Legal Ramifications: Shooting to defend property -- specifically, a gun
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Carl N. Brown
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Actually it will come down to, will a reasonable person imagining themselves to be in your shoes believe you acted in fear of imminent death or greivous bodily harm. The reasonable person may be prosecutor, grand jury, trial jury, trial judge or appellant court.
The Termite
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The officers in the Rodney King case were prosecuted under federal statute for violation of civil rights. This was because President Bush ordered the DOJ to investigate the possibility of charging the officers involved in King's beating, since the state court had acquitted Koon, Wind, and Briseno of all charges, and the jury was unable to reach verdict on one charge against Powell.
Personally, I think it's double jeopardy, but the courts disagree with me.
Shooting an intruder in your house is going to fall under state law; with the possible exception if the intruder is a federal officer. Getting no-billed by a local grand jury, or the DA declining to prosecute, does not mean the DOJ can automatically charge you with violating the intruder's civil rights.
As for your statement that a homeowner who is not residing on federal property is prohibited by Federal law from using deadly force to prevent loss of property, please quote the relevant statute.
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Some interesting food for thought here, and it's helping clarify things in my mind, somewhat...
Seems clear that if Harry/Harriet Homeowner feels his/her life is in immanent danger, shooting in self defense is an affirmative defense (I think that's the term?).
The others are a greyer area where what's liable to be passing through HH's mind is something along the lines of preventing a potential death down the road. And as I think about that, not only is it not likely to keep HH off the docket (other than maybe in Texas -- possibly with the exception of Austin), but seems like a good prosecutor or plaintiff's lawyer could make shreds of it in short order.
Seems clear that if Harry/Harriet Homeowner feels his/her life is in immanent danger, shooting in self defense is an affirmative defense (I think that's the term?).
The others are a greyer area where what's liable to be passing through HH's mind is something along the lines of preventing a potential death down the road. And as I think about that, not only is it not likely to keep HH off the docket (other than maybe in Texas -- possibly with the exception of Austin), but seems like a good prosecutor or plaintiff's lawyer could make shreds of it in short order.
This is how it happened in my neighborhood last April, less than 300 yards from my front door:
http://www.postandcourier.com/news/2011/apr/14/homeowner-kills-intruder/
http://www.postandcourier.com/news/2011/apr/14/homeowner-kills-intruder/
allaroundhunter
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For (a), I will give an order to stop and to put his hands up, if a hand goes back into the drawer/cabinet/safe, I fire. He has made a move for a gun and I will react just as I would if he reached for a gun on his hip. (If you are concerned about whether he is reaching for an unloaded gun, see my next answer)
My opinion [for (b) and (c)], is to treat every gun as if it is loaded. That has been taught to me enough that I will not hesitate to shoot if a gun is pointed at me, regardless of whether it was unloaded when I put it up or not. For all I know, the guy could have found ammo or brought his own to load it.
ETA: There is a difference between shooting someone who is stealing your CD collection and someone who is stealing a gun. A gun could very easily be turned against you, while CD's (unless the intruder is a ninja) will not pose a serious threat. That being said, shooting someone who is stealing your gun would be the same as if they were inside of your house and had brought their own gun.
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4kdave
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I have read the whole thread and believe that "Hunter" has the whole thing exactly correct!!!!
Just to expand the practical aspects of the discussion, and not to be at all argumentative, might I suggest that ordering the perp to put his hands up carries with it the risk of alerting an accomplice who could ambush you.
Depending upon the layout and the location of you and the known perp, you may be able to effectively mitigate that risk.
Thoughts?
Depending upon the layout and the location of you and the known perp, you may be able to effectively mitigate that risk.
Thoughts?
RX-178
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A gun, loaded or not, is a deadly weapon.
A TOY gun, that cannot be readily identifiable as a toy, when used in a threatening manner, is deadly weapon.
At NO point in this scenario, are you actually in the situation of justifying the act of deadly force as defense of property. Period.
You are shooting because the bad guy now has a deadly weapon in their immediate possession, which presents an immediate danger to your life.
You are shooting in self defense.
A TOY gun, that cannot be readily identifiable as a toy, when used in a threatening manner, is deadly weapon.
At NO point in this scenario, are you actually in the situation of justifying the act of deadly force as defense of property. Period.
You are shooting because the bad guy now has a deadly weapon in their immediate possession, which presents an immediate danger to your life.
You are shooting in self defense.
allaroundhunter
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This is definitely a valid point, Kleanbore....one that I don't see a way around at the moment.
Yeah, that's what makes this worth thinking about ahead of time.
You don't want to shoot someone if you can avoid it (hence, the order for the BG to put up his hands), but then you don't want to increase your chances of being shot yourself. The stress of finding an armed BG in one's home will make clear thinking incredibly difficult, but also incredibly important.
The Post & Courier story I linked to in #31 notes that the homeowner shot the first BG (who was armed!) and then fled his own home to call 911 from a neighbor's. He heard more noise upstairs and didn't know who or how many, and figured it best not to find out.
25cschaefer
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"Treat every gun as if it is loaded." - right, that's the rule? I think you would really be rolling the dice with a and b.
Scout Dork
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"Please note: I'm not looking for "screw the law, I'm gonna ... " answers."
Deadly force to defend property? Texas law says you can.
Helps to be a criminal lawyer. As of now, no charges have been filed.
http://www.kvia.com/news/29775810/detail.html
edit: no weapons were found on Miller
Deadly force to defend property? Texas law says you can.
Helps to be a criminal lawyer. As of now, no charges have been filed.
http://www.kvia.com/news/29775810/detail.html
edit: no weapons were found on Miller
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AABEN
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If they force entry you can wast them or if you come home and find them in your home shoot then. DEAD person tell no lies. I always have loaded guns in my home so I do not know if they have one of my loaded gun.
Beaux Nehr
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Be more wrong.Jim K said:
Everyone has a right to live, and therefore, the rights of a person trying to end the life of another end during the moments the attacker infringes on another individuals's right to live.
If they force entry into your occupied home, deadly force is justified in most US jurisdictions, unless of course it proves unnecessary.
If you come home to find any indication that someone has unlawfully entered your house, you are far better off from the tactical standpoint, and better off from a legal standpoint, to withdraw immediately and seek help.
A large percentage of gunshot victims survive.
TonyDedo
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In Massachusetts, which is a far cry from Texas:
#1 - ability: a grown man (or woman), having broken into my home, has access to firearms, may be carrying other weapons, and likely possesses more physical strength and combative experience than I (he's a criminal, I'm an accountant). I assume he has the ability to hurt me.
#2 - opportunity: he has ready access to firearms, and is within close enough range to engage me (stab me, punch me, tackle me, etc). He has the opportunity to hurt me.
#3 - manifest intent: Here's where I hesitate. If I simply walk in on him robbing the joint (situation A), I don't think he's expressed any intent to harm me. However, simply by nature of him being there (and certainly by nature of my firearms being in play), I know he has some criminal intent. I draw, but I don't shoot unless he gives me reason to believe he intends to hurt me. If he's holding a firearm, I assume the firearm is real and loaded, I draw and aim at center of mass. If the barrel of that gun even begins to move in my direction, I know firearms are only pointed at things meant to be destroyed, I know he has the intent to hurt me, and I fire.
#4 - preclusion - I'm in my home, castle doctrine says I have no obligation to retreat. Again, I give him an opportunity to de-escalate and surrender, but the moment I know I'm in immediate danger, I fire.
#1 - ability: a grown man (or woman), having broken into my home, has access to firearms, may be carrying other weapons, and likely possesses more physical strength and combative experience than I (he's a criminal, I'm an accountant). I assume he has the ability to hurt me.
#2 - opportunity: he has ready access to firearms, and is within close enough range to engage me (stab me, punch me, tackle me, etc). He has the opportunity to hurt me.
#3 - manifest intent: Here's where I hesitate. If I simply walk in on him robbing the joint (situation A), I don't think he's expressed any intent to harm me. However, simply by nature of him being there (and certainly by nature of my firearms being in play), I know he has some criminal intent. I draw, but I don't shoot unless he gives me reason to believe he intends to hurt me. If he's holding a firearm, I assume the firearm is real and loaded, I draw and aim at center of mass. If the barrel of that gun even begins to move in my direction, I know firearms are only pointed at things meant to be destroyed, I know he has the intent to hurt me, and I fire.
#4 - preclusion - I'm in my home, castle doctrine says I have no obligation to retreat. Again, I give him an opportunity to de-escalate and surrender, but the moment I know I'm in immediate danger, I fire.
Thank you for the clarification. I was under the impression that the DOJ could step in on civil rights violations in a case such as the Joe Horn case if they wished.
As far as the federal statute, you are correct, I was thinking of Tennessee vs Garner which is not a property case, but fleeing suspects.
http://en.wikipedia.org/wiki/Tennessee_v._Garner
I have heard it said many times over that you can't shoot to protect property EXCEPT in Texas. I know of a couple cases where people have been prosecuted for doing that. Here is one such case where a man was charged with second degree murder:
http://www.newstribune.com/news/2011/jan/26/kc-man-charged-after-shooting-burglar/
Even in Texas shooting to protect property is very limited.
At night, not likely to be recoverable are at least two of the limits.
In most other states, shooting to protect property is simply not allowed.
Now, if you are between the perp and the door he wants to exit through and he rushes you, things start to change.
At night, not likely to be recoverable are at least two of the limits.
In most other states, shooting to protect property is simply not allowed.
Now, if you are between the perp and the door he wants to exit through and he rushes you, things start to change.
The Termite
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That is not entirely correct. It depends on each situation.
Example #1: Under your car-port, you surprise a burglar breaking into your car, stealing your CDs, laptop, etc. If he clearly has no deadly weapon and you kill him, you will likely be charged with manslaughter.
Example #2: You return home, get out of your car, and are greeted with a strong smell of kerosene or diesel. You are packing a pistol, and now on your own property. You walk around behind your house looking for the source of the odor, and find a perp who has doused your house in an accelerant, has a lighter in hand, and is about to set fire to your house. You cap him, and he dies. You will probably NOT be charged, at least in most non-GFW states.
Owen Sparks
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There is a difference between shooting someone to PUNISH them for a crime and shooting them to stop them from absconding with your valuables. The problem is that the law currently values ALL life over ALL property. (Unless of course it is government property). Without a right to protect your property by whatever means necessary the right of ownership goes to whoever can run the fastest.
WardenWolf
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In response to the original poster, if the intruder has immediate access to a deadly weapon, you generally have the right to take action, up to and including lethal force. In other words, if you see him trying to steal your guns, has already gotten access to them, and one or more of them is loaded or believed to be loaded, the suspect is considered armed. If the person is simply walking or running out the door with your stuff, no, you cannot shoot them. If they are carrying the load towards you in a fashion where they could bring a gun barrel to bear on you, they constitute an immediate armed threat.
Bubbles
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Theft of a firearm from an FFL is a violation of 18 USC § 922(u), a federal felony with a max 10 year prison sentence.
I am a home-based FFL.
WV permits use of lethal force to halt a felony in the home if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
http://www.legis.state.wv.us/WVCODE/55/code/WVC%2055%20%20-%20%207%20%20-%20%2022%20%20.htm
If a burglar is stealing my guns IMO it's pretty reasonable to assume that he's not doing it because he wants to hit the local range for a few hours of target shooting..
I am a home-based FFL.
WV permits use of lethal force to halt a felony in the home if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
http://www.legis.state.wv.us/WVCODE/55/code/WVC%2055%20%20-%20%207%20%20-%20%2022%20%20.htm
If a burglar is stealing my guns IMO it's pretty reasonable to assume that he's not doing it because he wants to hit the local range for a few hours of target shooting..
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