Legal Question

[divemedic]

On another forum, there is a thread that has an interesting legal question concerning Castle Doctrine and self defense. A quick summary:

A street gang has been threatening and terrorizing you and your family, to the point of going armed door to door looking for you. The police have been notified, but of course do not have a cop to play bodyguard. Knowing that they are going to return to carry out their threat to shoot you, you wait for them in front of your home. When they arrive, you hold them at gunpoint (or you may assume, for the purpose of this question) that one of them produces a weapon, and shots are exchanged.

This incident happened in VA in 1991, but we are talking about law as it exists now (and I have to use FL as an example, as that is the law I am most familiar with) which reads:

(3) 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.

776.08 Forcible felony.--"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

(3) Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person's child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

It seems to me that under this law, force is authorized. Others claim that you have a duty to retreat, some claim that it is illegal to "ambush" (their term) others, and still others claim that you can only lie in wait for them inside your home.

Opinions? (This is only partially a hypothetical. This actually did happen, in 1991)

 

[Thernlund]

I think it's important to understand that it's not only the letter of the law that is going to be looked at. It's the circumstances. Possibly even more so than the letter.

To answer you directly in this hypothetical, I think the law, strictly speaking, is marginally on your side. A legal interpretation as it pertains to this specific case could go either way, and would ultimately be up to a judge and/or jury.

But, throw in the circumstances and it's over the top. I think the state would have a very hard time convicting you. You likely wouldn't even be charged.

What was the outcome in the real case? I'd be surprised if the victim was convicted.


-T.

EDIT: I'll note that in '91, I don't believe VA had a Castle Doctrine law. They just recently got one I think (February?).

 

[Aguila Blanca]

In my own little brain, I still differentiate between "Castle Doctrine" and "duty to retreat." I know that Florida's recent revision was widely hailed as a "Castle Doctrine" law, but to me it makes the term "Castle Doctrine" meaningless if you call the whole world your castle. The Florida law established, as you cite, that there is (now) no duty to retreat if you are assaulted in a place where you have a legal right to be.

Are we to assume that, although the incident you described took place in a state and at a time when there WAS a duty to retreat, that you would like it analyzed under a "no duty to retreat" law? I don't think it's possible to provide a one-size-fits-all response. Several (but far from all) states have now enacted such laws, but they don't all use the same language. And for most of them the laws are new enough that there isn't a lot of case law developed around them. Some states, with or without a duty to retreat, include the yard as the "castle." I don't think my state does -- and I don't think my state even has a "castle doctrine" in statute even as it applies to the home.

Lastly, your example situation isn't clear who pulled a gun first, and who fired first. It's one thing to be having a BBQ in your yard and have someone walk up and threaten you, possibly draw down on you with no provocation. It's quite another thing to be standing there with a gun in your hand or tucked in your belt, just waiting for certain parties to show up. It might even BE legal to stand there and invite an armed conflict -- I'm not prepared to make a judgment on that one.

 

[divemedic]

Sorry to cross post to another board, but it will save me a lot of typing. The victim in the case was me. I never fired a shot, but I was charged with brandishing, aggravated battery, discharging a firearm within city limits, and I think one or two other charges. All charges were dropped at a preliminary hearing. IMO, since I was cleared, what I did was legal, but YMMV.

 

[Bartholomew Roberts]

One thing to keep in mind is that even if things happen the way you said, the outcome depends on they way the JURY believes it happened.

So it isn't just the situation as you perceive it, it is how do you make the jury see the same thing you saw.

To give an example, suppose they have an eyewitness account saying these guys walked up and shouted something. You then produced a gun and pointed it at them. They then drew their firearms. Who looks like the aggressor based on that testimony?

 

[basicblur]

Others claim that you have a duty to retreat,

While I only play a lawyer on the 'Net...
Do not some/all? states have the wording that if you can "safely" retreat?
If so, to me there are darn few times ('specially under the circumstances you describe) that one could "safely" retreat. After you've been confronted, they can run forward much faster than you can backpeddle, and it sure ain't safe to turn your back on 'em as you retreat.

Semantics, donchaknow (but that's what the law/lawyers are all about), but iff'n I'm on a jury and the defense can show you could not "safely" retreat, I'm voting innocent!
'Course, this doesn't necessarily mean I think you should have to retreat at all, 'specially since you're on your property.

 

[damien]

Depends how deep you bury the gangbanger's bodies, of course!

 

[Thernlund]

I never fired a shot, but I was charged with brandishing, aggravated battery, discharging a firearm within city limits, and I think one or two other charges.

Huh? If you didn't shoot, how'd that happen? Did they just throw the book at you and hope something would stick?


-T.

 

[divemedic]

A "witness" (one of the gang members who was in the car) testified that:

1 She saw me pointing a gun at them (true)
2 No one in her group was armed (a lie- and a bad one. The evidence list and other witnesses showed otherwise- police recovered a .38 caliber bullet from the wall of my home, and an SKS rifle from one of the gang member's cars. Other witnesses testified that the gang members were armed)
3 She ducked, and then heard a shot, and felt bullets striking the car she was in (not refuted by us)
4 Since I was the only person she saw with a gun, it MUST have been me who fired. (that conclusion was thrown out because it could have been anyone who fired, but due to 5 below, it wasn't me)
5 It was proven that the pellet size and count eliminated my shotgun as a possibility only a 3" shotgun could have fired the shot.

With her testimony eliminated, that only left brandishing and aggravated assault, as that got rid of the charges of discharging a firearm, and aggravated battery. The other charges were eventually dismissed.

 

[Thernlund]

Ah. So there was a shot fired. Just not from you. I see.

Good deal the charges were all dropped.

-T.