This is an example of how stupidly ridiculous anti gun States have become

[Kleanbore]

Too bad he didn't fire the gun into the ground, then beat the living crap outta the burglar with his Louisville slugger, ...

Let us not fall into the trap of advocating the unlawful use of deadly force.

 

[mbt2001]

Ignorance of the law is no defense. If you are going to carry a gun, the LEAST one dcan do is familiarize himself or herself with the laws regarding such a choice. The law is black and white, and debating on whether "grandpa" is a hazard and needs to be locked up is pointless. He used a firearm to violate the law, a very serious offense. My personal opinion is moot....My opinion doesn't affect the law or how its carried out....which, I believe, was sort of the intent....to take personal feelings out and codify certain actions as either criminal or not. His actions, under the law, were criminal, and how I feel about that is largely irrelevant.

First of all, this is the USA and in fact your opinion of the law does matter, not the least of which because you might be a juror and according to John Jay the jury has the right to take upon themselves to judge both the facts and law. You are also a voter / citizen, which makes you the boss, in essence, of the legislature.

The law itself is predicated on the belief of the homeowner over the fear of bodily harm / death. The reality of the situation is beside the point, his belief is all that matters.

All that aside, I am afraid that the message being communicated here is that you never talk to or cooperate with the police and you never help other people. Our country cannot function if this trend continues over a long period.

 

[avs11054]

Gentlemen...

Your must remember that criminals are now a protected class, who must not be hindered while they take the property of others. No matter how much you, or someone else is about to lose it appears that they have a right to take whatever they want.

If you are going to stay out of the slammer yourself you must limit your actions to calling 911, and observing the departing robber so that you can give the poiice a description when they eventually arrive.

While you may be upset about all this, remember that the statutes that let this come about were written and enacted by the various office holders that we elect.

An election is coming up this fall, and before it arrives you might give this some thought.

What are you talking about! He threatened to use lethal force, and then fired his gun when somebody was running away from him. In what state is that justified? I don't know about other agencies, but the LEA's around here can't fire "warning shots." I understand he was trying to protect his neighbor's property, but he shouldn't be trying to take action like this if he doesn't know the law. Plain and simple.

 

[mbt2001]

What are you talking about! He threatened to use lethal force, and then fired his gun when somebody was running away from him. In what state is that justified? I don't know about other agencies, but the LEA's around here can't fire "warning shots." I understand he was trying to protect his neighbor's property, but he shouldn't be trying to take action like this if he doesn't know the law. Plain and simple.

I keep seeing this kind of statement.

You, and the others saying this, are guilty of making an assumption. We know that in the course of confronting a burglar a gun was discharged. Whether it was done on purpose or on accident remains to be seen. What is said in a newspaper is not the same thing as testimony under oath. It can be used to impeach a witness, but it is not testimony. Further to that, what matters is the BELIEF in the mind of the grandpa / homeowner. If he believed his life threatened, then discharging the firearm was an appropriate response.

In some states, depending on the castle doctrine law or other variables, it might be legal to do what the home owner did. To be honest, he was not arrested at the seen according to the articles I have read, but turned himself in or surrendered himself.

 

[Old Fuff]

What are you talking about!

Members who have been here for a while have come to recognize the Old Fuff’s sarcasm, which can have a bite to it.

That said, there is a wide chasm between what the law says, and what the public-in-general believes is right. Coddling criminals who are making a get-a-way may be legal, but in no way is it popular.

 

[Sam1911]

We know that in the course of confronting a burglar a gun was discharged. Whether it was done on purpose, or on accident remains to be seen. What is said in a newspaper is not the same thing as testimony under oath. It can be used to impeach a witness, but it is not testimony.

Accepted -- but we're not on his jury, deciding his fate. We're just a group of students of self-defense issues trying to understand how the law might be applied properly based on his statements and the information presented in the article.

And, yes, both his statements to the police, and statements he's made to the press will be read back to him in court. I'd not expect that he'd have much luck at this point trying to present a defense that he'd fired accidentally -- OR that it would help him much if for some reason he changes his story to that.

 

[mbt2001]

Hey Sam,

The real lesson hear, sad as it is, is that we all need to mind our own business and let others fend for themselves and to not speak to the police without a lawyer present. The problem is, both of the above strategies are sometimes illegal...

My grandfather fired warning shots at some guys breaking into his car 40 years ago. It kills me to think that had he done it today he might be in the clink. Right or wrong, tactical or not; I understand being a bit reticent / confused / hesitant about the chasm between doing nothing and shooting to kill.

The biggest problem with this case is the defendants (that is what he is now) statements to the police / newspaper.

 

[Carl N. Brown]

If you are going to carry a gun, the LEAST one can do is familiarize himself or herself with the laws regarding such a choice. The law is black and white,...

That is the least you can do, but more than that is better.

The law can be grey and fuzzy when you consider that the law as written and the policies as enforced by police and courts may be quite different. Self defense gets filtered through 800 years or so of common law, down to recent court cases, and interpreations of police and prosecutors who enforce the law.

Quoting the black and white letter of the law when the judicial system (prosecutor, grand juries, trial hudges, trial juries, appellate courts) may have a different interpretation can be a rude awakening if you get to court.

It has been explained to me, that you may attempt to detain a burglar at gun point for arrest, but you can only fire if he presents a threat of death or greivous bodily harm; if he attempts to run away, your only choice is to allow him to escape, unless a "reasonable person" would believe he was escaping to a position to present a lethal threat. Ultimately it depends on the circumstances of each incident to determine how the law applies.

In the case cited by the opening post, the neighbor who fired the warning shot stated that he was angry at the burglar. Lethal force used in anger is hard to justify in court. Lethal force can be justified if used in fear of loss of life or limb, but not if used in anger, punishment or retribution.

If you are going to carry a gun, you should be familiar with how your local judicial system views the laws and rules of self-defense.

The class I took to get certified as eligible for a carry permit was four hours (with written exam and test at the end with fairly high minimum score required). It included a videotape explanation from the state attorney general of the elements of self defense. How the law is enforced and interpreted can change on a single court decision.

I noticed the permit application for Connecticut that my late stepfather had in his papers included only a copy of the page on self defense from the CT statutes with the requirement that you read it. When I compare reading the Tennessee statutes on self-defense to the advice I received in permit class and personal discussions with police officers and detectives, I conclude that knowing the black and white letter of the law is woefully inadequate.

 

[Kleanbore]

In most US jurisdictions, drawing a firearm and pointing it at someone else when the immediate use of deadly force is not justified has been a serious crime for a very long time. There are a few exceptions; In Minnesota and Texas, to name two, one may lawfully present a firearm if force is justified. In Texas, that is a rather recent development.

For some reason, this seems to come as a surprise to some people. Perhaps the images of the fictional screen characters played by Gene Autry, Richard Boone, William Boyd, Lorne Greene, Clayton Moore, and others pointing guns at people (even at the sheriff) without consequence has entered into the subconscious of too many people.

I think it would be a very good idea for people to ask themselves, "why am I doing this, and just what is it that I intend to do with this thing?" before reaching for a firearm. Add to that, "what are my options, and which is the best one?"

Interestingly, it appears from the news reports that Mr. Fleming has not been charged with felonious assault, but with reckless conduct. Might that be because the facts of the case could be easier to prove under that charge?

Posted by mbt2001: Further to that, what matters is the BELIEF in the mind of the grandpa / homeowner. If he believed his life threatened, then discharging the firearm was an appropriate response.

That's only half of it. What also matters is whether a reasonable person, knowing what Mr. Fleming knew at the time, would have believed the same thing.

It looks at this point that that will be tested.

Posted by Carl N. Brown: The law can be grey and fuzzy when you consider that the law as written and the policies as enforced by police and courts may be quite different. Self defense gets filtered through 800 years or so of common law, down to recent court cases, and interpreations of police and prosecutors who enforce the law.

The importance of understanding that cannot be overemphasized.

 

[mbt2001]

That's only half of it. What also matters is whether a reasonable person, knowing what Mr. Fleming knew at the time, would have believed the same thing.

I think you are disagreeing by degree. The jury will decide the fact of whether that belief was reasonable; if so the law then finds no violation. The law charges the police / DA / and ultimately the jury to determine whether a reasonable man would have believed the same thing. Each one filters it through their lens. That is one of the checks on government. So remember, YOUR OPINION does matter; it is a check on governmental power and unjust laws.

I agree with you in the macro though: warning shots are not usually a good idea for a variety of reasons.

 

[Kleanbore]

Posted by mbt2001: The jury will decide the fact of whether that belief was reasonable;...

If it goes that far, yes.

if so the law then finds no violation.

Welll, almost. They not only haveto find that he reaonably beleived that he believed his life to have been threatened, but also that what he did was immediately necessary under the circumstances, and that he did not bring the threat upon himself by his own wilfull actions.

I should think that the fact that he fired into the ground will likely weaken his case.

Fleming is a sympathetic character. I am receiving emails from attorneys who decry the actions of the state in this case. How this will play out will remains to be seen.

These appear to comprise the relevant jury instructions:

The State must prove each element beyond a reasonable doubt. Thus the State must prove that:
1. The defendant engaged in conduct that either placed or may have placed another person in danger of serious bodily injury and ;
2. The defendant acted recklessly; and
[3 The defendant used a deadly weapon; and]
[4. The deadly weapon was a firearm.]
These are the elements of the crime of reckless conduct.

I should think that the first element will be the one upon which the case will hinge, should it go that far. One could contend that Fleming what Fleming did may have placed another person (the burglar or a child down the road) in danger of serious bodily injury, because bullets fired into the ground can and do come back out of the ground.

Seems like fertile ground for expert testimony. Does anyone know whether that issue has already gone the appellate route?

 

[dayhiker]

I noticed the permit application for Connecticut that my late stepfather had in his papers included only a copy of the page on self defense from the CT statutes with the requirement that you read it. When I compare reading the Tennessee statutes on self-defense to the advice I received in permit class and personal discussions with police officers and detectives, I conclude that knowing the black and white letter of the law is woefully inadequate.

__________________

True. Because that copy does not include case law.

Were you to fire a "warning shot" in CT you are in serious trouble.

In reading our Statute.....

Sec. 53a-22. Use of physical force in making arrest or preventing escape.


is this little gem of case law...

Defendant's firing of warning shot at fleeing assailants constituted use of deadly force proscribed by statute. To permit persons to fire warning shots would frustrate purpose of statute to limit use of guns to emergency situations to protect persons from death or great bodily harm. 35 CS 570. Cited. 39 CS 392.

 

[avs11054]

Mbt,

This guys statements definitely sound as though he fired on purpose. As far as a castle doctrine, which states' castle doctrines allow you to use or threaten deadly force on someone coming out of you neighbors home? This case is another example that people need to educate themselves on laws in their jurisdictions before they act.

 

[FIVETWOSEVEN]

As Kleanbore pointed out, even if he was enacting a "citizen's arrest" and even if he could use "force" (brandishing a gun at the thief) to effect his arrest (not sure what NH's laws say about that) -- there is NO way he could have KILLED the man for theft, nor killed him to prevent him resisting arrest or attempting to flee the scene.

Brandishing with a firearm is not considered deadly force after the Ward Bird case and SB88. There was one news report posted here recently about a man with a .50 AE Desert Eagle fired a warning shot into the ground to get someone to stop running and he wasn't charged with assault. Here this Gentleman fired a warning shot into the ground with a .38 and he gets these charges brought against him. It's just ridiculous, I don't agree with warning shots in nearly all situations but even so.

 

[Kleanbore]

Posted by FIVETWOSEVEN: Brandishing with a firearm is not considered deadly force after the Ward Bird case and SB88.

True. Brandishing a firearm (by whatever legal name) is not characterized as the use of deadly force in many, if not most, jurisdictions.

Do not confuse that determination with what is necessary to lawfully justify the lawful presentation of a firearm. That is an entirely different issue.

There was one news report posted here recently about a man with a .50 AE Desert Eagle fired a warning shot into the ground to get someone to stop running and he wasn't charged with assault.

That incident is not under discussion here, but the fact that that shooter has not been charged does not make his actions either lawful or prudent.

Here this Gentleman fired a warning shot into the ground with a .38 and he gets these charges brought against him. It's just ridiculous, I don't agree with warning shots in nearly all situations but even so.

At this point, it seems that all he has been charged with is reckless conduct--putting others (namely, a crowd) in potential danger by firing a handgun.

Fleming's defense of justification is likely harmed by several things:

1. The burglar had already left his residence.
2. Fleming had gone looking for the burglar; that kind of thing usually negates a self defense plea.
3. Fleming fired a "warning shot"; that can be used to show that Fleming did not believe that the use of the weapon had been immediately necessary to prevent death or serious bodily harm.
4. Depending upon the angle of impact, the composition of the soil, bullet shape and construction, and ballistics, there is a risk that a bullet fired into the ground will re-emerge with sufficient energy to cause death or serious energy.

For details regarding the first three, see this.

Where I live, the required CCW training class addresses all of the first three issues directly.

The outdoor range at which I shoot has had issues with the fourth item. Accordingly, firearms with insufficient velocity to reliably reach the backstop are not allowed on the longer ranges; all of the shooting positions are recorded on video with time "stamps"; members must sign statements acknowledging that they are responsible for bullets that leave the range; and if a bullet does go into the ground, a member is expelled.

That may surprise some people. I've been shooting firearms since 1957, and the danger of bullets emerging from the ground is a new one for me.

And should anyone believe that any of that is just the result of overzealous lawyers, let me assure you that it is not. We have had bullets that were fired into the ground sail past the heads of tractor drivers on other properties.

That would be not very likely with a .38 Special, IMHO, but the risks posed by Fleming's actions pertained to people who were much closer.

Fleming's situation is sad, but to me it illustrates very pointedly why people who own firearms should learn about the applicable laws and something about firearms safety.

 

[Sam1911]

Fleming's defense of justification is likely harmed by several things:

The burglar had already left his residence.

Technically, had already left his neighbor's residence, for what it's worth. He wasn't even the party being burgled.

 

[Bonesinium]

NH RSA 627:4

II. A person is justified in using deadly force upon another person when he reasonably believes that such other person:
(b) Is likely to use any unlawful force against a person present while committing or attempting to commit a burglary;

II-a. A person who responds to a threat which would be considered by a reasonable person as likely to cause serious bodily injury or death to the person or to another by displaying a firearm or other means of self-defense with the intent to warn away the person making the threat shall not have committed a criminal act.

However...


III. A person is not justified in using deadly force on another to defend himself or herself or a third person from deadly force by the other if he or she knows that he or she and the third person can, with complete safety:
(a) Retreat from the encounter, except that he or she is not required to retreat if he or she is within his or her dwelling, its curtilage, or anywhere he or she has a right to be, and was not the initial aggressor


There was a proposal (or maybe there currently is) that would have specified that the act of drawing a firearm would NOT be considered deadly force. However that is not currently the case, and the fact he fired it would nullify that anyways.

By the letter of the law, it would appear he is guilty. However it seems reasonable to believe he was not a threat, did not intend to use deadly force, in fact did not do anything that harmed anybody, caught a robber, and was acting in good intention. So yes, he broke the law. Should he be charged, or convicted? Absolutely not! If he is charged, I sure hope he is found not guilty (jury nullification). He doesn't deserve to become a felon for protecting his and his neighbors property.

 

[Jim NE]

All that aside, I am afraid that the message being communicated here is that you never talk to or cooperate with the police and you never help other people. Our country cannot function if this trend continues over a long period.

I agree with the sentiment of this statement, while acknowledging that the moderators of this forum admirably see it as their duty to keep members of this online community from facing the same legal consequences as the man in the news item. I guess it's just a legal reality that we all have to face, whether we like it or not.

It makes me wonder, though. What if, instead of a gun, he had a viscious, snarling 140 pound rottweiler (or two) on a leash (or off), holding the thief at bay? That kind of dog could be a pretty lethal weapon, too. Would they have arrested him in that case, as well? Pondering hypotheticals.

 

[Sam1911]

the moderators of this forum admirably see it as their duty to keep members of this online community from facing the same legal consequences as the man in the news item. I guess it's just a legal reality that we all have to face, whether we like it or not.

Again, though, taking it to its logical conclusion, it cannot be lawful for him to SHOOT the man, so we are left asking what purpose endangering "the public" by firing that shot really served. At best, it is a bluff. At worst, it is a threat to commit murder.

I am not unhappy that we do not live in a country where it is lawful for one man to kill another because he believes that man is stealing property.

 

[FIVETWOSEVEN]

NH is hardly an anti-gun state

Considering the laws we have now and are pushing in the house with success, we are one of the best.

 

[Kleanbore]

Charges Dropped

The County Attorney has reviewed the facts and has concluded that under the circumstances, a criminal charge would be unjust.

He advises that firing a warning shot near persons or dwellings can result in criminal charges, and advises citizens to forgo direct involvement in the apprehension or detainment of suspected criminals.

http://www.unionleader.com/article/20120223/NEWS03/120229969

Fleming was lucky. His ill advised behavior could have resulted in a criminal record and possibly in his imprisonment; in the injury or death of someone else; and/or in serious injury to himself, had the burglar been armed or had an armed citizen or first responder come upon the scene at the wrong time.

I would imagine that he realizes at least some of that now.

 

[Owen Sparks]

I wonder how this would play out in a place where it is legal to shoot. For example I live in a wooded area with a very steep hilside on my property. I literally fire guns into the ground all the time. If this man were on his own property somewhere that it is legal to discharge a firearm and did so, would it really matter WHY? Especially if he never pointed it at the bad guy.

 

[Sam1911]

If this man were on his own property somewhere that it is legal to discharge a firearm and did so, would it really matter WHY? Especially if he never pointed it at the bad guy.

Then it would probably come down to whether he threatened the "bad guy," and if it was lawful for him to do so, or if he recklessly endangered the "bad guy."

Stands to reason the burden of proof would be lessened, but we should consider the Ward Bird case. He didn't even fire a shot.

http://www.thehighroad.org/showthread.php?t=556901

 

[Kleanbore]

Posted by Owen Sparks: I wonder how this would play out in a place where it is legal to shoot. For example I live in a wooded area with a very steep hilside on my property. I literally fire guns into the ground all the time.

There are laws that restrict where one may shoot--within a municipality or residential area, near a building, across a road, etc. Those are generally intended to govern recreational shooting--hunting, target shooting, plinking, testing hand loads, sighting in or function testing a firearm, etc.. They may also be used to add to charges in a criminal case such as assault, robbery, manslaughter, etc. They would not be expected to come into play when the knowing and willful use of a firearm is justified under the use of force laws.

If this man were on his own property somewhere that it is legal to discharge a firearm and did so, would it really matter WHY?

If you are referring to a shooting incident that must be justified under the use of force laws, yes indeed.

Generally speaking, if an act that would come under the use of force laws is permitted in the town square, it would be permitted in one's yard, and if such an act is prohibited on the courthouse lawn, it would be prohibited on one's own lawn. There are exceptions--castle laws, for example--and gun laws--concealed carry, open carry, etc.--are something else again.

If you are referring to plinking on one's own property in the country, no.

Especially if he never pointed it at the bad guy.

If one shoots in the presence of a "bad guy", one had better be able to articulate why doing so was justified.

If it was not, the question of why one fired the weapon will be a very big part of the equation. Was it to frighten? "Warn"? Was it due to negligence?

Where it was pointed may or may not come into play.

 

[FIVETWOSEVEN]

All charges were DROPPED by the County Attorney's Office!

http://www.wmur.com/r/30524687/detail.html