MA Man Held Without Bail In Shooting Death

[Devonai]

In the story I told in post #144, my flashlight was mounted on my pistol (S&W 4006TSW w/Insight Technologies M3). By lighting up my sliding door with the flashlight, my pistol was pointed directly at her.

I suspect many "bedside" guns have flashlights mounted on them. In one's home, it's an idea with which I agree. Outside the home, it makes sense to carry the flashlight separately for obvious reasons.

 

[gc70]

As all of you mods have pointed out at one time or another in this thread, someone outside your house trying to break in is NOT legal justification for shooting them.

It all depends on the laws governing the use of deadly force in a particular state. Knowing your state's laws, and even nuances of the laws, is extremely important.

Prior to amendments in 2011, the laws of my state (North Carolina) actually gave a little more latitude to preventing an intruder's entry to a home (two justifications) than dealing with an intruder actually in the home (only one justification). The interesting rationale for that situation was stated in a state Supreme Court decision (State v. McCombs, 253 S.E.2d 906, N.C. 1979).

In our opinion, one of the most compelling justifications for the rules governing defense of habitation is the desire to afford protection to the occupants of a home under circumstances which might not allow them an opportunity to see their assailant or ascertain his purpose, other than to speculate from his attempt to gain entry by force that he poses a grave danger to them. Once the assailant has gained entry, however, the usual rules of self-defense replace the rules governing defense of habitation, with the exception that there is no duty to retreat. 40 Am.Jur.2d Homicide, Sec. 174 (1968). This is so because the occupant is then better able to ascertain whether the assailant intends to commit a felony or possesses the means with which to inflict serious personal injury upon the occupants of the dwelling.

Please DO NOT take the above to apply to any other state and, as noted, North Carolina law has subsequently been amended. However it does show the importance of nuances in state laws.

 

[grampajack]

I've talked to some cops on this matter before, and they've all said basically the same thing. Don't ever shoot someone on your property unless they're actually in your house, and never point a gun at anyone unless you fully intend in that moment to shoot them. Doing either one, while possibly legal in some states, that legality depends on fine distinctions that are largely based on the opinions of the jury. And the last thing you want is 12 random people armchair quarterbacking a situation for which they were not there. Defining what a "reasonable person" would or should do is all too easy when you haven't been in a life or death situation before.

 

[Kleanbore]

If there was legitimate reason to actually use the gun, and you draw it or point it, and something changes, i.e. the person puts their hands up or runs away, then yes, the scenario can end without a shooting.

It had better.

BUT, as you said, the precondition for drawing a gun requires that there be justification.

Yes, but in that context, what is meant by "using" it varies among juridictions.

Read the links.

As all of you mods have pointed out at one time or another in this thread, someone outside your house trying to break in is NOT legal justification for shooting them.

As has been pointed out by more than one person more than once, that too varies among jurisdictions.

What you say is generally true in Colorado and Massachusetts and a number of other states--but not in others

Read this link: Duty to Retreat, "Stand Your Ground", and Castle Doctrine.

And therefore it is not legal justification for pointing a gun at them.

It is more complicated than that.

It goes back to state laws governing the lawful display of a firearm and to state laws pertaining to what is generally referred to as "castle doctrine".

That's really an evidentiary subject. It is not entirely a matter of permitting a citizen to, or forbidding him from, any act regarding the use of force. It specifies conditions under which such actions would generally be considered reasonable and lawful.

Should the totality of the evidence indicate that the threat force or the use of force would be justifiable under a particular set of circumstances, the "castle" laws, which are really intended as a framework of automatic presumptions, would take second place in the order of precedence.

Example: had the victim in the case at hand been aiming a firearm through the glass at Jeffrey Lovell, he would have prudently fired, hopefully first and effectively. With luck, the evidence would support his account of the incident.

You really owe it to yourself to educate yourself on these subjects.

In other words, according to the law, pointing that gun at the guy on his porch was every bit as illegal as actually shooting him.

One more time, that is not necessarily always the case.

Again, you all say someone trying to break into your house does not justify lethal force. Period, end of story.

In some jurisdictions, that is usually true.

It is best to not try to divine when it is that the law justifies the use of force. It is best to use force only when it is immediately necessary as a last resort.

That is the fundamental legal principle.

 

[Frank Ettin]

..As all of you mods have pointed out at one time or another in this thread, someone outside your house trying to break in is NOT legal justification for shooting them. And therefore it is not legal justification for pointing a gun at them....

Nonsense.

Your statement is based on your assumption that Francisco was an unlawful intruder trying to break into Lovell's home. That has not been established.

And it also depends on the applicable law. In Massachusetts the model jury instruction provides (at pp 7 -- 8):

...The Commonwealth may prove that the defendant did not act in self-defense in a dwelling by proving beyond a reasonable doubt:

First, that (the premises were not a dwelling) (or) (the defendant was not a lawful occupant of the premises) (or) (the alleged victim was not an unlawful intruder) (or) (the defendant did not reasonably believe that the alleged victim was about to inflict great bodily injury or death on him (her) or on another person lawfully in the dwelling) (or) (the defendant used clearly excessive force to defend himself (herself) or the other person lawfully in the dwelling); and

Second, that the defendant resorted to force without using avenues of escape that were reasonably available and which would not have exposed the defendant to further danger....

In contrast, for example, Florida law provides (776.013, emphasis added):

776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.—

(1) 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 or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used or threatened 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 that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred....​

The laws of many other States are similar to that Florida law.

 

[Kleanbore]

Don't ever shoot someone on your property unless they're actually in your house, ...

If you are thinking about an encounter with someone whom you believe should not be on your property, that's very good advice...unless you have to shoot him...

...and never point a gun at anyone unless you fully intend in that moment to shoot them.

I wouldn't even draw and point at the ground unless I were ready to use deadly force.

But my mindset would not be one of intending to shoot at that moment. It would be one of shooting if the necessity continued to exist after the gun had been presented.

Of course, if someone's charging me around the car in the driveway at around five meters per second, he will not have given me the opportunity to make that determination.

 

[grampajack]

You guys are masters of mental gymnastics. If it cannot be established that Francisco was trying to break in, then Kleanbore's case cannot be established either. You absolutely cannot condemn Lovell from any perspective, then defend Kleanbore's actions in the same breath. No matter how you cut it, the only difference between Lovell and Kleanbore, morally, legally, and practically, is that he did not shoot. BUT, he put himself in a position where he might have. He's just lucky that the intruder bought his bluff and left without a fight.

Moreover, you have not shown me any law in any state that would necessarily preclude Kleanbore from prosecution, especially had he shot the guy. All you've demonstrated is that it would be better to do it in some states than others. And at the end of the day, Kleanbore would be at the mercy of the prosecutors and the jury, just like Lovell, and it would all come down to relativistic ideas about what constitutes a threat, what defines a reasonable person, and how much force is justified for any given nuance of threat.

Kleanbore is also lucky that his assailant wasn't a 15 year old, and that said 15 year old didn't have a couple of delinquent friends to act as star witnesses. Had that been the case, his story could have been the same as Lovell's. "Mr. police officer, I was looking for my friend, and that mean old man pointed a gun at me."

 

[Frank Ettin]

You guys are masters of mental gymnastics. If it cannot be established that Francisco was trying to break in, then Kleanbore's case cannot be established either....

Hogwash!

First, Kleanbore is right here. He knows, first hand, what happened in his case.

Second, Kleanbore is much better educated in the law and how things work than you are. His assessment based on first hand, complete knowledge is much more reliable than you guesses based on the limited publicly available information.

 

[danez71]

Said by Frank (emphasis added by me)


In contrast, for example, Florida law provides (776.013, emphasis added):

Quote:
776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.—

(1) 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 or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used or threatened 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 that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred....

The laws of many other States are similar to that Florida law.

In regards to the bolded part - Isnt this refutable/debatable?

How do you know the person is "in the process of unlawfully and forcefully entering" an not just banging on the door very forcefully? (There's lots of reasons someone might forcefully bang on your door that are not in effort to unlawfully break in.)


I understand that one way could be that the person broke the glass in the door, stuck his hand in and was unlocking the door from the inside.


But aside from the VERY obvious examples we could all make up, how would the person on the inside know for sure the guy on the outside was actually breaking in and not just pounding on the door?


And wouldn't that make shooting some one through the door VERY risky absent some type of VERY obvious observation by the occupant even in those states that have laws like the one Frank quoted for FL?

 

[Frank Ettin]

...In regards to the bolded part - Isnt this refutable/debatable?

How do you know the person is "in the process of unlawfully and forcefully entering" an not just banging on the door very forcefully? (There's lots of reasons someone might forcefully bang on your door that are not in effort to unlawfully break in.).....

Absolutely.

So if you're claiming that you believed the person you shot was in the process of "unlawfully and forcefully entering" you'd need to be able to articulate why under the circumstances you reasonably believed that. So as usual, a lot depends on exactly what was happening and how it was happening.

So someone loudly knocking on the door would be one thing. Perhaps there's an emergency. On the other hand, someone trying to pry open your window with a crowbar would be another matter entirely.

 

[grampajack]

Hogwash!

First, Kleanbore is right here. He knows, first hand, what happened in his case.

Second, Kleanbore is much better educated in the law and how things work than you are. His assessment based on first hand, complete knowledge is much more reliable than you guesses based on the limited publicly available information.

So you're saying that the only difference is that Kleanbore is more reliable as a witness, and therefore we can believe him at face value? I don't know Kleanbore from Adam, and neither would the people involved had his case gone to trial. He claims the guy was trying to break in, and there was damage to his door to prove it. Lovell can make the exact same claim. Why should I believe Kleanbore and not Lovell when they both have the exact same degree of evidence?

As a matter of fact, I would say Lovell's case is more concrete. His wife is a separate witness, and the assailant tried to break into the house via two entrances. Also, there are independent witnesses who testify that the assailant was behaving psychotically just prior to the attempted break-in, and not even the prosecution denies that the assailant was extremely intoxicated at the time.

Long story short, if you're a rational and honest person, and you're willing to take Kleanbore at his word, then you have every reason to also take Lovell at his word. While the motive is not known, we have to conclude that Lovell was most likely being broken into, and in the extremely unlikely event that Francisco was not attempting to break in, we have to admit that his actions would give any reasonable person every indication that that was his intent.

 

[Kleanbore]

If it cannot be established that Francisco was trying to break in, then Kleanbore's case cannot be established either.

It is possible that Francisco was trying to break in. It is also possible that the forensic evidence may indicate that convincingly. But it will not matter in the murder case.

It could matter in plea bargaining or in possible conviction on lesser included charges, or in sentencing. Or not.

In my case, the evidence at the scene showed without any question that he man was trying to remove the door from its frame in my house. Unless he was trying to steal a door, he was trying to break in.

You absolutely cannot condemn Lovell from any perspective, ....

The Commonwealth of Massachusetts has charged Lovell with murder. The outcome remains to be seen.

This is useless speculation, but I would not be surprised by a plea or conviction on lesser charge.

No matter how you cut it, the only difference between Lovell and Kleanbore, morally, legally, and practically, is that he did not shoot.

There are other very significant differences, but the fact that Lovell did shoot is a very important difference. I't os why he has been charged with murder.

BUT, he put himself in a position where he might have. He's just lucky that the intruder bought his bluff and left without a fight.

Yes, the situation might well have turned out differently. The man might have killed me, or I might have injured him.

And one more time, I did not intend to shoot him through the window, nor would I intend to do that today.

Moreover, you have not shown me any law in any state that would necessarily preclude Kleanbore from prosecution, especially had he shot the guy.

There are no laws anywhere that will definitely shield anyone from prosecution or from civil litigation, or both, after a use of force incident. And should either or both happen, they will be resolved on the basis of the evidence gathered after the fact.

Does my saying that I did not intend to shoot him through the glass mean that pointing the gun was not justifiable? That could be argued--it was a judgment call.

Would a person who had just broken halfway through a door be likely to go somewhere and call and report that, while he had been trying to break into a house, the resident had unlawfully pointed a gun at him?

Had I not presented a gun at hime, he would certainly have come inside--at which time he would either have been dissuaded by the presentation of the gun (I've had that happen twice over the years), or been shot.

Had the former happened, his violent entry would have been sufficient justification, not because of castle doctrine conndiderations but because of his tumultuous attack; had the latter happened, it would have become a garden-variety case of self defense.

And at the end of the day, Kleanbore would be at the mercy of the prosecutors and the jury, just like Lovell, and it would all come down to relativistic ideas about what constitutes a threat, what defines a reasonable person, and how much force is justified for any given nuance of threat.

Yes, had the state chosen to pursue the case.

And you forgot one thing--the duty to retreat that existed at the time. Had the state chosen to get into that, there would have been some examination of routes and distances.

By the way, it was determined that the man was very large, and extremely strong, probably due to chemical influence. And he damaged several houses in the neighborhood, by hand and without tools.

Looking back, I would have done nothing differently.

And just for the benefit of others--were we still anywhere near the time of expiration of the stature of limitations, I would never have related all that I have here on this.

 

[Kleanbore]

Long story short, if you're a rational and honest person, and you're willing to take Kleanbore at his word, then you have every reason to also take Lovell at his word. While the motive is not known, we have to conclude that Lovell was most likely being broken into, and in the extremely unlikely event that Francisco was not attempting to break in, we have to admit that his actions would give any reasonable person every indication that that was his intent.

Okay, let's accept that, for the sake of argument.

The problem is, that will not help Lovell in his murder case.

"Attempting to break in" while unarmed does not translate to the ability, opportunity, or intent to kill or seriously injure anyone in the house--and does therefore not justify the use of deadly force in Massachusetts.

How many times do how many people have to explain that?

 

[MachIVshooter]

So someone loudly knocking on the door would be one thing. Perhaps there's an emergency. On the other hand, someone trying to pry open your window with a crowbar would be another matter entirely.

Yahtzee.

There was a case here in CO a few years back (OK, more than a few) that somewhat resembles the topic here. That particular shooting was determined to be lawful self defense, as the belligerent man who had been beating on the door and threatening the occupants broke out a pane of glass and reached inside to unlock the front door. The Occupant then fired through the door, killing him. Even though he had not actually entered the home, he had broken the threshold and made clear that he was attempting unlawful entry with the (verbalized) intent to harm the occupants.

 

[grampajack]

And one more time, I did not intend to shoot him through the window, nor would I intend to do that today.

Again, you fully admit that you brandished a weapon while having zero intention of using it. You were bluffing, and you're just lucky that it worked and that the guy didn't go to the police with some sob story, and that this happened during a saner time in our society, and that your assailant was not a 15 year old.

You're also arguing that it was necessary for you to stop the threat before it got inside. Why was it necessary for you to stop your threat, but not for Lovell? Also keep in mind that Lovell had three assailants outside his door. Had they gotten inside, he would have been at a much greater disadvantage than you would have had your assailant managed entry.

 

[Kleanbore]

There was a case here in CO a few years back (OK, more than a few) that somewhat resembles the topic here.

Apparently it was an intoxicated man with a wrong address--really.

Even though he had not actually entered the home, he had broken the threshold and made clear that he was attempting unlawful entry with the (verbalized) intent to harm the occupants.

It was determined that his having put his arm into the house constituted unlawful entry, and when combined with the other circumstances, met the threshold under Colorado's so called "make my day" law.

We followed that case here with great interest.

 

[Frank Ettin]

So you're saying that the only difference is that Kleanbore is more reliable as a witness, and therefore we can believe him at face value? I don't know Kleanbore from Adam, and neither would the people involved had his case gone to trial...

Geez!

First, in the Kleanbore incident he is a witness, and he is present here to give a first hand account. We have no one here who is a witness in the Lovell matter, and all our information is third hand.

Second, Kleanbore has established his credibility here over a period of years. You have established no track record here, and you are in the process of establishing that your opinions can not be taken seriously -- not a desirable sort of reputation.

...As a matter of fact, I would say Lovell's case is more concrete....

Of course you might say that, but only because you don't understand things. The reality is that we have no way to accurately assess Lovell's situation. We have no information except the minimal information from public sources. We don't have the police reports, the forensic reports, the statements of witnesses, or an of the by now hundreds of pages of data which has been used to evaluate the incident.

....Long story short, if you're a rational and honest person, and you're willing to take Kleanbore at his word, then you have every reason to also take Lovell at his word....

Hogwash.

.... While the motive is not known, we have to conclude that Lovell was most likely being broken into, and in the extremely unlikely event that Francisco was not attempting to break in, we have to admit that his actions would give any reasonable person every indication that that was his intent.....

No, none of us have to conclude or admit any such thing, or, indeed, anything at all. In fact, one would be a fool to draw those conclusions without all the evidence.

In fact, all the we can conclude from the the minimal information we have from public sources is that Lovell has been charged with murder, and he's likely to have a tough time of it.

 

[danez71]

As a matter of fact, I would say Lovell's case is more concrete. His wife is a separate witness, and the assailant tried to break into the house via two entrances. Also, there are independent witnesses who testify that the assailant was behaving psychotically just prior to the attempted break-in, and not even the prosecution denies that the assailant was extremely intoxicated at the time.

But in MA, as was already posted, the guy has to get into the house.

Where-as, in some other states, he doesn't. He just has to be in the process of unlawfully breaking in (paraphrasing). And even in those states, it's refutable as you may not be able to articulate why you reasonably believed he was breaking in and not just pounding on the door because of some other reason and the glass in the door happen to break.

 

[Kleanbore]

Again, you fully admit that you brandished a weapon while having zero intention of using it.

Not at all. I had no intention of shooting through the glass.

You were bluffing,...

Nope.

... and you're just lucky that it worked and that the guy didn't go to the police with some sob story, ...

After having broken the door? Fat chance.

You're also arguing that it was necessary for you to stop the threat before it got inside.

It was preferable, and it proved possible-- without the use of deadly force.

Most likely, it kept the intruder unharmed.

Also keep in mind that Lovell had three assailants outside his door. Had they gotten inside, he would have been at a much greater disadvantage than you would have had your assailant managed entry.

Had they gotten in, the threshold for the use of deadly force would most likely have been within the realm of Lovell's ability to argue.

 

[Kleanbore]

It all depends on the laws governing the use of deadly force in a particular state. Knowing your state's laws, and even nuances of the laws, is extremely important.

Prior to amendments in 2011, the laws of my state (North Carolina) actually gave a little more latitude to preventing an intruder's entry to a home (two justifications) than dealing with an intruder actually in the home (only one justification). The interesting rationale for that situation was stated in a state Supreme Court decision (State v. McCombs, 253 S.E.2d 906, N.C. 1979).

In our opinion, one of the most compelling justifications for the rules governing defense of habitation is the desire to afford protection to the occupants of a home under circumstances which might not allow them an opportunity to see their assailant or ascertain his purpose, other than to speculate from his attempt to gain entry by force that he poses a grave danger to them. Once the assailant has gained entry, however, the usual rules of self-defense replace the rules governing defense of habitation, with the exception that there is no duty to retreat. 40 Am.Jur.2d Homicide, Sec. 174 (1968). This is so because the occupant is then better able to ascertain whether the assailant intends to commit a felony or possesses the means with which to inflict serious personal injury upon the occupants of the dwelling.

Please DO NOT take the above to apply to any other state and, as noted, North Carolina law has subsequently been amended. However it does show the importance of nuances in state laws.

That is interesting, and your comments are very well taken.

It is also very important to not interpret part of the code in isolation using a lay person's dictionary, without knowing and understanding relevant case law.

Some five years ago , a student in Mas Ayoob's MAG-20 Classroom course said something to the effect that "in my state, the law says that if someone has broken into my house, I can blast 'em!".

Well, it does kinda sorta seem to say that, and many people conclude that that is what it says, but Mas explained how and why it does not.

Big, big state by the way.

Where I live, the law says that one may not use deadly force unless such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person " (there are other things covered).

Does that mean that one would be justified in shooting simply because a person had unlawfully entered, remained after unlawfully entering, or attempted to unlawfully enter a dwelling, residence, or vehicle lawfully occupied (etc.).... ?

Of course not. I cannot shoot someone whom I did not invite (that's the definition of unlawfully entered) just because he does not want to go home and let me go to bed unless I have a pretty good reason to believe the it would be necessary to do so top event death or serious injury.

One has to go to the jury instructions to understand the whole fabric. They were written by a committee established by the State Supreme Court.

So, what to do? Do not shoot unless and until you have to.

That means don't shoot through the door if the door can protect you momentarily.

I means do not shoot someone you cannot see.

 

[Kleanbore]

On that "don't shoot unless and until you have to" comment. Let us shift to a different incident, this one also many decades ago.

This is the one about how a chased his uncooperative date through an unlocked door into our house, decked her, knocked down a family member, and threatened to kill them both.

I entered the room when the victims were on the floor and could not be used as shields. I ordered the man to leave.

He broke a tall decorative glass bottle to make a weapon from it and announced his intention to kill me.

Was he a "BG"?

I produced a handgun.

Justified?

He started toward me and he saw the gun. That, and some industrial strength coaching, motivated him to depart.

I did not shoot. I didn't have to.

Is there anyone who somehow believes that my not having fired somehow negated the justification for presenting the weapon?

For many people, the lesson here is to keep the door locked.

But the real lesson is that if one does not have to shoot someone, one is far better off not doing so.

Regardless of what the state laws may "authorize".

Again, we are long past the statute(s) of limitations.

BTW, there is no limit for murder.

 

[gc70]

So, what to do? Do not shoot unless and until you have to.

As this discussion has demonstrated, Kleanbore provides sound advice, not only from a legal perspective, but from the harshest of judges and juries - our own conscience. No one would want to deal with their conscience every day for the rest of their life knowing they had taken another person's life when it could have been avoided.

 

[grampajack]

On that "don't shoot unless and until you have to" comment. Let us shift to a different incident, this one also many decades ago.

This is the one about how a chased his uncooperative date through an unlocked door into our house, decked her, knocked down a family member, and threatened to kill them both.

I entered the room when the victims were on the floor and could not be used as shields. I ordered the man to leave.

He broke a tall decorative glass bottle to make a weapon from it and announced his intention to kill me.

Was he a "BG"?

I produced a handgun.

Justified?

He started toward me and he saw the gun. That, and some industrial strength coaching, motivated him to depart.

I did not shoot. I didn't have to.

Is there anyone who somehow believes that my not having fired somehow negated the justification for presenting the weapon?

For many people, the lesson here is to keep the door locked.

But the real lesson is that if one does not have to shoot someone, one is far better off not doing so.

Regardless of what the state laws may "authorize".

Again, we are long past the statute(s) of limitations.

BTW, there is no limit for murder.

That's a different situation entirely. There were already grounds for lethal force, so drawing the gun was completely kosher. At least as much as is possible in this day and age...

 

[grampajack]

Not at all. I had no intention of shooting through the glass.

Nope.

After having broken the door? Fat chance.

It was preferable, and it proved possible-- without the use of deadly force.

Most likely, it kept the intruder unharmed.

Had they gotten in, the threshold for the use of deadly force would most likely have been within the realm of Lovell's ability to argue.

So which is it? You fully intended to shoot him and changed your mind, or you did not intend to shoot him when you stuck the gun through the window?

 

[Kleanbore]

That's a different situation entirely. There were already grounds for lethal force, so drawing the gun was completely kosher. At least as much as is possible in this day and age...

Earlier, you asserted "The very act of brandishing a gun and not shooting is an admission that you did not have to shoot, and therefore did not need the gun".

Figure that one out now?