So you've got 'im at gunpoint...
- Thread starter Drjones
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Matthew Courtney
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Get a grip PAX. If I can articulate how my child's life would have been in immenemt danger had I not pulled the trigger, that would be enough.
Matthew,
If that's your plan, I suspect you will have some difficulty with Problem Two.
pax
You have the right to remain helpless. Should you choose to waive this right, anything you do may be used against you in a court of law. You have the right to an assailant. If you cannot find one for yourself, the court will release one for you. -- Steve Munden, quoted by Jeff Cooper in his commentaries
If that's your plan, I suspect you will have some difficulty with Problem Two.
pax
You have the right to remain helpless. Should you choose to waive this right, anything you do may be used against you in a court of law. You have the right to an assailant. If you cannot find one for yourself, the court will release one for you. -- Steve Munden, quoted by Jeff Cooper in his commentaries
Matthew Courtney
Member
Problem 2?
What is problem 2?
What is problem 2?
Sheslinger
Member
Tough call...
I do not want to live with having killed anyone but how to you deem if someone is a threat? They might not have a gun but can be a 10th degree black belt five feet away from me. That it precisely why I would treat anyone in my house as a threat to my life. If I heard someone downstairs and we were in the bedroom, I would hide in the corner, dial 911 on my cell phone and have the gun pointed at the door making as little noise as I could. I would not do a house check. If I ran into someone hurting anyone in my family (my dog included), they would be shot. If I ran into someone taking my TV, they would get one chance to lay down on the floor etc. Then they would get shot if they did not comply.
Sorry, I am just as afraid of people who can throw knives or martial artists as I am of people with loaded guns. How would I know if someone is moving towards me despite my telling them to stop is not a lunatic killer? Granted, they could be just a stupid burglar but that's population pruning.
I do not want to live with having killed anyone but how to you deem if someone is a threat? They might not have a gun but can be a 10th degree black belt five feet away from me. That it precisely why I would treat anyone in my house as a threat to my life. If I heard someone downstairs and we were in the bedroom, I would hide in the corner, dial 911 on my cell phone and have the gun pointed at the door making as little noise as I could. I would not do a house check. If I ran into someone hurting anyone in my family (my dog included), they would be shot. If I ran into someone taking my TV, they would get one chance to lay down on the floor etc. Then they would get shot if they did not comply.
Sorry, I am just as afraid of people who can throw knives or martial artists as I am of people with loaded guns. How would I know if someone is moving towards me despite my telling them to stop is not a lunatic killer? Granted, they could be just a stupid burglar but that's population pruning.
labgrade
Member In Memoriam
Decent discussion.
Here's CO's 18-1-704.5/Make MY Day Law:
"18-1-704.5 - Use of deadly physical force against an intruder.
back to top (1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.
Source: L. 85: Entire section added, p. 662, § 1, effective June 6. Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see § 13-80-119.
Am. Jur.2d. See 6 Am. Jur.2d, Assault and Battery, § § 81-89; 40 Am. Jur.2d, Homicide, § § 173-176.
C.J.S. See 40 C.J.S., Homicide, § § 100, 101, 109.
Law reviews. For article, "self-defense in Colorado", see 24 Colo. Law. 2717 (1995).
Prerequisite for immunity under this section is an unlawful entry into the dwelling, meaning a knowing, criminal entry. People v. McNeese, 892 P.2d 304 (Colo. 1995).
To be immune from prosecution under this section a defendant must establish by a preponderance of the evidence that he or she had a reasonable belief that the intruder was committing or intended to commit a crime against a person or property in addition to the uninvited entry. This inquiry focuses on the reasonable belief of the occupant, not on the actual conduct of the intruder. People v. McNeese, 892 P.2d 304 (Colo. 1995).
Sufficient evidence existed to support trial court's denial of defendant's pre-trial motion to dismiss on the basis defendant had not met his burden as established by the supreme court. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Trial court is authorized to dismiss criminal prosecution at pretrial stage when conditions of statute are satisfied, and this does not infringe upon prosecution's discretion to file charges. People v. Guenther, 740 P.2d 971 (Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987).
Defendant bears burden of establishing right to immunity by preponderance of evidence when issue of immunity is raised at pre-trial stage. People v. Guenther, 740 P.2d 971 (Colo. 1987); People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Fact that a homicide victim was on the defendant's porch does not permit the defendant to claim immunity from prosecution for unlawful entry to defendant's dwelling unless the court finds that defendant believed that the victim intended to commit a crime or use physical force against the defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).
Defendant may still raise immunity as defense at trial when pretrial motion to dismiss is denied. People v. Guenther, 740 P.2d 971 (Colo. 1987).
For purposes of this section, the common areas of an apartment building do not constitute a dwelling. People v. Cushinberry, 855 P.2d 18 (Colo. App. 1993).
Where pretrial motion to dismiss on grounds of statutory immunity provided in this section is denied, defendant may raise it as an affirmative defense at trial. In such case, the burden of proof which is generally applicable to affirmative defenses would apply. People v. Malczewski, 744 P.2d 62 (Colo. 1987).
Because this section creates an immunity defense as well as an affirmative defense, and because the burden of proof for each defense is different, when raised at trial, this section poses special problems when instructing a jury. In such a case, instruction based on language from People v. McNeese, which dealt with pretrial immunity, must be put into context so as not to confuse or mislead the jury about the burden of proof with respect to an affirmative defense raised at trial. People v. Janes, 982 P.2d 300 (Colo. 1999).
Defendant did not establish by a preponderance of the evidence that he was entitled to immunity under this section where he could not show the struggle and wounding of the victim took place in defendant's bedroom of the house he shared with the victim. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Trial court did not commit reversible error by refusing to instruct the jury that it need only determine whether the victim made an unlawful entry into a part of a dwelling that was occupied by defendant, as defendant failed to show that the bedroom was exclusively his province and that the victim's entry into the bedroom was unlawful. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Trial court erred in interpreting subsection (2) as including the concept of "remain lawfully" within the statutory phrase "unlawful entry". Defendant failed to establish the legal elements of this section to bar prosecution where the victim was initially invited into defendant's residence and, after arguing, was later asked to leave. People v. Drennon, 860 P.2d 589 (Colo. App. 1993).
The reference to "uninvited entry" in subsection (2) refers back to the term "unlawful entry" used in the same subsection. People v. McNeese, 892 P.2d 304 (Colo. 1995).
Victim's entry was unlawful and uninvited for the purposes of statute providing immunity for use of force where wife of murder victim did not have authority to invite the decedent into defendant's apartment and was staying with the defendant on the condition that she not invite the victim into defendant's apartment. People v. McNeese, 865 P.2d 881 (Colo. App. 1993).
When this section is being used as an affirmative defense, it is error for a jury instruction to place the burden on the defendant to prove the affirmative defense. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Applied in People v. Arellano, 743 P.2d 431 (Colo. 1987)."
Despite all its "granting" of a homeowners' "authority to shoot," - seemingly, at will, it's illustrative to note the further decisons of this same law.
Couple other legal-beagle things from legalese prior to & after, in statute's orders are worth reading.
Need a goodly link, PM me. I just can't right now. A quick post to describe the actual law AND decisions afterwards. It'll all get twisted in court, & Chey (?) is correct = a jury will decide, but only IF you have the misfortune to have a politically aspiring DA/prosecutor AND you don't invoke an affirmative defense immediately at any pre-trail hearing, etc. ... could get very complicated rather quickly.
Tight lines. folks.
Here's CO's 18-1-704.5/Make MY Day Law:
"18-1-704.5 - Use of deadly physical force against an intruder.
back to top (1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.
Source: L. 85: Entire section added, p. 662, § 1, effective June 6. Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see § 13-80-119.
Am. Jur.2d. See 6 Am. Jur.2d, Assault and Battery, § § 81-89; 40 Am. Jur.2d, Homicide, § § 173-176.
C.J.S. See 40 C.J.S., Homicide, § § 100, 101, 109.
Law reviews. For article, "self-defense in Colorado", see 24 Colo. Law. 2717 (1995).
Prerequisite for immunity under this section is an unlawful entry into the dwelling, meaning a knowing, criminal entry. People v. McNeese, 892 P.2d 304 (Colo. 1995).
To be immune from prosecution under this section a defendant must establish by a preponderance of the evidence that he or she had a reasonable belief that the intruder was committing or intended to commit a crime against a person or property in addition to the uninvited entry. This inquiry focuses on the reasonable belief of the occupant, not on the actual conduct of the intruder. People v. McNeese, 892 P.2d 304 (Colo. 1995).
Sufficient evidence existed to support trial court's denial of defendant's pre-trial motion to dismiss on the basis defendant had not met his burden as established by the supreme court. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Trial court is authorized to dismiss criminal prosecution at pretrial stage when conditions of statute are satisfied, and this does not infringe upon prosecution's discretion to file charges. People v. Guenther, 740 P.2d 971 (Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987).
Defendant bears burden of establishing right to immunity by preponderance of evidence when issue of immunity is raised at pre-trial stage. People v. Guenther, 740 P.2d 971 (Colo. 1987); People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Fact that a homicide victim was on the defendant's porch does not permit the defendant to claim immunity from prosecution for unlawful entry to defendant's dwelling unless the court finds that defendant believed that the victim intended to commit a crime or use physical force against the defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).
Defendant may still raise immunity as defense at trial when pretrial motion to dismiss is denied. People v. Guenther, 740 P.2d 971 (Colo. 1987).
For purposes of this section, the common areas of an apartment building do not constitute a dwelling. People v. Cushinberry, 855 P.2d 18 (Colo. App. 1993).
Where pretrial motion to dismiss on grounds of statutory immunity provided in this section is denied, defendant may raise it as an affirmative defense at trial. In such case, the burden of proof which is generally applicable to affirmative defenses would apply. People v. Malczewski, 744 P.2d 62 (Colo. 1987).
Because this section creates an immunity defense as well as an affirmative defense, and because the burden of proof for each defense is different, when raised at trial, this section poses special problems when instructing a jury. In such a case, instruction based on language from People v. McNeese, which dealt with pretrial immunity, must be put into context so as not to confuse or mislead the jury about the burden of proof with respect to an affirmative defense raised at trial. People v. Janes, 982 P.2d 300 (Colo. 1999).
Defendant did not establish by a preponderance of the evidence that he was entitled to immunity under this section where he could not show the struggle and wounding of the victim took place in defendant's bedroom of the house he shared with the victim. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Trial court did not commit reversible error by refusing to instruct the jury that it need only determine whether the victim made an unlawful entry into a part of a dwelling that was occupied by defendant, as defendant failed to show that the bedroom was exclusively his province and that the victim's entry into the bedroom was unlawful. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Trial court erred in interpreting subsection (2) as including the concept of "remain lawfully" within the statutory phrase "unlawful entry". Defendant failed to establish the legal elements of this section to bar prosecution where the victim was initially invited into defendant's residence and, after arguing, was later asked to leave. People v. Drennon, 860 P.2d 589 (Colo. App. 1993).
The reference to "uninvited entry" in subsection (2) refers back to the term "unlawful entry" used in the same subsection. People v. McNeese, 892 P.2d 304 (Colo. 1995).
Victim's entry was unlawful and uninvited for the purposes of statute providing immunity for use of force where wife of murder victim did not have authority to invite the decedent into defendant's apartment and was staying with the defendant on the condition that she not invite the victim into defendant's apartment. People v. McNeese, 865 P.2d 881 (Colo. App. 1993).
When this section is being used as an affirmative defense, it is error for a jury instruction to place the burden on the defendant to prove the affirmative defense. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Applied in People v. Arellano, 743 P.2d 431 (Colo. 1987)."
Despite all its "granting" of a homeowners' "authority to shoot," - seemingly, at will, it's illustrative to note the further decisons of this same law.
Couple other legal-beagle things from legalese prior to & after, in statute's orders are worth reading.
Need a goodly link, PM me. I just can't right now. A quick post to describe the actual law AND decisions afterwards. It'll all get twisted in court, & Chey (?) is correct = a jury will decide, but only IF you have the misfortune to have a politically aspiring DA/prosecutor AND you don't invoke an affirmative defense immediately at any pre-trail hearing, etc. ... could get very complicated rather quickly.
Tight lines. folks.
Last edited:
Matthew Courtney
Member
Let me get this straight.......................
Honey, you can stay with me, but if I see your husband's nary butt around here, I'll have to remove hom from the picture.
Honey, lets just talk.............. see, I'm gonna change.......I want you and the kids to come on home......
BLAM.
Works for me. He was probably gonna start hitting her again. In any case, a man has to respect another man's home. Works both ways.
Honey, you can stay with me, but if I see your husband's nary butt around here, I'll have to remove hom from the picture.
Honey, lets just talk.............. see, I'm gonna change.......I want you and the kids to come on home......
BLAM.
Works for me. He was probably gonna start hitting her again. In any case, a man has to respect another man's home. Works both ways.
Matthew,
Self-defense has two phases, commonly referred to as 'problem one' and 'problem two.'
Problem One is surviving the immediate encounter.
Problem Two is surviving what the courts do to people who manage Problem One in a less-than-perfect fashion.
It's easy to say, 'better to be tried by 12 than carried by 6.' And it's true ... to a point. But if you spend the rest of your life in jail, and all your worldly goods are taken away, and your little girl is told over and over again throughout her childhood that her daddy's a killer, and your wife divorces you, and your mom cries whenever anyone mentions your name, and you've no way to clear your name because the fact is, you stepped over the line ... well. I just think it's better if you can solve Problem One in such a way that Problem Two doesn't become impossible to solve at all.
pax
I have come to regard the law courts not as a cathedral but rather as a casino. -- Richard Ingrams
Self-defense has two phases, commonly referred to as 'problem one' and 'problem two.'
Problem One is surviving the immediate encounter.
Problem Two is surviving what the courts do to people who manage Problem One in a less-than-perfect fashion.
It's easy to say, 'better to be tried by 12 than carried by 6.' And it's true ... to a point. But if you spend the rest of your life in jail, and all your worldly goods are taken away, and your little girl is told over and over again throughout her childhood that her daddy's a killer, and your wife divorces you, and your mom cries whenever anyone mentions your name, and you've no way to clear your name because the fact is, you stepped over the line ... well. I just think it's better if you can solve Problem One in such a way that Problem Two doesn't become impossible to solve at all.
pax
I have come to regard the law courts not as a cathedral but rather as a casino. -- Richard Ingrams
Matthew Courtney
Member
"Problem" 2 would not be an issue if I had to shoot to stop an intruder from using force against a family member.
If your state creates problems for citizens in such situations, perhaps you should lobby your legislature to revise the law.
If your state creates problems for citizens in such situations, perhaps you should lobby your legislature to revise the law.
Ahhhh, gotcha. Matthew, I think we're actually more or less on the same page. Rereading what I wrote the first time I see I messed up by not making myself clear. The part in parentheses below, I took as a given rather than spelling it out:
You must be able to articulate how your life (or the life of another whom you are charged to protect) is in danger at the moment you pull the trigger.
Does that help?
pax
You must be able to articulate how your life (or the life of another whom you are charged to protect) is in danger at the moment you pull the trigger.
Does that help?
pax
Regardless of any damn laws Problem 1 is the only problem to concern yourself with when encountering an intruder in your home.
I lived in a country that would jail you for shooting an intruder and I would still shoot!
Then after Problem 1 is no longer a problem we can discuss Problem 2.
HS/LD
I lived in a country that would jail you for shooting an intruder and I would still shoot!
Then after Problem 1 is no longer a problem we can discuss Problem 2.
HS/LD
Is it just me or is everyone else living alone or making your wife barricade herself in the room while you "handle" the situation.
In my mind, my drill goes like this:
Grab the flashlight, the .45 (plus 2 mags)and have wife and child barricaded in the bedroom (with other .45). I search/seek the noise's location and scan house for other BG's (bad guys). {This is a perfect fantasy isn't it}
I have them on their knees (BG not the wife) and give the OK for the wife to call 911.
How's that? Too simplistic or idealistic? Maybe.
Lexter
In my mind, my drill goes like this:
Grab the flashlight, the .45 (plus 2 mags)and have wife and child barricaded in the bedroom (with other .45). I search/seek the noise's location and scan house for other BG's (bad guys). {This is a perfect fantasy isn't it}
I have them on their knees (BG not the wife) and give the OK for the wife to call 911.
How's that? Too simplistic or idealistic? Maybe.
Lexter
Matthew Courtney
Member
If the intruder is moving away from me, toward my daughter's bedroom, my daughter is not in danger at that moment, but I may lawfully shoot to prevent the intruder from entering my daughter's bedroom, because failing to shoot puts my daughter in danger. The law in Louisiana clearly allows this.
§20. Justifiable homicide
A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle. The homicide shall be justifiable even though the person does not retreat from the encounter.
(4) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle. The homicide shall be justifiable even though the person committing the homicide does not retreat from the encounter.
Added by Acts 1976, No. 655,§ 1. Amended by Acts 1977, No. 392,§ 1; Acts 1983, No. 234,§ 1; Acts 1993, No. 516,§ 1; Acts 1997, No. 1378,§ 1.
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