same word are in the law where I live).

..not if they decide...

Find? Decide? Determine? Conclude? Eh?

if they find out that the defendant has done the shoot right and therefore comes under the protection of the Castle Doctrine of OK...

In practice, does the court not decide whether or not there is reasonable doubt that the defendant was not justified?

G. A law enforcement agency may use standard procedures for investigating the use of force, but the law enforcement agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

Hasn't that really been the law for centuries, or does this have to do with establishing the "burden of proof" issue (as it were) pertaining to an affirmative defense?

 

[Kleanbore]

because of the cited OK law (Castle Doctrine, if you will), there will BE no criminal charge filed and no civil suit accepted by the courts...who are bound by the law in discussion here...

That's what it says--very clearly indeed. That's not in question. Question is, can or will the latter part of that (civil suit) be overturned? Does it deny any citizen a fundamental right? An attorney I know has posed that question (relative to the law here).

 

[alsaqr]

As per the taped 911 call, she had about 20 minutes to flee the scene. Yes, her home would have been invaded and possibly more but she would have been clear of danger and out of harm's way. In short, she had the last clear chance to avoid confrontation.

OK politicians passed the castle doctrine law so that folks would not be required to leave their homes when the flotsam and jetsam of society decide to invade an occupied home.

When the OK prosecutor declines to take a shooting case to the grand jury, the family of the late perp has a way out. They can take up a petition for a grand jury to hear the case. Of course, very few Okies are going to sign a petition on behalf of a home invader.

 

[bratch]

Quote:
H. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection F of this section

If the court finds. My point was that this implies a proceeding in court. Whether civil or criminal court is not clear to me (same word are in the law where I live).

Most of this is cleared up by looking at the referenced subsections:

Subsection F:


F. A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term "criminal prosecution" includes charging or prosecuting the defendant.

Subsection B:

B. A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, or occupied vehicle; and

2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.



Subsection D:

D. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and 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.

By adding the subsections referenced in H it becomes easier to follow. The only thing the courts have to decide is if it was a good shoot. If so the shooter has civil immunity.

 

[cbrgator]

In practice, does the court not decide whether or not there is reasonable doubt that the defendant was not justified?

Nope. The prosecutor will decide if it looks like there is enough evidence to convict the defendant. If yes, it does go to court, and the jury decides whether or not there is reasonable doubt.

 

[Double Naught Spy]

As per the taped 911 call, she had about 20 minutes to flee the scene. Yes, her home would have been invaded and possibly more but she would have been clear of danger and out of harm's way. In short, she had the last clear chance to avoid confrontation.

SHE had the last clear chance to avoid the confrontation? No, the aggressor could have broken it off at any time before he was shot, but opted not to do so. It was the aggressor, not the home owner that instigated and pursued the situation.

For the life of me I have not figured out why it is that some folks want to make the victims responsible for the aggression towards them.

As noted above, it would have been a poor choice, tactically, to leave the safety of the home. The homeowner only knew of one bad guy and there could have been more for all she knew. Plus, if the aggressor was after her, leaving the safety of the home would have meant being caught out in the open, potentially in less familiar surroundings. After all, most of us know the insides of our own homes better than anywhere else and what the insides have to offer in terms of resources and protection.

 

[rondog]

Sheepdog - Just curious, are you an attorney practicing in OK?

 

[alsaqr]

The Oklahoma law was passed in response to a shooting by a Tulsa dentist. A few days after the shooting an "ambulance chaser" contacted the family of the deceased perp and they sued in civil court for the lifetime wages of the late perp.

This infuriated OK state senator Ford who proposed the law. The law was passed by an overwhelming margin and signed by the governor.

http://www.oksenate.gov/news/National_Media/nm20041031.html

The law was pushed through by Sen Charles Ford, a Republican, the opposition party in the state.

"The purpose of the law is to protect the victim of crime who defends his home and his family against unlawful intrusion from any criminal prosecution or civil action," Sen Ford said last week.

"We considered it outrageous that someone who protects his home and family should suffer. Our law says you can use any force, including deadly force, to defend your home."

It has been an unqualified success. Since the Make My Day Law came into force, burglary has declined by almost half in Oklahoma. In 1987, there were 58,333 cases; in 2000, just 31,661.

While crime rates throughout America fell in the 1990s, Make My Day supporters point to a second statistic in Oklahoma they say proves the impact of the new law: while burglary rates plunged, other forms of theft stayed constant. In 1988, there were 96,418 cases, in 2000, 96,111.

.....................................

"Over that Christmas, we had six people in their 70s and 80s killed, bludgeoned to death by burglars in their bedrooms. How were they meant to defend themselves if they could not legally resort to lethal force?" he said.

Giving householders immunity from criminal and civil action was also inspired by Dr Sommer's experience. Although he was taken to the police station and interrogated, the District Attorney read the public mood over the series of deadly burglaries and decided against charging him with the killing of the burglar, Russell Bryant, 19.

An "ambulance chaser" lawyer contacted Bryant's family and sought damages for a lifetime of lost earnings on the grounds that the killing was unlawful.

"This was outrageous and focused attention on the vague state of the law which left the victim of burglary vulnerable," said Sen Ford, 73.

..................................................

There have now been at least 11 cases where intruders have been shot dead in Oklahoma and the householders who pulled the trigger have escaped any sanction under the Make My Day law.

..................................................

 

[MisterMike]

I don't know of any jurisdiction where the law would require this.

Unfortunately, there are too many of them. In some places, she would have had to present evidence that safe escape was not possible, and in some, that she had tried every available means of escape.

I may not have explained myself well. That's exactly my point. The post to which I was responding was one in which the possibility of escape was raised. My conclusion--admittedly from simply hearing the 9-1-1 call and reading the news article--is that safe retreat was not a possibility in this scenario. Those jurisidictions that mandate retreat require you to do so only when it can be done safely. They do not require you to retreat if doing so would place you in greater peril.

 

[Kleanbore]

Nope. The prosecutor will decide if it looks like there is enough evidence to convict the defendant. If yes, it does go to court, and the jury decides whether or not there is reasonable doubt.

I think you said "yep". You indicate that the jury decides whether there is reasonable doubt that the shooting was not justified--as opposed to deciding that it was justified as implied in the criminal code.

Some criminal codes are extremely clear--Texas and Florida for example (lay opinion). Some do not tell you enough to know what the the law actually means. For example, Oregon has a castle doctrine. It was established by the courts and is not in the statutes per se.

Some are flawed--in Kansas, the law appears to say on the face of it that if you pull a gun and do not shoot you have committed a crime (!?) and the Kansas Supreme Court just upheld a conviction on the basis that the legislature's words were clear enough to not require interpretation. As I recall the case the guy may not have been justified, but the Supreme Court ruling bodes very poorly for those who live or travel there. I'll bet they amend the law.

The specific wording in the Oklahoma law seems to contradict the rest of the legal constructs there (and every where else in the US., France and other places) in that the court does not decide whether the defendant's act was justified, it decides that whether there is treasonable doubt that it was not.

Such are the pitfalls of hurried legislation. Where I live, people had been prosecuted unjustly for using deadly force against home invaders and had been successfully sued even when justified under the criminal code. So the legislature amended the law on defense of justification to incorporate a "castle doctrine."

What does it say? It says that I am justified in using deadly force against anyone who enters my house, (tent, trailer, etc.) or car "uninvited" (the definition of "unlawfully") or who refuses to leave. Also says that justifiability serves as a defense against civil suits.

The various anti groups characterize that as legalizing murder (they say the same thing about Florida, but they can't be as convincing there).

I have been advised by one who was instrumental in getting the law enacted here to not rely on the wording--to shoot only if it's clear I have what reasonable people would consider to be a violent criminal actor in the house and if he does not attempt to leave. By the way, that's my plan.

I have also been cautioned by an attorney that the prohibition on civil awards, though strong and certainly welcome, may not be as airtight as the wording may imply. Fundamental rights may come into play. Again, the odds are very low but the stakes are not.

Most castle laws and almost all of the "stand your ground" laws are rather new, and can serve as fertile ground for expensive and time consuming appeals. That's particularly true when two state laws with different purposes contradict each other. (Might that be true in Oklahoma? I do not know.)

Don't get me wrong--these laws have been shown to be necessary. It's just that some (limited ) aspects have not been tested. Also repeating myself, lay interpretation of one law without taking into account other laws, court rulings, and sometimes even the state constitution is never a good idea.