Right to defend your home?

[swagner89]

Glad you agree Dixie.

9mm, you are totally missing my point. How can i defend myself in my home, if i can't tell if the invaders are common criminals, or SWAT? police are supposed to be restrained by the constitution. but if the police ignore my rights, i cant be assured to be safe from them. In the heat of the moment, Guerena did not know who the invaders were or their intentions. with a split second to analyze the situation, he had to assume that the invasion was hostile. under this assumption, he made decision to defend himself and his family. I and probably everyone on this forum would do the same. Unfortunately he met with dire consequences of that decision.

But is there something else he could have done? The only other alternative I can think of is to not defend himself. He could have stayed prone in bed, and allowed the SWAT to advance on, restrain and arrest him. Then he would still be alive to take care of his family, and able to defend himself in court.

What does this mean for you and me? what do i do if i suddenly realize that someone is forcefully invading my home? well, i want to stay alive. so, knowing that the SWAT could break down my door at anytime, i'd better just lay down and submit. Any neglible sign of non-compliance will likely result in a hail of gunfire. i choose not to defend myself. I stay alive. and I have my day in court to defend myself.

But what if i lay down to submit, and it isn't the cops?




The second amendment is completely useless without the fourth.

 

[General Geoff]

2. LEOs don't assert guilt, they don't find/attach/determine guilt...a person's guilt doesn't play into the actions they take. Their actions, as codified, are based on belief established through their investigation

They do operate on probability of guilt.

 

[9mmepiphany]

What does this mean for you and me? what do i do if i suddenly realize that someone is forcefully invading my home?

I gather that you did not read the links provided by Sam1911 in post #5...specifically http://www.thehighroad.org/showthread.php?t=583899

They do operate on probability of guilt.

I wouldn't say that, I'd say they operate on the belief in reasonable probability and legal procedure. If you get too wound up in guilt, it becomes very hard to do your job, when you see folks getting off because the courts say they should. Guilt is decided in the courts...I'd like to think by a jury of your peers. Innocence never is...you are presumed to be innocent in court until proven otherwise

 

[Sam1911]

Don't do "stupid" things with "stupid" people which helps you avoid tangential associations that could bring you this kind of attention.

Lemme get this straight- is this another way of saying, "he deserved it"?

#1- we have a right to freedom of association.

Nope. Not saying he "deserved it," but I am hugely unsurprised that you made that leap.

You asked what you could do to prevent (I said reduce) the chances of this happening. One of those things is to eliminate the things that might put your name on an investigator's notepad legitimately.

You have the right to do all sorts of things -- like take a walk down an inner-city Detroit avenue at 2:00 am wearing a Rolex on each arm, a 10 ct. diamond on a 1" thick gold chain around your neck, a blindfold, handcuffs, and a "kick me" sign. That's your right. But like many things that are within your rights, the consequences are not guaranteed to be pleasant.

So, you have the right to associate with drug dealers and gang members. But understand that this greatly increases your chances of having to interact with the police. It is not impossible that this interaction may involve a search of your home and possessions (with a warrant or without). It is therefore possible -- if still unlikely -- that force could be used due to misunderstandings or even through your actions in response.

It may all be a mistake. The LEO department or agency involved may apologize, may exonerate you from any wrong-doing, may even settle a civil case and pay lots of money in compensation. But you may still be dead.

That's not "fair." That's just life.

So, when you ask what you can do to reduce the chances of this happening to you, I say you can try to eliminate those associations that might bring law-enforcement officers into your life for non-random reasons.

people with which we associate do lots of things that others dont approve of, i.e. just owning firearms. that doesnt make you guilty.

Owning firearms isn't against the law (in most parts of the US) and rarely gets you or your associates investigated and/or searched without pretty significant other factors involved. Drug dealing and other criminal enterprises do. Again, you have the right to associate with such people, but it doesn't help reduce your chances of an unpleasant interaction with law-enforcement.

 

[Sam1911]

#2- we have a right to due process. the courts have the burden to prove guilt. the victim was never convicted of any crime- the initial investigation was about marijuanna-the sheriff fabricated the home invasion story afterward to cover his tracks

#3- we have the the right not to be searched without authority of law. the warrant was not legitimate. it didnt meet the law's requirement to state particularly the place to be searched, and the persons or things to be seized; it was open ended.

I have no idea whether these things are true or not. I can't comment on them. Investigators and/or a court will decide if violations were committed and if so who should pay for them.

these police raids could easily happen to anyone of us, regardless of guilt.

Yes, I said that before. It is impossible to completely remove all risk of this happening, but these are still very rare events, and there are ways you can work to reduce those chances.

I thought this was "The High Road"... To rationalize egregious violations of these rights as the fault of the victim is frankly shocking to me.

No one is doing so. There is a difference between contemplating ways to avoid negative outcomes and excusing official wrongdoing. IF the law enforcement officials involved broke the law, violated rights, and behaved unethically, I do hope they are severely punished as an example to others. But I don't have more than the most superficial facts in this case, and I won't be sitting on the jury, so I'll reserve my opinion on that.

However, the advice still stands that IF you are truly concerned that this could happen to you and you want to take steps to reduce the chances that it will there are things you can do.

It is your right not to have an alarm system and to activate it. But that would help give you more notice, i.e.: a few extra seconds in which to make assessments and decisions.

It is your right not to have a dog. But a good one will bark and alert you to intruders before they approach the house.

It is your right not to have good lighting, a response plan, a defensible strong point with approaches you can control. But those could be helpful at increasing your survival chances.

It is your right to associate with drug dealers or other criminals. But...

 

[Sam1911]

Wouldn't it seem more reasonable to wait until he was charged with a crime before assassinating him?

I haven't seen anything that claimed they came to the house to kill him. He wasn't yet charged with a crime and they weren't there to punish him.

Nobody seemed worried about facts before asserting him guilty.

No one had (or yet has) asserted that he was guilty. They didn't get that far. He wasn't killed as a consequence of his guilt -- he was killed in what would be defense of officers' lives during the course of an entry/search/arrest. I know I'm making assumptions here that the officers involved are at least averagely lawful, but cops don't shoot suspects unless they think there is a pretty serious and immediate risk to themselves or others. They are there to find evidence and put someone into custody to await a trial. So, someone in that team thought that they or someone else was going to be injured or killed while doing their duty if they didn't shoot. That might have been an incorrect belief, and there could have been any number of compounding mistakes -- but they (unless this is a much larger problem than is being claimed) didn't go to his house to kill him.

suppose they found even one shred of evidence to charge him with a crime. he should've been able to defend himself in court. they've taken away that right forever.

Yes, he should. And, had they been able to take him into custody peacefully, he would have. However, something about the investigation and arrest went very badly and the officers felt they had to shoot. It could have been that he did indeed grab a rifle and point it at them. No one would really blame the officers for shooting him at that point.

forget the warrant. suppose he was guilty of home invasion and selling drugs. does that deserve the death penalty? does that give the police the power to disregard the constitution and dispense capital punishment however they please? does that justify the institution of martial law and collateral damage? do the ends justify the means?

Again, while the situation is terrible -- and indeed may be another nail in the coffin of "no-knock entries" -- you are blowing this up into something is absolutely isn't. Those officers were not administering capital punishment. They weren't enforcing a judgment against him. Killing him was not the deliberate means to some end -- it was the unfortunate result of the officers' perception of armed resistance to what they felt was a lawful search and arrest. And for you to use this kind of overheated language is not honest and really just clouds the issue.

its funny how this site is full of people ready to defend the second amendment, but, who needs the others?

Do not be insulting. Most of us are die-hard Constitutionalists. I have no love for no-knock warrants and warrant-less searches. IMHO they are violations of the 4th Amendment. It would be very easy (obviously) to become enraged at the thought of what MIGHT have happened here. But we also try to be scrupulously honest and clear-headed when we dissect events like this -- and NOT swayed by whatever opinions, hearsay, and wild speculation might be tossed around concerning an event like this.

 

[Sam1911]

What does this mean for you and me? what do i do if i suddenly realize that someone is forcefully invading my home?

I gather that you did not read the links provided by Sam1911 in post #5...specifically http://www.thehighroad.org/showthread.php?t=583899

Yes. We've had an 88-post thread running on that exact question. It is absolutely worth the time to read.

 

[Toaster]

There have been fatalities of LEO by persons defending their homes because of this "shock and awe" system of delivering a warrant. With so many injuries/fatlities on both sides of the fence, perhaps the best answer is for all levels of Law Enforcement - federal, state, municipal, to rethink this tactic and find a better way to act upon the whole situation. Door kicking, screaming and yelling, lack of assessment of the situation before shooting isn't working out too well for either side. Just sayin'.

 

[hirundo82]

Can you point me to a link to the facts that the warrant was based on, that you are basing points 2 and 3 on?

I haven't been able to find it to read the actually documents and was unaware that they had been released

The warrants were sealed a few days after the raid when media attention began.

 

[swagner89]

There have been fatalities of LEO by persons defending their homes because of this "shock and awe" system of delivering a warrant. With so many injuries/fatlities on both sides of the fence, perhaps the best answer is for all levels of Law Enforcement - federal, state, municipal, to rethink this tactic and find a better way to act upon the whole situation. Door kicking, screaming and yelling, lack of assessment of the situation before shooting isn't working out too well for either side. Just sayin'.

Exactly. all of the comments in defense of the police on this thread are predicated on the idea that military style lethal force invading homes is somehow necessary to "protect" the country.

he did indeed grab a rifle and point it at them. No one would really blame the officers for shooting him at that point.

Your logic is complete flipped. I absolutely blame the police for shooting him. There was no need for the cops to bust in on him in the first place. If they had just knocked on the door first to serve the warrant, this innocent man would still be alive today.

 

[wild cat mccane]

Yet I wonder how many support the Patriot Act in here.

 

[Carl N. Brown]

http://www.huffingtonpost.com/2011/05/25/jose-guerena-arizona-_n_867020.html

Huffington Post, "Jose Guerena Killed: Arizona Cops Shoot Former Marine In Botched Pot Raid", First Posted: 05/25/11 05:42 PM ET Updated: 05/26/11 12:25 PM ET

The Arizona police cannot keep their cover stories straight.

The Pima County Sheriff's Department initially claimed (http://pimasheriff.org/files/1013/0463/5381/OIS050511.pdf PDF) Guerena fired his weapon at the SWAT team. They now acknowledge that not only did he not fire, the safety on his gun was still activated when he was killed. Guerena had no prior criminal record, and the police found nothing illegal in his home. After ushering out his wife and son, the police refused to allow paramedics to access Guerena for more than hour, leaving the young father to bleed to death, alone, in his own home.

This case involves Pima County Sheriff Clarence Dupnik who so famously postured blaming the Giffords rally shootings by Loughner on right wing talk radio and/or the Tea Party.

 

[Drail]

This is 2011. No government agency "needs" a warrant anymore. They can't keep us all safe if they have to play by the rules.

 

[macadore]

This is another case of an unreasonable search. Searches of this type are a clear violation of the Fourth Amendment. Where is the ACLU when you need them?

 

[Whiskey11]

Carl N. Brown - Allow me to point a firearm at you and you tell me if the firearm is on safe or not, or unloaded or loaded. It is horribly unfortunate what happened to this man, but pointing a firearm (or anything that is not easily distinguished as NOT a firearm) at a police officer is a sure fire way to get yourself killed.

Regardless of how I, and others feel, the officers gained entry to the home with a warrant that was issued by a Judge who was presented with enough evidence presented to establish probable cause to issue the warrant. This is important regardless of what happened. He was NOT assassinated, he was taken down because he did something that caused the officers to feel their safety was compromised. It doesn't matter that after the entry he was found to be innocent, or the weapon on safe, or any other qualifiers for "victim" status.

What does matter is what the threat was that initiated the firefight. Did the homeowner point a firearm at an officer? If he did then I have NO doubt in my mind that the shooting was justified, regardless of warrant turning up with nothing. In the eyes of the law, it was a legal entry, certified by a judge through the issuing of the Warrant to search the premise and arrest the homeowner.

What does it mean for us? It means exactly what Sam1911 was saying. Remove yourself from crowds or situations that could potentially put you into a situation involving law enforcement.

 

[swagner89]

What does matter is what the threat was that initiated the firefight.

The threat that initiated the firefight was the POLICE invading the victim's home. The police had plenty of choices to serve the warrant; they could have knocked on the door. they could have waited until he walked outside. they could have surrounded the house and called to him with a megaphone to come out. They could have at least given him the chance to put his weapon down. They could have done many things differently if they truly cared about the public safety. Their choice was to force him into a defensive reaction that they could then characterize as aggression. This was MURDER.

The only reason i can guess as to why posts on this forum are defending this atrocity, is that it is natural to feel that "i'm innocent. this could never happen to me. therefore the victim must have been guilty." WRONG. Guerena was innocent, and anyone who thinks that they are immune because they are innocent are fools.

 

[elano]

This story makes me furrious! I am willing to bet the real reason cops like to do this type of invasion to serve warrants is to get the rush and possibly get to see some "action." I can see no other reason when there are so many other options. It seems the "law enforcement" community and the regular citizens are butting heads as to where the bill of rights line is. In my opinion, the police need to back off.

 

[Davek1977]

Having a friend who actually served with this Marine, it sounds as if the entire situation was handled poorly, especially the media's representation of what happened as opposed to the facts, which happened to come out much later.

 

[Sam1911]

The police had plenty of choices to serve the warrant; they could have knocked on the door. they could have waited until he walked outside. they could have surrounded the house and called to him with a megaphone to come out.

No disagreement there on the face of it. As I said before, I don't think no-knock entries are either a good idea nor Constitutionally valid. However, I (and WE) don't know all of the details that went into the decision to proceed this way.

They could have at least given him the chance to put his weapon down.

You really don't know that, and I'd doubt it is actually at all true. When serving a felony warrant, if an officer suddenly discovers the subject (or any occupant) of the building pointing a weapon at them, it is ridiculous to suggest that they would, or should, give that person a moment to decide to put that weapon down. That moment would, more often than not, be the moment they catch a bullet or two. If the officers have cover and are not being immediately threatened, there may be reasonable opportunity to de-escalate like that. Entering a room or hallway to discover someone leveling a firearm at you from a handful of feet away? No.

This was MURDER.

Again, you are using heated terms that do not reflect the truth: murder requires malice aforethought. In other words, a premeditated intent to kill someone. IF this event is found to be unlawful, the charge would be probably be voluntary manslaughter. But those charges can almost never be brought against law-enforcement officers acting in their official capacity to serve a warrant. Again, I don't personally like the way these entries are being conducted, but when a police officer lawfully enters a home, is threatened with a deadly weapon, and kills the person threatening them, that is not murder.

The only reason i can guess as to why posts on this forum are defending this atrocity, is that it is natural to feel that "i'm innocent. this could never happen to me. therefore the victim must have been guilty."

Absolutely NOT. I've said several times, this could happen to anyone (however unlikely that may be). No one is judging Guerena to have been guilty. He was never tried for anything and, so far, no evidence has been announced to indicate that he might have been involved in wrongdoing.

anyone who thinks that they are immune because they are innocent are fools.

Sure. Of course, anyone who really spends a lot of time worrying that this will happen to them is probably missing the opportunity to worry about several hundred other causes of death which are much more likely to befall them than is unjustified injury by a police entry team.

 

[macadore]

It doesn't matter that after the entry he was found to be innocent, or the weapon on safe, or any other qualifiers for "victim" status.

I disagree with the shoot first and as questions later attitude prevalent among some police.

What does matter is what the threat was that initiated the firefight.

The threat that initiated the firefight was police invading a sleeping citizens home in the middle of the night. They didn't have to do that. The man's defense of his family was warranted. His execution without a trial was not.

Did the homeowner point a firearm at an officer? If he did then I have NO doubt in my mind that the shooting was justified, regardless of warrant turning up with nothing. In the eyes of the law, it was a legal entry, certified by a judge through the issuing of the Warrant to search the premise and arrest the homeowner.

So the lives of police mean everything and the lives of ordinary citizens minding their own business mean nothing. Glad you cleared that up. This was not justified and should not be legal. The law needs to be changed.

What does it mean for us? It means exactly what Sam1911 was saying. Remove yourself from crowds or situations that could potentially put you into a situation involving law enforcement.

Like sleeping in your home at night with your family?

Who polices the police? The police in many places have too much power and too little responsibility. This is not a blanked indictment. Some departments are very responsible. Some are criminals with badges. The responsible police should not defend the criminal police.

 

[rwilson37643]

As a former Marine, former LE instructor, and future lwyer, and armed citizen, I see plenty of problems on every side in this incident. I havn't the time to address them all at this time, but the most immportant question is how do you keep this from happening to you? It seems to me, that the short answer is to use the prepaid cell or other telephone before using the AR would go a long way towards this end. Prior planning for emergency response to include a designated safe room with said communication device is a must.

 

[crossrhodes]

This is hard

As a prudent person and retired marine. If, in the middle of the night, breaking windows and no very loud & clear identification..... Well I just don't know. My instinct would be to fire when they entered the bedroom. But I do have a 700 ilium light on my AR and would try to ID first. This is a bad situation no matter how you look at it. I'm up in the air about No Knock warrants. We just had a bad situation in Barton Vt with the Sheriff and a No Knock and had the potential to be REALLY bad for both parties.

 

[Carl N. Brown]

At least five out of the eight local murders 2004-06 were druggies entering domiciles to steal money or drugs. Four of the murder victims were drug dealers by-the-way.

Quite frankly, though, breaking and entering at night is naturally going to draw a defensive response regardless of who is being broken-and-entered upon. Personally I do not expect my door to be kicked down by the police, but more likely by a criminal. Local police just don't often use the sledgehammer labelled SWAT as their law enforcement tool of first choice.

Perhaps these no-knock raids should be suspended on grounds of officer safety.

 

[Flynt]

Police should exercise a far, far greater level of restraint when entering a home -- compared to other venues.

 

[Slamfire]

I found the break in to Jose Guereña’s house by a un announced SWAT team highly disturbing. http://freedominourtime.blogspot.com/2011/05/why-did-police-kill-my-dad.html The fact they shot 70 rounds in 10 seconds at him, purposely prevented medical staff from giving assistance and let him die, just increases my sense of unease.

Maybe we should require that SWAT team members be required to read and recognize numbers before they are given guns.

It would also help if they understood the significance of street names.

This would lessen the chances of them breaking into the wrong house and shooting up the occupants.

Based on the experiences of others, Cops can be pretty dense. A friend of mine was caught speeding after a highpower match. He informed the officer that he had guns in the car. When the officer called in the serial number of my Bud’s National Match AR, the serial number was an alpha-numeric sequence, (like CAR-12L1115) but the officer only called in the digits (e.g 121115) . There were seven stolen guns with the serial number 121115 and my friend ended up going to jail for the night!