Discussion in 'Strategies, Tactics, and Training' started by BigBore44, Apr 30, 2021.
know what address he went to?
Good idea to learn all you can about use of force law including case law and the jury instructions before drawing decision trees like that.
The posting of a sentiment like that can destroy a defense of justification.
Typically there are two views to about anything that I can sum up as, the glass is half full and an opposing view I guess, no, the glass is half empty. Traditionally commented as, Optimist and Pessimist.
However, there is in FACT a third view; viewing 4 ounces of water in an eight ounce glass; the view of the Realist.
IMHO, you have exited the view of Optimism of your wonderful surroundings. Well...the ill fellow exited it for you . If you can realize it or not / accept it or is totally another matter.
Again, IMHO You have entered the simple, normal and common era of, LOCK YOUR DOORS.
What I said before still goes. #3
The days of taking ANYTHING for granted are over. Hate it that it landed in yer' living room.
21-1289.25 PHYSICAL OR DEADLY FORCE AGAINST INTRUDER
The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business.
A person or an owner, manager or employee of a business 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:
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, occupied vehicle, or a place of business, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, occupied vehicle, or place of business; and
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.
The presumption set forth in subsection B of this section does not apply if:
The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not a protective order from domestic violence in effect or a written pretrial supervision order of no contact against that person;
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.
A person who unlawfully and by force enters or attempts to enter the dwelling, residence, occupied vehicle of another person, or a place of business is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
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…
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.
Typically I would agree with you. But in that scenario, he is in my home illegally. He has a weapon and has used it against a member of my home. He is a continued threat that has not been eliminated. He more than meets the requirements for lethal force. In the use of lethal force, you do not aim for the leg. You aim for the highest percentage shot(s) to end the threat (You know that. It’s been discussed as nauseam). Well there is no maximum use of force statute and no requirement for a homeowner to render aid regardless of their profession. Clearly I’ve shown enormous restraint when having my home invaded. But an armed intruder that has used a firearm to kill a member of my family and is still a threat, deserves no quarter and will receive none.
There was a case a few years ago about 40 miles from here where an ex showed up at a woman’s house. Current boyfriend was home. Ex had a key to get in. Ex is hammered drunk and comes in the house. Upon entry, boyfriend shoots him with a 12 gauge in the chest twice. Ex was unarmed. The DA declined prosecution and said even though the ex had a key to the residence and had previously been allowed entrance, the situation had changed and the person with current access to the home had a reasonable expectation of safety while in the residence.
Another case about 20 miles from here where two juveniles broke into a home at night. The homeowner killed both teens with a handgun. Both teens unarmed. Separate DA declined prosecution. The Chief of the town was quoted as saying something to the effect of “Let this be a lesson to other teens that want to break into people’s homes”.
I know I’m covered in Oklahoma. But that doesn’t mean I want to have to use that coverage. In fact, it’s the last thing I want. And I showed that.
To conclude that a deputy who has shot a violent animal is a "threat" could reasonably be seen as a very hard sell at best.
And legally, the dog is property.
One other thing--never believe that a DA's recommendation is final.
I don't think anything about it would've been cut & dry. That 3rd party is trespassing. The officer has no business there and he just entered illegally and shot the homeowner's dog. He may not have forced entry but he wasn't invited either, had no probable cause and no warrant. He didn't follow procedure and people got hurt. I'm not going to predict the outcome but it would've been a hell of a mess to figure out and it mostly would've been the officer's fault.
How old are your kids? Are they trustworthy? I know you said you leave the door unlocked for convenience, but this would change if it was me. Give your kids a key.
All this would be avoided with a locked door.
You are probably right.
One may not use deasdly force to prevent or terminate trespass--even in Texas in the dead of night.
whether he "had business there" would have to be determined. Officers do enter houses in hot pursuit, lawfully.
remember, what he was doing was protecting someone against dog attack, which would have been his duty, not trying to apprehend a suspect.
In law, that would not matter.
The big difference is that the deputy was not trying to apprehend anyone in any house. The "Deputy sees Jimmy getting attacked by one of his sister’s crazy dogs" and is duty bound to protect Jimmy.
What does not matter is whether the actor was actually in imminent danger, or was not but had a basis for a reasonable belief that he had been.
Of course not.
That is not the scenario described.
The officer shot a dog who was attacking someone else. To enter private property to perform an immediately necessary duty does not require an invitation.
Has a resident shot an officer, or perhaps anyone else else, under the circumstances described, and appealed a conviction, the appellate case would be a good candidate for one of Attorney andrwe Mranca's Lae of Self Defense blog programs
Yeah but it ain't gonna be that black and white either. You also have to put yourself in the homeowner's position, who is just reacting to a friggin' stranger in the living room. The officer didn't just happen along. He did not enter private property when he walked in the door. He entered private property when his feet left the sidewalk. It was his actions that created this situation in the first place. In defense of self or another does not matter. The person being defended is trespassing, inside someone's home. If I call the law because someone breaks into my house and the officer shows up to find my dog chewing on the suspect, inside my house, is he justified in shooting the dog without warning? No and he was invited. I don't even like dogs but this is the United States of America and we have a Constitution. You don't TRESPASS into somebody's house and shoot their friggin' dog. Unless you're just really, really stupid. Because that is the bottom line, both the officer and "Jimmy" were trespassing. The officer screwed up, royally and if things had gone south, it should be laid as his feet.
I don't really see a point in arguing this anyway.
That may or may not figure in. Likely not.
The resident had not called the law, the person attacked by the dog had not broken in, and I so not think it prudent to try to "warn" an attacking dog before acting.
We need to remind ourselves that trespass is a minor offense, and that the remedy is limited.
The only way that shooting the officer might be justified is if a reasonable person in similar circumstances, knowing what the actor knew at the time, would have reasonably believed it necessary to prevent imminent death or serious injury.
In Oklahoma, a reasonable belief that an unlawful and forcible entry had been made would provide a presumption, albeit rebuttable, that a reasonable belief of an imminent threat of harm existed.
The OP would be well advised to attend Attorney Andrew Branca's virtual course on self defense and to read the book The Law of Self Defense. There is a basic course and a state supplement.
You’re actually serious. Why do I need to read a book when I’ve already read and provided the statute of the state that I reside in?
The use of force is authorized under Title 21. My glass door was shut. My wooden door was shut. Which is actually irrelevant. I fist saw the intruder when he was standing in my living room. He had already made it 13 feet inside my home. Should the officer make it to Jimmy, he has made it at least 12.
Do you know that in Oklahoma we have the Castle Doctrine, the Make My Day Doctrine AND the Stand Your Ground Doctrine? Oklahoma doesn’t mess around when it comes to protecting a homeowner, business owner, or legally permitted person.
Here are the court cases. For the use of self defense, Perryman v. State, 1999 OK CR 39, ¶ 9, 990 P.2d 900, 904.
Make My Day- State v. Anderson, 1998 OK CR 67, 972 P.2d 32,
Stand Your Ground- Dawkins v. State, 2011 OK CR 1, ¶ 9, 252 P.3d 214, 218,
This whole thing was about how a perfect storm played out, in my house, and everyone walked away without so much as a scratch. It was a house of cards that stayed standing.
Again , take the opportunity to learn all you can about use of force law. Use both of the premier sources: Branca's LoSD, and Massad Ayoob Group's classroom course.
Take both. Either one will tell you more about the subject than an attorney learns in law school.
The LoSD blog program will take you through a lot of real cases. Sobering cases.
For heaven's sake, do not draw any conclusions from a layman's reading of the code, without knowing the relevant case law and the jury instructions, or from what you think you know about a few incidents.
We have a Sticky thread on that.
Even defense attorneys, prosecutors, and trial court judges get it wrong. That's why there are appellate courts. And they screw it up sometimes.
Don't kid yourself with your "100% faith." I wouldn't bet a nickel on it, and even people who did everything right sometimes end up spending the rest of their lives in a cage.
Those who win may well be out a large fortune.
OBTAIN THE KNOWLEDGE.
Another thing that would help would be to sit few a few trials.
So if everyone in the process can get it wrong, what then is the point of me taking Branca's LoSD, and Massad Ayoob Group's classroom course? Show me where the statute says I’m not protected if someone shoots my dog in my home.
He is there unlawfully.
He is obviously armed.
He has shot a member of my family. (The law “may” see my dog as property as far as punitive damages. But he is family.) But I’ll play along.
He has purposefully discharged that firearm inside my home.
I provided the cases pertaining to the 3 doctrines and self defense. You haven’t even disputed anything I’ve posted. You’ve said “may”, and “might”. And I really have to wonder why.
Sorry. That’s not true. You are only bound or have a duty to protect those in your custody. An officer can go 10-7 to watch you get mauled by a dog on the side of a street and do nothing. And when the dog is done he can go 10-8 and drive away. Now, there might be some repercussions from the mayor or chief, but he has no duty to protect you. Jimmy was not in his custody.
You have it inside out.
Please do try to learn.
You may be justified in using deadly force to defend yourself others, under some circumstances.
In no jurisdiction imay you lawfully employ deadly force because someone has done something.
And one more time, do not try to base things on statutory code alone.
Because nothing is certain.
Your basis for that?
Hint: it is not true.
Seriously in 22 years as a cop I’ve had my share of bizarre moments as well. Some of them wouldn’t be believed if you saw them in a movie.
All too frequently your first impressions in a critical moment are just wrong so my best advice is not to act until your possible opponent has declared themselves hostile by their actions - while at the same time maneuvering into a position that would allow you to move forward and engage or retreat if necessary (and yes that immediate adrenaline dump is very hard to deal with as well...).
Glad it worked out okay -and that you had the good judgment to cut the officer some slack.. Hope he learned a valuable lesson ( and no I won’t be recounting my own screw-ups).
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