Except that items 1-5 of your scenerio assume guilt that should've/would've been determined at a trial. If he wasn't guiltly then your scenerio becomes armed intruders were justified in storming an innocent man's house and killing him because the intruders feared he was prepared to defend his house.
Absurd. You've created a catch-22. The only way for him to stand trial is to be arrested, and in order to arrest him you need to assume things that should be determined by trial. Even the most narrow reading of the Constitution provides for the State to go out and arrest people in order to bring them before a judge and jury for trial.
The fundamental difference is there are vastly different assessments of threat. A homeowner sees someone in his house he knows with an absolute certainty that he didn't ask this person to be there. Their very presence is an active threat. The homeowner is probably alone, in his pajamas, with any help several minutes away (if he's lucky). The police on the other hand, are going to a house where they presume a threat may be present, but that's only valid if it's the right house, the right person, the suspect is actually armed or capable of mounting an effective attack, wants to put up a fight, and is the actual person who committed the crime. The police have the advantage of surprise, and are going in heavily armed and armored as a mutually supporting team. I don't think it's all that out of order to ask that they be held to a slightly higher standard than Joe Blow in his bunny slippers.
Actually, I fail to see why either one should be held to a higher standard than the other. The force was either justified, or it was not. The cop or the homeowner either percieved a threat, or he did not, and that perception was reasonable, or it was not.
I think that non-LEO RKBA types are very comfortable with the fact that they can shoot someone in their home and claim self defense...hey, his mere presence was a threat! (Try that in court, sometime) or that they can, in public, practice threat awareness and avoidance and only engage when lethal force is a comparatively easy choice. What so many fail to realize is that when they see a guy acting goofy/odd/threatening and they call a cop to respond, that cop has to do the thing that the caller can't or won't do, which is go over and confront the guy and, possibly, force the shoot/don't-shoot decision that the CCW holder or homeowner doesn't really have to make.
Back in this scenario, if the guy is in your home at 0-dark-thirty with a PS3 controller in his hand, I think you could build a solid self defense case for the homeowner. His mere presence was certainly suspicious, he had an odd object in his hand, that's a
potentially lethal-force scenario, right there. The police were required, by law (try telling a judge you don't feel like serving a felony warrant. Try telling a victim that you don't feel like going to catch the guy who robbed him), to go arrest this guy, and when they did, he had a PS3 controller in his hand. They knew he had a history of robbery, they (apparently) knew him to be armed. Seems like the shoot, while not "good" in the layman's definition of the term, is at least an understandable error.
And if the threat was that severe, why not just wait until the guy headed for class or work and wrap him up in the yard? Did they think he was robbing someone in his own house that night?
Now, the reasons for going into a house to arrest someone are manifold, and usally pretty straight forward. The main reason is that if you think he might be armed or violent, you have a
duty to take him into custody in the safest possible manner for everyone, to include the public. Attempting to grab robbers in the open results in shootouts, car chases, foot pursuits and hostage situations. To be fair, attempting to arrest them in their houses can do the same thing (ain't nothin' 100% but Jesus), but it is actually usually
far safer to do it that way than to try and go all cowboy on the street. You have a startlingly small number of warrant services that go awry, but I can tell you that the likelihood of successfully and safely apprehending a suspect in the open is really not that hot.
What happens invariably is this:
When the arrest goes well (in public, in a house), no one cares. Heck, no one
knows.
When the arrest goes bad, people say:
Good Lord. Why kick down his door? You ended up shooting him for nothing! Why not arrest him when he left his house in the morning?
-or-
Good Lord. Why try to pick him up in public? You just placed a playground full of kids, the motoring public, every pedestrian on the sidewalk, and the guy he eventually took hostage in the convenience store at grave risk! Why don't you wait until he is home, kick down his door, and arrest him when he has no way to run?
Mike
